Has the holding in Janus been ignored? 16 state attorneys general said yes, SCOTUS said no, cert. denied — FAN 320

Earlier this month the Court denied review in Troesch v. Chicago Teachers Union, et al. The issue raised in the cert. petition in Troesch case is whether "under the First Amendment, to seize payments for union speech from employees who provide notice they are nonmembers and object to supporting the union, do governments and unions need clear and compelling evidence those employees knowingly, intelligently, and voluntarily waived their First Amendment rights and that enforcement of the purported waiver is not against public policy?"

In that petition, Frank D. Garrison, the counsel of record for the National Right to Work Legal Defense Foundation, argued that:

Illinois and many other states are resisting [Janus v. AFSCME, Municipal Employees Council 31's] holding by prohibiting employees who signed dues deduction forms from exercising their right to stop subsidizing union speech except during short escape periods — generally only ten to thirty days each year. The Seventh Circuit below, as well as the Third, Ninth, and Tenth Circuits, have upheld these restrictions, finding the government does not need proof of a waiver to restrict when employees can exercise their First Amendment rights under Janus, but that proof of employee contractual consent is enough to allow the government to seize union dues from employees over their objections.

Attorneys general in 16 states filed an amicus brief in support of the petitioner in Troesch. J. Michael Connolly, the counsel of record, filed that brief on behalf of Alaska, Alabama, Arizona, Arkansas, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, South Carolina, South Dakota, Tennessee, Texas, Utah, and West Virginia. In that amicus brief, it was argued that:

Janus has been ignored. Across the country public-sector unions have resisted Janus’s instructions and devised new ways to compel state employees to subsidize union speech. Unions place onerous terms on dues forms that prohibit state employees from opting out of paying dues except during narrow (and undisclosed) windows during the year. Unions refuse to inform state employees that they have a First Amendment right not to pay union dues. And unions refuse to stop collecting dues despite unequivocal employee demands. The result is that tens of thousands of state employees across the country are having dues deducted to subsidize union speech without any evidence that they waived their First Amendment rights.

→Brief in opposition for Respondent, John M. West & Joshua B. Shiffrin, counsel of record.

Two related cases remain on the docket

The first case is Woods v. Alaska State Employee Association. The two issues raised in the Woods cert. petition are:

1. Do government employers and unions need clear and compelling evidence that employees waived their First Amendment right to refrain from subsidizing union speech in order to constitutionally seize payments for union speech from employees?
2. When a union acts jointly with a state to deduct and collect union payments from employees’ wages, is that union a state actor participating in a state action under 42 U.S.C. § 1983?

→ W. James Young, of the National Right to Work Defense, is the counsel of record.

The second case is Anderson v. Service Employees International Union Local, 503. The two issues raised in the case are:

1. Under the First Amendment, to seize payments for union speech from employees who resigned union membership, became members, and objected to subsidizing union speech, do government employers and unions need clear and compelling evidence that those nonmember employees knowingly, intelligently, and voluntarily waived their First Amendment rights to refrain from subsidizing union speech in order to constitutionally seize union payments from these employees?
2. When a union acts jointly with a state to deduct and collect union payments from nonmember employees' wages, is that union a state actor participating in a state action under 42 U.S.C. § 1983?

 → Milton L. Chappell, of the National Right to Work Legal Defense Foundation, is the counsel of record.

Alex Jones liable by default

• "Alex Jones Liable by Default in Sandy Hook Elementary Defamation Suit," First Amendment Watch (Nov. 15)

This from First Amendment Watch:

On Monday, November 15th, a superior court judge in Connecticut ruled that conspiracy theorist Alex Jones was liable by default in a defamation lawsuit brought by the parents of a Sandy Hook Elementary shooting victim.

Judge Barbara Bellis issued the default judgement after years of Jones’ refusal to turn over financial and web analytics data that had been ordered by the court.

In her ruling, Bellis criticized Jones’ attorney for providing only “sanitized, inaccurate” financial records and showed “callous disregard” for her repeated rulings to provide complete analytics data. She found Jones’ attorneys actions “were not just careful” but constituted “a pattern of obstructive conduct” requiring the most severe sanction of default, what she called a “last resort,” as reported by the Hartford Courant. . . .

A default judgment means that the case will go directly to a jury to decide damages.

Forthcoming book: Bollinger & Stone on social media and free speech

• Lee Bollinger & Geoffrey Stone, "Social Media, Freedom of Speech, and the Future of our Democracy" (Oxford University Press, Aug. 2022)

One of the most fiercely debated issues of this era is what to do about "bad" speech-hate speech, disinformation and propaganda campaigns, and incitement of violence on the internet, and in particular speech on social media platforms such as Facebook and Twitter.

