If the U.S. Supreme Court wanted to enlist the First Amendment to advance politically conservative causes, it’s certainly giving itself the opportunity this year.
The court has complete, unreviewable discretion to choose the cases it will decide. It’s not random selection. Each term, the court agrees to decide only 70-75 cases, selected from about 8,000 petitions seeking its review. (So statistically, your chances of “taking it all the way to the Supreme Court” are less than one in a hundred.)
This year the court has agreed to hear four free speech cases. If the court rules in favor of the parties seeking First Amendment protection, it will empower the Christian right, abortion opponents and Tea Party activists, and will disempower public employee unions – several coups for conservatives.
On Monday, the court agreed to hear a case brought by abortion opponents who operate “crisis pregnancy centers” claiming they can’t be compelled to post information about abortion (National Institute of Family and Life Advocates v. Becerra). The same day it also granted review in Minnesota Voters Alliance v. Mansky in which Tea Party activists contend they should be able to wear T-shirts with “Don’t Tread on Me” slogans to polling places on election day.
The court has already heard oral argument in the public employee union case, Janus v. Amer. Fed. of State, County, and Municipal Employees. Argument in the high-profile Christian baker case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, is scheduled for December 5.
In each of the four cases, singled out from the thousands of others rejected by the court, a ruling in favor of free speech will be congenial to political conservatives.
Public employee unions
In the Janus public employee union case, in which dissident non-union workers claim they can’t be compelled to pay their fair share of the cost of collective bargaining because the union takes political positions they disagree with, a ruling in favor of the dissidents will weaken the union by depriving it of funds that, up to now, it has been able to count on to advance the interests of all government workers. The dissidents ask the Court to overrule a 20-year-old precedent allowing unions to charge non-members for performing non-political bargaining services. The decision will affect public employee unions throughout the nation.
Pregnancy crisis centers
Similarly, in the pregnancy centers case, the centers claim they can’t be compelled to “speak” by providing any information about the availability of abortion. A California law requires the centers to post notices that free or low-cost abortion, contraception and prenatal care are available through public programs. The state legislature found that the centers used deceptive advertising that misinformed women and kept them from making fully informed decisions about their health care.
In the Cakeshop case, a baker who opposes same-sex marriage says his cakes express his creativity and should be treated as “speech.” Supported by the Christian right (no fewer than 50 amicus curiae briefs have been filed in his favor), he claims that he has a First Amendment right not to be compelled to create a wedding cake for a gay couple. If he is right, all kinds of businesses selling made-to-order goods and services can claim exemption from public accommodation laws that prohibit discrimination against customers because of their race, religion, gender, sexual orientation, etc.
Tea Party apparel
In the Minnesota Tea Party case, the activists contend their T-shirt, with its slogan, a Tea Party logo and a “Please ID Me” button (supporting voter identification laws), are “political speech.” They say a state law creating what they call a “speech-free zone” in polling places is unconstitutional on its face.
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Perhaps it’s just a statistical anomaly that the court has elected to hear these four cases this year, and that a “free speech” ruling in them will serve a conservative agenda. But it’s entirely consistent with the Roberts Court’s recent embrace of newly minted speech claims by businesses and its rejection of campaign finance regulations as in Citizens United. When most of our First Amendment principles were formed in the last century, they favored minorities, dissenters and eccentrics. Now the principles are being aggressively pressed into service by well-financed conservative interests.