//  7/12/18  //  In-Depth Analysis

This post is the fourth in a series on the uses and abuses of the First Amendment as a deregulatory tool – that is, the First Amendment’s potential to undermine regulatory schemes that protect workers, consumers, voters, investors, and more. The format is borrowed from Slate’s Supreme Court Breakfast Table. The participants are Nikolas Bowie, Caroline Mala Corbin, Catherine Fisk, and Charlotte Garden.

By Catherine Fisk, Professor of Law at Berkeley Law

Dear Caroline, Charlotte, and Niko,

I’ve enjoyed reading your comments. Being in conversation with you is the only silver lining I can see in this Term’s First Amendment cases.

What troubles me most is that the newly-weaponized First Amendment finds complicity and compulsion in laws regulating economic conduct and professional speech that previously were outside the boundaries of heightened First Amendment protection. In their haste to strike down laws that the conservative majority find distasteful without articulating principles to distinguish the permissible from impermissible, they have led the Court into a thicket of policymaking that will tarnish the Court’s credibility and ultimately will weaken the First Amendment as a source of protection against authoritarianism.  I’ll first share some thoughts about the problems with the Court’s expansion of compelled speech and then consider its troubling approach to complicity.


I want to pick up on Caroline and Charlotte’s points about NIFLA’s approach to regulating speech of providers of services and goods. Caroline has demonstrated the Court’s own viewpoint discrimination in how it handles speech related to abortion – warnings attempting to dissuade women from having abortions can be required under Casey but warnings alerting women to the availability of abortions can be prohibited under NIFLA. If a legislature were to adopt the rule the Court has created, under the Court’s own precedents condemning viewpoint discrimination in law, the rule would be unconstitutional. And, as Charlotte notes, that viewpoint discrimination applies to how the Court in Hudson has compelled unions to notify workers they represent of their right to free-ride on the fees paid by their co-workers. It’s worse than ironic that the Court engages in viewpoint discrimination while invalidating laws on the grounds of viewpoint discrimination.

Moreover, the tension between Janus and NIFLA is appalling. Compelling a private organization to give a message to its members that is antithetical to the organization’s own deeply held values is precisely what Justice Thomas found objectionable in NIFLAAnd, yet, Janus just dramatically expanded public sector unions’ obligation to undermine their own mission by doing exactly that. If it is unconstitutional to require a pregnancy service provider “to inform women how they can obtain state-subsidized abortions—at the same time petitioners try to dissuade women from choosing that option” it should be equally unconstitutional to require unions to notify their members of their right to quit the union “at the same time [unions] try to dissuade [workers] from choosing that option.” 

More generally, as Niko observes, the Court has suddenly cast into constitutional doubt an enormous array of regulations of lawyers and a host of other service providers. Laws require sellers of goods and services routinely to warn prospective consumers about their goods and services because the government, sometimes controversially, deems certain uses of a product or service to be objectionable. Purveyors of alcoholic beverages are required to warn pregnant women of the dangers of drinking because the government condemns drinking while pregnant, even though some research suggests that modest consumption is not hazardous. Even airlines have to put those warnings on planes or jet bridges. Most of the law regulating lawyers operates as restrictions and compulsions on speech. When the majority in NIFLA explained that the most professional speech is protected by the First Amendment, and the Court’s decision upholding certain restrictions on lawyer solicitation and advertising in Zauderer does not apply because “[t]he notice in no way relates to the services that licensed clinics provide,” he was ignoring most of the law of professional responsibility.

The law regulating lawyers and many other professionals does exactly what NIFLA says is unconstitutional. The Model Rules of Professional Conduct require lawyers to counsel clients about the wisdom of hiring another lawyer to give a second opinion on a business transaction between lawyer and client and on a retainer agreement that limits malpractice liability, and it requires elaborate disclosures about contingency fees. Organizations receiving funding from the Legal Services Corporation must warn prospective clients that the lawyers will have to terminate the representation if the client loses her lawful immigration status or starts to reside with someone who has ever been convicted of certain crimes, even if the representation is not funded by the LSC. These are not informed consent laws, they are disclosure laws. Some lawyers feel these warnings are irrelevant or inimical to their effective representation, just as NIFLA objects to the disclosure laws, but that has never made them unconstitutional. Justice Thomas’ notion that abortion is different because it is controversial (unlike, presumably, restrictions on lawyer speech) ignores the controversy surrounding many rules prohibiting or compelling lawyer speech. In some states, lawyers cannot report a client’s likely harmful conduct toward a third party, in some states lawyers may report, but most states psychotherapists must report. These are highly controversial rules and the do not fit within the categories of informed consent and professional conduct that the NIFLA majority suggests are the only exceptions to First Amendment protection for professional speech.

