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tv   Freedom of Speech Supreme Court Cases  CSPAN  March 12, 2018 7:07pm-8:01pm EDT

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armed services committee. also, watch online at c-span.org or listen with the free c-span radio app. the mash for our lives rally against mass shootings will take place in washington, d.c. on the national mall. watch live coverage saturday, march 24th, starting noon eastern on c-span. up next, legal analysts preview supreme court cases involving freedom of speech issues. the cases weigh issues of union membership and collective bargaining fees wearing political apparel to polling places and california law requiring clinics to advertise abortion services. >> good morning. welcome to the heritage foundation. i'm elizabeth slattery. i'm a legal fellow here in tmeae center.
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next month we will have free speech claims. the first is opting out of membership but nevertheless forced to pay a fee for free bargaining. are they free writers or compelled writers? this is the court's second time looking at this issue. the court decided evenly in the frederick case after justice scalia passed away. the second case involves limits on speech at the polls. while states have legitimate interest preventing intervention at the polls can they ban hats or t-shirts too political such as "don't tread on me" t-shirts. acalifornia forcing life affirming pregnancy centers to support the abortion program. these are just about the only medical facilities in the state that have to post these pro
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abortion notice. to discuss these three cases we are fortunate to have attorneys 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. first-up, jacob hubert the director of litigation at the justice center in illinois and representing the first amendment and other constitutional rights. he represents morning janice in the government union case. jacob has also challenged anti-competitive regulations targeting food trucks, ride sharing and airbnb. he's a graduate of grove city college and the university of chicago law school. after law school he clerked for debra cooks of the sixth circuit. then the senior fellow and executive director of the pacific foundation d.c. office. they represent the minnesota voter alliance in the political t-shirt case. todd is a frequent commentator in print, radio and tv. he served a six year term on the
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u.s. commission on civil rights and previously worked here at heritage where he was my boss for five years. welcome back. he spent time in the office of legal counsel, the u.s. department of justice and chief subcommittee council in the u.s. house of representatives. he is a graduate of west virginia and law school and clerked for fifth circuit, edith jones. and then steve lawrence representing the pregnancy centers for california. his work encompasses broad range of litigation and freedoms of public university students and professors. jort d jordan argued forcing unwilling students to contribute to activist groups. he is a graduate of stanford university and minnesota law school. with that, please join me welcoming our panelists and we will hear first from jacob.
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>> can the government force its employees give money to a union just to keep their jobs? that's a question the supreme court will answer in janice versus a case that i work for where the justice liberty center is representing the petitioner and right to work legal defense foundation. our client is mark janice. he is a man who works as a child support specialist for the state of illinois. 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, ask me council 31, even though he wasn't a union member and didn't want to have anything to do with this particular union. the reason illinois could take that money out of his check is because it has a law on the books that says the state can
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enter into collective bargaining agreements with unions where they will take money from every worker regardless 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. 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. our case challenges these laws. we argue that they violate the first amendment because they violate the right to choose for 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 bude versus detroit board of education, the supreme court said this practice was okay.
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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 cost of bargaining on their behalf. how did the supreme court reach that result in that case? normally, in a first amendment case involving forced support for speech or forced association the courts would apply strict scrutiny, the highest form of first amendment scrutiny or what they call exacting scrutiny also pretty rigorous. 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 is no other way the government could serve that interest that would infringe on
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people's rights less. so you would think if that's the rule, then in abdue the supreme court would have made the government show making people pay union fees serves a compelling governmental interest and no other way they could serve that interest that wouldn't violate workers' rights as much. the court didn't make the government show that in abude and didn't talk about the usual first amendment analysis at all. it kind of skipped it. instead, it just said that it's okay to make workers pay for their share of the cost of the union's bargaining, because otherwise they might be free riders. they might get the benefits of union representation without paying for it. the court said this relates to the government's interest in 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 serve that interest, it can make
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everybody pay to fund that what that union does. that was about it as far as that analysis. the court said, but you can't make these workers pay for the stuff that's really political, like the electioneering type activity. the court said association for political purposes is at the heart of the first amendment. recognize that you can virtually never force somebody to pay for somebody else's politics like that. so as a result, we have this scheme in 22 states where workers are forced to either pay full union dues, if they're a union member or pay what they call an agency fee, slightly less typically than full union dues. of course in our case we argued abude was wrongly decided and should be overturned. there's lots of problems with the abude decision. i can't cover them all. i'll hit a couple key reasons why abude was wrong.
