//  7/5/18  //  In-Depth Analysis

This post is the second 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 Charlotte, Caroline, and Catherine,

I’m so excited to chat with all of you! At the same time, the millennial in me is a little disappointed in our timing. Nothing kills a trend like when the New York Times is ON IT, and, well, here’s hoping the weaponized First Amendment goes the way of monocles in Brooklyn or Pokémon Go.

As much as “turning the First Amendment into a sword” is trending on #LawTwitter right now, I can’t help but think the Roberts Court is doing the best it can to turn its First Amendment mornings into Friday night news dumps. The day it announced that states have no power to require certain businesses to tell the public what services they don’t offer, the Court also announced that foreigners at the border have no rights which the president is bound to respect.  And the day it announced that states violate the First Amendment when they permit unions to collect fees from every worker the unions represent at the bargaining table, Justice Kennedy also announced the respectful and formal notification of his decision to retire.

I think this willingness to let its work be overshadowed reflects the way the Roberts Court has applied the deregulatory First Amendment over the past decade or so. Sure, a few “controversial” First Amendment decisions get lots of attention, but the real work in them is typically done by earlier, more subtle precedents about such scandalous topics as signage size requirements. These earlier precedents contain recyclable sentences—statements of truly broad principles that can be reused over and over in unrelated contexts. It’s these recyclable sentences that may be more influential over the long run than whatever the Supreme Court directly says about unions or crisis pregnancy centers.

Consider the seventy-five-year path to Janus, the union case. The first major precedent on that path was West Virginia v. Barnette, a case from the 1940s in which the Supreme Court held that the First Amendment prohibited the government from compelling a student, a Jehovah’s Witness, to stand during the pledge of allegiance. This decision contained an incredibly broad statement of First Amendment principle: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” In other words, the government can’t compel people to say things or do things that support the government’s idea of the good life—at least not when people disagree with that idea.

Republican appointees on the Court quickly realized what applying this recyclable sentence broadly would mean: people in all sorts of contexts could invoke the sentence as an excuse not to pay certain taxes or to comply with generally applicable laws, like criminal laws or antidiscrimination laws. If the government can’t make me support things I object to supporting, why should I pay taxes that support certain wars and other things I don’t like? Surprisingly—from the perspective of today—these appointees therefore resisted applying Barnette’s recyclable sentence broadly, writing that the “government could not work” if Barnette’s sentence were literally true.

For example, Nixon appointee Warren Burger wrote a 1982 opinion, United States v. Lee, rejecting the idea that the First Amendment prohibits the government from compelling people to pay taxes that subsidize things they disagree with. He wrote “the tax system could not function” if that were true. And Reagan appointee Antonin Scalia wrote a 1990 opinion, Employment Division v. Smith, rejecting the idea that the government couldn’t compel people to abide by generally applicable laws just because they religiously objected. “Precisely because we are a cosmopolitan nation made up of people of almost every conceivable religious preference," Justice Scalia wrote, “we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct.” Such a rule, Justice Scalia explained, “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind — ranging from compulsory military service to the payment of taxes; to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races. The First Amendment's protection of religious liberty does not require this.”

This is where things stood as late as 2000: The Court’s conservative bloc, led by Justice Scalia, generally feared that Barnette’s recyclable sentence might be used to invalidate taxes, antidiscrimination laws, and social welfare legislation. The liberal bloc was more divided on the issue, but typically called such fears overblown.

This century, however—and particularly since Justice Alito’s appointment to the Court in 2006—Barnette’s recyclable sentence has come back in fashion among conservative circles.

In a 2001 decision called United States v. United Foods, Inc., Justice Kennedy wrote an opinion striking down a government program that required mushroom producers to subsidize a generic advertising program. Invoking Barnette, Justice Kennedy wrote a new recyclable sentence: The First Amendment generally “prevent[s] the government from compelling individuals to express certain views” or “pay subsidies for speech to which they object.” Justice Scalia immediately did his best to quash the return of Barnette, writing an opinion about beef producers, Johanns v. Livestock Marketing Association, that repudiated United Foods. Invoking Lee,the 1982 tax case, Justice Scalia wrote that the government can ordinarily compel groups of people to subsidize programs the government favors without transgressing the First Amendment.

But then Justice Alito joined the Court and began resurrecting Justice Kennedy’s recyclable sentence in the context of labor regulations. In 2012’s Knox v. SEIU, Justice Alito repeatedly quoted United Foods—without mentioning Johanns—to cast doubt on the idea that a state could deduct the wages of a public-sector employee and transfer the money to a favored program, like a labor union’s collective bargaining efforts.  Justice Alito again invoked United Foods in 2015’s Harris v. Quinn, which invalidated this sort of arrangement for what he called “quasi public”-sector employees. And in last week’s Janus v. AFSCME, Justice Alito returned to United Foods one final time to sign the death warrant for all agency-fee arrangements, writing a new recyclable sentence: “the compelled subsidization of private speech seriously impinges on First Amendment rights.”

