This Article examines the U.S. Supreme Court’s 2018 First Amendment-based decisions in both National Institute of Family and Life Advocates v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. The Article illustrates how the rulings in these right-not-to-speak cases deepen the divide on today’s Court over when a case affecting speech merits heightened First Amendment analysis (be it strict or intermediate scrutiny) and when it only deserves rational basis review as an economic or social regulation. The cases nudge to the breaking point a dangerous game of push-and-pull between the Court’s conservative and liberal justices over the scope of free expression that undermines any semblance of doctrinal coherence. The conservatives are turning more and more cases into First Amendment battles demanding something greater than rational basis review. This backs the liberals into a corner, forcing them to argue that heightened review only applies when “the true value of protecting freedom of speech” is at stake, such as facilitating democratic self-governance. In the process, the line between speech and conduct is blurred while outright animosity between the Court’s conservative and liberal camps percolates in opinions.
Clay Calvert, Is Everything a Full-Blown First Amendment Case After Becerra and Janus? Sorting out Standards of Scrutiny and Untangling "Speech as Speech" Cases from Disputes Incidentally Affecting Expression, 2019 Mich. St. L. Rev. 73