The Three Most Important First Amendment Cases of 2018
Any of these crucial litigations before the nation's highest court could shape freedom of speech and religion for generations to come
This year of 2018 is turning out to be a big one for the First Amendment.
Whether it’s a big year in a positive or a negative way has yet to be decided. But three cases that the Supreme Court has heard this term could soon set important precedents that will either bolster or erode our First Amendment freedoms in the coming years:
1.) Masterpiece Cakeshop v. Colorado Civil Rights Commission. In December, the Supreme Court heard oral arguments in this case. I had the privilege of attending the arguments with the Alliance Defending Freedom team representing Colorado cake artist Jack Phillips.
This case is about coerced artistic expression and religious hostility by the Colorado government against those whose faith teaches that marriage is the union of one man and one woman. Artistic and religious freedom are the First Amendment principles at stake.
The case began in 2012, after Jack politely declined to design a custom cake to celebrate a same-sex marriage, while offering to sell the couple anything else in his shop or to create a cake for a different event.
Jack serves all people, but he cannot use his artistic talents to celebrate every message or event, particularly those that conflict with his religious beliefs. The couple responded by picketing his shop and then filing a complaint with the Colorado Civil Rights Commission.
At the center of the case is this question: Can the government force a cake artist to design a wedding cake that celebrates a same-sex marriage?
If the answer is yes, that should concern us all. If Jack can be forced to celebrate a same-sex wedding against his beliefs, what other events could the government force you to celebrate? Where would it stop?
A ruling in favor of Jack, on the other hand, would uphold freedom for everyone.
2.) National Institute of Family and Life Advocates v. Becerra. In March, I was honored to argue this case before the U.S. Supreme Court, where I represented the National Institute of Family and Life Advocates and its affiliated pro-life pregnancy centers in California.
I asked the court to uphold the First Amendment right of free speech for these pregnancy centers, which are challenging a California state law that requires them to advertise for the abortion industry.
Under the law, pro-life pregnancy centers are required to tell women that the state of California offers free or low-cost abortions and provide a phone number that women can call to get more information.
This is government-compelled speech at its worst.
Pro-life pregnancy centers seek to provide the help, hope and resources that women facing an unplanned pregnancy need in order to choose life for their babies. They provide material supplies such as diapers, wipes, formula and clothing for both mom and baby, along with the information and support they need through classes and counseling — all free of charge. The centers that are medically licensed can also provide pregnancy testing and ultrasound examinations.
This California law forces these nonprofit organizations to use their own facilities to point the way to abortion.
They do not want to refer for or facilitate abortions in any way. Yet this California law forces these nonprofit organizations to use their own facilities to point the way to abortion.
It is our hope that the Supreme Court will make it clear that the government cannot compel any American to speak a message that violates their beliefs and mission. Anything else would be a major blow to free speech in this country.
3.) Janus v. American Federation of State, County, and Municipal Employees. The Supreme Court heard this case at the end of February, and it could have major First Amendment implications.
The Janus case challenges an Illinois law that requires public-sector employees to pay a “fair-share fee” or an “agency fee” for union collective bargaining activities, even if the employee doesn’t wish to support the union or be affiliated with its political activities in any way.
At issue in the case is whether the government may force public employees to pay fees to a private organization in support of activities to which they object.
Proponents of the law argue that “fair-share fees” help unions pay the costs associated with collective bargaining, as all public employees benefit from the contract agreement that results even if they are not members of the union.
But state employee Mark Janus is asking the Supreme Court to strike down the Illinois law as a violation of the First Amendment. Janus views the negotiations over employee salaries, pensions, and other benefits between a union and the government as “speech designed to influence governmental policies” and therefore inherently political. As a result, he argues, being forced to fund collective bargaining activities compels support of political speech and association with the union.
Our civil liberties travel together. A successful attack on First Amendment freedoms leads to the diminishing of our other freedoms, too. Let’s hope that 2018 is the year we see these liberties strengthened.
Michael Farris is president, CEO, and general counsel of Alliance Defending Freedom.