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one reason, it doesn't actually protect workers from paying for union's political speech. one reason why is because everything a public sector union does is inherently political. when a union bargains with the government, it tells the government things like how much it should pay workers, what benefits it should provide, how it should run its programs. if anybody else talks to the government about the subject, everybody recognizes that as quintessential political speech. anybody else does that, lobbying. if a government worker is forced to give any money at all to a public sector union, particularly to fund collective bargaining that worker is being forced to pay for somebody else's political advocacy something the first amendment virtually never allows. >> the other problem is this
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free rider justification. it's not actually true everybody benefits from what the union does. some workers would prefer to represent themselves negotiating with the government. they think if you're an above average worker you might prefer to be based on your individual merit instead of being lumped in with everybody else. if that's the case you consider the union's representation to publish harm and then you're harm -- to be harm and then if you're harmed, you have to pay for it. and our client, mark janice, objects to the things the union he's forced to fund has advocated for and advocates for now. illinois is a terrible fiscal and economic mess and deeply in debt. he thinks it's wrong for his union to be advocating for
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billions more in government spending and tax increases to pay for that yet he's forced to fund this advocacy. the free rider argument assumes every worker only cares about his own narrow pecuniary self-interest and money matters most to everybody. of course, that's not true. lots of people care about their neighbors and communities and their state's economy. they might not want more money for theirselves if they think it will put an unfair burden on other people people and we get do decide our prospective policy and the union gets to decide what should be most important for everybody and make them pay for that. of course that's wrong. there are reasons to be optimistic. the supreme court is prepared to
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overrule abude. a few years ago they joined an opinion that eviscerated abude's reasoning and pointed out the problems i mentioned along with a number of others. as elizabeth mentioned in 2016 the court heard arguments in the fredericks case and had a 4-4 tie vote and they thought the court would rule in workers' favor and we don't have eight members anymore and now back up to nine. and presumably there won't be a tie vote. we're hopeful every worker has the right to choose for himself or herself what political group they will support with their money and hopefully the supreme court will say clearly when you take a government job you don't have to check your first amendment rights at the door. thank you.
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i want to especially thank my former heritage colleagues for putting on a great program and asking me back to participate. i'm glad to be under your direction now, elizabeth. our foundation represents officers challenging the ability to wear a button or insignia or t-shirt with such political insignia at the polling place. this statute is much broader than prohibiting messages about the candidate or the issues. in fact, it's breathtaking scope is the principle reason that it's unconstitutional. i'm going to return to the legal standard in a couple of minutes.
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but first let's reflect on the ex sent to which the multi-billion apparel industry caters to all of our desires to express ourselves in our clothing. we ovenware 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 of other insignia that recognizes our views. just so you don't think that i'm reading the statute broader than 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
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moveon.org and so on. we wear clothing to express a variety of views not just about the candidates. let me talk about another category. 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 on some days 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. 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're both wearing black t-shirts with the message smod. partially obscured underneath that is 2016.
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the fact that they tweeted this out and wore it with, i just voted sticker, signifies it was important to them. they weren't trying to intimidate any of the voters at the poll. they knew most people didn't know what smod meant and those that did would 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 life on earth. thankfully we now know smod is just another lying politician. my final example is that i gave a tie with dolphins on it to my dad to wear when he testified as an expert witness and the lawyers would challenge his qualifications. he thought those lawyers were sharks. he was amused by the fact that pods of dolphins canned chase away sharks.
