The case being argued at the Supreme Court today, Friedrichs v. California Teachers Association, is yet another activist conservative bid to use the First Amendment to enlarge economic rights.
The case poses the question of whether union collective bargaining involves the kind of expressive speech that employees should not have to support. It’s long been the law (since the Abood case) that employees have a First Amendment right not to be compelled to support union political speech. Collective bargaining is something different. So the question raised is whether union speech involving contracts (e.g., tenure for teachers) is so close to political speech that it raises the same concerns? Even though this case involves public unions and government employers, it is clear from the Right to Work and other amicus briefs that the attack is a broader one on unions.
Far away, in a different corner of First Amendment law, a similar question is arising. It’s long been the law that government can require noncontroversial and factual product labeling without running afoul of the First Amendment rights of manufacturers. Industry is now challenging product labeling laws on the grounds that the labels (e.g., GMO) are too controversial — ideological speech of the kind that government must not compel products to speak. Again, the issue is at what point expression becomes so ideological or political such it implicates sacred First Amendment speech rights. Conservative think tanks like the Washington Legal Foundation and the Cato Institute are intentionally pushing on this line to constrain government action and expand business rights.
The Supreme Court invited the Friedrichs challenge. It will undoubtedly soon hear a product labeling case. If the Court in Friedrichs decides that collective bargaining counts as ideological speech, expect more disclosure requirements to go the same way and fall to the putative free speech rights of corporations.