In Social Media, Freedom of Speech, and the Future of our Democracy, Lee C. Bollinger and Geoffrey R. Stone have gathered an eminent cast of contributors — including Hillary Clinton, Amy Klobuchar, Sheldon Whitehouse, Mark Warner, Newt Minow, Tim Wu, Cass Sunstein, Jack Balkin, Emily Bazelon, and others — to explore the various dimensions of this problem in the American context. They stress how difficult it is to develop remedies given that some of these forms of "bad" speech are ordinarily protected by the First Amendment. Bollinger and Stone argue that it is important to remember that the last time we encountered major new communications technology-television and radio-we established a federal agency to provide oversight and to issue regulations to protect and promote "the public interest."

Featuring a variety of perspectives from some of America's leading experts on this hotly contested issue, this volume offers new insights for the future of free speech in the social media era.

Forthcoming scholarly article on a contemporary school pledge of allegiance controversy 

• Caroline Mala Corbin, "The Pledge of Allegiance Revisited: Requiring Parental Consent," Indiana Law Journal (forthcoming)

Since the Supreme Court decided West Virginia State Board of Education v. Barnette in 1943, free speech law has been clear: public schools may not force students to recite the Pledge of Allegiance. Nevertheless, in two states – Texas and Florida – students may decline to participate only with parental permission. The Eleventh Circuit Court of Appeals upheld the law on the grounds that the parental requirement furthered parents’ substantive due process right to control the upbringing of their children.

The Eleventh Circuit decision is flawed both in its understanding of the First Amendment right to be free of compelled speech and the substantive due process rights of parents. These mandatory pledge laws are viewpoint-based and therefore presumptively unconstitutional. While the free speech rights of students are more circumscribed than adults, none of the established justifications for curtailing student speech rights at school apply in this case. On the contrary, forcing students to pledge against their will exemplifies all the harms of compelled speech. Finally, parents’ constitutional right to control the upbringing of their children is meant to protect parents from the state, not to empower parents to trample on the rights of their children. In the end, the parental permission rule is simply a pretext for the state’s own viewpoint-based compulsion.

New scholarly article on the First Amendment in 'the second Lochner era'

• Robert Black, "The Bizarro First Amendment," Mississippi Law Journal (2021)

Welcome to the Second Lochner Era. Once again, the Supreme Court wields a great guarantee of liberty to nullify progressive governance. But this time its weapon of choice is not substantive due process but the FirstAmendment, as Justice Elena Kagan warned in her fiery dissent from the Court's ruling in Janus v. AFSCME. This Article examines Janus and two other recent cases, Sorrell v. IMS Health, Inc. and Arizona Free Enterprise Club's Free Enterprise PAC v. Bennett, where the Court has used the First Amendment to enact laissez faire.

But it also explores the intellectual history of these cases, showing how the Court's understanding of free speech is muddled in the wake of its gradual abandonment of the traditional “low-value speech” model of Chaplinsky v. New Hampshire. Because the Court has never held that all speech is protected, as Justices Hugo Black and William O. Douglas argued, it has not been forced to confront the question of when and how the state may properly restrict conduct that has an expressive aspect. This Article argues that there are sensible answers to this question, and sketches an account of what those answers might look like: a jurisprudence focused less on the qualities of regulated behavior and more on the nature of the government's purpose in regulating it.

The Court, however, has chosen a very different path. It has maintained the rigid framework of the Chaplinsky model but has hollowed out the "low-value," unprotected category. The resulting doctrine threatens to create expressive anarchy, for as Justice Kagan says, “speech is everywhere.” Everything we do is expressive in some measure, and therefore it is always possible to frame any law regulating conduct or commerce as a law restricting speech. It is easy, therefore, for the Court to see a First Amendment violation whenever a law offends the majority's free market instincts. And in other cases, where following this same twisted logic would not serve the Court's political purposes but would generate absurd results, it is equally easy to act as though there is no FirstAmendment problem at all—because, in truth, there isn't.

Thus, for example, the reasoning of Sorrell would undermine the basis for laws against fraud. Bennett would seem to prohibit the government from responding to a Nazi rally by expressing its own commitment to equality and diversity. And Janus, if taken seriously, would mean that the government can never spend tax dollars on anything with any expressive function or message. But these decisions cannot be taken seriously as explications of the Free Speech Clause, and in avoiding their absurd implications the Court shows that it recognizes this. The First Amendment these cases apply is not the genuine article but a doppelgänger: it may look and sound the same, and it has the same power to nullify regulation, but it is not animated the same values and does not respect the same principled limits.

