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Free Speech Rules: Could a Pro-First Amendment Court Be a Win for Conservatives?

December 13, 2017
by Krissy Eliot

This —2017—has been the year of liberal vs. conservative free speech arguments—from qualms over t-shirt logos at polling places to violent protests of alt-right speakers. Coincidentally (or maybe not so coincidentally) the Supreme Court has decided to take on four free speech cases this year, all brought by conservative plaintiffs. This decision, according to UC Berkeley lecturer and constitutional law expert William Turner, author of Free Speech: Supreme Court Opinions from the Beginning to the Roberts Court, could provide a huge leg up for politically conservative causes.

“If the Court rules in favor of the parties seeking First Amendment protection,” Turner writes in a recent blog post, “it will empower the Christian right, abortion opponents, and Tea Party activists, and will disempower public employee unions—several coups for conservatives.”

And because the majority of justices on the current Court have been sympathetic to free speech, says Turner, it’s possible they could end up ruling in favor of the right, potentially impinging on basic human rights.

“When most of our First Amendment principles were formed in the last century, they favored minorities, dissenters, and eccentrics,” Turner wrote in his blog. “Now the principles are being aggressively pressed into service by well-financed conservative interests.”

“Maybe it’s just an accident that all of these cases serve the conservative agenda,” Turner said in an interview. “Maybe it’s not an accident.”

Speculation on case selection aside, Turner gives us his take on the four free speech cases that everyone is talking about, explaining how he thinks the Court will rule, and how he thinks it should rule.

Masterpiece Cakeshop v. Colorado Civil Rights Commission

Last week, the Supreme Court stood divided on a pressing free speech case that pitted religious freedom against gay rights. Jack Phillips, the owner of a Colorado bakeshop, refused to sell two gay men a wedding cake—claiming that it would be a free speech violation to force him to convey a message that his religion doesn’t support.

During the 90 minute back and forth, the justices appeared split 4-4, with half the justices questioning whether it’s fair to require artists to portray ideas that they strongly oppose, while others wondered if this would mean that other professionals (hair stylists, chefs, etc.) could then claim this artistic excuse and refuse LGBTQ customers. At present, Justice Kennedy seems to be the swing vote.

“It sounds as though [the Justices] are breaking along conservative and liberal political lines. It’s viewed as a culture war case, a case where the people who think that gay marriage is morally wrong are aligned on one side and the people who think that you have to comply with the anti-discrimination laws are aligned on the other,” says Turner. “Kennedy seemed to take both sides at different points in the argument. He may try to find a way to avoid a major First Amendment decision by ruling on some narrow procedural issue.”

The Court should rule for Colorado, says Turner, because the baker hasn’t proven himself different from other sellers who make made-to-order products.

“I think the desirable outcome, the correct outcome, would be the free speech issue loses there—that baking a cake for somebody is a commercial transaction, it’s not free speech, and the cake shop has to obey the law just like anyone else that’s in the business of serving the public,” says Turner. “They can’t discriminate on the grounds of race, religion, sexual orientation and so on.”

This idea seemed to be echoed by Justice Sonia Sotomayor, who said: “When have we ever given protection to a food? The primary purpose of a food of any kind is to be eaten.”

National Institute of Family and Life Advocates v. Becerra

California’s Reproductive FACT Act requires state pregnancy centers to inform patients about free and low-cost contraceptive and abortion services. And pro-life abortion centers are not having it. Their argument is that the law violates their free speech rights by requiring them to advertise a procedure they take moral issue with.

“You know, it’s not a very Draconian remedy that the state of California is trying to impose on these centers. All it’s got to do is post on a bulletin board about where you can get information about abortion and contraception and neonatal services. That’s no big deal. It’s truthful information—and why shouldn’t they post it?” Turner says. “But I think the Court will say they don’t have to.”

Why? Because it’s about the controversial issue of contraception.

“[The Court] is not going to ignore that this is about abortion,” Turner says, “so those justices who think that Roe v. Wade, [the case that made abortions legal], was a terrible mistake are going to be sympathetic to the First Amendment argument that’s made in that case.”

However, Turner says, if the Court finds that the centers have actually been misleading women through false advertising, then corrective advertising could be the remedy of choice. “Just like with tobacco companies who are required to speak even though they would rather not say that cigarettes cause cancer,” Turner says, it would be “inappropriate” to omit important information regarding women’s health.

Janus v. American Federation of State, County, and Municipal Employees

Public unions bargain on behalf of all the employees, not just their members. Because of that, public employees who are not union members have long been required to pay a share of the expenses of collective bargaining that the union does on their behalf. But soon, it seems, that could all be over.

The Supreme Court has agreed to hear a case against the required payment of fees—and in this Court, says Turner, when it comes to free speech—money technically talks. So when you’re required to pay money that supports speech you don’t agree with, that raises the issue of First Amendment rights.

“These folks who haven’t joined the union say, ‘Hey, we can’t be required to pay our money to a union that takes political positions that we disagree with. We can’t be coerced by the government to support political positions that we disagree with,” Turner says. “They contend that since it’s a public union, everything that the union does is political—whether it’s time off or benefits or what-have-you.”

Currently, about 20 states allow agency fees, according to the WP, and at least twice, conservatives have tried to get the Supreme Court to turn over the decades-old precedent. Two years ago, the Court was set to decide that issue, says Turner, and then Justice Scalia died and the Court became split 4-4. “Now they’ve got a replacement for Scalia who thinks exactly the way Scalia did,” he says. “And they’re going to come out 5-4 against the union.”

Turner isn’t in favor of this ruling because it would hinder the union’s ability to rely on funds that have long been necessary to advance interests of government workers.

“The effect would be to very seriously injure public employee unions, because they need this money in order to do their job,” Turner says. “If conservatives had their way, there wouldn’t be public employee unions at all. Here’s a way to weaken them and, maybe, put them out of business.”

Minnesota Voters Alliance, et al., v. Mansky

In 2010 in Minneapolis, a Tea Party member was kept from voting because he was wearing a button that said “Please ID Me” and a shirt with a Tea Party logo. Apparently, Minnesota has a law prohibiting clothing or accessories that seek to influence voters, even if specific candidates or parties aren’t identified by name. The Tea Party activists affected by the law took the issue to court, claiming their clothing was “political speech” and any law that creates a “speech-free zone” is unconstitutional—something that Turner agrees with.

Minnesota’s law prohibiting any vaguely political display in a polling place is too broad and hard to justify, Turner says, and he believes that a political t-shirt “is not going to intimidate any voters.”

“If [a shirt] just has the Tea Party slogan on it, I don’t see why the state has a very strong interest in prohibiting that,” Turner says, also saying that a button with the words “ID me” on it isn’t something that can be rightfully suppressed. “I think the Tea Party will probably win, and probably should.”

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