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he doesn't really think that his tie was intimidating the counsel. but it just made him feel better. it made him feel better to privately be communicating that message, which brings me to the facts of our case. running up to the 20 ten election the minnesota voters alliance printed t-shirts with various messages, including one of with the word, "liberty," which obviously has a political meeting. our client, the president of the minnesota voters alliance, andy cilic, was twice prevented from voting at his polling place with his tea party shirt that had the gadston flag on it. it is a revolutionary era drawing with a coiled snake and words "don't tread on me," one of the symbols on my tie. on his third attempt he was allowed to vote but the poll
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workers said they were taking down his name and pass on to law enforcement officers for possible prosecution or criminal or civil fines. now, in the seven years of litigation that followed the state defended its ban on such horrible scary intimidating clothing on two bases. one is that it insures a peace and order at the polling place, and it would prevent intimidation and confusion. now, the supreme court has, as elizabeth noted, upheld restrictions on active campaigning or electioneering within 40 or 100 feet of polling places. it varies by state. that involves active campaigning where you're actually confronting a voter. none of -- we do not contest or object in our lawsuit to any of
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the active campaigning bans. but it is clearly unnecessary to ban all political speech. by the way, every state also has separate laws that actually ban any conduct that's intimidating or fraud lieutenant ulent or di. if it was possible to silently intimidate someone with your clothing that would already be prohibited and you don't need a separate statute that bans all other kinds of speech. the overbreadth doctrine under the first amendment -- i go back. the central issue in our case is whether the minnesota statute is overbroad in suppressing a substantial amount of protected speech compared to the state's purported interest in protecting against dangerous speech. to use one very narrow example, the state might be able to ban
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classic fighting words on a t-shirt that objectively, you know, would incite fights. that's just a very tiny amount of the speech that the minnesota statute forbids. this overread doctrine allows people to not only raise the type of speech they bring and speech others want to bring. it's a great service to bring such an overbreadth challenge and a number of state and federal laws have been struck down under it. i will point to my colleague in the second row and ask him to raise his hand. he is the principle architect of our overbreadth petition to the supreme court. his petition was so effective that now, seven years later, the state is trying to change its defense. so in its latest brief, it is
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trying to reinterpret the statute. i will conclude with the two reasons why that's not going to work. first, the statute plainly does cover all political speech on t-shirts and not just a subset that's particularly dangerous. one of the other points that wen made in his petition in the current briefs, is that the whole concept of what is political speech is so broad, and i should say, col lpolitici almost any message could be considered political. the u.s. marines shirt promotes the military some say is political. private religious messages like, jesus saves, or choose life, are considered political. that raises another concern with the statute. even if a particular poll worker wants to apply it neutrally, a liberal poll worker who's assigned will probably view some messages as political but think
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messages about global warming are not. a conservative poll worker would think certain environmental messages are political or a chick-fil-a, no, they would not think a chick-fil-a. that would be the liberal. others would not. even if the poll workers are trying to apply this fairly, it will result in viewpoint discrimination and selective application. but the risk of actual conscious abuse and selective intimidation is even worse. my final reason why this state's latest gambit won't work, because they admitted during the litigation there are especially broad applications of their law and they can't take that back now. raise your hand if you think the following are political. wearing a minnesota vikings sweatshirt. i see know -- i see one hand.
