Speech-facilitating conduct.

• Author: Campbell, Wesley J.
• Position: II. Before Arcara C. Compelled Subsidies through Conclusion, with footnotes, p. 34-65

3. Compelled Subsidies

   Compelled-subsidy cases present the mirror image of campaign Finance cases: instead of restricting monetary transfers that facilitate speech, the government compels them (e.g., union-shop dues). (130) Not surprisingly, these cases raise a particularly challenging set of issues tied to free speech rights, including associational rights. And scholars have rightly criticized the Supreme Court's response as both erratic and lacking a sound theoretical foundation. (131)

   The seminal compelled-subsidy case is Abood v. Detroit Board of Education, (132) decided only a year after Buckley. In Abood, a group of nonunion teachers challenged a Michigan law requiring payment of union fees equal to regular union dues. (133) The Court divided the teachers' First Amendment challenge in two. First, the Court held that, although "compel[ling] employees financially to support their collective-bargaining representative has an impact upon their First Amendment interests," the intrusion was "constitutionally justified" because of the union's pivotal role in collective bargaining. (134) Essentially, the government could require nonunion teachers to pay for collective-bargaining expenses to prevent them from "free riding" on union efforts. Second, the Court considered the teachers' argument that they should be allowed to block the union from spending mandatory fees on speech activities "unrelated to its duties as exclusive bargaining representative." (135) On this issue, the Court ruled in favor of the nonunion teachers.

   Underlying the Buckley decision, the Abood Court explained, was the principle that "contributing to an organization for the purpose of spreading a political message is protected by the First Amendment." (136) This understanding of Buckley was sound, but the Abood Court followed this statement with two curious sentences:

   The fact that the appellants are compelled to make, rather than prohibited from making, contributions for political purposes works no less an infringement of their constitutional rights. For at the heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one's beliefs should be shaped by his mind and his conscience rather than coerced by the State. (137) These are ill-fitting rationales. The monetary transfers were mandatory irrespective of the teachers' personal views, leaving the teachers perfectly free to think and say whatever they wanted. To be sure, being forced to transfer funds could violate an individual's conscience. (138) But the teachers did not claim a religious or moral objection to funding the union's speech. (139)

   The better reading of the decision--notwithstanding the Court's tortured explanation--is that Abood is the mirror image of Buckley. In short, because money can facilitate speech, being forced to give money can abridge the freedom of speech. On this account, the lofty invocations of "freedom of thought" and "belief' were rhetorically powerful but doctrinally useless; what really mattered in Abood was the speech-facilitating aspect of the subsidies.

4. Associational Rights

   Associating with others is a common way for individuals to pursue their expressive goals, and therefore enjoys protection under the First Amendment. Like nearly any other speech activity, associational activities involve a mix of expressive and nonexpressive conduct. Consequently, restrictions of an association's nonexpressive acts--from the ways that it raises money, for instance, to the rules it adopts regarding membership--can incidentally burden speech, raising the question of how far nonexpressive conduct is covered in the context of associational rights.

   Yet again, the Supreme Court initially gave broad free speech coverage for burdens placed on the nonexpressive conduct of expressive groups. This Subpart focuses on two particularly contentious areas of associational law: cases involving compelled public disclosure of membership lists, and challenges to antidiscrimination rules when groups prefer not to admit certain members. Because this Article addresses only freedom of expression, it does not engage with the noteworthy suggestion that associational rights might be derived from other parts of the Constitution. (140)

   1. Compelled-disclosure cases

      The foundational compelled-disclosure ruling is NAACP v. Alabama ex rel.

