Supreme Court stands up for right to dissent
When the U.S. Supreme Court ruled on Tuesday that some California pregnancy crisis centers were not bound by the state law requiring them to advertise abortion services for their clients, the usual culture war industrial complex sprang to action. In a statement, NARAL president Ilyse Hogue said “turned its back on women and condoned the deceptive tactics used by fake women’s health centers.” The Atlantic characterized the ruling as “a big win to the pro-life movement.”
Yet while it did involve an explosive issue like abortion, the real effect of the ruling was far broader than simply picking sides between pro-life and pro-choice factions. The decision was further vindication for those fighting against the government imposing compulsory speech requirements on them.
In the California case, religious-based crisis pregnancy providers that objected to abortion were forced under state law to promote abortion services to their clients. In effect, the state was forcing these providers to betray their conscience in order to serve an order handed down by politicians.
It is just the latest in the line of examples of governments using their power to compel speech with which citizens disagree. As Justice Clarence Thomas notes in the majority opinion, “when the government polices the content of professional speech, it can fail to ‘preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.’”
These infringements on free speech rights abound. The Supreme Court has already ruled, for instance, that students cannot be forced to stand and recite the Pledge of Allegiance in school. The court determined that a resident of New Hampshire could not be forced to adorn his car with a license plate that included the state motto, “Live Free or Die.”
More recently, the court denied legal challenges against florists and bakers that refused to provide service to gay and lesbian weddings on religious grounds. In the Masterpiece Cakeshop case, the court rightly noted that it would be just as invasive for the government to require bakers to decorate cakes with anti-LGBTQ messages as it would be to compel religious bakers to betray their beliefs.
On Wednesday, the court struck another blow against forced speech when it struck down state laws that allowed public sector unions to charge non-union members so-called “agency fees,” regardless of whether the non-member agreed with the union’s mission and political positions. By mandating non-members pay dues, states were effectively forcing employees to join organizations they found objectionable and requiring them to financially support unions’ political goals.
Pro-union folks will argue that employees paying “agency fees” can require they not be used for political activity, yet money is always fungible — if an employee objects, that money can be used for administration, freeing up more funds for political advertisements. Further, as Justice Samuel Alito writes in the court’s decision, union financial record keeping is often confusing and secretive, sometimes only accessible if a lawsuit is filed.
The issue of forcing employees to join government unions was, of course, boisterously litigated in Wisconsin at the beginning of Gov. Scott Walker’s first term in 2011. Since then, public sector unionization has plummeted in the state, demonstrating that a great deal of people would not have joined unions if not forced to. Further, taxpayers are no longer forced to subsidize Democratic political campaigns through dues collected by these unwilling members.
The issue of forced speech is by no means over. Governments continue to pass language mandates that will take years to litigate. The City of New York in 2016 proposed fines of up to $250,000 for businesses that fail to use an individual’s preferred pronoun. The federal government only recently implemented rules requiring most restaurants post calorie counts on their menus, an expensive change that will likely suppress sales.
“If there is any fixed star in our constitutional constellation,” wrote Justice Robert Jackson in 1943, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.”
The Supreme Court’s rulings this week upheld that commonsense ideal. And the great thing is, until I become governor, you are perfectly free to disagree.
Christian Schneider is a Journal Sentinel columnist and blogger.