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only one hand. an afl-cio t-shirt. about half. a chamber of commerce logo on a t-shirt. only a few. the state admitted all three of those are political and would be banned at the polls, at least if the minnesota vikings was seeking, you know, a bond for a new stadium. well, let me conclude with the most ridiculous argument that the state makes, that they must ban all tea party t-shirts and all afl-cio t-shirts to promote peace at the polls and prevent silent intimidation. the supreme court made clear in a vietnam war era case that unfounded fears of disruption are not grounds for a speech or a clothing ban. in that case it was an arm band. and an unfounded fear that
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political clothing worn in the line by a vetter will trigger some other voter is an equally insubstantial reason to ban all political speech at the polls. thank you. >> to remind you who i am, i'm jordan lawrence with alliance defending freedom. we've heard these two great presentations from todd and jacob. adf attorney, our ceo will be arguing the nifla case, stands for the national institute of family life advocates in the next sitting in march, on march 20th, which challenges a california law requiring pro-life pregnancy centers to post pro abortion messages. i will get into that in just a moment. i want to take a few moments to talk about just why these are
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important, in that these cases sound pretty different. i think there is some link i want to start off to give as an overview. that's this. the founding fathers and the first congress, when they did the first amendment understood these basic principles. the government operates by coercion. sometimes you like that if they're stopping drunk drivers or people running red lights and things like that, it provides order. people cheating and defraughting folks, et cetera. but there is a human tendency -- defrauding folks. to misuse this governmental power of coercion to either censor those who are opposing the prevailing orthodoxy at the current time or by forcing people to basically assert their
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allegiance to the prevailing orthodoxy at the time. the first amendment is put in to basically say that congress, and now the states in the 14th amendment, may not misuse that inherent coercive power to government to punish descenters, to force people to say the prevailing orthodoxy, because that changes over time. we see examples of it here, in these cases. the minnesota voters alliance case is straight-out censorship. the janis case is compelled speech via funding. the nifla case is just straight-out compelled speech, forcing people to promote a message that they don't agree with. what's the facts? this involves a california state law and it's targeted againsts
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the pro-life pregnancy centers, all over the country. the ones in california, many of them there, since it's the largest state population. basically what they do is this. these centers have a sole mission of encouraging expectant mothers to give their children life. they do this by various means. two types of these centers. some of them have medical licenses so they can do medical things like ultrasounds, for example. some are unlicensed and all they do is basically good works. they supply women resources like prenatal vitamin, diapers, baby clothes, and basically counseling and encouragement if they're in a difficult life situation so they will give life to their children. the state of california views this as a problem that has to be fixed. we'll talk about what this problem supposedly is. let's talk about the solution and how unconstitutional it is. the licensed facilities that basically do medical procedures
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like ultrasounds and basically not more than that, they're not doing operations or anything like that, are forced to post this sign at their facilities. i'll just read to it you. california has public programs that provide immediate free or low-cost access to comprehensive family planning services including all fda approved methods of contraception, prenatal care and abortion for eligible women. to determine whether you qualify, contact the county social services offices at, and then a phone number is given. to make this clear, these are pro-life centers dedicated helping expectant mothers give life to their children, are forced to put up a sign that say, hey, do you realize you can get a state-funded abortion?
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call this number and get more information. it's obviously highly offensive to them. those are licensed ones. unlicensed facilities have to put up a different message. this facility is not licensed as a medical facility by the state of california and its no licensed medical provider who provides or directly provides provisions of medical services. and the first line is it is not a medical facility and something negative has to be expressed. then the problems, the state law requires both these signs to be in english, what the state of florida calls threshold languages. they do a demographic view and if a certain demographic group speaks a language that hits a threshold, you have to put the
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ads in those languages. state of california. >>hey are english, spanish, arabic, vietnamese. if you want to have a bus ad or ad on the internet that says bus help, call this number, it's it from lengthy with all the languages and basically makes it either impossible, just from the physical size of these ads, or electronically on the internet, or just terribly expensive so it effectively cuts off their ability to advertise at all. we have challenged this law, a group of these pro-life centers licensed as medical facilities and unlicensed. they lost the entire way up, and the supreme court has granted review in the case.
