Constitution Daily

Smart conversation from the National Constitution Center

Has the First Amendment been “weaponized”?

June 27, 2018 by Lyle Denniston


The Supreme Court ended its latest term in mid-morning Wednesday after having set for itself and lower courts a daunting constitutional task for the future: clarifying when someone’s First Amendment rights can be used to thwart government policies or programs.

It did so in one of its closing-day rulings on free-speech rights in Janus v. American Federation, but it had also done so just the day before in another ruling.  And, earlier this month, it had kept open the question of when the First Amendment shields religiously devout people who are upset by government demands on them.

On the final day, in one of the angriest dissents in some time, one of the Court’s least ideological members accused the majority of “weaponizing” the First Amendment.   “Weaponizing” is a word that lately has come into vogue in public discourse, where it usually means turning something harmless or normal into a weapon of war or combat.  It is hardly commonplace in Supreme Court opinions, however.

What is this all about?  In the just-ended term, the Court had before it – more by coincidence than by design – a number of cases that tested its views on either the free-speech or the religious freedom clauses of the First Amendment, and how those guarantees might run up against government policy.

The really divisive ones among those cases were the ones in which an individual went to court because they felt coerced by the government into doing something or saying something to which they strongly protested because it violated their personal beliefs or values.

It thus was something of a symbolic development when one of those cases was decided as the term was coming to a close, producing a truly testy exchange among the Justices on opposite sides of the outcome.   That was the 5-to-4 decision on Wednesday that overruled a 41-year-old decision and declared unconstitutional the laws of 22 states that allowed unions representing government workers – like teachers, police officers and firefighters – to require non-union members to pay an “agency fee” to help cover the union’s collective bargaining activity.

In writing the main dissent, Justice Elena Kagan – who has been positioning herself on the Court closer to the center than any of her other liberal colleagues – deployed the accusatory word, “weaponizing.”  Because the majority had overruled that 1977 decision permitting such “agency fees” for government employee unions, Kagan wrote:

“It [the majority] does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy….Today is not the first time the Court has used the First Amendment in such an aggressive way.  And it threatens not to be the last.  Speech is everywhere – a part of every human activity (employment, health care, securities trading, you name it).  For that reason, almost all economic and regulatory policy affects or touches speech.  So the majority’s road runs long.  And at every stop are black-robed rulers overriding” the policy choices made by citizens’ representatives.

Even allowing for the fact that dissenting opinions often resort to strong words, those comments, coming from Kagan, were highly unusual.  And they clearly nettled the author of the majority’s ruling, Justice Samuel A. Alito, Jr., who countered in a footnote that “unfortunately, the dissent sees the need to resort to accusations.”

Behind that exchange lies, more broadly, an emerging philosophical decision among the Justices about the constitutional doctrine of government “coercion” – a word that can be applied, and seems to be increasingly applied, to public programs that run counter to the political or religious views of some private citizens impacted by those policies.

In the public-sector union case, the objecting individual was an Illinois state employee who objects to labor unions to the point that he refuses to belong to the one that represents him and his co-workers, and argued in court that compelling him to pay any fees at all to the union violates his political opposition to bargaining over policies that may affect the costs of carrying on state government.  That worker, Mark Janus, won his case on Wednesday, since the decision declared that he cannot be charged any fee of any size unless he explicitly and clearly gives his consent to it.   To win, his lawyers had to persuade the Supreme Court to overturn Abood v. Detroit Board of Education,  the 1977 decision in a Michigan teachers’ union case upholding agency fees for public-sector unions.  And that was what happened.

Just a day before Janus won, a pregnancy-counseling service from California, which strongly opposes abortion as a part of its organization’s beliefs, won its First Amendment challenge to state laws that required such health care centers to notify patients who come to them of the availability of state-financed abortions or to notify patients if the center did not have a professional medical license. 

By the Court’s 5-to-4 vote, the National Institute of Family and Life Advocates won its claim that its beliefs were too heavily burdened by being compelled to convey the state’s preferred messages.

Thus, in the span of two days, the Court had extended First Amendment protection against coerced speech or conduct in the realms of politics and women’s health care.

One particular area where claims of government coercion of beliefs have become widespread was also examined by the Court during this term, but did not get an answer.  That involves the question of whether state laws that protect equal legal rights for gay and lesbian couples, at least when they seek commercial goods or services, can be enforced against business operators who have a religious objection to same-sex marriage.

On June 4, a Lakewood, Colo., bakery owner, Jack Phillips, won his appeal in the Supreme Court, but the reason the Court gave for that outcome was that state civil rights officials did not give him a fair hearing when he refused to bake a special cake for a gay wedding, but instead had shown hostility to his religious faith – in violation of his First Amendment rights.

That decision was largely confined to Phillips’ own case, and the Court later refused to grant review of another gay wedding case – involving a Richland, Wash., florist who refused to create special arrangements for such a ceremony – that could have produced more guidance on the scope of such First Amendment rights.  The florist’s case was sent back to lower courts for further study, but the constitutional issue at stake is sure to return to the Justices.

It is quite unclear, at this point, how wide-ranging will be the impact of the Court’s new rulings about the First Amendment as a shield against perceived compulsion or coercion by government.  It is well-established, of course, that the First Amendment does extend its protection of free speech and of religious freedom against state and local government actions as well as to the actions of the federal government.  It thus appears that the Court will be facing more cases in which government actions contradict private political or religious views, and the Justices are sure to be asked to set some limits on those conflicts.

Those conflicts sometimes will involve direct action by government, as in public health laws, but also will involve policies of government that utilize private entities – such as bakeries or florists – to achieve official goals or outcomes.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on


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