Berkeley Law Dean Erwin Chemerinsky is to constitutional law as Mick Jagger is to rock and roll. So towering is his reputation that, when tasked by a judge with making contact with him, I was shocked to find that Dean Chemerinsky answers his own phone, at least sometimes.
In typical Chemerinsky fashion, he’s surveyed a series of cases for the American Bar Association’s journal—including several that appear unrelated at first—to sketch out the stakes for First Amendment jurisprudence at the Supreme Court this term. A slightly more accessible take on this quintet of challenges—no law degree needed—follows.
The fate of our unions
On Feb. 26, the justices will hear argument in Janus v. AFSCME, Council 31. This case is the latest in a series of cases surrounding unions, collective bargaining and compelled speech. Unions have long taken the position that non-members who benefit from their collective bargaining with employers on issues such as working conditions, wages, and benefits should pay union dues.
Upon first facing the issue in 1977, in Abood v. Detroit Board of Education, the Supreme Court sided in part with unions, holding that while no one can be forced to join a public employees’ union, non-members who benefit from the union’s bargaining should pay proportionate dues and non-members cannot be compelled to pay any share of dues related to political activity. That, the court reasoned, would be compelled speech, a violation of the First Amendment.
As Chemerinsky details, conservative justices have been eagerly awaiting a chance to reverse Abood.
In recent cases, such as Harris v. Quinn (2014), the five conservative justices then on the court sharply criticized Abood, and seemed to invite a request to overrule it. That came to the high court two years ago in Friedrichs v. California Teachers Association. Friedrichs was argued on Jan. 11, 2016, and not one of the five conservative justices asked a question or made a comment that left doubt as to how he was going to vote. But Justice Antonin Scalia died before the case could be decided and the Supreme Court affirmed the lower court, which had followed Abood, by an evenly divided court.
At the end of February, justices will get their chance to overrule Abood. If they do, the effects on union membership and revenues will be catastrophic in the 20-plus states that do not have right-to-work laws, or laws that restrict unions’ roles vis-à-vis employees.
When there’s probable cause justifying a retaliatory arrest, is it still wrong?
Come Feb. 28, the Supreme Court will consider whether probable cause excuses a retaliatory arrest. In Chemerinsky’s words, “Whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim as a matter of law.”
Fane Lozman is an outspoken critic of development efforts in Riviera Beach, Florida, including having filed lawsuits against the city. Soon after filing a suit under Florida’s Government in the Sunshine Act, the City Council—in a closed-door meeting—decided to take action to send a “message” to Lozman and to “intimidate him.” When Lozman began to speak during the public comment period at a City Council meeting, the presiding member ordered Lozman arrested. Ultimately, no charges were brought against him.
The case before the court, Lozman v. City of Riviera Beach, FL, arose from Lozman’s subsequent lawsuit. Lozman claims that because his arrest for disturbing a lawful assembly was retaliatory, a response to the content of his speech, it violated the First Amendment. The federal appeals court that covers Florida, as well as Alabama and Georgia, the Eleventh Circuit, found that the existence of probable cause—even though Lozman was never charged—precluded Lozman’s damages claim.
It’s a slippery slope: To say that law enforcement can’t be held accountable for a retaliatory arrest so long as they can find colorable probable cause for that arrest invites all manner of justifications for retaliation that could expand the ways police can abuse their power.
Does requiring a business to treat LGBTQ people equally violate owners’ rights to free speech and exercise?
The Supreme Court heard the infamous “cake artist” case, Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, on Dec. 5, but don’t expect a ruling anytime before the court’s last week in June. Dropping bombshells then fleeing for recess has become a tradition at 1 First St., NE.
Charlie Craig and David Mullins got married in Massachusetts and wanted to celebrate their wedding where they lived in Colorado. They went to a local bakery, Masterpiece Cakeshop, a limited liability company in Colorado, and sought to purchase a wedding cake. The owner, Jack Phillips, refused to bake the cake, saying that gay marriage violated his religious beliefs.
The Colorado Civil Rights Commission found that Phillips violated Colorado’s public accommodations law that prohibits business establishments from discriminating, including on the basis of sexual orientation. Phillips would bake a cake for opposite sex couples, but not for same sex couples, a form of discrimination that violated state law. The Colorado Court of Appeals affirmed the Commission’s ruling against Masterpiece Cake.
