First Amendment Highlights from the U.S. Supreme Court’s October Term 2017

While the U.S. Supreme Court’s October Term 2017 technically does not end until this September, the Court is on “summer break” and its major opinions for the term are out. This year’s term was packed with important cases defining and explaining First Amendment issues. From free speech to free exercise, we’ve highlighted the key First Amendment cases of the term.

1. Union Dues as Speech: Janus v. American Federation of State, County, and Municipal Employees

Janus overrules a case called Abood, which had previously held that the government could require public employees to contribute fees to a union, but no part of that fee could go to pay for the union’s political activities. In Janus, the Court reviewed an Illinois law where public employees were forced to pay such an agency fee to the union, even if they chose not to join and strongly objected to the union’s positions. The Court held that this law violated the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern. This case is significant for public employees, such as teachers and other government workers, who have religious or other strongly-held objections to the positions taken by unions that represent their industries. It is also a big shift for First Amendment jurisprudence and one of the Court’s more significant cases of the term. 

2. Free Speech for Pro-Life Crisis Pregnancy Centers: NIFLA v. Becerra

California passed a law that, among other requirements, forced pro-life (mostly Christian) crisis pregnancy centers to advertise the availability of free or low-cost abortions. The clinics sued to enjoin enforcement of the law, claiming the Act violated their constitutional rights. The Supreme Court—by a narrow margin—agreed. In NIFLA v. Becerra, the Court held that the requirement was a content-based regulation on speech, something that is justified only if the government proves the law is narrowly tailored to serve compelling state interests. Under this stringent standard (or even a lower one), the law was not narrowly drawn to achieve the government’s goal. The Court explained that the government could have achieved its purpose—advancing free or low-cost abortions—through other means, such as a public advertising campaign. In addition, the law was underinclusive, targeting only certain clinics, while exempting others. 

3. Free Exercise Rights of Business Owners: Masterpiece Cakeshop 

Masterpiece Cakeshop involved the case of Jack Phillips, who was charged with violating a Colorado anti-discrimination law for refusing to create a wedding cake for a gay couple on the basis that doing so would violate his sincerely-held religious beliefs about marriage. Inherent in that question were issues of free exercise of religion and free speech and when those principles must yield to the State’s ability to craft anti-discrimination laws. The Court ultimately decided the case for Phillips on religious liberty grounds, leaving the free speech question for another day. We’ve blogged about this case in another post—for a more in-depth look at the decision, click here. 

4. Polling Place Dress Codes: Minnesota Voters Alliance v. Mansky

Minnesota, like many states, had a law that restricted what people could wear to polling places on election day. Specifically, any political badge, button, or other insignia was prohibited upon penalty of a fine or prosecution for a petty misdemeanor. In Minnesota Voters Alliance v. Mansky, the U.S. Supreme Court reviewed a challenge to this law and concluded that the political apparel ban violated the Free Speech Clause of the First Amendment. Central to the Court’s reasoning was the fact that the Minnesota law did not do enough to explain what apparel could come in, and what could stay out. Because of the lack of a “reasonable line,” the law ran afoul of the First Amendment.

5. No Establishment Clause Concerns: Trump v. Hawaii

Trump v. Hawaii, the “travel ban” case, also touched on First Amendment issues, with the Court ultimately concluding that the challengers would probably not win on an Establishment Clause challenge to the ban. This case involved a presidential proclamation denying entry to foreign nationals of a group of countries, most of them Muslim-majority countries. The plaintiffs in the case had brought a constitutional challenge to the proclamation, arguing that President Trump’s statements about a “Muslim ban” on the campaign trail demonstrated that the proclamation was motivated by religious animus. The Court, however, without expressing an opinion on the statements or the efficacy of the proclamation, upheld the proclamation as a lawful exercise of the President’s power to restrict entry into the country. Because the proclamation was neutral toward religion on its face and supported by a legitimate interest in national security concerns, it was justified enough to survive rational basis review.

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