freedom of speech

  • July 2, 2018

    by Catherine L. Fisk, Barbara Nachtrieb Armstrong Professor of Law, University of California, Berkeley School of Law

    In Janus v. American Federation of State, County and Municipal Employees Council 31, the Court declared unconstitutional labor laws and union contracts in 22 states, the District of Columbia, and Puerto Rico. These laws and contracts required union-represented workers to pay their fair share of the cost of negotiating and administering labor contracts. Using what Justice Kagan described in dissent as a “weaponized” version of the First Amendment, the Court continued its six-year attack on public employee unions.

    The case originated when Republican Bruce Rauner was elected governor of Illinois. Rather than negotiate with the state’s public employee unions to address the state’s budget issues, or work with the Illinois legislature to repeal laws he considered an obstacle to that goal, Rauner filed a federal law suit to get fair share fees declared unconstitutional. That says quite a bit about Janus – it was from the start an effort to use the federal courts to thwart democratic and politically accountable governance.

  • June 29, 2018

    by Courtlyn Roser-Jones, Visiting Assistant Professor of Law, Ohio State University

    This week the Supreme Court struck down laws allowing public sector unions to collect fees from represented nonmembers. The Court’s brazen 5-4 decision in Janus v. AFSCME reverses forty-one years of precedent, invalidates fee-permitting statutes in twenty-two states, and disrupts thousands of employment contract provisions. In these ways Janus is extraordinary. In another it is not: Once again, a majority of the Court has utilized the First Amendment to undermine popularly-enacted economic regulations.

    Janus rests on the theory that requiring public employees to pay a fee for the collective bargaining services of a union required by law to represent them is akin to forcing public employees to subsidize political speech. The Court rejected this same theory in Abood v. Detroit Board of Education—a 1977 decision Janus now overrules. In Abood, the Court prohibited unions from charging nonmembers for their political activities, such as lobbying and campaign contributions. But Abood allowed them to charge nonmembers a “fair share” fee for their collective bargaining and contract-related services because the states’ interests in labor peace and preventing free riders outweighed the First Amendment interests of nonmembers.

  • February 24, 2014
    Guest Post

    by Mary Beth Tinker, Petitioner, Tinker v. Des Moines

    * Editor’s Note: Ms. Tinker is currently traveling the United States to promote youth voices, free speech and a free press as part of the Tinker Tour. For updates, follow the Tour on Twitter and read its February 2014 newsletter. You can support the Tour at startsomegood. The Tour ends on March 7.

    The smiling face of a seventh-grader named Jake is on my laptop screen. Jake is explaining why he wrote “We will never forget you, Newtown... 12/14/12” on the front of his shirt last year after the Newtown Elementary School shooting.  On the back of the shirt, he wrote the name of every person who had been killed there. He explains that he did it because “I felt very emotional. That school was close to mine.” 

    When Jake wore the shirt to school the day after the shooting, the principal asked him to remove it, a possibility that Jake’s parents had prepared him for. He refused, and was sent home. Later, the parents heard that school administrators were worried that students would be upset by the shirt, and that a parent had complained.

    Jake went back to school, but the experience inspired a new interest: students’ rights. Now, he’s doing a documentary for National History Day on “rights and responsibilities” that will feature the Supreme Court case, Tinker v Des Moines, in which I was a plaintiff.

    Jake is asking why I wore an armband to school when I was in eighth grade back in 1965, knowing—like him—that I would get in trouble. He’d also like to know how the case led to the Supreme Court and a landmark victory for students’ rights on February 24, 1969.

  • October 16, 2012
    Guest Post

    By David Kairys. Kairys, a law professor at Temple University, is a leading civil rights lawyer and author of Philadelphia Freedom, Memoir of a Civil Rights Lawyer. This is drawn in part from his article forthcoming in the Illinois Law Review with full cites to the cases discussed here, The Contradictory Messages of Rehnquist-Roberts Era Speech Law: Liberty and Justice for Some.


    The Supreme Court is most known these days for two innovative free speech principles and an unprecedented court order: money is speech and corporations are people, and George W. Bush is the 43rd president of the United States.   

    These decisions have drawn the harsh criticism they deserve. The campaign finance cases transformed our electoral and constitutional systems by ruling that a handful of the wealthiest Americans must be allowed to dominate the electoral process.

    But all three of these cases expanded speech rights and have contributed to a widespread impression that over the last few decades, the Supreme Court, while more or less dominated by self-described conservative justices, has been generally, if also sometimes excessively, pro-free speech.  This impression has been fed by occasional decisions protecting some outlier protests, like picketing near soldiers’ funerals.

    Others see the court as anti-free speech, pointing to decisions that restrict the speech rights of, for example, students and government employees, and to the lack of judicial protection of demonstrators as public officials increasingly these days keep them away from public and media visibility and the objects of their protests, out of sight and out of mind.

    Looking at the range of speech decisions over the past few decades, inconsistent, selective, and contradictory seem better descriptors than pro- or anti- free speech.  But there are discernible and significant themes and patterns in the tangle of speech decisions, principles, and doctrines, and they have been ignored far too long.