Three Upcoming Free Speech Cases at the Supreme Court

Today, The Heritage Foundation hosted a panel on three important, upcoming free speech cases at the Supreme Court.  Key points from the attorneys representing the challengers are below.  The entire presentation is fascinating and can be viewed here (starting at 14:50).

First, Jacob Huebert of the Liberty Justice Center discussed Janus v. AFSCME, a challenge to Illinois compulsory union dues for non-members, which will be heard February 26:

• The key question in Janus is can the government force its employees to give money to a union just to keep their jobs?  Illinois is one of 22 states that allow unions to take dues from every worker even if he or she is not a member of the union.
• Janus argues that these laws violate right to choose which political speech to support and which groups to associate with.

• Janus lost in lower court because of Abood v. Detroit Board of Education, where Supreme Court skipped the First Amendment analysis and did not require a showing of compelling government interest.  The compulsory dues in Abood were justified by the government interest in labor peace to avoid free riders (non-members gaining from unions' collective bargaining efforts), but the Court decided that unions cannot make workers pay for electioneering activity because association for political purposes is at heart of the First Amendment.  Because of this, a two-tier dues structure exists for union members who do not wish to support the unions' electioneering.
• Abood is wrong because: 1) public unions’ activity is essentially political – discussions with the government about pay, etc., and 2) the free-rider justification is false – not everyone benefits from the collective bargaining and it could even be a harm if a person would prefer to be judged on individual merits.  Janus objects to the spending and tax increases supported by the union.  This argument assumes that every worker only cares about his own narrow monetary self-interest.
• The challengers are optimistic that the court is willing to overrule Abood because of the rulings in Harris v. Quinn and Friedrichs v. California Teachers Association and hope the Court will say clearly that when you take a government job, you do not have to check your First Amendment rights at the door.

Second, Todd Gaziano of the Pacific Legal Foundation discussed Minnesota Voters Alliance v. Mansky, a challenge of Minnesota's prohibition of political apparel at the polls, which will be heard February 28 (and which we have covered before):

• The Minnesota law's “breathtaking scope” is the primary reason it is unconstitutional.
• Poll worker instruction said the law prohibits wearing clothing promoting a group with recognizable political views such as the Tea Party or MoveOn.org.
• Andy Cilek, MVA's President, was twice prevented from voting because he was wearing a Gadsden Flag t-shirt. The third time he was allowed to vote but poll workers said they were taking down his name to pass along to law enforcement and authorities for possible prosecution.
• The state’s justification is preventing intimidation and confusion.
• Supreme Court has upheld bans on active campaigning.  That is not at issue here.
• If clothing is actually intimidating, that would already be prohibited by separate statutes.  Law was substantially overbroad vs. the dangerous speech it was trying to prevent.
• The state is now trying to reinterpret the law, but statute on its face is broad, reaching anything political. 
• Almost anything can be considered political – religious messages, military messages, etc.
• The problem is in application - different poll workers will apply statue differently, resulting in viewpoint discrimination and selective application.
• The state admitted during litigation that there were especially broad applications of the law – Minnesota Vikings shirt, AFL-CIO shirt, and Chamber of Commerce logo on a shirt – all were political.
• The state claims it needs the law to promote peace at the polls and prevent silent intimidation.  Supreme Court found that unfounded fears of disruption are not a basis for a broad prohibition on speech (Vietnam armband case - Tinker v. Des Moines Independent Community School District).

Finally, Jordan Lorence of Alliance Defending Freedom discussed National Institute of Family and Life Advocates (NIFLA) v. Becerra, a challenge to California's compelled disclosure law for pro-life pregnancy centers, which will be heard March 20:

