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tv   Freedom of Speech Supreme Court Cases  CSPAN  March 7, 2018 3:42pm-4:01pm EST

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college next year and the 26th amendment and we were able to get contact with some important people and it clicked for us and we got working on it as soon as we could. >> the top 22 winning entries will air on c-span in april and you can watch every student cam documentary online at student cam.org. ♪ ♪ >> next, legal analyst previews supreme court cases involving freedom of speech including union membership and collective bargaining fees wearing political affair to polling places and a california state law to counsel and advertise abortion services. the foundation hosted last month's event.
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good morning and welcome to the heritage foundation. i'm elizabeth flarty and i'm the senior fellow here in the center, so next month, in the next month the supreme court will hear three cases involving first amendment free speech claims. the first case, janice involves public employees who opt out of union membership, but are nevertheless forced to pay a fee for costs associated with collective bargaining. are they free writers or compelled writers? this is the court's second time looking at this very issue in the 2015 term the court divided evenly after justice scalia passed away. the second case minnesota voters alliance involves limits on passive political speech at the polls. while states have a legitimate interest in preventing intimidation and violence at the polls, can they have hat,
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t-shirts and other items deemed too political such as a don't tread on me t-shirt and the third case, national institute of family and life advocates challenges california's attempt to force life-affirming pregnancy centers to advertise the state's free abortion program. the relevant law has so many exemptions that these centers are about the only medical centers in the state that have to post these pro-abortion notices. to discuss these three cases we are fortunate to have with us today attorneys who were part of the legal teams for each case and they will provide insights about the cases and how the arguments may unfold at the supreme court. so first up, we'll hear from jacob hubert. he is the director of litigation at the liberty justice center in chicago, illinois, where he litigates cases where he protects economic liberty and the first amendment and other constitutional rights and jacob is one of the attorneys representing mark janus in the government union case. jacob has challenged anti-competitive regulations targeting food trucks, ride sharing and air bnb and he was
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at the university of chicago law school and he clerked for deborah cook of the 6th circuit and we will hear from todd graziano who is the senior fellow and from the d.c. office. dlf represents minnesota voters alliance in the political t-shirt case. todd is a frequent commentator on print radio and on tv. he served a six-year term on the u.s. commission on civil rights and he previously worked here at heritage where he was my boss for five years. so welcome back. he also spent time in the office of legal council at the u.s. department of justice and the chief subcommittee council in the u.s. house of raptives. to he is from the university of thick chick law school and he clerked for edith jones and last, but not least we'll hear from jordan lawrence. he is one of the attorneys representing the pro-life pregnancy centers from california. jordan's work encompasses a broad range of litigation with the primary focus on defending
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the first amendment freedoms of public university students and professors. jordan argued before the supreme court in board of regents versus south worth challenging the university forcing unwilling students to contribute to campus activist groups. he is a graduate of stanford university and the university of minnesota law school. so with that, please join me in welcoming our panelists and we'll hear first from jacob. [ applause ] >> can the government force its employees to give money to a union just to keep their jobs? that's the question the supreme court will answer in janice versus asme which is a first amendment case which is what i work for, the liberty justice center is representing the petitioner together with the attorneys with the national right to work foundation. our client is mark janus. he is a man who works as a child support specialist for the state of illinois.
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when he started doing his job about ten years ago, he noticed that fees were coming out of every paycheck and going to a union asme council 31 even though he wasn't a union member and he didn't want anything to do with this particular union. and the reason illinois could take that money out of his check was because it has a law in the books that says that the state can enter into collective bargaining agreements with unions where they will take money from every worker regardless of whether the worker is a member of a union. in fact, there are 22 states across the country that have laws like this on the books, and as a result of those laws, there are at least 5 million government workers across the country who have to give money out of every paycheck to a union whether they want to or not. so our case challenges these laws. we argue that they violate the first amendment because they violate the right to choose for
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yourself what political speech you will and won't support and they violate the right to choose what groups you will and won't associate with. we lost in the lower courts because current supreme court precedent is against us. about 40 years ago in a case called boone versus detroit board of education, the supreme court said that this practice was okay, and it said you can't make people give money to certain union political activities, contributions to candidates, other things we might call electioneering, but you can make them pay the union for their proportionate share of the union's costs of bargaining on their behalf. how did the supreme court reach that result? normally, in a first amendment case involving forced support for speech or forced association, the courts would apply strict scrutiny which is
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the highest form of first amendment scrutiny or what they call exacting scrutiny which is also pretty rigorous, and under those standards, the government would have to show at a minimum that its infringement on first amendment rights serves a compelling governmental interest and that there's no other way that government can serve that interest that would infringe on people's rights less. so you think if that's the rule then in abboud, the supreme court would have made the government show that making people pay union fees serves a compelling governmental interest and that there's no other way the government can serve that interest that wouldn't violate workers' rights as much, but the court didn't make the government show that in abboud, and in fact, it didn't talk about the usual first amendment analysis at all. it just kind of skipped it, and instead it just said that it's okay to make workers pay for their share of the cost of the
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union's bargaining because otherwise they might become free riders. they might get the benefits of union representation without paying for it, and the court said this relates to the government's interest having labor peace. the idea there is the government has an interest in dealing with one union to represent everybody in a group of workers and so to sefb that interest, it can make everybody pay to fund that, what that union does. and that was about it as far as that analysis. and the court says, but you can't make the workers pay for the stuff that's really political, like the election year-end type activity. the court said, association for political purposes is at the heart of the first amendment and recognized that you can virtually never force somebody to pay for somebody else's politics like that. and so, a. >> a result, we have this scheme in 22 states where workers are
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forced to either pay full union dues if they are a full member or pay what they call agency fee which is slightly less typically than full union dues. so of course in our case we argue that it was wrongly decided and should be overturned. there is lots of problems with the te sigs, so i can't cover them all but i will hit a few key reasons why abud was wrong. one reason is it doesn't protect workers from paying for union's political speech. one reason why is because everything that a public sector union does is inherently political. with when a union bargains with the government, it tells the government things like, how much it should pay workers, what benefits it should profide. how it should run its programs. and of course if anybody hels talks to the government about the subjects, everyone recognizes that as quintessential political speech.
