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.
Looking forward to next year, the Supreme Court will be hearing arguments on a free speech case at the end of February. The case seems simple: can unions force a non-member to pay dues when the non-member disagrees and does not support what the union espouses? However, it is pitting two giants of American society against one another in a novel way.
Terry Pell penned a guest post on SCOTUS Blog delving into this case: Janus v. American Federation of State, County, and Municipal Employees, Council 31. Mr. Pell summarizes the background of the case as follows:
For many years, Mark Janus has been a child-support specialist in the Illinois Department of Healthcare and Family Services. Today he is the named plaintiff in Janus v. American Federation of State, County, and Municipal Employees, Council 31, a case that could well end laws in 22 states that require public employees to pay “agency fees” to a union regardless of whether they are members of the union or wish to support it. Janus’ case is perched on the tip of a spear aimed directly at the funding mechanism that has generously supported public-employee unions for the last 40 years.
Janus’ claim is straightforward: His union is one of several public-employee unions pressing the state of Illinois for greater salaries and pension benefits for public employees. Janus thinks the union’s efforts are pushing the state toward greater borrowing, higher taxes and possible bankruptcy. All of this, he says, will harm future generations, including his own children and grandchildren. So he quit his union. Nevertheless, Illinois state law requires that he pay “agency fees” to his union to compensate it for its expenses in negotiating a contract on his behalf. Even though Janus doesn’t agree with the union’s efforts to secure greater salary and a bigger pension, he personally benefits from those efforts. Not unreasonably, the union thinks he should pay his “fair share” of what it costs to negotiate that contract.
So, at issue, is whether the First Amendment right to free expression--here the right to not financially support unions--can be eclipsed by unions seeking compensation for benefits conveyed even to non-union members? The Plaintiff disagrees:
But Janus argues that he has the right under the First Amendment to decide for himself whether greater salary and more benefits are good things. If so, the First Amendment protects his right no matter how unpopular with the union or out of step with his fellow public employees...This is an unusual case. But the conflict between the free speech rights of individuals and the demands of the modern workplace is real. On the one hand, it seems correct that a public employer can restrict the right of its employees to promote their personal political views on the job. But it seems equally obvious that a public employer cannot force its employees to personally fund organizations with which they have deep political disagreements.
Supreme Court precedents might shed insights on this issue. First, the Plaintiff will argue the wide and broad breadth of the First Amendment:
But the Supreme Court has recognized that if the First Amendment protects the right of individuals to speak their minds, then it must also protect the right of individuals to refrain from speaking, to decide for themselves whether and when to participate in public discussion... First Amendment secures for the individual a “sphere of intellect and spirit” free “from all official control,” the Supreme Court held in West Virginia State Board of Education v. Barnette. As the court memorably put it in Barnette, if the First Amendment “guards the individual’s right to speak his own mind,” it surely does not allow officials “to compel him to utter what is not in his mind.”
Conversely, the Defendant-union will argue the potential loss of membership and resources:
How many union members will leave if the Supreme Court does away with compulsory dues? If it is a great number, then states like Illinois could argue that there is a compelling government interest in preserving compulsory dues in order to support the system of collective bargaining necessary to managing a public workforce... But not many may leave, at least according to evidence the unions offered in Yohn v. California Teachers Association (a case in which my firm is serving as co-counsel). The plaintiff teachers in Yohn asked the unions whether loss of compulsory dues would make them insolvent or preclude them from serving effectively as exclusive bargaining representatives... In response, the unions said that “some number” of workers will refuse to pay dues and that this number “may be substantial.” They did not attempt to quantify the number who might leave or suggest that the loss of those workers’ dues would impede the unions from effectively representing employees.
This case will surely be a pivotal case for the 2017 Term--both for unions as well as proponents of the First Amendment. Oral arguments are scheduled for February 28th. You can view the briefs and filings on SCOTUS Blog, available by link here.