Janus may cast itself as a landmark free speech ruling, but it is not truly a First Amendment case at all. Instead, it is the Bizarro First Amendment.

New scholarly article on First Amendment and disclosure requirements for charities 

• Bailie Mittman, "First Amendment Freedoms Diluted: The Impact of Disclosure Requirements on Nonprofit Charities," Indiana Law Journal Supplement (2021)

YouTube Stanford Cyber Policy Center: Lakier on 'Jawboning As A First Amendment Problem'

• Presentation by Professor Genevieve Lakier

For years now, scholars have expressed alarm at the tendency of government officials to pressure — or “jawbone” — social media companies into taking down what the officials consider to be harmful or offensive speech, even when no law requires it. Scholars have worried, for good reason, that the practice of jawboning allows government officials to evade the stringent constraints on their power to regulate speech imposed by the First Amendment. But relatively little attention has been paid to the constitutional question of whether, or rather when, government jawboning itself violates the First Amendment. In fact, answering this question turns out to be quite difficult because of deep inconsistencies in the cases that deal with jawboning, both in the social media context and beyond.

In this talk, I will explore what those inconsistencies are, why the case law is so unclear about where the line between permissible government pressure and unconstitutional governmental coercion falls, and what kind of jawboning rule might be necessary to protect free speech values in a public sphere in which both private companies and government officials possess considerable power to determine who can and cannot speak.

YouTube: Cato event — 'A Right to Lie? Presidents, Other Liars, and the First Amendment'

More in the news

• Eugene Volokh, "Court Rejects Fairfax County School Board's Attempt to 'Claw Back' Released Public Records," The Volokh Conspiracy (Nov. 17)
• Adam Klasfeld, "Free Speech Group Asks Appeals Court to Reject ‘Florida’s Version of the First Amendment and Keep Gov. DeSantis’s Social Media Law Blocked," Law & Crime (Nov. 16)
• Eric Williamson, "First Amendment Clinic Sues DOJ Again for Non-Prosecution Agreements — and the Master List," University of Virginia: News & Media (Nov. 16)
• Sarah McLaughlin, "Voicing academic freedom concerns, Cornell faculty push for greater role in university’s global expansion plans," FIRE (Nov. 16)
• Eugene Volokh, "No First Amendment Right of Access to Court Recordings When Transcripts Are Available," The Volokh Conspiracy (Nov. 16)
• "STICKER SHOCK: Emerson College doubles down on censorship, denies TPUSA chapter’s appeal of ‘bias’ charge for distributing stickers criticizing China’s government," FIRE (Nov. 16)
• "Defamation Former Celebrity Apprentice Contestant Settles Long-Running Defamation Suit Against Trump," First Amendment Watch (Nov. 15)
• Andrew Welsh-Huggins, "Ohio bill would target violent protesters with terrorism law," Associated Press (Nov. 11)
• Peter White, "Janet Jackson Super Bowl Scandal Set As Latest New York Times Doc For FX/Hulu," Deadline (Nov. 1)

2021-2022 SCOTUS term: Free expression & related cases

Review granted

• City of Austin, Texas v. Reagan National Advertising of Texas Inc.
• Federal Election Commission v. Ted Cruz for Senate
• Shurtleff v. Boston

Pending petitions

• Woods v Alaska State Employee Association
• Green v. Pierce County
• John K. MacIver Institute for Public Policy, Inc., et al. v. Evers
• Arlene’s Flowers Inc. v. Washington (petition for rehearing)
• 303 Creative LLC v. Elenis
• Lamoureux v. Montana
• Kennedy v. Bremerton School District
• Clear Channel Outdoor, LLC v. Raymond

Review denied

• Project Veritas Action Fund v. Rollins
• Troesch v. Chicago Teachers Union, et al.
• Fraiser v. Evans (First Amendment and qualified immunity)
• Dignity Health v. Minton
• Pace v. Baker-White
• Tah v. Global Witness Publishing, Inc.
• American Civil Liberties Union v. U.S.
• Frasier v. Evans (First Amendment and qualified immunity)
• Louisiana v. Hill
• Baisley v. International Association of Machinists and Aerospace Worker
• Crowe v. Oregon State Bar
• Boardman v. Inslee
• Pasadena Republican Club v. Western Justice Center, et al

Last FAN

• FAN 319: "The new Socrates of the Academy: Pano Kanelos and his free speech university”