The justices have snuck two especially disturbing statements about general free speech rules into these cases. First, in Janus, the Court has a baffling sentence about the degree of constitutional scrutiny for compelled speech in the commercial area. The Court said that Knox, a prior fair share fee case, held that “exacting scrutiny” should be applied to such restrictions, even if they are commercial speech and not subject to strict scrutiny. The Janus majority continued:

Even though commercial speech has been thought to enjoy a lesser degree of protection, see, e.g., Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U.S. 557, 562–563, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), prior precedent in that area, specifically United Foods, supra, had applied what we characterized as “exacting” scrutiny, Knox, 567 U.S., at 310, a less demanding test than the “strict” scrutiny that might be thought to apply outside the commercial sphere. Under “exacting” scrutiny, we noted, a compelled subsidy must “serve a compelling state interest that cannot be achieved through means significantly less restrictive of associational freedoms.” Ibid. (internal quotation marks and alterations omitted).

That passage makes no sense. Central Hudson applies intermediate scrutiny to commercial speech. But the “exacting scrutiny” standard that the Court articulates here is identical to strict scrutiny. The majority in Janus then continued:

In Harris, the second of these cases, we again found that an agency-fee requirement failed “exacting scrutiny.” 573 U.S., at –––– (slip op., at 33). But we questioned whether that test provides sufficient protection for free speech rights, since “it is apparent that the speech compelled” in agency-fee cases “is not commercial speech.” Id., at –––– (slip op., at 30).

Picking up that cue, petitioner in the present case contends that the Illinois law at issue should be subjected to “strict scrutiny.” Brief for Petitioner 36. The dissent, on the other hand, proposes that we apply what amounts to rational-basis review, that is, that we ask only whether a government employer could reasonably believe that the exaction of agency fees serves its interests. See post, at 4 (KAGAN, J., dissenting) (“A government entity could reasonably conclude that such a clause was needed”). This form of minimal scrutiny is foreign to our free-speech jurisprudence, and we reject it here. At the same time, we again find it unnecessary to decide the issue of strict scrutiny because the Illinois scheme cannot survive under even the more permissive standard applied in Knox and Harris.

The “more permissive standard” appears to be the same as strict scrutiny, and it is indeed fatal in the union dues cases. Is that something that the Court will pick up on next year or thereafter to say that it has already decided that regulation of commercial speech is no longer subject to intermediate scrutiny?

The second disturbing aspect of the holdings in these cases is the statement in NIFLA that the disclosure requirements are content regulation subject to strict scrutiny and invalid if they are under- or over-inclusive or if the interests they serve are not compelling or not real or if compliance with the disclosure rule is “unduly burdensome” or if the government could convey the required information itself. All disclosure rules are, by definition, content regulation. All disclosure rules are under- or over-inclusive because some people will not need or want the disclosure or will require more disclosure. And the government can always convey the message itself rather than require the private entity to convey it. As Charlotte notes, aspects of NIFLA suggest it is limited to compelled disclosure on “controversial” topics. Elsewhere the Court refers to the unconstitutionality of regulation of a lawyer’s “noncommercial speech” citing cases involving the NAACP’s and ACLU’s solicitation of prospective plaintiffs. NIFLA raises more questions than it answers about the future of disclosure rules.

Moving from general First Amendment concerns to ones specific to the area of compelled speech, as all three of you have pointed out, compelled subsidies of others’ speech are ubiquitous. Drivers and employees are compelled to purchase liability and health insurance, and insurers use some part of that money for speech. Employees covered by pension plans subsidize speech of the financial services companies that collect pension contributions. The Janus majority suggested that union fair share fees become unconstitutional because, in the aggregate, the effects of public sector bargaining are substantial for public policy. But of course the effect of insurance and financial services industry lobbying (using the insureds’ compulsory payments) is equally substantial and equally controversial.

