SCOTUS Newsflash 6/26-7/9

Happy Monday! I hope everyone had an enjoyable and safe Independence Day. Time to keep that American pride going by catching up on the latest First Amendment news in the Supreme Court!

Supreme Court News

California Anti-Abortion Centers

In a 5-4 decision, the Supreme Court overturned an earlier decision by the Ninth Circuit upholding California law required anti-abortion crisis pregnancy centers to more fully disclose what they are.  The law, known as the Reproductive FACT Act (Freedom, Accountability, Comprehensive Care, and Transparency), was passed in 2015. The law was a response to two main concerns about the pregnancy centers, (1) pregnancy centers opposed to abortion were using deceptive practices and (2) that lower-income women weren’t being made aware of free pregnancy related services the state of California provides.

Justice Clarence Thomas wrote for the majority. He stated that the law, “targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech.” Supporters of the California law stated that the law seeks to ensure there is “truth in advertising.”

The FACT Act required unlicensed crisis pregnancy centers to inform potential clients by means of a posted sign or other written disclosure that the center is not a licensed medical facility and has no licensed medical provider who supervises the provision of services. The disclosure requirement extended to advertising, which anti-abortion pregnancy centers objected to as an attempt to “drown out” their message.

Justice Kennedy in his opinion said that the law in certain circumstances would seem to impose an undue burden. To make his point he cited a hypothetical example of a billboard in Los Angeles with the words “Choose Life” paid for by an anti-abortion clinic. Kennedy asked the lawyer for the state if under the FACT Act the ad would have to include words about the clinic being unlicensed in large font and multiple languages. The lawyer replied that it would. This potentially decided the case for Kennedy – the statute places an undue burden on the speech of these pregnancy centers and is thus unconstitutional.

Janus v. AFSCME

The Court’s decision in Janus overrules the 1977 decision in Abood v. Detroit Board of Education. In Abood, a public-school educator objected to being required to become a member and pay fees to a teacher’s union. He claimed that being forced to give money to a group whose political ideas he disagreed with was a form of compelled speech and a violation of his first amendment rights. In a unanimous ruling in 1977, the Court rejected that argument. The Court ruled that the fees paid to the union could not be used to pay for lobbying or political activity, but unions could still force nonmembers to pay them in exchange for collective bargaining and other activities not relating to politics.

Justice Alito, who has a vocalized his disagreement with the decision in Abood on numerous occasions, wrote the majority opinion for the case that overturns it. Alito makes his first amendment argument by citing to Founding Father Thomas Jefferson. “Compelling a person to subsidize the speech of other private speakers raises similar First Amendment con­cerns. As Jefferson famously put it, ‘to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.’”

Justice Kagan delivered a fiery dissent attacking the decision of the Court and defending Abood as a long-held precedent. “Abood is not just any precedent: It is embedded in the law (not to mention, as I’ll later address, in the world) in a way not many decisions are. Over four decades, this Court has cited Abood favorably many times, and has affirmed and applied its central distinction between the costs of collective bargaining (which the government can charge to all employees) and those of political activities (which it cannot). Reviewing those decisions not a decade ago, this Court—unanimously—called the Abood rule ‘a general First Amendment principle.’”

The 5-4 decision caused much animosity in the courtroom. Kagan’s dissent argues that the majority overthrew a decision deeply enrooted in the Nation’s law and economic life by, “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”Kagan ends her dissent reiterating the danger of using the First Amendment to overturn a law frequently cited to by numerous courts for the past four decades.“And maybe most alarming, the majority has chosen the winners by turning the First Amendment into a sword and using it against workaday economic and regulatory policy. 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 citizens’ choices. The First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance—including over the role of public-sector unions.”




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