Supreme Court Term's Impact on Campus Free Speech

Charles Koch Institute's Senior Fellow for Free Speech and Toleration Casey Mattox, who spoke on campus free speech at the RNLA's National Policy Conference in April, described how three First Amendment cases from the Supreme Court's October 2017 term would impact free speech on college and university campuses.  First, on Minnesota Voters Alliance v. Mansky:

The Mansky decision means that universities must not only avoid viewpoint discrimination; they must affirmatively enact policies eliminating the discretion that could allow it. . . . In other types of government forums — for example, parade or rally permits on public streets or parks — the Supreme Court had previously required that the discretion of the decision makers must be “bridled” by fixed and objective criteria. A government’s failure to create these objective standards to limit the decision maker’s authority was itself unconstitutional because of the risk of viewpoint discrimination. 

Some attorneys have argued that this "unbridled discretion" doctrine is limited only to traditional public forums (such as public parks and streets) and does not bind universities. Thus, it was permissible for administrators to make recognition, funding, or other decisions on vague or unspecified criteria, and the burden remained on students to show that they had been discriminated against because of their viewpoint. . . . But the decision in Mansky eliminates any doubt that the unbridled-discretion doctrine applies in any forum, including those commonly found on campus. Universities will now have to ensure that administrators or student governments making decisions about student expression are guided by fixed, neutral, and objective criteria — protecting students from hidden viewpoint discrimination.

Second, Mr. Mattox writes of the impact of Janus v. AFSCME:

Public universities require students to pay hundreds or thousands of dollars per semester in “student activity fees.” . . . In Southworth v. Board of Regents, University of Wisconsin System, the Supreme Court rejected a First Amendment compelled-speech challenge to these mandatory fees. . . . After Janus, Southworth may be in question. It is noteworthy that the Court’s 49-page opinion, surveying its prior precedent, omits any mention of the Southworth exception from the rule that government may not force people to fund others’ speech. The Court’s strong decision in Janus against compelled funding of others’ speech, and overturning the Abood decision on which Southworth largely rested, may lay the groundwork for a new challenge to Southworth. Even if Southworth itself isn’t threatened, universities should examine whether their student-organization funding systems are really like the one upheld in Southworth. To the extent that a university’s student-fee allocation program directs these mandatory fees toward specific groups or tiers of student-group funding in ways that advantage certain views, they may be at greater risk. And, as noted above, Mansky at least places the burden on universities to demonstrate that they have strictly limited discretion over student-activity-fee allocations to make it more difficult for viewpoint discrimination to happen.

And finally, on NIFLA v. Becerra:

Some professional schools and degree programs have sought to impose as speech codes the professional-ethics codes developed to apply to members of those professions. These codes are often written broadly (e.g., prohibiting “unprofessional behavior”) by voluntary professional associations and not meant to be strictly applied by government. Speech codes such as these are routinely deemed unconstitutional when drafted by universities and applied to all students. Some colleges and programs have argued that they may nevertheless enforce a professional-ethics code against students in that particular program — including its limits on “unprofessional” speech. The Court’s virtually complete rejection in NIFLA of new First Amendment exceptions, including one unique to “professional speech,” should make it more difficult for institutions to justify these professional-speech codes under the First Amendment. 

The Roberts Court, particularly in the last term with the addition of Justice Gorsuch, has been a strong speech-protective Court.  Judge Kavanaugh has a strong record on free speech cases and will likely continue this trend when he is confirmed to the Supreme Court.  While the Court does not hear many campus free speech cases, mainly because universities' speech-suppressing policies are usually clearly unconstitutional and quickly dropped or invalidated once challenged, its First Amendment jurisprudence has many implications for free speech on campus.

Supreme Court Strikes Down MN Law: Victory for 1st Amendment & Election Administration

This morning, the Supreme Court struck down Minnesota's ban on political apparel at the polls in Minnesota Voters Alliance v. Mansky.  We have covered this important case extensively.  

Chief Justice Roberts, writing for the seven-justice majority, first concluded that because the polling place is a non-public forum, Minnesota could indeed "choose to prohibit certain apparel there because of the message it conveys, so that voters may focus on the important decisions immediately at hand."  