Because making a cake is artistic activity, thus a a form of expression or speech, Phillips claims, requiring him to bake a cake to celebrate a same-sex marriage violates both the Free Speech and the Free Exercise provisions of the First Amendment.
Phillips isn’t the first to attempt to argue that religious beliefs trump civil rights. He’s not even the first chef or baker to attempt to justify denial of service that way. Let’s hope that Phillips finds as much luck as did Maurice Bessinger, a white supremacist who violated the Civil Rights Act of 1964 by denying African American customers service.
How far can states go to restrict political expression near the polls?
In 1992, the Supreme Court sided with Tennessee on keeping polling places politics-free by banning solicitation and the distribution of campaign materials within 100 feet of the polls.
[T]he court found that the state law was a content-based restriction on speech that had to meet strict scrutiny, but nonetheless found the statute constitutional. Relatively few Supreme Court cases have upheld government actions when strict scrutiny is applied.
Fast-forward to 2018, and the court’s going to be asked just how far such restrictions on political expression around polling places can go. Chemerinsky summarizes:
Minnesota election law forbids voters from wearing political badges, political buttons, or other political insignia at the polling place. The ban broadly prohibits any material “designed to influence and impact voting,” or “promoting a group with recognizable political views.” The St. Louis-based 8th U.S. Circuit Court of Appeals upheld this law based on [the 1992 case]. The question in Minnesota Voters Alliance v. Mansky ... is how far can a state go in restricting express activities at polling places.
A betting lawyer might suspect Minnesota’s out of luck. It’s never a good sign when you’re on the wrong side of both the American Civil Liberties Union and Cato Institute.
Can requiring providers to provide medically accurate information to women be considered compelled speech?
On March 20, the Supreme Court will tackle another third-rail case. Just as the “cake artist” case touches on multiple hot-button issues—speech, religion, LGBTQ rights—the term’s final First Amendment case blends speech and reproductive justice.
California adopted a law to ensure that women are informed of the availability of free or low-cost reproductive health services. The Reproductive FACT Act requires that licensed health care facilities post or distribute a notice that states, “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. To determine whether you qualify, contact the county social services office at [insert the telephone number].” An unlicensed facility also must disseminate a notice to all clients acknowledging that it is not licensed as a medical facility by the state of California.
California’s legislature passed this law because there are more than 200 “crisis pregnancy centers” around the state. Unfamiliar with what these centers do?
“They are designed for one purpose—to make sure everyone carries their pregnancy to full term—and they’ll do or say anything to make sure that happens,” says Sarah Christopherson, policy advocacy director for the National Women's Health Network, which works to improve women's healthcare nationwide.
Promoting alternatives to abortion is one thing; what these centers do is another entirely.
A congressional study on federally-funded CPCs found that a whopping 87 percent of them present false or misleading information to women who come through their doors. “They’ll perform a sonogram and lie about how far along the pregnancy is—telling you that you have plenty of time left to get a legal abortion (when you don’t) or that you’ve passed the deadline for an abortion (when you haven’t),” says Christopherson.
CPCs often play on women’s fears—handing them pamphlets that tell them abortion procedures are super risky and can lead to infertility, scarring, or even death (despite the fact that abortions are incredibly low risk), she says. And while many clinics have no doctors or trained medical professionals, often times, CPC workers wear scrubs or white lab coats and have women fill out paperwork to appear legitimate, according to NARAL.
Chemerinsky notes that the legislature investigated the state’s CPCs before acting.
The legislative history explains that crisis pregnancy centers “pose as full-service women’s health clinics, but aim to discourage and prevent women from seeking abortions” in order to fulfill their goal of “interfer[ing] with women’s ability to be fully informed and exercise their reproductive rights.” The legislature found that crisis pregnancy centers, which include unlicensed and licensed clinics, employ “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.”
The anti-choice critics behind the challenge to California’s law claim that requiring clinics to post notices, a passive form of information-sharing, constitutes impermissibly compelled speech—though it requires far less than many anti-choice-inspired requirements surrounding waiting times, sonograms and specific verbal disclosures by providers. Expect the court to find that the anti-choice crowd can’t have it both ways.
