U.S. Supreme Court

Chemerinsky: Free speech at the Supreme Court

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Erwin Chemerinsky

In a term filled with potential blockbuster decisions, it is striking that there are five cases involving issues of freedom of speech. They touch on many different aspects of First Amendment jurisprudence and collectively have the potential for significantly changing the law in this area.


In Abood v. Detroit Board of Education in 1977, the Supreme Court reaffirmed that no one can be forced to join a public employees’ union. But the court held that non-union members can be required to pay the share of the union dues that supports the collective bargaining activities of the union. The court explained that non-union members benefit from collective bargaining in their wages, hours and working conditions; they should not be able to be “free riders.” The court held, however, that non-union members cannot be forced to pay the share of the dues that support political activities. That would be impermissible compelled speech.

In recent cases, such as Harris v. Quinn (2014), the five conservative justices then on the court sharply criticized Abood, and seemed to invite a request to overrule it. That came to the high court two years ago in Friedrichs v. California Teachers Association. Friedrichs was argued on Jan. 11, 2016, and not one of the five conservative justices asked a question or made a comment that left doubt as to how he was going to vote. But Justice Antonin Scalia died before the case could be decided and the Supreme Court affirmed the lower court, which had followed Abood, by an evenly divided court.

Quite predictably, another case, Janus v. American Federation (which will be argued on Feb. 26), now has made its way to the Supreme Court and directly poses the question of whether Abood should be overruled. The case is of vital importance to unions. Overruling Abood would have a significant detrimental effect on union revenues and membership in the more than 20 states that do not have right-to-work laws.


This case, which will be argued on Feb. 28, poses a question which has been before the Supreme Court before, but never resolved: Whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim as a matter of law.

Fane Lozman is an outspoken critic of development efforts in Riviera Beach, Florida, including having filed lawsuits against the city. Soon after filing a suit under Florida’s Government in the Sunshine Act, the City Council—in a closed-door meeting—decided to take action to send a “message” to Lozman and to “intimidate him.” When Lozman began to speak during the public comment period at a City Council meeting, the presiding member ordered Lozman arrested. Ultimately, no charges were brought against him.

Lozman sued, claiming that his arrest violated the First Amendment because it was in retaliation for his speech activity. The Atlanta-based 11th U.S. Circuit Court of Appeals ruled that Lozman could not recover because there was probable cause for his arrest for the crime of disturbing a lawful assembly, even though he never had been charged with this crime. Thus, the issue is squarely before the court: does the existence of probable cause for an arrest under the Fourth Amendment preclude a claim for money damages under the First Amendment for retaliation?


Without a doubt, Masterpiece Cakeshop, which was argued last Dec. 5, promises to be one of the blockbuster cases of the term. The issue is whether a business owner’s religious beliefs provide it a constitutional right to an exemption from a state’s anti-discrimination law.

Charlie Craig and David Mullins got married in Massachusetts and wanted to celebrate their wedding where they lived in Colorado. They went to a local bakery, Masterpiece Cakeshop, a limited liability company in Colorado, and sought to purchase a wedding cake. The owner, Jack Phillips, refused to bake the cake, saying that gay marriage violated his religious beliefs.

The Colorado Civil Rights Commission found that Phillips violated Colorado’s public accommodations law that prohibits business establishments from discriminating, including on the basis of sexual orientation. Phillips would bake a cake for opposite sex couples, but not for same sex couples, a form of discrimination that violated state law. The Colorado Court of Appeals affirmed the Commission’s ruling against Masterpiece Cake.

The question presented states: “Whether applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.” Phillips claims that baking a cake is artistic activity and it is impermissible compelled speech to force his company to bake a cake. He also argues that it would violate his free exercise of religion to compel this. But Colorado, as well as the lawyer for Craig and Mullins, disagree and stress the compelling government interest in stopping discrimination. They argue that a ruling for Masterpiece Cakeshop and Phillips would open the door to anyone who wants to discriminate claiming a First Amendment exemption from civil rights laws.


In Burson v. Freeman (1992), the Supreme Court upheld the constitutionality of a Tennessee law that prohibited “solicitation of votes” and “campaign materials” within 100 feet of a polling place. The case is unusual in that the court found that the state law was a content-based restriction on speech that had to meet strict scrutiny, but nonetheless found the statute constitutional. Relatively few Supreme Court cases have upheld government actions when strict scrutiny is applied.

Minnesota election law forbids voters from wearing political badges, political buttons, or other political insignia at the polling place. The ban broadly prohibits any material “designed to influence and impact voting,” or “promoting a group with recognizable political views.” The St. Louis-based 8th U.S. Circuit Court of Appeals upheld this law based on Burson v. Freeman. The question in Minnesota Voters Alliance v. Mansky, to be argued on Feb. 28, is how far can a state go in restricting express activities at polling places.


California adopted a law to ensure that women are informed of the availability of free or low-cost reproductive health services. The Reproductive FACT Act requires that licensed health care facilities post or distribute a notice that states, “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].” An unlicensed facility also must disseminate a notice to all clients acknowledging that it is not licensed as a medical facility by the state of California.

The California legislature was concerned that there are more than 200 crisis pregnancy centers in the state that hinder the ability of women to receive accurate information about their reproductive rights and to exercise those rights. The legislative history explains that crisis pregnancy centers “pose as full-service women’s health clinics, but aim to discourage and prevent women from seeking abortions” in order to fulfill their goal of “interfer[ing] with women’s ability to be fully informed and exercise their reproductive rights.” The legislature found that crisis pregnancy centers, which include unlicensed and licensed clinics, employ “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.”

The challengers argue that the California law impermissibly compels speech, forcing facilities to post notices on their walls. The San Francisco-based 9th U.S. Circuit Court of Appeals rejected this argument and stressed that the law does no more than require that accurate information be conveyed to women by posting a notice on the wall. No one is required to say anything. Nor is there any requirement for providing contraception information or abortion referrals. The Ninth Circuit also emphasized how health professionals are required to provide other information to allow patients to make informed choices and how many laws require posting of warnings for consumers. National Institute of Family and Life Advocates v. Bacerra, to be argued on March 20, thus is another case this term that involves the question of what constitutes impermissible compelled speech.


Most terms, like last year, have two or three free speech cases. To have five, and in such controversial areas and with such potentially broad implications, is extraordinary.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).

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