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Crack, Momentary Nudity, and Union-Busting

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An important day at the Court, despite the lack of a ruling on the PPACA.

Knox, which Garrett Epps also discusses, is the case that won’t get the attention it deserves. As with Citizens United, the problem isn’t so much the outcome of the case as the unnecessarily broad ruling. The SEIU screwed up by not providing the notice they were at least arguably applied to, and this was additionally foolish given that providing an opportunity for the currently constituted federal courts to create new law is a terrible idea. But using this case to write broad new anti-union First Amendment law is a classic Roberts Court move. And it looks even worse when contrasting their ducking of crucial First Amendment issues in the “fleeting expletives” case:

Alito’s opinion in Knox looks even worse when compared to the ruling in the FCC case. In the latter, and without the protest of a single one of the Court’s Republican appointees, the Court issued a too-narrow ruling, ducking the crucial First Amendment issues although maintaining the authority of the FCC to issue vague, arbitrary regulations against the broadcast of “indecency” has a chilling effect on core First Amendment freedoms. In Knox, conversely, the Court issued a ruling far broader than the facts of the case required to invent a First Amendment rule whose effect will be to diminish political speech (at least according to long-established Supreme Court logic in which spending more money to influence elections means more speech). As the contrast makes clear, Knox is not the result of a steadfast commitment to First Amendment values but a simple hostility to labor.

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