• The law requires licensed pro-life facilities (which offer ultrasounds) to post a sign saying California has public programs providing free contraception and abortion for eligible women, compelling them to speak in a way they find unconscionable.  It requires unlicensed facilities (that offer assistance services) to post a sign saying it is unlicensed with no medical provider supervising its activities.
• Law is written to apply to only those with an ideological objection to abortion by exempting non-OB/GYN medical providers and all who participate in the government's program to provide or refer women to an abortion.
• The state could use all sorts of communication channels if it thinks that women are insufficiently informed about their options for an abortion, but the only one it does is requiring pro-life pregnancy centers to convey its message.
• “Raw display of governmental coercion” to force pro-life pregnancy centers to promote abortion.
• Viewpoint and content-based discriminatory, only required of pro-life pregnancy centers – regular doctors and OB/GYNs do not have to post signs.
• State’s justification (without evidence) is that centers are tricking women into thinking that they are abortion clinics.
• State also says it is commercial speech, but no commercial transaction is taking place – services for free offered on an ideological basis.
• It maybe could be justified on a medical disclosure/informed consent basis, but that is not state’s position or action – trying to entice women into a surgical procedure, not warn about its potential harms.  
• West Virginia v. Barnett – Supreme Court struck down compulsory pledge of allegiance law during World War II, famously saying: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us."
• The lower court said that the law was permissible because it regulated a profession, which is not a recognized category of exemption from the First Amendment.  The Ninth Circuit used its own lower standard of scrutiny instead of the strict scrutiny mandated by the Supreme Court in Town of Gilbert.

Jordan Lorence also summarized what the three cases have in common.  The common thread is that Founders understood human tendency to misuse governmental power of coercion to censor those opposing the prevailing orthodoxy or force people to support prevailing orthodoxy at the time, and they passed the First Amendment to prevent that.  MVA v. Mansky is about straight censorship, Janus is about compelled speech via funding, and NIFLA is about compelled speech.  

All of these cases will have serious implications for all Americans' rights not to be forced to speak or prevented from speaking by the government.  All three advocates were optimistic that the Supreme Court will rule in their clients' favor, strike down these laws, and protect free speech rights.

Illinois Governor Rauner Vetoes Mandatory Voter Registration Bill

Last week, Illinois Governor Bruce Rauner vetoed a bill that would establish mandatory, or automatic, voter registration in Illinois:  

Gov. Bruce Rauner vetoed a bill aimed at making voter registration automatic in Illinois, citing concerns about potential voting fraud and conflicts with federal law. 

The first-term Republican governor said he wanted to continue negotiations with supporters to work out those issues, but groups backing the measure accused him of playing politics with his veto and said they would seek an override. . . . 

Under the legislation, starting in January 2018 people seeking a new or updated driver's license — or other state services — would automatically be registered to vote or have their registration updated unless they opted out. Currently in Illinois, motorists seeking services at secretary of state driver's facilities are asked if they want to register to vote or update their registration — an opt-in form of voter registration.

The bill was hastily passed at the end of session, and, in addition to being an unnecessary expense to a financially distressed state, the governor found that it would open the door to fraud and violate the NVRA:

"I strongly support efforts to encourage greater voter participation in our democracy and share the goals of this legislation," Rauner said in a statement. 

"Unfortunately, as currently drafted, the bill would inadvertently open the door to voter fraud and run afoul of federal election law. We will continue working with the legislature and key stakeholders on language that meets our shared goals while complying with federal law and preventing voter fraud," he said. 

In addition, Rauner said the measure does not follow federal law, which requires a voting applicant to "attest to meeting the qualifications to vote" or to sign an application. He said the measure also relies on the Illinois State Board of Elections to then screen out individuals who are not eligible to vote, even though it may not have access to needed information.

We thank Gov. Rauner for wisely recognizing that mandatory voter registration threatens election integrity and the accuracy of voter registration rolls and does not accomplish the goal of increased voter engagement and turnout.

Losing the Freedom to Choose, One Mandatory Voter Registration Bill at a Time

Illinois is the latest state seeking to remove citizens' ability to choose to register to vote or be involved in the electoral process in general. Senate Bill 0250 seeks to automatically enroll individuals to vote when they interact with one of five state agencies. Illinois already has a voter registration process in place and the State Board of Elections is opposed to the legislation.  

Given the push from the left, this has the potential to be a disaster just like it was in Oregon. Other countries have shown mandatory voter registrations' perceived benefits to be at best negligible, and it is more than likely detrimental. Legislators should listen to the State Board of Elections, which will have to implement the fabricated solution to a non-existent problem. 