But the Chief Justice described how broad Minnesota's ban is (citations omitted):

But the State must draw a reasonable line. Although there is no requirement of narrow tailoring in a nonpublic forum, the State must be able to articulate some sensible basis for distinguishing what may come in from what must stay out.  Here, the unmoored use of the term “political” in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to this Court, cause Minnesota’s restriction to fail even this forgiving test. 

Again, the statute prohibits wearing a “political badge, political button, or other political insignia.” It does not define the term “political.” And the word can be expansive. It can encompass anything “of or relating to government, a government, or the conduct of governmental affairs,” or anything “[o]f, relating to, or dealing with the structure or affairs of government, politics, or the state.” Under a literal reading of those definitions, a button or T-shirt merely imploring others to “Vote!” could qualify.

As was made abundantly clear by the state's counsel during oral argument, Chief Justice Roberts then described how Minnesota could not even define or consistently describe what apparel would and would not be banned by the law, noting that the law "poses riddles that even the State’s top lawyers struggle to solve." (citations omitted):

“[P]erfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.”  But the State’s difficulties with its restriction go beyond close calls on borderline or fanciful cases. And that is a serious matter when the whole point of the exercise is to prohibit the expression of political views. 

It is “self-evident” that an indeterminate prohibition carries with it “[t]he opportunity for abuse, especially where [it] has received a virtually open-ended interpretation.”  Election judges “have the authority to decide what is political” when screening individuals at the entrance to the polls.  We do not doubt that the vast majority of election judges strive to enforce the statute in an evenhanded manner, nor that some degree of discretion in this setting is necessary. But that discretion must be guided by objective, workable standards. Without them, an election judge’s own politics may shape his views on what counts as “political.” And if voters experience or witness episodes of unfair or inconsistent enforcement of the ban, the State’s interest in maintaining a polling place free of distraction and disruption would be undermined by the very measure intended to further it.  

The Chief Justice concludes by noting that other states have bans on apparel and insignia at the polling place that are much more clearly defined (citations omitted):

We do not suggest that such provisions set the outer limit of what a State may proscribe, and do not pass on the constitutionality of laws that are not before us.  But we do hold that if a State wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach than the one Minnesota has offered here. 

Cases like this “present[] us with a particularly difficult reconciliation: the accommodation of the right to engage in political discourse with the right to vote.”  Minnesota, like other States, has sought to strike the balance in a way that affords the voter the opportunity to exercise his civic duty in a setting removed from the clamor and din of electioneering. While that choice is generally worthy of our respect, Minnesota has not supported its good intentions with a law capable of reasoned application.

As the opinion notes, not only did this law burden voters and leave them vulnerable to unequal enforcement, it also placed burdens on hardworking poll workers (who have many other tasks on Election Day) to both interpret and enforce an unclear law.  This decision is a victory both for the First Amendment rights of voters but also for good election administration, as states do their local election officials and poll workers an immense disservice and cause disruptions when they provide unclear guidelines for procedures at the polling place.

Oral Argument Highlights from Minnesota Voters Alliance v. Mansky

Today, the Supreme Court heard oral arguments in Minnesota Voters Alliance v. Mansky, a challenge to Minnesota's ban on political apparel at the polling place.  RNLA member Ilya Shapiro summarized the problems with the law in the Wall Street Journal:

Minnesota’s ban, by contrast, finds no historical parallel. A generic pro-voting message like “Rock the Vote” is arguably a political statement forbidden by the law. But how could it possibly be construed as pressuring anyone to vote for a particular candidate? Whatever legitimate concerns the state may have about the electoral process, it can’t justify a ban on voters’ nondisruptive speech—let alone on unobtrusive paraphernalia that’s unrelated to any issue or candidate on the ballot. 

Minnesota’s ban on political apparel is so sweeping that another Supreme Court precedent is far more relevant than Burson. In the 1987 case Airport Commissioners v. Jews for Jesus, the high court unanimously struck down a ban on “First Amendment activity” at Los Angeles International Airport. The court explained that such a ban was overbroad because it necessarily extended far beyond speech “that might create problems such as congestion or the disruption of the activities of those who use LAX.” . . . That’s not to say that places with security or governmental-integrity concerns have to be free-for-alls. Burson was right to allow reasonable regulations that ensure orderly elections. Courtrooms and other sensitive areas—what lawyers call “nonpublic forums”—can impose certain restrictions. But “the wearing of a T-shirt or button that contains a political message,” the court explained in Jews for Jesus, “is still protected speech even in a nonpublic forum.” 

