The Right’s First Amendment Push

In the next few weeks, the Supreme Court will hear arguments and reach conclusions on a series of important First Amendment cases which, at first glance, don't seem to have much to do with Constitutionally-guaranteed freedom of speech.

They include a baker who doesn't want to make a wedding cake, a state worker who wants to opt out of union dues and a faith-based crisis-pregnancy center forced to publicly acknowledge they don't have doctors on staff – and that state-subsidized abortion is accessible and cheap.

Seemingly disparate, and unrelated to flag-burning, book-banning or other common notions of challenges to free expression, the cases are nonetheless linked by a significant trend: Conservative groups using the First Amendment to force Supreme Court rulings on contentious political and cultural issues.

"We have certainly seen it in a few prominent issues," says Gillian Metzger, a Columbia University law professor and visiting scholar at Harvard School of Law. "It's part of an even broader attack on regulations and the administrative state."

It also reflects the high court's three-decade shift to the right, Paul Smith, a Georgetown University constitutional-law professor who has argued before the Supreme Court, writes in an email interview.

"If you go back three decades or more, conservative justices tended to be very reluctant to enforce the First Amendment, accusing the liberals of being activists on that constitutional provision and others," Smith writes.

Now that the political balance of power has shifted to the right, Smith says, "[the court's] conservative justices tend to be every bit as aggressive in using their authority to enforce the Constitution as the liberal justices, though very often in different contexts."

Perhaps most representative of that shift is Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the baker of high-end cakes refused to make one for a same-sex couple, citing his religious beliefs. The case comes amid a spate of "religious freedom" laws in red states like Indiana and Arkansas after the Supreme Court's 2015 decision legalizing gay marriage; the new laws permit refusal of service to gays and lesbians on faith grounds.

The baker, Jack Phillips, says forcing him to bake the cake to conform with state and federal anti-discrimination laws violates his First Amendment protection against compelled speech – in this case, using his artistic talent to express marital joy between two men – and infringes on his freedom to worship in a church that believes homosexuality is a sin.

In Janus v. AFSCME, an Illinois state employee wants the high court to strike down a law allowing the Association of State, County and Municipal Employees union to deduct a monthly fee from from his paycheck. State law permits the deduction, which basically funds the union's contract negotiations for better salaries and conditions for all government workers – including non-members like Janus.

But what the union sees as a small price – $45 or so – for collective-bargaining clout, Janus sees as political speech: The union negotiates on his behalf with state government, which is made up of elected officials. And he doesn't like the AFSCME speaking for him.

It's the third time in recent years the Supreme Court has been asked to decide the issue: last time, in Harris v. Quinn, the court deadlocked in a 4-4 ruling issued in 2016. The decision, however, came just after the sudden death of Justice Antonin Scalia, who likely would have voted to end mandatory union dues.

The free-speech argument is more straightforward in National Institute of Family and Life Advocates v. Becerra, a case challenging a California law requiring the state's "crisis pregnancy centers" – clinics that urge pregnant women to forgo abortions – to notify patients whether they actually have a medical license and a trained medical professional on staff. But they also have to post signs stipulating that California subsidizes birth control and abortion services.

Supporters call it the flip side of a string of Republican-backed "informed consent" laws in 35 states, from Alabama to Idaho, that require abortion providers to give women ultrasound examinations as well as offer pamphlets that describe fetal pain and list alternatives to abortion. But faith-based anti-abortion groups, however, say the California disclosure law violates the First Amendment by forcing them to deliver a message at odds with their goal of preventing an abortion.

The trio of cases are uncommon interpretations of one of the Constitution's best-known and most-revered protection. But they aren't unusual: In recent years, the court has grappled with First Amendment cases comparing speech to credit-card fees (Expressions Hair Design v. Schneiderman) to whether the government can stop members of an all-Asian rock band from trademarking a racially offensive name (Maytal v. Tam).

Perhaps most notably, the trend includes the justices' groundbreaking 2010 ruling in Citizens United v. FEC, in which the high court equated big-dollar campaign contributions with speech – a groundbreaking decision that flooded the political arena with corporate cash, handing Republicans a significant advantage over Democrats.

Nevertheless, "on the other hand, there are [some] cases in which it is the liberal wing of the Court that embraces the First Amendment over the opposition of the conservative wing," Smith says. "That seems like a likely divide on the pending gerrymandering cases" in which Democrats are challenging Republicans for rigging political districts to permanently shut them out of power and restrict the political speech of their liberal constituencies.

The difference in the current round, experts say, is conservatives' active use of a cornerstone constitutional protection as a cudgel. And it's happening as the conservative bloc, left short-handed for nearly a year after the death of Justice Antonin Scalia, is back at full strength with the confirmation of Justice Neil Gorsuch, a staunch conservative.

"What's increasingly becoming clear," says Metzger, "are the stakes."

Besides offering the court a series of high-profile opportunities to further sharpen the concept of speech and expression, the cases could persuade the conservative-majority court to trim anti-discrimination protections for gays and lesbians just a few years after same-sex marriage was legalized. It could also overturn a four-decade-old precedent to further cripple Big Labor's political clout and radically shift the national debate over abortion, putting conservatives on the defensive over informed-consent laws.

"We have come to accept that the First Amendment protects the right to speak," says Brad Smith, chairman and founder of the Institute for Free Speech, a right-leaning public policy center. "I'm not sure most people would instinctively think it includes the right not to speak."

The ongoing "free-speech docket" meanwhile, puts enormous influence in the hands of a man some consider the most powerful individual in Washington: Justice Anthony Kennedy, a moderate conservative who sometimes votes with liberals.

The 80-year-old jurist, one of the court's longest-serving members, "is the person to look at," says Metzger. Although he was the deciding vote in a 2015 decision legalizing gay marriage, she adds, Kennedy "has been a very strong First Amendment advocate" – conflicting views that will be put to the test in the Masterpiece Cakeshop case.

Adding to the drama: in his 2006 majority opinion upholding the Bush-era ban on partial-birth abortions, Kennedy indirectly touched on informed-consent laws.

"It is self-evident that a mother who comes to regret her choice to abort must struggle with grief [anguish] and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form." he wrote.

Kennedy also will be a key factor in the Janus case, but Paul Smith says it's impossible to predict how he'll rule.

At a Georgetown conference about the upcoming court term last week, Smith told an audience of law students and journalists about arguing a similar union-dues-vs.-free-speech case before the high court three years ago. He told the justices that fair-share fees don't equal union membership – "it's only money, and nobody thinks it means that they believe in the union" – when Kennedy threw him a curveball.

"I get to the end of the argument, and Justice Kennedy says, 'You mean to tell me people give up their first amendment rights when they go to work for the government?'" Smith said.

Caroline Fredrickson, president of the liberal American Constitution Society, says the trend of using the First Amendment to push issues to the right "underscores the hypocrisy on the right" about free speech. "They're using it as a sword rather than a shield" to execute a cynical agenda, she says.

In all three cases, Republicans are aiming to undermine speech and constitutional protections rather than embrace them, Fredrickson says. If the court sides with them, she says the results could be more anti-discrimination laws for gays and lesbians, less information about access to abortion for women, and fewer workplace protections for state and government employees.

Where Justice Kennedy lands on the issues "remains to be seen," Fredrickson says. "I think that on [Citizens United] it's been disappointing. But I think in other cases where this issue of allowing extensive discrimination based on religion, we'll see."