By:  Robert Bryson

Shortly after the Citizens United and Janus decisions, detractors began heaping criticism upon the Supreme Court for “weaponizing” the First Amendment. Indeed, Justice Kagan makes that very argument in her dissent:

“It [the majority] does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy….Today is not the first time the Court has used the First Amendment in such an aggressive way.  And it threatens not to be the last.  Speech is everywhere – a part of every human activity (employment, health care, securities trading, you name it).  For that reason, almost all economic and regulatory policy affects or touches speech.  So, the majority’s road runs long.  And at every stop are black-robed rulers overriding” the policy choices made by citizens’ representatives.[1]

What do these critics mean by “weaponizing?” After all, the First Amendment is designed to protect the people from government interference of free speech, association, and the practice of religion, and the freedom of the press – how could it be “weaponized?” Wouldn’t an expansion of the First Amendment be good for everyone?

The First Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”[2]

The language of the First Amendment is innocuous enough; it very clearly protects “the people” from laws passed by Congress (and the States via application of the Fourteenth Amendment) that interfere with the establishment of a religion, prohibiting the exercise of free speech and assembly, and laws that infringe on the freedom of the press. One amendment protects four critical rights, it is critically important.

The Changing First Amendment

However, when you apply a 200-year old amendment to modern, complex issues and utilize clever lawyering, something as simple as “speech” can become very complicated. The path that led us to Citizens United, Janus, et. al., was forged by liberal rights groups in the 1970s. Specifically, Public Citizen, a liberal rights group founded by Ralph Nader.[3] In 1976, Public Citizen attorneys argued before the U.S. Supreme Court that a Virginia law prohibiting pharmacists from advertising prescription drug prices was unconstitutional and won.[4][5] Virginia State Board of Pharmacy was one of the first cases in which the Supreme Court recognized expanded First Amendment protections for non-political speech, i.e. commercial speech. Prior to this case, commercial speech could be freely regulated by the States and federal government.

Unfortunately, the honeymoon for liberal rights advocates ended soon after. According to Kathleen M. Sullivan, former dean of the Stanford Law School, consumer groups may have argued Virginia State Board of Pharmacy, but it was corporations that ultimately benefited. A string of cases struck down state laws regulating tobacco advertising, alcohol content descriptors on beer can labels, regulations on how compound drugs may be advertised, advertisements near schools, and controls on professional commercial speech (such as attorney advertising).[6] Under the Warren Court, the First Amendment was used to expand the rights of the disenfranchised and marginalized. However, as the progressive Court has been replaced by a conservative one, the First Amendment has primarily been used to protect the rights of corporations, the wealthy, and the powerful.[7]

The changes continued under Citizens United, which struck down federal election laws limiting corporate spending on political races, equating free speech with the expenditure of money. Speech was no longer limited to written or spoken words and artistic expression, it was now the act of spending money. Based on that logic, every financial decision an individual makes could be an expression of Free Speech.

Finally, the Janus decision stood for the proposition that compelling membership fees is a violation of the First Amendment, overturning 40-year old precedent. Public unions are closed shop, meaning that the union represents everyone in the covered bargaining unit – regardless if they want to join the union. In the 1970’s this structure was challenged as a violation of the First Amendment, meaning that members were compelled to be members of an organization that engages in political activity. Under Abboud, the Supreme Court split union membership into two types: (1) members who pay dues (2) members who pay administrative fees. Members who pay dues pay the full due amount and those dues go toward administrative costs and political spending, like lobbying. Members who did not want to pay dues, were nevertheless compelled to pay administrative fees. Under Abboud, unions could not use administrative fees on political spending. The Court reasoned that this structure respects the First Amendment, by splitting away political spending, while addressing the real-world problem of members who will “free ride” the union for benefits. Janus challenged this holding.

In Janus, the Court overturned Abboud, finding that the mere act of negotiating contracts and representing employees against the company was compelled speech, if a member disagreed with the union’s positions. The agency fee forced the petitioner to pay for bargaining positions which affected the Illinois’ budget, and therefore fiscal policy, which is a form of political speech.[8]

Unfortunately, the Court’s reasoning could be applied to any organization in which collective action is taken with less than 100 percent approval of all participants. For example, it could be used to unravel HOAs, taxes (governments spend money on programs constituents don’t support all the time), pensions (by investing in companies the contributors may not like), and even corporations (by engaging in political spending that is contrary to shareholder views).

Indeed, these latest Supreme Court cases could be used to unravel just about any law that involves the expenditure of money.

[1] Janus v. American Federation of State, County, and Municipal Employees, Council 3, 585 U.S.                (2018) at p. 26.

[2] U.S. Constitution, First Amendment

[3] https://en.wikipedia.org/wiki/Public_Citizen

[4] Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976)

[5] https://digitalcommons.lmu.edu/cgi/viewcontent.cgi?referer=https://en.wikipedia.org/&httpsredir=1&article=2605&context=llr

[6] https://harvardlawreview.org/2010/11/two-concepts-of-freedom-of-speech/

[7] https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=3056&context=facpub

[8] Janus v. American Federation of State, County, and Municipal Employees, Council 31, No. 16-1466, 585 U.S. ___ (2018)