December 21, 2018 Feature

Down with Speech Regulation? Assessing the Legal and Practical Implications of Janus and National Institute of Family & Life Advocates for States and Local Governments

By Brian J. Connolly, J. Thomas Macdonald, and Chelsea M. Marx

As the sun set on the 2017–18 term, the U.S. Supreme Court issued two decisions involving the free speech clause of the First Amendment. These decisions, in the cases of Janus v. American Federation of State, County & Municipal Employees, Council 311 and National Institute of Family & Life Advocates v. Becerra (NIFLA),2 may have far-ranging effects for practitioners in state and local government. In Janus, the Court determined that governments may not constitutionally require public employees who are not members of public employee unions to pay agency fees to the union in connection with the union’s collective bargaining activities. In NIFLA, the Court found that a California law requiring crisis pregnancy centers to display certain notices was unconstitutional.

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