Three big First Amendment cases to be heard the last week of February

The week of February 26th will be a huge week for the First Amendment. The Supreme Court has just announced that it will hear argument in three important First Amendment cases that week.

On Monday, the Court will hear Janus v. American Federation of State, County, and Municipal Employees, Council 31. The case concerns the constitutionality of “agency fees,” which is money that public employees must pay to a union, regardless of whether they are members of that union or not. As my colleague Debbie La Fetra recently pointed out, Janus provides an opportunity for the Court to repudiate public-employee unions’ ability to garnish workers’ paychecks for the inherently political act of collective bargaining.

She notes that the compelled subsidy of speech leads to an endless cycle of government growth:

These garnished wages come from the paychecks of government employees — paid from taxpayer dollars — to subsidize efforts to expand union power and increase government spending still further: an endless cycle of government funding the demand for its own growth, all at the expense of citizens and dissenting workers who are forced to bankroll the enterprise. This violates the First Amendment.

On Tuesday, the Court will hear Lozman v. City of Riveria Beach. A few months back, I highlighted the case as one that the Supreme Court might take up this term — and it did. My soothsaying powers are probably only average, but I remind you when I get it right. Lozman provides the Court with an opportunity to invigorate the First Amendment retaliation doctrine, which forbids the government from using its powers to  retaliate against those who exercise their First Amendment rights.

On Wednesday, the Court will hear my favorite case this term: Minnesota Voters Alliance v. Mansky (disclosure: I drafted the cert petition in this case and will be second chair at oral argument). The case involves a First Amendment challenge against a broad ban on button, badges, and t-shirts at polling places in Minnesota. The ban doesn’t just impose criminal penalties on voters who wear campaign-related insignia like “vote for Bush” or “vote for Gore” (though that would be bad enough), but also bars voters from wearing any apparel that promotes a group with a “recognizable political view,” like an AFL-CIO t-shirt or a Chamber of Commerce button. I spoke at a press conference in St. Paul, Minnesota the day after the Supreme Court granted the case. You can watch the video here.


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