The conservative majority’s answer to all of these examples is that the government has a compelling or substantial interest in some restrictions but not in the ones it struck down. Justice Alito said exactly this in Harris v. Quinn in explaining why requiring lawyers to pay bar dues and public university students to pay activity fees a serves an overriding government interest and fair share fees do not. But it is not enough simply to posit that states need the bar to charge dues to fund bar admission and discipline more than they need to maintain public employee personnel systems. That is like saying chocolate ice cream is better than vanilla. It’s self-evident only to those who share the justices’ values. And even if it were true, can it really be said that the Federal Aviation Administration has a substantial interest in requiring airlines to tell passengers how to fasten a seatbelt? Is there anyone on a plane who has never seen or used one? And how many people who can afford to buy a plane ticket are unaware of questions about alcohol consumption during pregnancy?


What underlies the Court’s hostility to speech in NIFLA and Janus is the notion that the anti-abortion “crisis pregnancy centers” and Mark Janus were philosophically opposed to giving the notice or paying fees and that the speech made them complicit in conduct they abhor. So perhaps these shouldn’t be read as broad statements on compelled speech but, rather, on cases about complicity. Even if the opinions are thus narrowed, I am troubled by the Court’s approach to complicity in NIFLA, Janus, and Masterpiece Cake Shop.

Justice Kennedy said in his concurring opinion in NIFLA: Governments must not be allowed to force persons to express a message contrary to their deepest convictions.” He found the claim of complicity so weighty in Masterpiece that a baker who refused to bake a cake for the wedding reception of a gay couple was entitled to have his claim judged by a state agency that hadn’t had a member say that atrocities have been committed in the name of religion. (How this statement reveals hostility to religion beggars belief: do the justices not recall the Crusades, the Reformation, the Inquisition, and the Pilgrims? To say that atrocities have been committed in the name of religion is not necessarily hostile. It’s fact. And the Colorado commissioner did not say that discrimination against gay couples was comparable to those.)

The majority’s approach to free speech and free exercise claims that are founded on complicity, as Caroline and Niko point out, picks up the idea that the Court rejected in Employment Division v. Smith but revived in Hobby Lobby, when it found a statutory right to freedom of religion violated by requiring employers to provide contraceptive coverage in its employee benefit plan. These are extravagantly broad claims about what makes one complicit in the actions of another. This isn’t requiring people to have an abortion or use contraception or marry someone of the same sex, and it’s not even asking someone to perform marriage or attend or help someone get an abortion or contraception. Rather, it is simply having to make a statement of fact or decorate a cake or include coverage in a benefits plan. To turn disclosure, employee benefits, and nondiscrimination laws into complicity is to render religion a basis for opting out of life in a diverse community.

The implications of these cases are truly staggering. The three of you have already pointed out the problems with the Court abandoning its longstanding distinction between regulation of political and economic speech. The majority hinted at that in Reed and Sorrell and went well beyond it in these cases. And, as Niko put it, the recyclable sentences that are sprinkled throughout these cases will be the basis for future challenges. Several such recyclable sentences in Janus suggest that the Court is inviting a constitutional challenge to the principles of majority rule and exclusive representation that are the heart of all federal and state public and private sector labor law.

To all of that, I would simply add that there are lines other than those dividing political and economic speech and conduct that the majority crossed. In Janus, the majority tried to explain why creating a First Amendment right for public employees to refuse to subsidize collective bargaining is consistent with the absence of public employee rights to complain about wages and working conditions by saying that the First Amendment treats restrictions on group speech differently than restrictions on individual speech. That is flatly untrue about how the Court has long approached the First Amendment. Moreover, Janus is the only case I can think of in which the Court held there is a right to refuse to subsidize speech where the underlying speech (collective bargaining) is not protected by the First Amendment.  In NIFLA, Justice Thomas said that professional speech is not a separate First Amendment category. But that cannot be true, because so much regulation of the professions does compel or restrict speech: law dictates what lawyers, doctors, nurses, accountants, teachers, and psychotherapists can and cannot say, and what they must say. Whereas Janus seems to invite broad implications (while not admitting it), NIFLA seems heedless of them.

The Court’s results-oriented reasoning and activism will, I fear, harm the Court as an institution and the First Amendment’s role in protecting freedom.


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