The Republican-appointed justices on the Supreme Court have decided that the U.S. Constitution’s First Amendment makes a mighty club to beat down the Democratic Party, the rights of minorities, and unions. The entirety of First Amendment reads as follows:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The “freedom of speech” part is what we are talking about here. One Justice described what the five Republican-appointed members of the Court are doing as: “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”
The trend started in 2010 when the Supreme Court decided the pivotal case Citizens United v. FEC and found that it was a violation of corporations’ free speech to prevent them from making independent expenditures for political advertising. Who knew that the First Amendment was intended to protect the free speech of corporations? And who cares if all that corporate money buries the free speech rights of all the rest of us?
Citizens United opened the way for the creation of super PACs and the use of “dark money,” or unlimited spending on political advertisements by corporations. Money, as the Court found, talks and when it does, it is protected as corporate “free speech.” (Note too the justice who wrote the Citizens United decision is Sacramento’s own – and now retiring from the Court – Anthony Kennedy.)
Now, eight years later, the Court has decided three cases using the First Amendment as a steamroller for the right wing agenda:
In Masterpiece Cakeshop v. Colorado Civil Rights Commission, a baker refused to bake a wedding cake for a gay couple. Colorado’s Civil Rights Commission determined that the baker’s free speech rights would not be violated by baking a cake but the Republican-appointed majority on the U.S. Supreme Court found the Civil Rights Commission decision to be “hostile to religion” with two of the five justices concluding that the refusal to bake a wedding cake for a gay marriage is “artistic expression” protected by First Amendment free speech rights.
In National Institute of Family and Life Advocates (NIFLA) v. Becerra, the Court held a California law requiring licensed pregnancy crisis centers to post signs explaining that the state will provide free or low cost access to birth control, including abortions, violates free speech.
In Janus v. AFSCME, the National Right to Work Foundation, an organization committed to eradicating unions and the support that unions provide to their members, argued that requiring public employees to pay dues or their fair share of dues violated their First Amendment free speech rights. In response to this holding, Obama-appointee Justice Kagan concluded,
“Today is not the first time the Court has wielded the First Amendment in such an aggressive way…And it threatens not to be the last. Speech is everywhere—a part of every human activity (employment, health care, securities trading, you name it). For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance—including over the role of public-sector unions.”
The one area where the Trump Administration does work “like a Swiss Clock” (in the President’s words) is in its efficient process of nominating and getting Senate approval of its federal judges.