“Free Speech” As A Republican Weapon

To follow up on yesterday’s Janus post, Sean McElwee has an excellent piece about the highly selective use of the First Amendment by Rpeublicans to protect Republican interests:

If the Court does indeed rule that these fees are unconstitutional, it will be on the grounds that the payments are “compelled speech,” as the plaintiffs argued. But while the conservative justices may be sympathetic to the free-speech claims of workers and and union beneficiaries who don’t want to pay union dues, they seems far less interested in other forms of coerced speech in the workplace.

The Court’s conservative majority has already placed stark limits on the speech rights of public-sector workers. In Garcetti v. Ceballos, the five conservative justices found that a deputy district attorney who faced retaliation for writing an internal memo detailing false claims in a search warrant did not have free-speech rights, because of his position as a government worker.

In a 1990 case, Rutan v. Republican Party of Illinois, liberals on the Court held that the First Amendment barred public-sector officials from making decisions about hiring or firing based on party affiliation. But in his dissent Justice Antonin Scalia argued that “Private citizens perhaps cannot be prevented from wearing long hair, but policemen can,” and thus, in his view, free expression by public-sector workers can be curtailed.

Justice Anthony Kennedy, who appeared to favor the plaintiff’s arguments on Monday, signed on Scalia’s dissent in Rutan. It is very difficult to find a logical thread here, but it is easy to find a partisan one—conservative jurisprudence may only be interested in protecting those free-speech rights when unions would be harmed.

In addition to happily limiting the free-speech rights of public-sector employees, the Supreme Court has also never been particularly concerned with the free-speech rights of private-sector employees, despite evidence that employers sometimes push workers to engage in political speech they may not want to.

[…]

In fact, one reason employers can coerce speech is because of the Citizens United decision, which Kennedy has often claimed was about free speech. As Hertel-Fernandez explained, the decision “permits managers to use their employees’ time and effort—a corporate resource—in elections.” Hertel-Fernandez wrote that “many employers can now require that their workers participate in partisan electoral politics, and can even discipline or even dismiss workers who refuse to engage in those activities.”

And while the Koch brothers deliver materials to workers telling them whom to vote for, unions are barred from distributing such materials. The Court’s priorities are clear: speech for corporations, but no speech for workers.

Janus is another test of our institutions: namely, how far conservatives on the Supreme Court are willing to go in order to reinterpret the law in order to achieve political goals. In Bush v. Gore, Republicans on the Court gifted the presidency to George W. Bush. In Shelby County, conservatives on the court helped Republicans with their black-voter-suppression agenda, thereby helping Republicans win an election because of the decline in black turnout.

Though liberals cheered on the NFIB decision, in which Roberts upheld the ACA, the majority ineptly rewrote the Medicaid expansion, a key GOP priority. Recent research suggests that allowing Republican governors to reject the Medicaid expansion was enough to swing the 2016 election to Trump. Citizens Unitedmostly succeeded in improving the Republican Party’s chances in the 2010 midterms, and has further increased their state-level power since.

Read the whole etc.