In an unusually stinging dissent from the final major ruling of the Supreme Court’s 2017–18 term, Justice Elena Kagan accused the Court’s conservative majority of “weaponizing” the First Amendment. In a string of recent decisions, she argued, these justices had turned the protection of free speech into an all-purpose tool for shredding democratic policy choices that they disliked.
The case was Janus v. AFSCME, and the majority had just announced that public employees could not be required to pay dues for a union’s collective-bargaining representation if they had opted not to join the union. For decades, workers who didn’t join a union were exempted from paying general union dues (used for organizing, political advocacy, and the like), but they were required to contribute money to those direct services, such as collective bargaining, that they had benefited from. In Janus, the Court ruled that such a requirement violated the First Amendment. Writing for the majority, Justice Samuel Alito contended that unions are always political: Even in collective bargaining, unions engage in political advocacy and so to pay for union services is a violation of an employee’s right to free speech.
Though couched in the neutral terms of the First Amendment, the Court’s ruling wasn’t just about free speech; it had clear partisan implications. The decision is likely to result in a hit to union coffers, both weakening workers’ power and dampening union support for Democrats and public spending. But as Kagan made clear in her dissent, the stakes were even higher. Over the last decade, the Supreme Court has used the First Amendment as a justification for slashing regulations and protecting private economic power. In 2010, the Court ruled in Citizens United that the First Amendment guaranteed corporations (as well as unions) the right to spend unlimited sums of money in support of political candidates. In 2011, the Court ruled that the First Amendment protected the sale of prescription data by pharmacists to drug companies, which used it to tailor their advertising to specific doctors. Invoking free speech, the Supreme Court and the lower federal courts have also struck down a series of limits on advertising for pharmaceuticals and tobacco products, including health-labeling requirements and a ban on cigarette advertising near schools. Scholars and lawyers worry that, if spending money and transferring data are forms of speech, nearly any transaction might be constitutionally protected in an economy where everything is information and everything is for sale.
Yet the weaponization of the First Amendment isn’t new. Citizens United has become notorious, but it merely extended a principle that the Court announced back in 1976 with its decision in Buckley v. Valeo, a ruling that gutted Congress’s post-Watergate attempts at campaign-finance reform. But what makes the weaponization of free speech by today’s Court so worrisome is that it’s only one part of a much broader pattern in which the Court has aimed its most aggressive jurisprudence against egalitarian redistribution and the interests of working-class Americans.