The Roberts Court’s Free Speech Double Standard

By Monica Youn, the Brennan Center Constitutional Fellow at NYU School of Law, and the editor of Money, Politics and the Constitution: Beyond Citizens United.

That the conservative majority of the Roberts Court are champions of free speech is a trope that simply refuses to die. The New York Times summed up the Court’s most recent term by describing free speech as a “signature project” of Chief Justice Roberts, and numerous commentators have chimed in, contributing to the common misperception that the Roberts Court is “the most free speech Court in American history.”  Efforts to debunk this myth, by Erwin Chemerinsky, David Cole, and Nadine Strossen, among others, have seemingly failed to make much of a dent in the popular wisdom. 

Ben Sachs’ forthcoming Columbia Law Review article, “Unions, Corporations, and Political Opt-Out Rights after Citizens United,” serves as a useful corrective, and, indeed, is one of the absolutely essential pieces of scholarship that I’ve seen in the wake of the decision. But before getting into the article in more depth, let’s look at some basic numbers for background.

In its first five years, from 2006 until 2011, the Roberts Court granted certiorari in 29* cases in which a free speech violation was claimed (including the speech, press, assembly, and association guarantees). In these cases, the Court held that that a free speech violation existed in 10 of the cases, and that no free speech violation had been demonstrated in 19 of these cases. Thus, simply looking at the numbers, the Roberts Court has supported a free speech claim in 34.48 percent of argued cases. By way of comparison, as Lee Epstein and Jeffrey A. Segal have shown, from 1953 to 2004, the Supreme Court supported claims of deprivation of First Amendment liberties in 53.95 percent of argued cases. Thus, at the most basic quantitative level, the Roberts Court seems to be not especially protective of free speech rights.

Disaggregated, these numbers become more dramatic. Out of the 10 cases where the Roberts Court has supported a free speech claim, six of those are cases in which the Court struck down campaign finance reform laws (counting WRTL twice, per Epstein and Segal’s protocol*). These numbers bear out Chemerinsky’s argument that “what really animates [the Roberts Court’s ] decisions is a hostility to campaign finance laws much more than a commitment to expanding speech.” 

Out of the four non-campaign finance cases in which the Roberts Court has supported a free speech claim, three  -- the animal cruelty videos case, the funeral picketing case, and the violent video games case -- were what I will call free speech “slam-dunks” – that is, cases that were decided by an 8-1 or 7-2 majority, and in which (contrary to the usual Supreme Court’s certiorari practices) there was no split among circuit courts, and the Court affirmed the lower court decision. These free speech slam-dunks, with their colorful facts, were among the Roberts Court’s cases that have attracted the most press attention, but they are hardly indicative of a conservative majority with an expansive view of First Amendment freedoms. The remaining case in which the Roberts Court was willing to uphold a non-campaign finance related free speech claim was Sorrell v. IMS Health Inc., a relatively low-profile commercial speech case in which a 6-3 majority of the Court struck down a state “prescription confidentiality” law, which barred sale or disclosure of doctors’ prescription practices to pharmaceutical marketers. An interesting case, and one which warrants more attention than it has received so far, but not really a banner-worthy free speech decision. At the same time, the conservative majority has shown itself willing to disregard free speech claims by, inter alia, government employee whistleblowers, humanitarian aid organizations, and, most pertinently for today’s purposes, unions. Thus, it seems that the most that can be said of the conservative majority’s free speech record is that “The Roberts court strongly protects speech that it likes, while allowing regulation of speech it disfavors,” as Adam Winkler has put it.

Sachs’ article illuminates a piece of this picture that has been largely overlooked by First Amendment commentators – the Court’s asymmetrical treatment of corporations and unions. To put it in simplistic terms, if you think of corporate and union general treasuries as two big piles of money, Citizens United held that both corporations and unions could spend freely on campaigns from their respective piles, but left in place existing restrictions regarding the amassing of such funds for political purposes that apply to unions, but not to corporations. Specifically, under current law and settled constitutional doctrine, employees have a right to opt out of funding union political activities, but shareholders enjoy no similar right to opt out of corporate political spending.  Indeed, the Roberts Court has twice reaffirmed this opt-out right – rejecting public sector unions’ First Amendment challenges to state laws requiring affirmative authorization from non-members for political spending and upholding a ban on voluntary payroll deductions for union dues – and has granted certiorari in a third union dues case set for this term.

The Court has primarily justified this asymmetry by reasoning that in the union context, employees are “compelled” or “coerced” to fund union political speech, while investing in a corporation is a fully voluntary act. Sachs persuasively undermines this distinction, observing that:

The argument that the union and corporate contexts can be distinguished on compulsion grounds reduces to a claim that the costs of being shut out of the stock market are acceptable, but the costs of being shut out of jobs covered by a union security agreement are not. Given the very real costs involved in both contexts, however, this conclusion is not an obvious one.

Especially with regard to public employee pension plans, where, as Sachs argues, public employees may be required to assent to corporate political speech as a condition of employment, the justification for the asymmetrical treatment completely dissolves. According to Sachs, state action doctrine and the associational speech jurisprudence similarly offer no sustainable rationale for this asymmetry.

As Sachs points out, prior to Citizens United, both unions and corporations could make independent expenditures only with PAC funds – those that stemmed from “knowing free-choice donations.” But while the Citizens United majority struck down the PAC requirement for both corporations and unions, “the opt-out rights that unions must grant employees mean that, with respect to political spending, the union general treasury still resembles a PAC.”

Federal law continues to impose on unions a requirement that they fund their political expenditures only with funds voluntarily and knowingly donated for political purposes. Labor law, that is, continues to impose on unions a funding requirement that Citizens United has removed from corporations.

If one takes seriously Justice Kennedy’s claim that political speech may not be restricted based on the identity of the speaker, the asymmetrical treatment of corporate and union political spending is highly constitutionally problematic.

The corporate/union political speech asymmetry may be viewed as one manifestation of a fault line that, as I have previously argued, underlies Buckley’s contribution/expenditures distinction and much of the convoluted campaign finance case law – an unresolved argument regarding the source of First Amendment value in political spending. Does such value derive from a particular spender’s voluntary decision to dedicate a particular expenditure to an expressive purpose – a.k.a., a “knowing free-choice donation”? Or should we, instead, assess such value from the point of view of the marketplace, and hold that free speech values are transgressed whenever a given restriction may lessen the amount of money that can be used for communicative purposes? One could muster strong arguments in support of either theory – but how can the supposedly “source-blind” Roberts Court continue to justify the application of one theory to corporations and a separate theory to unions?  Far from imposing coherence in an area of doctrinal confusion, the Citizens United decision continues to raise more First Amendment questions than it answers.

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* In the original version of this piece, I had 27 cases, and counted 9 cases in which the Court had upheld the free speech claim, of which 5 were campaign finance cases.  Lee Epstein was kind enough to double check my case list. She pointed out that according to the coding she had used in her cited article, she would have included two cases that I had originally excluded:  Wisconsin Right to Life v. FEC (2006), which I had originally excluded because I had already counted FEC v. Wisconsin Right to Life (2007), which decided the case on the merits, and Hartman v. Moore, which I had originally excluded since the holding turned on immunity pleadings standards under Bivens rather than on the first amendment retaliation claim, and because Chief Justice Roberts and Justice Alito did not participate in that case.  However, since this post uses Profs. Epstein and Segal’s article as a baseline, it seems only right to follow their coding protocol, so I have revised the numbers in this post.