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First Amendment Free Speech Protection Is Alive and Well

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By Jessica D. Kemper* and Andrew F. Halaby

The First Amendment’s free speech guarantee has proved determinative in a variety of very recent Supreme Court decisions. In Matal v. Tam (see here), the Court held that the First Amendment precludes denial of registration of an allegedly offensive trademark.  In National Institute of Family and Life Advocates v. Becerra (“NIFLA”) (2018), the Court held that California may not compel crisis pregnancy centers to provide, against their wishes, abortion-related information.  And in Janus v. American Federation of State, County, and Municipal Employees, Council 31 (2018), the Court held that the First Amendment bars extracting compulsory agency fees from non-members.

These three decisions, arising from very different fact sets, underscore the high court’s recent commitment to free speech protection — and its willingness to provide that protection even in settings where its availability might have been questioned.

Consider Tam.  Justice Alito wrote on behalf of a plurality that the “public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers,” even in the commercial context of trademarks.  The view that “it is not . . . the role of the State or its officials to prescribe what shall be offensive” went on to command a majority of the Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018).

In NIFLA, the Court held that even professionals speaking in a professional capacity enjoy free speech protection from content-based regulations.  According to a majority of the Court, government lacks the power “to restrict expression because of its message, its ideas, its subject matter, or its content.”

And in Janus, finding “[f]undamental free speech rights . . . at stake,” the Court overruled its 41-year-old decision in Abood v. Detroit Board of Education (1978) and held unconstitutional an Illinois law requiring payment of union fees by nonmembers who disagree with union positions.  A majority of the Court held, “Compelling individuals to mouth support for views they find objectionable violates the cardinal constitutional command” 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.”

Questions remain, particularly as to the standard of review to be applied in such and related cases.  Nevertheless, the decisions signal openness to free speech challenges, even in commercial matters like the trademark registration setting in Tam, and even where those challenges might have seemed unavailable as in Janus.  Accordingly, businesses and their lawyers should maintain vigilance for potential First Amendment free speech arguments even in “garden variety” cases.

*Jessica D. Kemper is a summer associate in Snell & Wilmer’s Phoenix office, working under the supervision of Andrew F. Halaby.  She is anticipated to graduate from Arizona State University Sandra Day O’Connor College of Law in May 2019.