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just one little bit of supreme court, little statistical nerdish trivia, maybe we'll see this on the podcast that elizabeth does, statistically, there's about 8,000 case a year appealed to the supreme court and they take about 80. they reverse about two-thirds of the time and a constant statistic. if you want to amaze your friends at party, you know the case the supreme court is going to review, i predict they will be reverse. you will be right two-thirds of the time. i will point out we have all lost our cases at the lower court. the fact they take it doesn't guarantee a win but a hopeful sign we've been granted review in these cases. what we have challenged in this case, this is flat out compelled speech especially to the medically licensed facilities.
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to me, it's shocking and just a raw display of governmental coercion for california to force pro-life pregnancy centers to say, hey, have you thought about getting an abortion? we want to bring that to your mind. here's the information how to get that, at no cost to you. check us out. here's the phone number. that, to me, is gaulg. these are also viewpoint and content based discriminatory. galling. they are targeting groups by gerrymander, regular doctor's offices or gyn does not have to post these signs. you can do it, look at our briefs, i won't take the time to explain it here, basically, the only place is in california that have to do this are the pro-life pregnancy centers that give their services for free. that, to me, is most shocking.
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what is the government's justification for this? what they say in california, the reason we have to do this is because these pro-life places are so deceptive and trick women into thinking they're abortion clinics. there's no evidence of this. there's a bunch of assertions made by abortion rights supporters to the liberal california legislature but there's basically no evidence to this. they're also arguing this is commercial speech. but now, think about this. these are ideological opponents of abortion offering their services for free. that is not a commercial transaction, yet that is what this state is arguing and what the lower courts justified this as regulation of commerce. also, this could be -- what about medical disclosure laws, or something like this? if this were a law that said,
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hey, there are dangers getting an ultrasound. here they are and we will disclose this so you can be a fully informed medical patient, maybe that would be justified. here, we have the state of california basically saying this. even though you're at this place that doesn't offer any surgical procedures let alone abortion, we want to post a sign to remind you of a surgical procedure you could have and then entice you with the fact the state will pay for it. that has absolutely nothing to do with the normal types of governmental regulatory, regulation that compel disclosures so that medical patients, for example, can be fully informed of their decisions. i want to end with this. one of the greatest decisions of the supreme court, all americans can be proud of, was the west virginia v barnett. at the height of world war ii, we're fighting nazis and access
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powers the supreme court saw the wisdom of the first amendment to stop a west virginia law in effect that forced unwilling people to say the pledge of allegiance. they were viewed as nazi supporters or whatever. all that cultural mileu, the supreme court said the first amendment protects the right of conscience against compelled speech. they wrote this, if there is any fixed star in our constitution constellation no one high or petty can prescribe what's orthodox in politics or other matters of opinion or force citizens to confess by word or act their faith therein. if there are any circumstances which permit and exception, they do not occur to us now. thank you. >> we're going to open it up for questions from the audience.
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i wanted to pose one to the panel first. justice kennedy, the perennial swing vote on the supreme court, he has a pretty strong record on first amendment free speech issues. how do you think he is going to approach each of these cases? >> i guess i'll go first. we know justice kennedy has already heard this issue and already cast a vote on this issue in a case the decision that resulted in a 4-4 tie. we can't presume he'll necessarily think of this case the same way or even what exactly that 4-4 split meant. there's reason for optimism there. justice kennedy is pretty good on these first amendment rights and his comments on oral argument in the frederick's case was very challenging on the other side of this issue. he seems to me like a strong supporter of first amendment rights in this context. >> as an advocate, i'm a little constrained saying what i think
