Loving—And Using—The Weaponized First Amendment: The Supreme Court’s decisions in Janus and NIFLA

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Author: Robert Everett Johnson, The Institute for Justice

Robert Everett Johnson litigates cases protecting private property, economic liberty, and freedom of speech. He is also a nationally-recognized expert on civil forfeiture. Bona Law has a strong relationship with The Institute for Justice, going back to Jarod Bona’s clerkship with the group after his first year of law school. We highly recommend that you check out the wonderful work they do for freedom and liberty.

You may have heard: The First Amendment has been weaponized.

Justice Kagan said so in Janus v. State, County and Municipal Employees, where her dissent accused the majority of “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” Justice Breyer agreed, dissenting in NIFLA v. Becerra and complaining that (contrary to the majority opinion) “professionals” should not “have a right to use the Constitution as a weapon.” And the New York Times took up the cry, publishing a front-page Sunday article titled “How Conservatives Weaponized the First Amendment.”

All of this sounds frightening, but the truth is more reassuring. Courts are doing what they are supposed to do: As the amount of economic regulation has increased, it has inevitably restricted freedom of speech, and now courts are restoring the balance. Lawyers should embrace this newly vibrant First Amendment, and should ask themselves how it can serve the interests of their clients.

Rights Are—And Should Be—Weapons

The truth is, the First Amendment has always been a weapon. After all, that’s exactly what constitutional rights are—weapons to be used against the government. When critics say the First Amendment has been “weaponized,” all they really mean is it is being enforced.

The First Amendment has been used, time and time again, as a weapon to resist government power. When the NAACP invoked the First Amendment to protect their right to solicit clients for civil rights litigation, they used the First Amendment as a weapon. When unions invoked the First Amendment to protect the right to picket their employers, they used the First Amendment as a weapon. And when students invoked the First Amendment to protect their right to protest the Vietnam War, they also used the First Amendment as a weapon.

What is the alternative to a “weaponized” First Amendment? We could retire the First Amendment from active service and hang it on the wall like a soldier’s antique gun. We could continue to protect speech with little real-world impact—protests at funerals and animal crush videos come to mind—while exempting speech that threatens the status quo. That kind of neutered First Amendment would be a shiny object to admire, but it would not secure freedom of speech in any meaningful sense. Fortunately, the First Amendment is more than a shiny object on the wall.

Economically-Motivated Speech Is Still Speech

While the First Amendment has always been a weapon, something has changed in recent years. When people say the First Amendment has been “weaponized,” they really mean it has been applied to uphold free speech rights in the context of economic regulation. But that is as it should be: Speech does not become any less valuable because it is associated with economic activity.

There is no question that the Supreme Court is increasingly willing to uphold First Amendment claims that arise in the economic context. This Term, Janus upheld the right of employees not to contribute money to a public union, and NIFLA rejected the argument that speech receives less protection because it is uttered by a “professional.” Other recent cases have applied the First Amendment to regulations of credit card pricing schemes, as well as restrictions on the sale of drug prescription information. There is no reason to think any of that will change with the nomination of Judge Kavanaugh to the US Supreme Court, as he has previously applied the First Amendment to regulations of internet service providers.

This is a good thing. As Justice Kennedy put it, writing in 1993 in Edenfield v. Fane: “The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish.” Indeed, speech in the commercial marketplace often touches on some of the most important facets of human life: Doctors speak to patients about matters of life and death; financial professionals speak to clients about their financial security; and even your local grocer can convey information critical to your health. The importance of these subjects only makes the free flow of information all the more vital to a free society.

The alternative—a rule that the First Amendment does not apply to the economic sphere—would be untenable. To take an extreme example: Imagine a world in which an incumbent pharmaceutical company, faced with competition from a new life-saving therapy, could lobby to prohibit doctors from talking to patients about its benefits. The First Amendment prevents that kind of censorship.

Look Out: Speech Is Everywhere

So, the First Amendment has been weaponized, and that is a good thing. But what does that mean for lawyers and their clients? Justice Breyer, dissenting in NIFLA, points in the right direction: “Because much, if not most, human behavior takes place through speech and because much, perhaps most, law regulates that speech in terms of its content, the majority’s approach at the least threatens considerable litigation over the constitutional validity of much, perhaps most, government regulation.”

In other words, lawyers need to be alert to the possibility that they will find First Amendment claims in surprising places. This is not to say that those First Amendment claims will always be worth pursuing: To the contrary, notwithstanding Justice Breyer’s dissent, courts are unlikely to apply the First Amendment to tear down the regulatory state. But this does mean that lawyers representing businesses and other economic actors increasingly need to ask whether their clients have viable First Amendment claims.

When the dust settles, the weaponized First Amendment will mean that regulation needs to withstand meaningful judicial scrutiny. In many cases, the government will be able to show that regulation serves important goals and is tailored to those ends. The regulatory state is not going away. But in other cases, the government will not be able to make that basic showing, and free speech will rightly prevail. We will all be a bit more free as a result.