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when everybody else does that, we call it lobbying. so if a government worker is forced to give any money at all to a public sector union, particularly to fund collective bargaining, then that worker is forced to pay for somebody else's political advocacy and again that something the first amendment virtually never allows. another key problem with abud is this free rider justification. it is not actually true that everybody benefits from what the union does. some workers would prefer to represent themselves in negotiating with the government. they think that if you're an above average worker you might prefer to be judged based on your individual merit instead of being lumped in with everybody else and so if that's the case you consider the union's representation to be a harm. then you're harmed again because you have to pay for it on top of that. so these people aren't free riders, they are just injured by the union.
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that could also be true if your political ideas differ from what the union advocates for. our client, mark janice, objects for things that the union is forced to fund, and has advocated for it now. it is a terrible fiscal mess, deeply in debt, so he thinks it's wrong for his union to be advocating for billions more in government spending and advocating for tax increases to pay for that. the free rider argument assumes that every worker only cares about his own narrow self interest and that money matters most to everybody. but of course that's not true. lots of people care about their neighbors and communities and their state's economy and so they might not want more money for themselves all the time if they think it is going to put an unfair burden on other people.
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and under the first amendment we get to decide for ourselves what we value most and how we order our preferences with respect to policy. but the union is just presumed to decide for everybody what should be most important to them and make them pay for that. of course that's wrong. the reasons to be optimistic, the court is prepared to overrule abud in our case. a few years ago in harris versus quinn, me majority of supreme court justices joined in an opinion that essentially eviscerated abud's reasoning and pointed out problems i've mentioned among a number of others and of course, as elizabeth mentioned, in 2016, the court heard arguments in the case and had a 4-4 tie vote after an argument in which people thought the court was going to rule if workers' favor. of course now we don't have eight members any more. we are back up to nine. so presumably there won't be a tie vote. so we are hopeful that the
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supreme court will restore every worker's right to choose for himself or herself and what political groups they will and won't support with their money and we are hopeful the court will say clearly that when you take a government job you don't have to check your first amendment rights at the door. >> thank you. >> good job. [ applause ] >> i want to especially thank my former heritage colleagues for putting on a great program and asking me back it participate and i'm glad to be under your direction now, elizabeth. the foundation represents the minnesota voters alliance and two of its officers who are challenging to overturn and unconstitutional minnesota law that bans the wearing of any button, insignia, or t-shirt
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with such political insignia at polling place. now, this statute is much broader than just prohibiting messages about the candidates or issues. in fact, its breathtaking scope is the reason its unconstitutional. i'm going to return to the legal standard in a couple of minutes but first let's reflect on the extent to which the multibillion dollar peril industry caters to all of our desires to express ourselves in our clothing. we often wear sweat shirts with our college logos on game day or especially after a victory. we wear t-shirts with thousands of messages. many of which someone would consider political. and we also wear a variety other
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insignia that shows our views. so you don't think i'm reading the statute broader than what it is, one of the instructions that poll workers received in minnesota about the law was that it prohibits wearing clothing or buttons, quote, promoting a group with recognizable political views, such as the tea party, or moveon.org and so on. well, we wear clothes of course to express a variety of views not just about candidates. sometimes we even wear clothes that express ourselves and we don't even care if other people understand the message. my former colleagues at the legal center here understood that on sundays i would wear particular ties to indicate a particular mood. like the one i have on right now. i didn't really care if anyone else understood them.
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i will cue the monitor -- yes, on the side monitors is a selfie that my daughter and her boyfriend took on election day 2016. they then tweeted this picture out. for those of you who can't see the screen, they are both wearing black t-shirts with the initials smod. partially obscured under that is 2016. now, the fact that they tweeted this out and they wore it with their, i just voted, sticker, signifies it was important to them. they wornt trying to intimidate any of the voters at the poll because they knew that most people didn't know what smod meant. and those who did who probably chuckle. for those who don't know, smod stood for sweet meteor of death, who was a fictitious presidential candidate who promised to destroy all sent yent life on earth. thankfully we now know smod is
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just another lying politician. my final example, though, is that i gave a tie with dolphins on it to my dad that wear when he testified as an expert witness in the lawyers would challenge his qualifications. he thought those lawyers were sharks. and he was amused by the fact that pods of dolphins can chase away sharks. now he doesn't really think -- >> we're going to break away from this recorded program and take you live back up to capitol hill. senate democrats are are about to sit down with gun violence victims here at the capitol to talk about the recent shooting in parkland, florida and other gun violence questions and stories. the democratic policy and communications committee hosted the event. can you see there on your screen to the right, that's senator dianne feinstein. she is sitting down. there is senator blumenthal. looks like they are grabbing chairs. we saw senator caine.
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i think we saw senator nelson. we will take this live for you here now on c-span 3.

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