Most fundamentally, Minnesota’s law is unjustified because its fear of political expression is so disconnected from normal society. . . . As the Court found in Tinker, which upheld students’ rights to wear black armbands to school in protest against the Vietnam War, “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” 

It’s vital that the Supreme Court defend voters’ right to express themselves so long as they don’t prevent other voters from going about their civic business. . . .

RNLA member Steve Klein described highlights from oral arguments during today's Federalist Society teleforum call:

• Except for Justice Thomas, a lot of participation from all the justices, questioning both sides intensely.
• Justice Kennedy, Alito, and Roberts wanted an articulation of a limiting principle of what is “political.” David Breemer arguing for MVA said that it’s clear this law is overbroad.
•  “Please ID me” buttons – Mr. Breemer acknowledged they could be banned under anti-fraud/deception laws; whether display of an ID (as a means of making other voters think that ID was required) could be banned in the polling place was not raised during oral arguments.
• Justice Alito laid out the absurdity of breadth of prohibition.
• State has backed off breadth, perhaps in poll worker instructions, saying political is related to election and well-known.  Justice Alito said that actually makes it worse.  Justice Alito asked if wearing a rainbow shirt was ok, state said yes, as long as gay rights were not on the ballot. 
• Fact that election judges, who have authority to judge what is allowed, are selected from both major parties is supposed to alleviate concerns about viewpoint discrimination.
• Justice Roberts pointed out that the punishment belies the interest in polling place orderliness that state puts forward, because person is allowed to vote but name is taken down for later fine.  The force of the law is the chilling effect on speech.
• Even if the Court uses non-public forum analysis, there would be de facto viewpoint discrimination (NRA banned but “Parkland Strong” ok; Colin Kaepernick jersey ok, All Lives Matter not).  Respondents said these are tough calls but poll workers need to be able to make these calls to maintain order. 
• Justice Kagan had lighthearted criticism of polling place as place of reverence where we can suspend politics. 
• Chilling conclusion by Respondents: Justice Kagan jokingly said, maybe you should make the law broader, and they said yes, we could make it broader. 
• Effort to find limiting principle but aside from Justice Alito, no clear indication where any justice stood 
• Burson v. Freeman was plurality opinion, and we will likely see different perspectives here also. 
• Overbreadth law protects against arbitrary and discriminatory enforcement.
• Mr. Breemer pointed out several times that disruption and delay in the polling place is not caused by a person coming in an NRA shirt but by a poll worker saying the voter cannot wear it, subsequent discussion, taking down the voter's name, etc.
• Justice Gorsuch pointed out that state has to put forth an interest that justifies the ban.
• Mr. Klein concluded by noting that voting is very important, but there have to be limits on power of polling place workers to restrict voters’ rights; the law especially should not punish voters for participating in our democracy.

Given the state's counsel's different responses to hypotheticals proposed by the Court (notably, that a shirt with the text of the Second Amendment would be political, and therefore banned, but not a shirt with the text of the First Amendment), this tweet by Baker Hosteler attorney Andrew Grossman summarized the key issue in the case well:

Which pretty well proves that Minnesota's ban is vague, overbroad, and hopelessly arbitrary in application--even the advocate with months to prepare can't coherently identify what speech is banned and why.

— Andrew M. Grossman (@andrewmgrossman) February 28, 2018

The entire transcript in this important case can be read here, and our past coverage of the case is here. 

MVA v. Mansky: Minnesota's Political Apparel Ban Is Facially Overbroad Without Advancing Government Interests

RNLA member Ken Klukowski wrote a piece for last month's SCOTUSblog symposium on Minnesota Voters Alliance v. Mansky.  Mr. Klukowski analyzes how the Supreme Court will likely apply the controlling precedent, Burson v. Freeman (1992), which did not have a majority opinion, in light of current First Amendment doctrine and subsequent decisions regarding evidentiary burdens when applying strict scrutiny.  

He also discusses the relevant First Amendment law, under which Minnesota's ban on all political apparel at the polls is clearly overbroad: 

Minnesota’s law bans all political speech in whatever form, including all passive speech. . . . Here, in 2010 a Minnesota voter wore a Gadsden flag T-shirt (a picture of a rattlesnake with the phrase, “Don’t Tread on Me”), a symbol associated with the Tea Party, and a lapel button that said, “Please I.D. Me.” That voter, Andrew Cilek, was initially denied the opportunity to cast a ballot. He was later allowed to do so, but only after officials recorded his identity for possible prosecution. 

