February 26, 2018 (updated 4:20 p.m.):, Today, the Supreme Court of the United States hears argument in, Janus v. AFSCME, . A ruling in favor of the petitioner could destroy America’s public sector labor unions as we know them. It may come as a surprise that this existential threat comes not from labor law but from the First Amendment. The high court is poised to rule that state laws authorizing unions to collect fees for their services from the employees the unions represent violate any objecting employee’s First…, Janus, may fit in the fabric of the court’s First Amendment jurisprudence. On one hand,, Janus, could be thought of as an example of the difficulties encountered by an expansive view of the First Amendment. The court, for example, has held that corporate spending to support or oppose candidates for political office is protected by the First Amendment. (, Citizens United v. Federal Election Commission, ) . It has also held that the Boy Scouts’ dismissal of a gay scoutmaster because of its opposition to homosexuality was protected by the First Amendment. (, Boy Scouts of America v. Dale, ). This term, the court seems prepared to hold that the First Amendment protects a baker’s refusal to bake a wedding cake for a gay couple because he objects to same-sex marriage. (, Masterpiece Cakeshop v. Colorado Civil Rights Commission, ). If the court concludes in, Janus, that the First Amendment gives public employees represented by a union the right to refuse to pay their share of the union’s costs of negotiating a pay increase for them, , Janus, might be thought of as part of this line of cases. However, a ruling in favor of, Janus, would be in tension with another line of the court’s First Amendment cases – those articulating the free speech rights of public employees. There, the court’s view of the First Amendment has been more restrictive. While recognizing that public employees do not waive their First Amendment rights when choosing to work for the government, the court has repeatedly emphasized that a government…, Garcetti v. Ceballos ,, the court held that the First Amendment did not protect from employer retaliation a prosecutor who complained to his supervisors about what he believed was police misconduct in connection with an application to a court for a search warrant. After, Janus,, it is likely that public employees will have a First Amendment right to refuse to pay their fair share for union representation but no First Amendment right to report government misconduct to their supervisors or managers. That seeming inconsistency will be hard to explain. **************************, UPDATE (Feb. 26, 2018, 4:20 p.m.), The oral arguments were, as might be expected, fast-paced and spirited. That two lawyers argued for each side only added to the sense of urgency in the back and forth with the justices. (Janus’ lawyer and the U.S. Solicitor General were on one side, while the Illinois Solicitor General and AFSCME’S lawyer were on the other). Before examining the role that existing First Amendment law played in…, Janus, will depend on the vote of Justice Neil Gorsuch, as all other members of the court have taken a position on the issue presented in the case. Today’s argument shed no light on his position because he did not ask a single question. Third, Justice Breyer was actively shopping a compromise to the lawyers and presumably to his colleagues. The compromise would be to adopt the approach of a concurring…, Lehnert v. Ferris Faculty Association, (1991). The question in the case was how to distinguish agency fees that were chargeable to public employees represented by a union and those that were not chargeable. Justice Scalia wrote that public employee unions should be able to charge only for the costs of fulfilling their statutory duty as the exclusive representative of all members of the bargaining unit. Presumably, if a majority…, Abood v. Detroit Board of Education , would survive. Finally, the apparent inconsistency between the court’s cases giving public employers great leeway in restricting employee speech and the petitioner’s position that the state cannot require public employees to pay their fair share for union representation was the subject of much discussion, and, not surprisingly, the lawyers were ready for the questions. Janus’ lawyer said that it…, Abood,, with Justice Gorsuch in the majority. *************************, This piece by RWU Law Dean Michael J. Yelnosky was published on February 26, 2018, on the, Roger Williams University First Amendment Blog .
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From WABE, Atlanta's NPR affiliate:, " The 'Right to Bear Arms'... Against Slave Revolts? " by Steve Goss As the President, the Congress, and the American people discuss additional gun control measures, we thought it might be worth looking at the origin of the constitutional debate. The Second Amendment as ratified in 1791, reads: "a well-regulated militia, being necessary to the security of a free State, the right of the…, Carl T. Bogus is a Professor of Law at Roger Williams University School of Law in Rhode Island, and a recognized authority on the Second Amendment. , Here, he talks with WABE's Steve Goss. Excerpted from "The Hidden History of the Second Amendment" by Carl T. Bogus, published in the, University of California at Davis Law Review, , Vol. 31 (1998): "This Article challenges the insurrectionist model [the theory of the Second Amendment predicated on the idea that 'the ultimate purpose of an armed citizenry is to be prepared to fight the government itself']. The Second Amendment was not enacted to provide a check on government tyranny; rather, it was written to assure the Southern states that Congress would not undermine the…, To listen, click here .
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