Election board officials said their concern is logistics, pointing out that there’s no program set up for the initial September update. 

“It would take major changes to the system and structure of our system to try and implement these things,” said Kyle Thomas, the board’s director of voting and registration systems. 

Thomas also questioned the possible “millions” it could cost as the budget standoff between legislative Democrats and Rauner approaches a year.

Don Gray, Sangamon County Clerk, commented on the concerns.

"I understand the concerns there's a lot more burden on the state board of elections then there is here and the election authority to be able to implement Election Day and registration day maintenance," said Gray.

The board would have to go through a year’s worth of voter information to update their records.

The articles remain silent on something that has become a far more concerning trend from the left: Forcing citizens to register to vote. Freedom to choose is not something that we should take for granted. The role the government plays in our lives should not be one that forces us to participate, even if the measure provides the option to opt out rather than opt in. The solution to lack of voter engagement is not forced involvement. Rarely is forced action effective and often it has the opposite of the intended effect.

It Is a Big Day in Presidential Politics - Be Watchful for Vote Fraud

It’s a big day in the presidential primary with huge states like Ohio, North Carolina, Illinois, and Florida on the line. With the stakes being as high as they are, it is really difficult not to be concerned about vote fraud. Glenn McCoy noted that this is especially true in areas that have a significant history with the issue like St. Clair County, Illinois:

Kelly has charged 10 vote fraud cases since 2012, with four convictions and the rest pending. He is pursuing these cases and asking for the public’s help. 

Vote fraud robs democracy, so reporting the thiefs [sic] is an act of patriotism. Curbing the practices requires more voters to decide they will back a candidate based on beliefs rather than who slips them $5 or $10. 

But for those whose altruism isn’t developed enough to keep our elections honest, prosecution seems like a good alternative.

And that is the reality we all face. Prosecution is required to protect our elections from fraud. As the author continues, it becomes clear that voter ID laws are having the desired effect at the ballot box, ensuring election integrity. However, those committing the fraud are beginning to strike earlier and earlier and finding new ways to game the system, thereby robbing law abiding citizens of their right to vote. The risks to our elections have never been higher, and elections must be protected.

In Illinois, Democrats Resorting to Multiple Forms of Vote Fraud

Democrats continue to try to pull the wool over everyone’s eyes when it comes to voter fraud. Their most recent tactic: “calibration errors.”

When Illinois State Representative Jim Moynihan – a Republican – went to early vote at his local library, he found he was not able to vote for himself, or any other Republican on the ballot. He would vote for the Republican candidate in a race, and the machine’s screen would move his vote to the Democrat candidate in that same race, including his own. Discussing the situation, Moynihan said:

I tried to cast a vote for myself and instead it cast the vote for my opponent. You could imagine my surprise as the same thing happened with a number of races when I tried to vote for a Republican and the machine registered a vote for a Democrat.

Moynihan is clearly concerned that citizens might not pay as much attention as he did to the situation, and vote for someone they don’t want to,

Clearly, I am concerned that citizens will be unable to vote for the candidate of their choice, especially if they are in a hurry and do not double check their ballot. I cannot say whether or not this was intentional, but Cook County voters deserve better and should not have their right to vote suppressed.

This continues a trend found in Democrat Governor Quinn's last election when numerous voting machines in predominately African American precincts  in Chicago were programmed to change Green Party candidate Richard Whitney's name (who presumably was siphoning off Democrat votes) to RICH WHITEY.

The deception in Illinois does not stop there, however. President Obama continues to vote in his home state of Illinois, and in 2012 when he went to early vote, he had to show his photo ID. This time around, however, the Illinois legislature took that part of the law away on the second-to-last day of this year's legislative session.

Further, the changes the legislature and Gov. Quinn made to the laws, including expanding polling places for presumed Democrat voters and same-day registration, apply only to this election, which is close and hotly contested.

Also interesting, is that the poll workers in Illinois, when Obama came in to vote, told him to "vote Democrat," which we all are well aware is illegal. Who knows who else the poll workers told to "vote Democrat."

Even in the deep blue state of Illinois, Democrats are afraid they cannot win an election without voter fraud and misleading voters.