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.
Today, the Supreme Court decided National Institute of Family and Life Associates (NIFLA) v. Becerra. Justice Thomas wrote for the five-member majority concerning the two pro-abortion notices required of pro-life pregnancy center by the California law at issue (the FACT Act) (citations omitted):
The licensed notice is a content-based regulation of
speech. By compelling individuals to speak a particular
message, such notices “alte[r] the content of [their]
speech.” . . . Although the licensed notice is content based, the Ninth
Circuit did not apply strict scrutiny because it concluded
that the notice regulates “professional speech.” Some Courts of Appeals have recognized “professional
speech” as a separate category of speech that is
subject to different rules. . . . But this Court has not recognized “professional speech”
as a separate category of speech. Speech is not unprotected
merely because it is uttered by “professionals.” . . .
The dangers associated with content-based regulations
of speech are also present in the context of professional
speech. As with other kinds of speech, regulating the
content of professionals’ speech “pose[s] the inherent risk
that the Government seeks not to advance a legitimate
regulatory goal, but to suppress unpopular ideas or information.” . . . “[T]he best test of truth is the
power of the thought to get itself accepted in the competition
of the market,” and the people
lose when the government is the one deciding which ideas
should prevail. . . .
In sum, neither California nor the Ninth Circuit has
identified a persuasive reason for treating professional
speech as a unique category that is exempt from ordinary
First Amendment principles. We do not foreclose the
possibility that some such reason exists. We need not do
so because the licensed notice cannot survive even intermediate
scrutiny. California asserts a single interest to
justify the licensed notice: providing low-income women
with information about state-sponsored services. Assuming
that this is a substantial state interest, the licensed
notice is not sufficiently drawn to achieve it.
If California’s goal is to educate low-income women
about the services it provides, then the licensed notice is “wildly under inclusive.” . . . Yet “[p]recision . . .
must be the touchstone” when it comes to regulations of
speech, which “so closely touc[h] our most precious freedoms.” . . .
Turning to the other notice requirement:
We need not decide what type of state interest is sufficient
to sustain a disclosure requirement like the unlicensed
notice. California has not demonstrated any justification
for the unlicensed notice that is more than “purely
hypothetical.” . . .
Even if California had presented a nonhypothetical
justification for the unlicensed notice, the FACT Act unduly
burdens protected speech. The unlicensed notice imposes
a government-scripted, speaker-based disclosure requirement
that is wholly disconnected from California’s informational
interest. . . . And it covers a
curiously narrow subset of speakers. . . . This Court’s
precedents are deeply skeptical of laws that “distinguis[h]
among different speakers, allowing speech by some but not
others.” Speaker-based laws run the risk
that “the State has left unburdened those speakers whose
messages are in accord with its own views.”
The majority did not reach the plaintiffs' viewpoint discrimination claim (see footnote 2 on page 6). Justice Kennedy, joined by Chief Justice Roberts and Justices Alito and Gorsuch, agreed that the Court was correct not to reach the viewpoint discrimination question but concurred to note that the "apparent viewpoint discrimination here is a matter of
serious constitutional concern":
It does appear that viewpoint discrimination is inherent
in the design and structure of this Act. This law is a
paradigmatic example of the serious threat presented
when government seeks to impose its own message in the
place of individual speech, thought, and expression. . . . This compels individuals to contradict
their most deeply held beliefs, beliefs grounded in basic
philosophical, ethical, or religious precepts, or all of these. And the history of the Act’s passage and its underinclusive
application suggest a real possibility that these individuals
were targeted because of their beliefs. . . .
Governments must not be allowed to force persons to
express a message contrary to their deepest convictions.
Freedom of speech secures freedom of thought and belief.
This law imperils those liberties.
While liberals will use any means to attempt to force people to support their policy agenda, the First Amendment stands against government efforts to force people to speak contrary to their personal views just as it stands against restricting people from speaking. Today the Supreme Court once again relied on the First Amendment to vindicate the rights of the people against government oppression.
The Supreme Court also upheld President Trump's so-called "travel ban" today in Trump v. Hawaii.
The Court's last decision day for this term is tomorrow. The decision in Janus v. AFSCME (concerning compelled union dues for government employees) is expected, and if any justices are retiring, it will likely be announced tomorrow. Follow the RNLA on Twitter for news tomorrow morning.