Relatedly, in the context of religious exemptions, Justice Alito has also led the way in flipping the Supreme Court’s conservative bloc toward generally requiring the government to craft exemptions for religious objectors. The Religious Freedom Restoration Act, which requires courts to apply strict scrutiny to any federal law that burdens religious objectors, was enacted as a negative response to Justice Scalia’s opinion in Employment Division v. Smith. Despite the Act’s origin story, in a series of recent decisions involving prison haircuts and contraceptive coverage requirements, Justice Alito wrote (and Justice Scalia joined) opinions applying the Act as broadly as it can go. This Term’s Masterpiece Cakeshop raised the possibility that the Court would formally overrule Justice Scalia’s 1990 opinion and treat the Act’s strict-scrutiny standard as part of the First Amendment itself. The Court ended up punting on the question, but Justice Gorsuch’s concurrence, joined by Justice Alito, confirms how they would have voted: “Smith remains controversial in many quarters," they observed.

To respond to Charlotte’s first question, it isn’t obvious to me how Justice Kennedy’s replacement will affect the deregulatory First Amendment going forward. I agree with Charlotte that Justice Kennedy helped lay the groundwork for it, both in United Foods and in a half dozen other contexts. But I think it’s significant that Justice Kennedy was the last remaining justice who voted with Justice Scalia in the Smith majority. His replacement might add one more vote to the Justice Alito and Gorsuch bloc, which is clearly impatient to overrule Smith and return to the days when the Court invoked Barnette to require “religious exemptions from civic obligations of almost every conceivable kind.” Indeed, Justice Scalia’s Smith opinion could be read as a checklist of the sorts of regulations that are now in constitutional danger, from health and safety regulations, compulsory vaccination laws, and antidiscrimination laws to the payment of taxes.

The logic of Janus seems to point toward the same conclusion for political objectors that overruling Smith would have for religious objectors. As Charlotte observes, the law at issue in Janus didn’t compel anyone to pay for objectionable speech; it merely allowed the government to deduct money from employees’ wages and transfer it to a labor union. If Justice Alito is correct that Barnette and United Foods forbid laws that transfer wages from one person to an objectionable private speaker, then Justice Alito’s new recyclable sentence in Janus could serve as the basis for undermining an enormous number of priorities that have nothing to do with labor.

Consider Title X, which offers grants that indirectly flow to family-planning clinics like Planned Parenthood. Like public-sector unions, such programs are funded in part by taxes withheld from people's paychecks. The Court has traditionally considered taxes immune from First Amendment challenges under 1982’s Lee decision. But there is obvious tension between Janus on one hand and Lee on the other, and these sorts of grants could be in jeopardy.

There are thousands of similar laws that violate Justice Alito’s statement of First Amendment principle: public-finance laws compel taxpayers to subsidize politicians who they might vote against; court fees compel litigants to subsidize public defenders who represent objectionable clients; impact fees compel real-estate developers to offset their projects by subsidizing environmental or affordable-housing programs; financial regulations compel banks to hire external auditors and consultants; traffic laws compel drivers to pay for private automobile insurance. The list goes on.

Contrasting Janus with the enormous lineup of uncontroversial laws that compel people to pay for controversial causes, one might think the Barnette/United Foods sentences are overbroad. Perhaps it doesn't abridge anyone's speech to deduct a portion of their wages and transfer them to a union, just as it doesn't abridge anyone's speech to deduct a portion of their wages and transfer them to, say, the Social Security Administration. Now that Justice Alito has won his decisive victory over public-sector unions, perhaps he will adopt Justice Scalia’s old view and treat compelled subsidies as the ordinary stuff of constitutional legislation.

But I’m skeptical.

Caroline and Catherine, what do you think is next on the deregulatory First Amendment’s chopping block? Did this Term produce another recyclable sentence like in United Foods—a broad statement of principle that the Court might reuse in a completely different context? Or do you think the Supreme Court’s invocation of the deregulatory First Amendment depends on the political implications of the cases before it?


Diversity and Democracy

12/11/18  //  In-Depth Analysis

The growing diversity of the country may break Americans’ commitment to democracy. What can we do to stop that from happening?

Take Care

Health as a Human Right, Medicare for All, and the Evolution of the American Health Care Debate

12/11/18  //  In-Depth Analysis

By Carmel Shachar, Alex Pearlman, and Glenn Cohen: The United States may be revisiting the debate around health as a human right

Take Care

Three Visions of the Multi-ethnic Society

12/10/18  //  In-Depth Analysis

By Yascha Mounk: We need to develop a shared vision for what such a multi-ethnic society should look like

Take Care