Justices question doctrines at heart of union-fees case

Tuesday, November 4, 2008

WASHINGTON — Is the Supreme Court ready for change too?

Yesterday, the eve of an election in which both major presidential candidates have pledged to bring significant change, the Supreme Court heard oral arguments in a First Amendment case in which several justices indicated they might be looking to change — or at least re-examine — key free-speech doctrines.

“I don’t understand what this special test called ‘content-based’ (discrimination) is, and that’s a rather deep misunderstanding on my part,” said Justice Stephen Breyer at one point during oral arguments in Ysursa v. Pocatello Education Association. The concept, he acknowledged, is “all over the law but I’ve never understood it.”

Moments later Chief Justice John Roberts Jr. chimed in, “Since we are in a confessional mode, I’ve never understood forum analysis.”

Both concepts, deeply ingrained in the Court’s First Amendment jurisprudence, were at issue in the case, a challenge to a 2003 Idaho law that forbids payroll deductions for state and local employees for “political activities.” The state allows payroll deductions for union dues and fees if an employee specifically requests the deductions, but the new law targets payroll deductions for political parties or political action committees.

Public-employee unions challenged the law, winning before the 9th U.S. Circuit Court of Appeals. The appeals court viewed the state’s payroll-deduction program as a public forum in which content-based discrimination against certain types of speech could not be allowed. Idaho appealed, arguing that government agencies have “no affirmative obligation” to assist political groups by giving them access to their payroll systems.

Arguing for the unions yesterday, Jeremiah Collins said that under the law “the only expenditure you can’t make through payroll deduction is for political activities … . So we have a content-based discrimination.” As a result, he said, the law must withstand “heightened scrutiny” under the First Amendment.

Breyer said the “content-based” concept mystified him because “government engages in thousands of different kinds of activity,” many of which could be said to discriminate on a content basis, but not all deserve a “special test.” For example, he said, “When they say that in the jury room, the jury room is there for juries; it’s not to show movies by Steven Spielberg. And there isn’t some special test when you say the purpose of the biology class is to teach biology, and we don’t want people coming in here to teach some other thing.”

In response, Collins said, “The concept of content discrimination may blur on some edges, but one thing the Court has been clear on is that when a government says … one form of speech will not be allowed and that will be political speech, that is treated as requiring heightened scrutiny.”

Soon Roberts was offering his confession about public-forum analysis, which the 9th Circuit had invoked. “How can you say that this payroll deduction system is some kind of a forum? A forum is, you know, the corner at Hyde Park or something … . And the problem with forum analysis is that it’s all or nothing.” At another point, Justice Anthony Kennedy also said, “The public forum doesn’t work for me.” Collins said he was not relying on the forum argument.

Clay Smith defended the Idaho law as a valid exercise of the state's authority over local governments. Kennedy asked why the law was different from a state edict telling an Idaho city not to allow a parade for a particular cause to take place.

“The statute here, Justice Kennedy, speaks across the board to a specific kind of conduct, political activities. It does so in a viewpoint-neutral fashion,” Smith said. “To prohibit a particular parade might well raise viewpoint non-neutrality issues.”

Justice Ruth Bader Ginsburg challenged Smith’s viewpoint-neutrality argument. “It seems that what is banned by the statute is union speech. Is any other organization affected?”

Smith replied that the law did not single out unions, even if the practical effect of the law is felt only by unions.

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