//  7/3/18  //  Commentary

This post is the first 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.

Dear Caroline, Catherine, and Niko,

Thanks for inviting me to join you to discuss the deregulatory First Amendment!

I was going to start us off by describing the deregulatory First Amendment’s origin story, but I see Adam Liptak has done it for me. (If only I could get New York Times journalists to do all my work…) So instead, let me dive right into last week’s Supreme Court decisions – particularly NIFLA v. Becerra and Janus v. AFSCME – and then pose a few questions to get our broader discussion started.

First, in NIFLA v. Becerra, the Court held that California’s FACT Act was likely unconstitutional. The FACT Act is a notice regime that applies to “crisis pregnancy centers” (CPCs) – organizations that provide limited services to pregnant women while discouraging them from having an abortion, sometimes by misleading or lying to them. Only some CPCs are licensed medical facilities; the FACT Act requires those facilities to post notices indicating that low cost services – including abortions – were available elsewhere. Unlicensed CPCs (which sometimes provide medical-like services, such as pregnancy tests or ultrasounds) were simply required to post notices informing potential customers of their unlicensed status.

To get us started, I wanted to flag two things about NIFLA (though there are lots of things to talk about, which I imagine will emerge as we continue this discussion). The first is the narrow gloss that the Court gave Zauderer v. Office of Disciplinary Counsel, which upheld a requirement that attorneys who advertised contingent-fee services also had to disclose certain details about those fee arrangements. The Zauderer Court held states could require advertisements to include “factual and uncontroversial information” that were “reasonably related” to the state’s interest in preventing consumer deception.

Zauderer might have seemed tailor-made for the FACT Act; after all, it is uncontroversially true that low-cost abortion services exist in California. However, the NIFLA majority read “uncontroversial” differently, writing that abortion was “anything but an ‘uncontroversial’ topic.” In other words, per NIFLA, Zauderer scrutiny does not apply to mandatory disclosures that are true, but concern controversial topics.

What topics might qualify as controversial, thereby imperiling related notice requirements? The Court doesn’t say – but later in the opinion, it observes that the marketplace of ideas might benefit from speech reflecting disagreements between “bankers and accountants” concerning “the amount of money that should be devoted to savings or the benefits of tax reform.” So – worryingly – the answer might be that controversy is in the eye of the beholder. Here, I’m reminded of the DC Circuit’s decision striking down an NLRB rule that required employers to post a government-drafted notice containing a description of employees’ rights under the NLRA. The Court observed that the plaintiffs – lobbying groups and trade associations – “[saw] the poster as one-sided, as favoring unionization.” While that decision ultimately rested on statutory grounds, the Court implied that the notice requirement might also violate the First Amendment – an implication that NIFLA seems to bolster.

Second, there is the Court’s discussion of another category of state laws: those that require physicians who perform abortions to make a list of (sometimes misleading) disclosures to their patients. The majority seems to group those rules under the heading of “informed consent,” insulating them from future First Amendment challenge. Perhaps I am being too cynical here – and I hope you will tell me if you think I am – but the emerging First Amendment principle seems to be that the First Amendment protects anti-abortion speakers more than pro-choice speakers.

The Court saved Janus v. AFSCME for the last day of the Term, and the decision was every bit as bad as unions had feared (and expected) it would be. The Court held that public sector union members cannot be required to pay “agency fees,” which cover their share of the costs of union representation, even though unions are legally required to fairly represent them. Additionally, the Court held that an “opt in” was constitutionally required – so that unions and public employers must obtain affirmative consent before charging dues or fees from non-members.

As you all know, First Amendment cases brought by public employees outside of the union context have received a chilly reception in the Supreme Court lately. The Court distinguished Janus from these cases on the thinnest of reeds – that agency fees go towards making bargaining-table demands that (if accepted) affect the public fisc, and are therefore of greater concern to the public than individual employee demands. There are more problems with the Court’s reasoning than I can do justice to in this post, so I’ll briefly mention just one: the ease with which the Court conflated plaintiff-petitioner Mark Janus’s agency fee of $535/year with the union’s speech at the bargaining table.

The Janus majority seemed to assume that because Janus’s agency fees go towards collective bargaining, he could impute to himself the entirety of the union’s subsequent speech for purposes of the “public concern” analysis. But why should that be so? Perhaps the Court should instead have tried to parcel out the union’s speech among each represented worker, treating Janus’s agency fee as functionally equivalent to a single worker walking into his boss’s office to say “I think we should all get a raise.” Alternatively, perhaps the Court should have held that Janus did not meaningfully contribute to his union’s collective bargaining at all – at oral argument, Janus’s lawyer seemed to imply that he thought that was the case, stating that “there’s no reason why negotiating a contract for all employees in a unit would be more expensive than negotiating a contract for just union members.” (In fact, this is the crux of the collective action problem that agency fees were designed to solve – a single employee opting out probably won’t affect the union’s ability to bargain; many opt outs obviously will.) But in either case, Janus’s contribution to his union’s collective bargaining might start to look a lot more like an individual request for a pay raise, which would have made his case a non-starter under the Court’s other public employee speech cases.

The problem of figuring out what union speech Janus’s $535 really bought reflects the larger conceptual difficulty of equating compelled speech with the compelled subsidization of an entity that goes on to engage in speech. By sidestepping that difficulty, the Court makes it more difficult for legislatures to solve collective action problems with collective solutions. It may yet turn out that the Court intends Janus to apply only in the union context, but its reasoning threatens a range of other arrangements – public pensions; university activity fees; unified bar associations; maybe even taxes.

I wanted to end with a few questions – or feel free to ignore them and take the discussion in another direction!

1.  What does Justice Kennedy’s retirement mean for the deregulatory First Amendment? I ask that in part because Justice Kennedy has been instrumental in laying the groundwork for it, drafting the majority opinions in foundational deregulatory First Amendment cases like Citizens United v. FEC and Sorrell v. IMS Health – which Justice Sotomayor disavowed in her dissent in Janus. But none of the current conservative Justices seem particularly disposed to a more restrained vision of the First Amendment, along the lines of the one Chief Justice Rehnquist advocated.

2.  What do you think about prospects for “silver lining litigation” under the First Amendment? For example, I think unions could persuasively use NIFLA to argue against the notices that they are required to mail to represented workers, explaining that workers may opt out of union fees. Is it strategically wise to make those arguments? Would it be foolish unilateral disarmament not to make them? Or should progressives focus on advancing their affirmative vision of the First Amendment, whatever that is.

3.  In their respective dissents in NIFLA and Janus, Justices Breyer, Sotomayor, and Kagan all sound the alarm about the deregulatory First Amendment. What, if anything, should we make of that fact?

Happy Fourth of July,


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