This Was the Week That Saved Free Speech in America

One of the hallmarks of the modern left is the arrogating of rights to groups rather than to individuals and then claiming that some groups are entitled to more rights than others. A classic example of this is affirmative action. It takes a government action that in ordinary circumstances would be completely illegal, that is, the granting of certain right based on skin color (and in some cases genitalia and sexual perversion or psychological dysfunction), and makes it the law of the land. All you need to do to benefit is to have been born a member of a group. So the children of Barack Obama are eligible for preferential treatment while the child of a white Appalachian coal miner is presumed to have “privilege.” Free speech has been similarly circumscribed with the whole “speech code” nonsense that reigns on campuses. Some professors have boasted that they don’t take questions from white male students until all questions by popular groups have been answered. Abortion protesters, alone on the spectrum of protest groups, have their right to protest limited by federal and state laws. For decades the left has been trying to claim that the Second Amendment is a collective right that only comes into play if you are part of a militia, never mind that there are no other collective rights in the Bill of Rights. And not only must you belong to the right group, you only have rights if you say or believe the right things. This is how we get to “hate speech” and “hate crimes.” This is why you can be forced to bake a cake for a solemnized homosexual coupling but if you were refused a cake for a christening you’d have zero legal recourse.


Earlier this week, two 5-4 decisions showed just how close we came to having group rights become the law of the land.

In National Institute of Family and Life Advocates (aka NIFLA) v. Becerra, California argued that it could compel people who opposed abortion to advertise abortion services. The underlying theory here was that people who opposed abortion not only did not have a right to ignore the state’s message on the subject but the anti-abortion message itself was but a hop, skip, and jump away from being illegal. In order to exercise free speech, you had to have the correct speech to begin with.

While the Janus vs. AFSCME case was about extorted union dues, the real issue was speech. Under Illinois law, if you were in a bargaining unit, you were forced to pay at least a portion of the union dues even if you didn’t join the union. This money did support administration and litigation on behalf of employees but it also paid for union advertising, union conferences, and workshops, and for litigation unrelated to protecting the job of an individual worker. Janus argued, and the court agreed, that this forced him to subsidize speech and actions which he disagreed with. From the decision:

Compelling a person to subsidize the speech of other private speakers raises similar First Amendment con­cerns. As Jefferson famously put it, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.” We have therefore recognized that a “ ‘significant impingement on First Amendment rights’” occurs when public employees are required to provide financial support for a union that “takes many positions during collective bargaining that have powerful political and civic consequences.”


Here, again, speech belonged to a group. There was good speech–that by the union–and there was disfavored speech–by Mark Janus. And the state had intervened to formalize that hierarchy of ideas.

In the NIFLA and Janus dissents, the minority made clear that just about any collective right superseded individual speech, and in particular speech by a government-favored group trumped any opposing idea.

And just one vote could have changed everything.

So far, the line is being held. And, thanks to Anthony Kennedy’s departure, we may have won a generational battle to preserve free speech. But you can rest assured that the left is not done trying.


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