The free speech jurisprudence of the United States is one Supreme Court justice away from utter and complete destruction. Never has that been made more clear than in this last term, when four Supreme Court justices consistently expressed that they see the First Amendment as an obstacle to Left-wing governance, and would rule as such should they get the opportunity.
Let’s begin with Janus v. State, County, and Municipal Employees, the ruling released today that strikes down laws compelling non-union members to pay agency fees. The ruling is eminently correct, and states that the First Amendment protects citizens from being forced to subsidize third-party groups with which they disagree. Yet four justices on the Left found this ruling offensive — and made clear that they were uninterested in protecting the First Amendment at all.
Justice Kagan, writing the full dissent in conjunction with Justices Ginsburg, Breyer, and Sotomayor, was explicit:
[A]lmost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance – including over the role of public-sector unions.
In other words, we no longer need to attempt to curtail governmental overreach with regard to the First Amendment — the First Amendment was meant for “better things,” meaning legislative proposals Elena Kagan and her cronies like. She says as much; she accuses the Court of “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” Which, of course, is the job of the Supreme Court: to protect the First Amendment from encroachments in economic and regulatory policy.
So here’s what this is really about: Kagan likes agency fees. Hell, she loves them, because they keep unions alive:
[B]asic economic theory shows why a government would think that agency fees are necessary for exclusive representation to work.
Kagan argues that unions need the cash specifically because they are bound by law to represent non-union members — but that’s a status unions seek, not one that is thrust upon them. But for Kagan, the unions need their cash, First Amendment be damned.
Then there’s National Institute of Family and Life Advocates v. Becerra. In that case, the Supreme Court ruled that the State of California could not compel pro-life pregnancy centers to distribute information about tax-sponsored abortion. The Court held that there was no distinction between “professional speech” as distinguished from other speech — that “Speech is not unprotected merely because it is uttered by ‘professionals.’” Justice Kennedy wrote a brutal concurrence:
The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of “forward thinking.” App. 38–39. But it is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.” Wooley v. Maynard, 430 U. S. 705, 715 (1977). It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief.
This seems relatively uncontroversial. It wasn’t. The vote was 5-4 once again. Justice Breyer wrote the dissent, and again, focused on the fact that a lot of laws actually violate the First Amendment and might be struck down:
Because much, perhaps most, human behavior takes place through speech and because much, perhaps most, law regulates that speech in terms of its content, the majority’s approach at the least threatens considerable litigation over the constitutional validity of much, perhaps most, government regulation.
Well, whoop-de-do. Such legislation should be subject to serious questions over the First Amendment. But Breyer and company, like Kagan in Janus, wants to leave legislatures to run roughshod over the First Amendment — so long as those legislatures are of the political Left.
Then there’s Masterpiece Cakeshop v. Colorado Civil Rights Commission. This case was decided 7-2, but on narrow grounds — it was decided that the regulation in question, which fined a baker for failing to cater a same-sex wedding, was motivated by animus thanks to the record of administrative hearings. But the Court did not make the broader decision that the First Amendment protects your right not to serve events that violate your religious precepts. In fact, the Left-wing of the Court believes that the law can compel such service. In her concurrence, Justice Kagan wrote:
The different outcomes in the Jack cases and the Phillips case could thus have been justified by a plain reading and neutral application of Colorado law—untainted by any bias against a religious belief. … A vendor can choose the products he sells, but not the customers he serves—no matter the reason. Phillips sells wedding cakes. As to that product, he unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples.
Justice Ginsburg dissented, and wrote similarly that the government should be able to compel someone to provide artistic expression with which they disagree, so long as they’re being forced to do so to placate an interest group the Left wishes to provide special protection from the vicissitudes of the marketplace (Ginsburg did not feel similarly about a Christian group requesting a cake be made in the shape of a Bible, for example):
The fact that Phillips might sell other cakes and cookies to gay and lesbian customers was irrelevant to the issue Craig and Mullins’ case presented. What matters is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple.
Thus, according to Ginsburg, Masterpiece should have been forced by the government to make a cake for a same-sex wedding.
There is little question that our First Amendment protections are on shaky ground. Should Justice Kennedy be replaced with a Left-wing justice in the mold of Sotomayor, Breyer, Ginsburg or Kagan, Left legislatures across the country will quickly move to shut down freedom of speech. And the Left wing of the court will allow them to do so, cheering every step of the way.