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Full-Text Articles in Law
Wither Zauderer, Blossom Heightened Scrutiny? How The Supreme Court’S 2018 Rulings In Becerra And Janus Exacerbate Problems With Compelled-Speech Jurisprudence, Clay Calvert
UF Law Faculty Publications
This Article examines how the United States Supreme Court’s 2018 decisions in the First Amendment cases of National Institute of Family & Life Advocates v. Becerra and Janus v. American Federation of State, County, & Municipal Employees, Council 31, muddle an already disorderly compelled-speech doctrine. Specifically, dual five-to-four decisions in Becerra and Janus raise key questions about the level of scrutiny—either a heightened test or a deferential variant of rational basis review—against which statutes compelling expression should be measured. Critically, Becerra illustrates the willingness of the Court’s conservative Justices to narrowly confine the aging compelled-speech test from Zauderer v. …
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, Clay Calvert
UF Law Faculty Publications
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 …