Yet neither of those clothing items should be a problem. Regarding the T-shirt, the Tea Party is a governing-philosophy political movement, not an actual political party that runs candidates. There was no “Tea Party candidate” on the ballot alongside Democrats and Republicans. Regarding “Please I.D. Me,” Minnesota has no voter-ID law, nor was that issue on the ballot in 2010, so the button had nothing to do with the 2010 election. . . . 

Under the overbreadth doctrine, laws facially violate the First Amendment if they permissibly burden some types of speech, but also go beyond that to restrict substantially more speech than necessary to achieve the permissible outcome. Such laws have a “chilling effect” on constitutionally protected speech. The courts frequently invalidate such laws, sending the issue back to the legislature to formulate a narrower law that achieves the permissible goal without scaring people away from saying things that the Constitution protects. . . . In this case, the discussion revolves around why Minnesota must go beyond blocking vote solicitations and campaigning to also ban T-shirts, baseball caps and other types of passive communication unrelated to candidates and issues on the current ballot in order to stop fraud and intimidation. In today’s environment, people can regard all sorts of innocuous messages as conveying some kind of political content.

But as important as the overbreadth analysis is (and the law is certainly far from narrowly tailored), the government has simply failed to prove that its governmental interests in preventing fraud and intimidation are advanced by the prohibition:

The question is not whether the Minnesota statute violates the First Amendment as an overbroad restriction on speech. Rather, the question becomes whether Minnesota has proven that its statute does not violate the Constitution — that is, proven that banning NRA and Tea Party shirts and hats is necessary to prevent fraud and intimidation. The government failed to carry that burden.

The Supreme Court will hear oral arguments in this important case next Wednesday, and we look forward to a decision this term protecting the right of voters not to be turned away from the polls for their passive speech.

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.

Supreme Court Grants Cert re Minnesota's Ban on Political Apparel at the Polls

Today, the Supreme Court granted a writ of certiorari in Minnesota Voters Alliance v. Mansky to decide whether "Minnesota statute Section 211B.11, which broadly bans all political apparel at the polling place, is facially overbroad under the First Amendment":

The justices said they will review a Minnesota law whose challengers include Andrew Cilek, a man who wore a Tea Party Patriots T-shirt and a "Please I.D. Me" button when he went to the polls in 2010. 

Minnesota is one of at least 10 states with broad bans on political apparel at election sites, according to the challengers. A decision striking down those laws would mark a significant shift for the high court, which in 1992 upheld a Tennessee law that barred campaign materials promoting a specific candidate or party. That law didn’t mention more general political items.

This case has important implications both for free speech rights and for election administration:

That ruling "plainly does not endorse a categorical ban on all types of ‘political’ speech," the challengers argued in their appeal. The group includes the Minnesota Voters Alliance and Cilek, its executive director. 

Minnesota’s law bars the wearing of a "political badge, political button or other political insignia" inside the polling place. . . . The law "is a reasonable method to ensure that the polling place is a location where citizens can exercise the right to vote without confusion, distraction or distress, and election officials can preserve the integrity and reliability of elections," the state officials argued.

On the one hand, states have a strong interest in ensuring the orderly conduct of elections, including prohibiting certain conduct, such as electioneering, at polling places.  On the other hand, voters do not abandon their rights of free speech at the polling place door, and broad bans on anything "political" clearly infringe on a voter's free speech rights.  Even more disturbingly, a vague prohibition such as Minnesota's allows a low-ranking government official, often a poll worker hired just for the day, to determine the limits of a voter's right of free speech by defining "political" (which, in our current culture, has been expanded to embrace almost everything) according to the government official's opinions.  This is the type of tyranny, petty though it may seem, that the First Amendment was designed to combat. 

Of note, prominent free speech advocates and election integrity supporters have already filed amici briefs in support of Minnesota Voters Alliance's challenge to the law: Cato Institute, Rutherford Institute, Reason Foundation, and Individual Rights Foundation; Center for Competitive Politics (now called Institute for Free Speech); and American Civil Rights Union and Association for Government Accountability.