The United States is a land of free speech.
Nowhere is speech freer.
I’ve never doubted that freedom of speech and of the press are the cornerstones of American democracy. The right of free speech is not absolute, but if the government wants to limit or restrict speech, it must meet a standard called “strict scrutiny.” That is a very demanding test, calling on the government to prove that it has an “overriding interest” that cannot be satisfied in some less restrictive way.
This year’s Supreme Court agenda features a phenomenon where parties are relying on the First Amendment to promote interests other than “free speech” as we normally understand those words. This has not come up so much where the government is restricting speech, but rather where someone claims that the right “not to speak” has been infringed.
One example is the case of the wedding-cake baker who refused to make a cake for a same-sex wedding celebration on the basis that his cakes are a form of expression, and he opposes gay marriage on religious grounds. Another is the case of a California pro-life health clinic that refused to post a notice under state law informing women of the availability of abortion services. In both cases, the underlying objection is based on religious beliefs, but the constitutional theory is that such “compelled speech” violates the right “not to speak.”
The latest example is Janus v. American Federation of State, County and Municipal Employees, which the Supreme Court heard late last month. The claim brought by Mark Janus does not rest on religious beliefs but rather on his opposition to the activities of the public employees’ union. He seems not to believe that higher wages or better benefits are a good idea. He claims that requiring non-members such as himself to pay a so-called “fair share” or “agency” fee to the union is a type of forced speech, because the union uses the money to speak on behalf of employees.
Illinois, like New Hampshire and more than twenty other states – plus the District of Columbia and Puerto Rico – requires employees like Mr. Janus to pay a portion of their wages to the union in lieu of dues. Since the union is required to negotiate on behalf of all employees, not just its members, without such fees non-members would become “free riders.” Mr. Janus’s lawyer argues that requiring him to pay makes him a “forced” rider.
The Roman God named Janus had two heads, one facing back, the other looking ahead. If this modern-day Janus looks back, he will see a 1977 Supreme Court case called Abood v. Detroit Board of Education. That decision acknowledged that compelling workers to support collective bargaining may have an impact on their First Amendment rights, but other important values override that relatively minor inconvenience. The Court upheld the use of compelled payments – but only for collective bargaining activities, not for “ideological” activities such as lobbying.
That distinction is problematic at best. It reminds me of the argument that using tax moneys for parochial schools should be allowed so long as the schools do not spend the money for “religious” purposes. In both instances, the analytical weakness is that using moneys for a permitted purpose frees up funds for the forbidden purpose.
If the other Janus head looks forward, rather than back, it will take no act of clairvoyance to see a major upheaval in the realm of public employment, affecting millions of state workers. No one should be placing bets on the survival of the Abood decision. Justice Alito has made no secret of his disagreement with that decision, and in all likelihood, Justice Gorsuch, along with Chief Justice Roberts and Justices Kennedy and Thomas, will agree with him.
All of this comes back to the concept, first announced in the 1976 case of Buckley v. Valeo, and most prominently seen in the Citizens United case, that money equals speech. That doctrine is now firmly implanted in American law.
Like most constitutional cases that reach the Supreme Court, the issue in the Janus case is complicated. But the major sticking point for the State of Illinois is meeting the demanding strict scrutiny doctrine.
Which isn’t to say that it couldn’t be done. Any impact on Janus’s free speech rights is arguably modest compared to the public interest in protecting the workplace rights of public employees, the majority of whom are women and minorities – not to mention labor peace. Besides, Mr. Janus isn’t being required to express solidarity with the union. He remains free to speak out as he wishes.
This case involves two interests, that of the State of Illinois as employer and that of Mark Janus as speaker. So long as the right not to speak remains subject to full First Amendment protection, and any governmental limitation is strictly scrutinized, this Supreme Court will likely rule that Mr. Janus wins.