First Amendment February at the U.S. Supreme Court

Published Feb. 2018

Eric Robinson
By Eric P. Robinson, USC School of Journalism and Mass Communications

February may be the shortest month, but it is full of arguments in major First Amendment cases at the U.S. Supreme Court. And while none of the cases directly involve the media, whenever the High Court considers a free speech case there is the possibility of major impact on First Amendment law generally.

On Monday, Feb. 26, the Court will hear Janus v. American Federation of State, County, and Municipal Employees, Council 31. In this case, government employees claim that their free speech rights are violated by “agency shop” laws that require them to join or subsidize labor unions of municipal employees, even though the employees may disagree with the unions’ public policy positions. In 1977 the Court held that government employees could be required to join or fund unions’ collective bargaining and contract administration activities, just as private employees may be required to do, but that employees could not be compelled to fund unions’ political activities. In practice, this means that employees cannot be forced to pay the portion of the union dues attributable to lobbying, political donations, and the like. But the plaintiff in Janus argues that unions’ collective bargaining with government entities is necessarily political, and is an expression of the unions’ policy opinions with which individual members may disagree. Forcing government employees to subsidize such bargain activity, the lawsuit argues, constitutes compelled speech, which is barred by the First Amendment.

The following day the Court will hear argument in Lozman v. City of Riviera Beach, in which a man claims that his arrest and forced removal from a city council meeting was a First Amendment violation. Fane Lozman formerly lived on a floating house docked at the city-owned Riviera Beach Marina, which the city council planned to use eminent domain powers to condemn and redevelop. As part of this plan, the city seized and destroyed Lozman’s home under provisions of admiralty law applicable to boats. But the U.S. Supreme Court held in 2013 that use of such laws was improper, since the home was not a vessel even though it could float. Lozman also filed a lawsuit against the city under Florida’s open meetings law, claiming that the city council had not provided adequate notice of the meeting at which it approved the redevelopment plan. At a council meeting to discuss the lawsuit, Lozman spoke during the public comments portion. But when he began alleging corruption in local government, a councilmember instructed him to stop and ordered a police officer to arrest Lozman when he persisted. While the local prosecutor found that there had been probable cause for the arrest, the criminal case was dropped. Lozman then sued, claiming that the arrest violated his First Amendment rights. The federal appeals court rejected this argument, based on the finding of probable cause. The Supreme Court accepted the case to determine whether such a finding can defeat Lozman’s claim that his free speech was unconstitutionally curtailed.

Then, on Wednesday, Feb. 28, the Court will hear argument over a Minnesota law that bans wearing of political apparel, including t-shirts and buttons, in election polling places. In the specific case before the Court, a man faced difficulty voting when he wore a “Don’t Tread on Me” t-shirt and an “ID Me” button to an election site in Minneapolis. His attire indicated support of the Tea Party, including favoring identification checks as a condition of voting. Such attire, the plaintiffs’ brief argues, “is a time-honored and affordable way for the average citizen to peaceably speak out about politics and other issues” that is protected by the First Amendment. But the state responded that the restrictions “protect Minnesotans’ right to vote in an orderly and controlled environment without confusion, interference, or distraction.”

Not all of the Supreme Court’s pending First Amendment cases will be argued in February. In March the Court will hear argument in another case involving compelled speech. National Institute of Family and Life Advocates v. Becerra challenges a California law that requires licensed health care facilities to post or distribute a notice that “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women,” and to provide contact information for the local social services office. Unlicensed facilities must also provide notice of their status. The plaintiffs, which provide pregnancy advice that discourages abortion, say that these rules violate their First Amendment rights. The state claims that the rules are for patient information and safety.

The other, highly-publicized First Amendment case was argued in December. A Colorado baker in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission claims that his cakes are works of personal expression and that he thus cannot be compelled to make such cakes for homosexual weddings. The state argues that the baker is providing a service to the public and that Colorado law bars him from discriminating against same-sex couples.

The Supreme Court will hear arguments through April, although there are currently no other First Amendment cases on its docket for this term. The Court should issue decisions in all of the cases from this term by the time the current term ends in June.

Eric P. Robinson is an assistant professor at the USC School of Journalism and Mass Communication, and is Of Counsel to Fenno Law in Charleston / Mount Pleasant, although any opinions are his own. He has worked in media law for more than 18 years, and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice.

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