Speech and expression

  • July 2, 2012
    Guest Post

    By Anne Marie Lofaso, Associate Dean for Faculty Research and Development and a law professor at West Virginia University College of Law. An extended version of this piece is posted at the Employment Policy Research Network’s blog.


    On June 21, the Supreme Court decided Knox v. SEIU Local 1000, holding that the First Amendment does not permit public-sector unions in non-right-to-work states to require objecting nonmembers, absent express authorization (opt-in), to pay a special fee for the purpose of financing the union’s political and ideological activities. Until Knox, the Supreme Court had never questioned the constitutionality of the opt-out method. So long as unions did not compel union membership and periodically permitted workers to opt-out of non-chargeable expenses, any impingement on the public-sector workers’ (the objectors’) free speech had always been found to be constitutional.

    The majority opinion (Justices Alito, Scalia, Kennedy, Thomas, and Chief Justice Roberts) starts by questioning the constitutionality of requiring non-members to pay even chargeable expenses. Indeed, the majority opinion questions the very existence of the non-“right to work” (RTW) state, which of course is grounded in the idea that workers should pay for representation even though they might not have voted for union representation, just as all of us still had to pay taxes to help finance the wars in Afghanistan and Iraq even though some of us (indeed, a majority of us) didn’t vote for President George W. Bush and even though we might have been ideologically opposed to President Bush’s political agenda. We do that because we are party to what is thought to be a social contract with a democratic government in which we receive the benefits and bear the burdens of majority rule. Notwithstanding these basic principles, the majority opinion dismisses the free-rider justification for compelling nonmembers to pay their fair share of representation services as “something of an anomaly.”

    The majority opinion proceeds to characterize the opt-out pathway as “a remarkable boon for unions” and therefore unconstitutional. This is because, in the court’s view, “[c]ourts ‘do not presume acquiescence in the loss of fundamental rights.’” The Supreme Court, however, has presumed such acquiescence. For example, the Roberts’ Court presumed workers’ acquiescence in a union-employer agreement to waive employees’ right to a jury trial in a Title VII case. 14 Penn Plaza LLC v. Pyett (2009); see also Board of Regents of the Univ. of Wisconsin Sys. v. Southworth (2000) (holding that the“First Amendment permits a public university to charge its students an activity fee used to fund a program to facilitate extracurricular student speech if the program is viewpoint neutral”).The Court moved from that fallacious presupposition to its conclusion — that the opt-out pathway is unconstitutional because dissenting workers should not bear the burden of opting out of payments to support views that are politically distasteful to them. This is so even if the political activity actually benefits the bargaining-unit workers by, for example, lobbying for pro-worker legislation.

  • June 28, 2012
    Guest Post

    By Aaron H. Caplan, a law professor at Loyola Law School Los Angeles


    The “Stolen Valor Act” is a federal statute that made it a crime to falsely say that one had received a military medal, even if that false statement was not made as a part of any scheme to counterfeit or defraud and even if no one believed the statement. In United States v. Alvarez, a 6-3 majority of the Supreme Court agreed with the 8-1 majority of my First Amendment students that the Act violates the constitution. The government has power to punish lies that cause concrete harms (such as fraud, defamation, or perjury), but it may not punish lies simply because they are distasteful. The proper response upon hearing distasteful lies is to counter them by speaking the truth.

    I believe – like a majority of my students – that the Court decided this case correctly, but the reasoning used by a majority of Justices has the potential to establish constitutional standards that are less speech-protective than meets the eye. To begin with, there was no majority opinion. The four-justice plurality opinion by Justice Kennedy (joined by Roberts, Ginsburg and Sotomayor) was joined by a two-justice concurrence by Justice Breyer (joined by Kagan). Both opinions seemed to readily accept the notion that the government had a valid interest in controlling what people think about military medals as a means to protect the “integrity” or reputation of the government’s chosen symbols. As I have written previously, I do not think this kind of mind control is a legitimate government interest at all, let alone a strong one. In this, I seem to be outvoted by all nine members of the Supreme Court (and for what it was worth, all of my students).

  • June 25, 2012

    by Nicole Flatow

    The U.S. Supreme Court today struck down Montana’s 100-year-old anti-corruption law without ever hearing arguments in the case. Although Montana’s law was intended to combat corruption in election spending, the five-justice majority held in a paragraph-long decision that this case was controlled by Citizens United, which found that independent expenditures by corporations “do not give rise to corruption.”