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the justices will do in our case in that i think kennedy is not -- i think he is, as eugene bollock pointed out, one of the most free speech protective justices, particularly in our case where sometimes conservatives are upset about some of his decisions because they support personal autonomy. in our case, it's all about personal autonomy that has nothing to do with the state's interests. i think he's not going to be -- i'll be surprised, let's say, if he is fine with the minnesota statute. >> justice kennedy has been a good vote on freedom of speech. i think he and many of the others will -- we will see in a month, with the oral arguments a month from today in the nifla case. i think that the california law
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is such a shocking overreach and misuse of governmental power to compel speech that, at least for the licensed medical facilities, i think we might be looking at every justice voting to strike it down. i mean, i'm hoping. >> that would really be something. with that, we're going to open it up to questions from the audience. please wait for the microphone and then if you would state your name and please keep it brief. we'll start here in the second row. >> i'm a colleague of todd's at the pacific legal foundation. i just wanted to mention, i thought those were all excellent presentations. i want to mention one more thing about the minnesota voters alliance case that distinguishes it from the campaign related speech. the overbreadth doctrine is concerned a lot about the chilling effect. it's easy enough if you're a
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voter to avoid wearing a shirt that said, vote for trump or vote for hillary. if you were just wearing a shirt, if you had a shirt that said heritage foundation or federalist society or afl-cio, i think it's very likely you wouldn't go into the polling place wearing that shirt even though you don't know whether that shirt would be prohibited or not because of the chilling effect of the regulation and the possibility a poll worker might take your name down for prosecution. >> there were news stories in the last few elections with poll workers who took issue with someone wearing a massachusetts institute of technology, mit sweatshirt when mit, mitt romney was on the ballot and you can see how poll workers can get confused opposed to selectively enforcing these sorts of things. >> i grew up in minnesota and i voted at ballot places, did not
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realize this law and i don't think i was so fragile that i would be influenced by those kinds of shirts or something like that. >> you don't seem like a snowflake to me. >> right. >> right here. >> ray longeness. great job all of you. right to work foundation. you commented on justice kennedy. justice gorsuch hasn't voted in this situation and can you tell us what you think he will do and what supports that? >> i can't presume to say where he will go on this. i don't think there's been anything closely enough on point. i know there have been cases with support of first amendment rights but nothing super analogous to this i know of. i really don't feel like i can comment on that. >> todd, jordan?
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>> >> the one thing is -- i at this moment cannot call to mind any of his 10th circuit opinions. i feel in the other areas in his brief tenure of other first amendment cases thinking of the adf case from last spring, trinity lutheran case, very strong decision there. his questioning he gave on the compelled speech issue during the masterpiece case, i realize that's not a lot of data, i think he sounds pretty good for first amendment. >> i will follow jordan. i think we will win, 9-0. >> we certainly hope so. >> i think that's right. i would agree under minnesota. i think that's really overbroad. >> gerald chandler, two part question about the california case.
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to have to put a sign that says you don't have to have an abortion. you can go to family planning clinics, and second, can you elaborate what the lower court said that made you lose? >> the way the exemption works, they have this general law, you have to post all this stuff, things i read. then the exempt -- they basically have a whole series of exemptions of various clinics and medical practices that if you're not primarily, i think it is, obgyn, you're exempt from this. but then also, if you participate in a different california program that basically you have to agree to either perform abortions or to refer women for abortions.
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that if you do that, then you're exempt from this. so these pro-life places licensed facilities an objection to it. so, the only people, the only institutions this applies to are the ones that are, have an objection to abortion. and the other thing, one other thing i want to mention is, if california thinks that women are not informed enough, they're not, they don't know that they can get state-funded abortions, there's all sorts of communication channels that the state can use to communicate that. and basically, the only one that it does, so it's not like putting ads on buses and the internet, in newspapers. it's basically only requiring these pro-life places to do it.
