The Roberts Court Has Turned the First Amendment Into a Wrecking Ball

Slate

July 01, 2023

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The First Amendment was once an indispensable tool for protecting the rights of the marginalized. Throughout the 1950s and 60s, subversive artists and anti-war dissidents invoked it to neutralize state efforts to muzzle their voices. Civil rights groups and unions used it to invalidate laws enacted to criminalize protest and intimidate activists. It’s no exaggeration to say that, without the shield the First Amendment provided, many progressive legislative endeavors would have been strangled in the cradle.

The Roberts Court, however, has turned that shield into a wrecking ball, using the First Amendment to take aim at the very laws that were enacted to protect the vulnerable.

303 Creative v. Elanis is but the latest swing of the wrecking ball. In that case, a 6-3 majority held that a Colorado anti-discrimination law that required a conservative Christian website designer to sell a wedding website to a gay couple violated the First Amendment prohibition against “compelled speech.” Per the majority: selling such a website expresses an implicit endorsement of same-sex marriage, and a state may never force “someone who provides her own expressive services to abandon her conscience and speak [the state’s] preferred message instead.”

The decision represents a sea change in First Amendment jurisprudence. As Justice Sotomayor wrote in a heated dissent, with this decision, “the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”

To be clear, the argument that anti-discrimination laws impermissibly compel speech is not new. Private schools resisted desegregation mandates on the grounds that such commands forced them to “promote the belief that racial segregation is desirable.” The Supreme Court rejected those arguments. Companies in the 1970s challenged laws requiring the equal admission and treatment of women on the grounds they altered the organization’s character and message. The Supreme Court rejected those arguments as well. To paraphrase Justice Oliver Wendell Holmes’ famous utterance, just as my right to swing my fist ends where your nose beings, a bigot’s right to express their views used to end when it bumped up against the rights of minorities to enjoy equal access to education, employment, and the marketplace. That principle has now been upended.

Yet, the outcome of 303 Creative was also entirely predictable for those who have followed the Roberts Court’s multi-decade hijacking of the First Amendment to further the conservative movement’s agenda.

Among the first victims of this court’s First Amendment jurisprudence was campaign finance laws. In its 2010 decision, Citizens United, the Supreme Court held, for the first time, that corporations have the same rights to engage in political speech as individuals and nullified key limits on corporate spending, thereby ushering in the era of Super-PACs and “dark money” in politics. The court then shredded regulations designed to stop the mega-rich from buying elections. Among the laws it struck down were the so-called “Millionaire’s Amendment” that raised contributions caps for candidates who faced opponents rich enough to self-finance their campaign; a program that provided public matching funds to candidates who, after agreeing to abide by campaign limits, were outspent by opponents who raked in unlimited private money; and a Watergate-era law limiting the total amount of money an individual could contribute in an election cycle.

The idea that unlimited money might distort the political process, encourage corruption, or allow the rich to drown out the voices of the less well-off was dismissed as speculative, quaint, or irrelevant. Spending is speech, the court explained—and these laws unfairly “penalized” the rich for “robustly exercising” their First Amendment right to speak through their ample bank accounts.

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Then the court came for medical privacy, siding with data-miners and pharmaceutical marketers who challenged a Vermont law that prohibited the sale of prescribing data to those groups without the prescriber’s consent. The law was supported by a voluminous legislative record showing that unregulated data-mining helped marketers manipulate doctors into prescribing unnecessary drugs and drove up health care costs. Nonetheless, the court held that, because the prohibition on data selling singled out data-miners and marketers, it engaged in improper “viewpoint discrimination.”

To be clear: the ”viewpoint” being discriminated against was, “buy my drugs.” Reading the majority opinion—which proclaimed that allowing the plaintiffs’ speech was “a necessary cost of freedom” —you’d be excused for thinking that the suppressed speech was high-brow political discourse, not a baldly transactional plea for business.

In 2018, the court used the First Amendment to strike down a law that public unions relied on to fund their activities and maintain membership levels. The law in question required non-union members who enjoyed the benefits of union representation to pay “fair share” fees to reimburse the union for its services. The Supreme Court had upheld that precise scheme four decades prior. But in Janus v. AFSCME, the court upended that precedent—and the laws of half the states—by holding that the law compelled employees to “subsidize private speech” by unions, in violation of the First Amendment. With hyperbolic flare, Justice Samuel Alito quoted Thomas Jefferson: “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.”

The Janus litigation was cooked up by conservative, anti-labor thinktanks to encourage “free-riding”—the logic of the suit being: if all public employees get the main benefits of union membership, but only actual members have to pay fees, few will bother joining at all. And the strategy has worked: according to most recent estimates, Janus has resulted in a 20 percent drop in public union membership.

In the same term, in NIFLA v. Becerra, the court invoked the First Amendment to keep women in the dark about the availability of state-provisioned reproductive care. At the center of the dispute was a California law designed to protect women from being manipulated or misled by pro-life “crisis pregnancy centers.” Multiple investigations had shown that these centers used deceptive practices to dissuade women from getting abortions: unlicensed facilities posed as medical centers, and their staff—dressed in white lab coats—scared unsuspecting women by claiming (falsely) that abortions increased the risk of breast cancer. In response, California passed a law requiring all centers to post a notice stating 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.” If the center was unlicensed, it would also have to post a notice stating that it was “not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.”

These notices did not express opinions; they expressed facts. They did not announce a view about abortion’s advisability, only on its availability. Still, the court found that the law ran afoul of the compelled speech doctrine. Writing for the majority, Justice Clarence Thomas held that by requiring the centers to give information about abortion—“the very practice that petitioners are devoted to opposing” —the notice “alter[ed] the content” of the center’s speech. The majority was equally unforgiving of the unlicensed notice provision, deeming it “unduly burdensome” and “wholly disconnected from California’s informational interest”—never mind the extensive legislative record attesting to the need for the precise information contained in the notice.

303 Creative is the logical continuation of this trend. It ignores the context—the tragic history and continuing discrimination—that necessitated Colorado’s law in the first place. And it adopts an absolutist, almost fetishistic view of First Amendment that turns “free speech” into a trump card, real-world consequences be damned.

The court dresses these rulings in lofty admonitions about the evils of “viewpoint discrimination” and the “sinful and tyrannical” nature of compelled speech. But what the court is really doing is constitutionalizing its own, hyper-conservative viewpoint—one which sympathizes with the rich who “robustly exercise” their First Amendment right to speak through their wallets, even if—or perhaps because—such untrammeled expression effectively silences those with lesser means. It is a First Amendment jurisprudence which shows exquisite sensitivity to the psychic distress of the pro-life activists forced to inform vulnerable women about their reproductive options and the Christian website designer made to serve gay clientele, but a total disregard for the injuries suffered by women deprived of medical care or the stigma and humiliations felt by those who are refused service based on their sexual orientation.

A constitutional guarantee meant to constrain the state from trampling on the vulnerable is, before our eyes, being turned into a tool to entrench powerful interests and upend state laws enacted to protect the marginalized. As Justice Elena Kagan wrote in her Janus dissent, “The First Amendment was meant for better things.”

Source: Slate

The Roberts Court Has Turned the First Amendment Into a Wrecking Ball

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