    A supermajority of Montanans thought otherwise when they passed the Corrupt Practices Act in 1912. As Justice Stephen Breyer wrote in his dissent in American Tradition Partnership, Inc. v. Bullock, “Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so.”

    Montanans have been battling corruption from outside interests looking to exploit the territory's vast natural resources since before they became a state, University of Montana law professor Anthony Johnstone explained during the American Constitution Society’s 2012 National Convention this month. To Montanans fighting to retain control of their democracy, the corruption was obvious, and they "called it as they saw it," Johnstone said. Here's how they did it:

    Rather than looking to far-off courts or congressmen, they said enough is enough. And a supermajority of miners and farmers and businessmen, a Republican newspaperman from the small town of Fort Benton, who also happens to be my great great grandfather, got together and said, wait a second … this is popular sovereignty here.

    You, our politicians in our corrupted capital do not govern us. You, our courts sworn to uphold our Constitution do not govern us. You, copper kings in your far-away mansions certainly do not govern us. We govern us. And so they did.

  • March 7, 2012

    by Jeremy Leaming

    The Occupy Wall Street protests helped amplify discussion of the nation’s growing economic inequality. They highlighted the fact that conservative economic policy has made a tiny few in the country extremely wealthy, while shoving many more people into poverty.

    Not surprisingly, however, those demonstrations have also prompted Congress to react with legislation that as The Daily Agenda reports would undoubtedly work to harm free speech. In its first post on the legislation, H.R. 347, The Daily Agenda dubbed the measure the “anti-Occupy law,” because it is aimed at keeping many federal buildings and grounds free of protestors. The measure is not law yet, but it easily passed both chambers of Congress and has been sent to the president.

    The measure, euphemistically dubbed the “Federal Restricted Buildings and Grounds Improvement Act,” would alter federal criminal law barring persons from “knowingly” wandering onto “any restricted building or grounds without lawful authority.” Those places include the White House, the vice president’s residence, “a building or grounds where the President or other persons protected by the Secret Service is or will be temporarily visiting,” or federal buildings or grounds that are hosting a “special event of national significance.”

    The anti-free speech measure’s chief sponsor is Florida Republican Rep. Tom Rooney, who has railed against President Obama’s landmark health care reform law, the Affordable Care Act. Rooney is also supporting a federal lawsuit lodged by a religious university against a part of the health care reform law that will require insurance companies to pay for contraceptives for workers at religiously affiliated institutions.

  • February 22, 2012
    Guest Post

    By Ruthann Robson, Professor of Law & University Distinguished Professor, City University of New York (CUNY) School of Law. Professor Robson is also the ACS faculty advisor for the CUNY School of Law Student Chapter.


    All of us are not in jail because very few lies are crimes. Falsehoods under oath, or to a government agent or agency, or in a fraudulent scheme, are all criminalized. But lies based on their subject matter are much more rarely the subject of criminal sanctions.

    In the 2005 Stolen Valor Act, Congress has criminalized false statements that one has received a military medal such as the Purple Heart. The lie is a crime even if it is a mere boast in a bar or on E-Harmony.  Importantly, a lie about the same subject matter -- for example, the Purple Heart -- is not criminalized if the false statement is that one has not received the award when one has.

    The Ninth Circuit, in a divided opinion, held this provision of the Stolen Valor Act unconstitutional as content discrimination under the First Amendment. Just last month and after the United States Supreme Court had taken certiorari, the Tenth Circuit also in a divided opinion, held the provision constitutional.

    The Supreme Court will have a choice between two different approaches. On the one hand, falsehoods might be entirely beyond the protection of the First Amendment. Under this so-called categorical approach, while there are no such things as “false ideas,” there are certainly false statements of fact that are not essential to the truth-seeking function of the First Amendment. The government should be able to regulate these false statements, as it regularly does with regard to allowing damages actions for defamation and regulating commercial representations about products.

    On the other hand, government regulations making content or viewpoint distinctions -- regulating the speech because of what the speech is “about” or because of the opinion it advocates -- are highly suspect. Courts demand that the government interest be compelling, with a burden on the government to show there are not less restrictive means.