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which shows the clear discrimination to it. and the ninth circuit said this was regulating a profession, that there's a -- which is not a doctrine the supreme court has recognized, government has the ability to regulate professions by compelled speech, and the supreme court in another case we won a couple of years ago in the town of gilbert case, said any content-based exclusions always get strict strcrutiny. the ninth circuit said, yes, there's the town of gilbert case, but there's the ninth circuit standard that we have a
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lower standard, and that's what we're going to use. and that's why i think the supreme court took the case. >> other questions? in the back. >> hi. i'm andrew hamm. i'm also not a lawyer for this question. but could california just say, okay, well, everyone has to post the notice, whether you perform abortions, whether you participate in the program, everyone has to post a notice. does that take away -- >> that may be a different situation, but that's clearly not what the law does. it's very gerrymandered. we may face that in a different situation, but not here. >> i'll add from my civil rights background, if you have a discriminatory background, or
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animus, and you consciously segregate, like in brown versus the board of education, but they do the same thing, they call it a neighborhood plan, or shut down, in one case, all the pools. the supreme court saw the pattern there. so, one, you can sometimes cure an unconstitutional viewpoint-based action with a neutral law. but once the animus or the discriminatory intent is clear, you still run some problems. if that's what you're really trying to do through another means. >> my name is jack guice. if the state says, look, we're not exactly pro-union, but they
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can be annoying. we're going to pay you less because you have no bargaining power, is that okay? that's a possibility, at least in the abstract. >> right now in the states with the mandatory fees, the union is by law the exclusive representative of all the workers, whether they're members or not. and that's not going to change if we prevail in this case. you won't have people off representing themselves. you could switch to a system like that, where people represented by the union get one wage, and others get paid something else. but the laws would have to change first. and i don't think the unions are going to push for that, because they like being the exclusive representative, whether they get paid by everybody or not. >> any other questions?
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>> on the -- my name is bill o'malley. on the nifla question, the nifla case, the only time you mentioned religion was when you read to us the quote from barnett, the case that you or anybody would support. why aren't you mentioned religion? doesn't that bring a special strength to a first-amendment right? not that it would be the sole argument. i'm not suggesting that. >> no, that's a great question. i was the main laboring order at adf to put forth the petition, and when the supreme court granted review, they said we're only going to hear the free
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speech question. that's why you haven't been hearing us, even though, with many of the people involved at these pregnancy help centers, they're motivated by their religious beliefs to be pro-life. that's just not an issue the supreme court will concentrate on. so, we've been basically focusing on freedom of speech. >> is that because they think they've -- [ inaudible question ] >> the -- no. i don't know. i think it's frequent at the supreme court where the advocates will put in a petition several questions presented to get the whole, cover the whole range of particular constitutional provisions that will allow them to win. sometimes the supreme court will say, we'll take all the
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questions. and other times, they'll narrow it down to just one. i'm not sure what they reasoning is. that's why we're emphasizing the compelled speech, and the content and viewpoint discrimination nature of the law. >> i think we have time for one more question. any takers? yup. >> mr. lorence, some states place restrictions on abortion doctors that have to provide information to clients that a baby can feel pain, for example. if you win this case at the supreme court, will those laws face challenges or possibly be invalidated? >> when i was writing the petition, people asked, what about the informed consent laws? are we not -- are we undermining
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those by winning this case? and i would say, no. absolutely not. for this reason, the informed consent laws are based on the fact that the women are going to undergo a surgical procedure. and just like any kind of surgical procedure, we -- i think there's a governmental interest to make sure the patients are fully informed of the ifmplications of what could go wrong. so, i think the basis for an informed consent law for an abortion surgical procedure is very sound, and just in the flow of all these other informed consent laws for other medical procedures. here, and i said this before. but just to emphasize, if this
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were a law that said, there's dangers to getting an ult ultrasound, we would have a weaker case. but that's not what we're saying. the only medical procedure the state is not requiring them to say something about, the ult ultrasound, and they're suggesting they should get a surgical procedure they can't get at the place they're at. the pro-life place. and this is the antithesis to that. and it's so illogical and such a non sequitur, it doesn't work here. so, i don't think there's any undermining of those laws. >> with that, we've come to the end of our time. so, please join me in thanking
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our panelists. [ applause ] coming up tonight on c-span3, education specialists on the federal school discipline directive. at 9:30 p.m., landmark cases. then a discussion on the relationship between the u.s., taiwan, and japan. and later, a hearing on ending scams against the elderly and senior citizens. next, a discussion on the federal school discipline directive issued under the obama administration. in

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