      Patterson, (141) The famous civil rights case began when the Attorney General of Alabama sought to enjoin the NAACP "from conducting further activities within, and to oust it from," Alabama on account of its unlicensed expressive activities. (142) At that point, the State also sought and obtained an extensive discovery order imposing onerous burdens--including disclosure of the organization's membership lists--having no apparent connection to the order's ostensible purpose, which was to establish that the NAACP was engaged in unlicensed activities. (143) Contrary to popular belief, the case did not involve a generally applicable disclosure rule; Alabama required all corporations to register with the State before undertaking in-state activities, but the law said nothing about disclosing membership lists. (144)

      The NAACP appealed the discovery order on First Amendment grounds, arguing that publicly revealing its membership would lead to backlash against its members. (145) The Supreme Court agreed. Disclosure, Justice Harlan explained, was "likely to affect adversely the ability of [the NAACP] and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate." (146) In other words, disclosure would indirectly burden speech, thus triggering free speech concerns. (147)

   2. Associational-membership cases

      Another strand of freedom of association cases involves challenges to antidiscrimination laws that override selective admission policies. For instance, if a private group that engages in expressive activities wants to exclude women or gay people, does it implicate the First Amendment for the government to ban that discrimination? Consistent with its treatment of other incidental burdens before Arcara, the Supreme Court initially applied heightened scrutiny to incidental burdens that happened to fall on expressive associations.

      In the seminal case of Roberts v. United States Jaycees, the Supreme Court considered whether the Jaycees--a group promoting civic participation by young men--could be required to accept female members pursuant to a general antidiscrimination law. (148) The Court applied heightened scrutiny because the group was forced to "accept members it does not desire." (149) First Amendment review, in other words, did not depend on whether the law directly restricted speech. (150) As with other areas of free speech law, the Court viewed indirect effects on speech as sufficient to trigger heightened review.

      3. Current Doctrine

      Looking back on the Supreme Court's treatment of speech-facilitating conduct from the 1960s through the early 1980s, two noteworthy features emerge. First, reasoning scattered throughout the Court's opinions showed wavering support for some form of heightened scrutiny when the government indirectly burdened speech. As late as the 1984 decision in United States v. Albertini, (151) for instance, the Court applied intermediate scrutiny to review the arrest of a protestor on account of his unlawful entry onto a military base. Without considering whether the regulated conduct was expressive, the Court simply stated that "[application of a facially neutral regulation that incidentally burdens speech satisfies the First Amendment if it 'furthers an important or substantial governmental interest....'" (152)

      The second notable feature of these cases, however, was uniformity in outcomes. With only rare exception, the Court consistently rejected First Amendment claims involving nonexpressive conduct that violated general laws. Thus, while the Court was often saying one thing, results in a wide array of cases suggested that it might have effectively been doing another. (153)

      Indeed, the Justices were well aware of problems with protecting nonexpressive conduct, (154) and they increasingly suggested that free speech coverage was limited to cases involving expressive acts. Shortly after Albertini, for instance, the Court addressed whether the First Amendment provides a right to solicit contributions. "To resolve this issue," the Justices explained, "we must first decide whether solicitation in [this] context ... is speech protected by the First Amendment, for, if it is not, we need go no further." (155) Doctrine, it seems, was ready for realignment.

      The doctrinal status of speech-facilitating conduct came to a head in Arcara v. Cloud Books, Inc. (156) This case arose when state officials in New York sought to shut down an adult bookstore for at least a year because of repeated sexual misconduct on the premises. (157) Based on the impact of the closure order on the bookstore's expressive activities, the New York Court of Appeals applied intermediate scrutiny under United States v. O'Brien and reversed the order as "broader than necessary to achieve the restriction against illicit commercial sexual activities." (158) The Supreme Court granted certiorari and reversed.

      The lack of targeting was pivotal. "[T]he sexual activity carried on in this case manifests absolutely no element of protected expression," the Court explained, "[n]or does the ... New York Public Health Law inevitably single out bookstores or others engaged in First Amendment protected activities for the imposition of its burden." (159) In other words, the case involved the regulation of nonexpressive conduct by a general law. Accordingly, in the Court's view, the First Amendment did not apply. The O'Brien test, Chief Justice Burger explained for the Court, "has no relevance to a statute directed at imposing sanctions on nonexpressive activity." (160)

      Nor did...