My latest South Carolina Press Association column:
February
may be the shortest month, but it is full of arguments in major First
Amendment cases at the U.S. Supreme Court. And while none of the cases
directly involve the media, whenever the High Court considers a free
speech case there is the possibility of major impact on First Amendment
law generally.
On
Monday, Feb. 26, the Court will hear Janus v. American Federation of
State, County, and Municipal Employees, Council 31. In this case,
government employees claim that their free speech rights are violated by
“agency shop” laws that require them to join or subsidize labor unions
of municipal employees, even though the employees may disagree with the
unions’ public policy positions. In 1977 the Court held that government
employees could be required to join or fund unions’ collective
bargaining and contract administration activities, just as private
employees may be required to do, but that employees could not be
compelled to fund unions’ political activities. In practice, this means
that employees cannot be forced to pay the portion of the union dues
attributable to lobbying, political donations, and the like. But the
plaintiff in Janus argues that unions’ collective bargaining with
government entities is necessarily political, and is an expression of
the unions’ policy opinions with which individual members may disagree.
Forcing government employees to subsidize such bargain activity, the
lawsuit argues, constitutes compelled speech, which is barred by the
First Amendment.
The
following day the Court will hear argument in Lozman v. City of Riviera
Beach, in which a man claims that his arrest and forced removal from a
city council meeting was a First Amendment violation. Fane Lozman
formerly lived on a floating house docked at the city-owned Riviera
Beach Marina, which the city council planned to use eminent domain
powers to condemn and redevelop. As part of this plan, the city seized
and destroyed Lozman’s home under provisions of admiralty law applicable
to boats. But the U.S. Supreme Court held in 2013 that use of such laws
was improper, since the home was not a vessel even though it could
float. Lozman also filed a lawsuit against the city under Florida’s open
meetings law, claiming that the city council had not provided adequate
notice of the meeting at which it approved the redevelopment plan. At a
council meeting to discuss the lawsuit, Lozman spoke during the public
comments portion. But when he began alleging corruption in local
government, a councilmember instructed him to stop and ordered a police
officer to arrest Lozman when he persisted. While the local prosecutor
found that there had been probable cause for the arrest, the criminal
case was dropped. Lozman then sued, claiming that the arrest violated
his First Amendment rights. The federal appeals court rejected this
argument, based on the finding of probable cause. The Supreme Court
accepted the case to determine whether such a finding can defeat
Lozman’s claim that his free speech was unconstitutionally curtailed.
Then,
on Wednesday, Feb. 28, the Court will hear argument over a Minnesota
law that bans wearing of political apparel, including t-shirts and
buttons, in election polling places. In the specific case before the
Court, a man faced difficulty voting when he wore a “Don’t Tread on Me”
t-shirt and an “ID Me” button to an election site in Minneapolis. His
attire indicated support of the Tea Party, including favoring
identification checks as a condition of voting. Such attire, the
plaintiffs’ brief argues, “is a time-honored and affordable way for the
average citizen to peaceably speak out about politics and other issues”
that is protected by the First Amendment. But the state responded that
the restrictions “protect Minnesotans’ right to vote in an orderly and
controlled environment without confusion, interference, or distraction.”
Not
all of the Supreme Court’s pending First Amendment cases will be argued
in February. In March the Court will hear argument in another case
involving compelled speech. National Institute of Family and Life
Advocates v. Becerra challenges a California law that requires licensed
health care facilities to post or distribute a notice that “California
has public programs that provide immediate free or low-cost access to
comprehensive family planning services (including all FDA-approved
methods of contraception), prenatal care, and abortion for eligible
women,” and to provide contact information for the local social services
office. Unlicensed facilities must also provide notice of their status.
The plaintiffs, which provide pregnancy advice that discourages
abortion, say that these rules violate their First Amendment rights. The
state claims that the rules are for patient information and safety.
The
other, highly-publicized First Amendment case was argued in December. A
Colorado baker in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights
Commission claims that his cakes are works of personal expression and
that he thus cannot be compelled to make such cakes for homosexual
weddings. The state argues that the baker is providing a service to the
public and that Colorado law bars him from discriminating against
same-sex couples.
The
Supreme Court will hear arguments through April, although there are
currently no other First Amendment cases on its docket for this term.
The Court should issue decisions in all of the cases from this term by
the time the current term ends in June.
