chevron-down Created with Sketch Beta.
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.

Janus and NIFLA share common threads: they were reviewed as “compelled speech” cases—one involved required payments of money and one involved commercial disclosure requirements. Treatment of these cases as involving compelled speech, along with other statements made by the Court, raises more questions than answers. This article reviews Janus and NIFLA and attempts responses to pressing questions raised.


Janus addressed the question of whether agency fees—mandatory fees paid by non–union member employees to public employee labor unions in order to support the unions’ collective bargaining activities—are constitutional under the First Amendment. The Court ruled 5–4 that such fees are unconstitutional.

The Supreme Court addressed the constitutionality of agency fees more than 40 years ago, in Abood v. Detroit Board of Education,3 where it ruled that unions may collect agency fees while prohibiting their use for a union’s political or ideological endeavors.4 The Court found that the government had a substantial interest in keeping “labor peace” and recognized that governments benefited from exclusive-bargaining relationships with single unions.5 Following Abood, governmental entities entered into exclusive-bargaining arrangements with unions, and allowed unions to charge agency fees, in order to avoid the problem of free riders who benefited from the union’s negotiations while refusing to join the union.

Fast-forward four decades. Mark Janus, an Illinois state employee, refused to join his designated exclusive representative union for ideological reasons.6 He opposed several of the positions taken by the American Federation of State, County, and Municipal Employees (AFSCME), including its positions on collective bargaining. Janus opted to challenge the collection of agency fees on First Amendment grounds.7 Agency fees were specifically authorized by the Illinois Public Labor Relations Act (IPLRA).8 The IPLRA allows for exclusive union representation of all employees in a particular governmental unit for purposes of collective bargaining. While membership in the union is voluntary, the IPLRA requires nonmembers to pay agency fees. The district court dismissed Janus’s claim, concluding that it was foreclosed by Abood. The Seventh Circuit Court of Appeals affirmed. The Supreme Court granted certiorari on the question of whether Abood should be overruled.9

Agreeing with Janus, the Court found that agency fees violate the First Amendment and expressly overruled Abood.10 The Court reasoned that agency fees compel individuals to subsidize speech of other private individuals on matters of public concern.11 Although these fees involve commercial speech, which typically has less protection than noncommercial speech, “exacting scrutiny” must be applied in cases involving a compelled subsidy of commercial speech.12 Under “exacting scrutiny,” a compelled subsidy must “serve a compelling state interest that cannot be achieved through means significantly less restrictive of associational freedoms.”13

Applying exacting scrutiny to the justifications for agency fees adopted in Abood, the Court rejected the main justification: “labor peace.”14 The Court determined that the government’s fear of conflict arising out of multiple collective bargaining units was unfounded, as millions of public employees in the federal government and states that prohibit agency fees are effectively represented by unions.15 The Court concluded that governments can achieve labor peace through less restrictive means than through compelled subsidies of labor unions.

Second, the Court rejected the argument that agency fees avoid “free riders”—the other justification the Court relied on in Abood.16 That nonmembers will partake in the benefits from union representation without bearing any of the costs, the Court concluded, is “insufficient to overcome First Amendment objections.”17 The Court reasoned that if a public employee union could compel payment of agency fees to avoid free riders, what would stop the government from compelling all senior citizens to subsidize the AARP because they benefit from its lobbying? Again, the Court pointed to evidence that unions operate in non–agency fee jurisdictions, reasoning that designation as an exclusive representative confers other benefits and privileges on the union that outweigh lost revenues.

The Court clarified that its ruling in Janus would not undermine its much earlier holding in Pickering v. Board of Education,18 which created the long-standing framework for determining public employees’ rights under the First Amendment. Under Pickering, courts balance a public employee’s interest in speaking on a matter of public concern against the interests of the state, as an employer, in promoting the efficiency of the public service it performs through its employees.19 Rejecting the AFSCME’s argument that overruling Abood would necessarily call Pickering into question, the Court stated that Pickering applies solely in the context of one public employee’s speech and impact to that employee’s responsibilities, rather than to blanket requirements.20 Pickering is designed to determine when a public employee’s speech interferes with government operations, as distinguished from compelled subsidies of speech.21 In the alternative, the Court determined that agency fees would not survive scrutiny under a modified Pickering test.22

In dissent, Justice Kagan emphasized the balance struck by Abood between collective bargaining activities and political advocacy by unions; Abood’s deep roots in states, such as Illinois, that have built statutory schemes based on the decision; and the host of practical ramifications that could follow from the Court’s decision.

National Institute of Family & Life Advocates

The Court’s decision in Janus followed closely behind another case that placed similar focus on compelled speech. In NIFLA, the petitioners challenged California’s Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act, which regulates crisis pregnancy centers.23 Such centers, typically operated by anti-abortion groups, offer pregnancy-related health care services.24 The FACT Act required licensed centers to provide notices to women about California’s public low-cost programs for family planning, which include contraception, prenatal care, and abortion in their menu of services.25 The law required these clinics to post notices in the waiting room, print and distribute them to clients, or provide them digitally at check-in. The law also required unlicensed facilities offering crisis pregnancy services to provide conspicuous notice—in their entryways, waiting rooms, and advertisements—that they are unlicensed. The California General Assembly’s stated reason for the notice requirements was to make sure that its citizens know their rights, what services are available to them, and when they are receiving care from licensed professionals.26

As soon as the FACT Act was signed, a licensed pregnancy center, an unlicensed pregnancy center, and an organization of pregnancy centers filed suit. They alleged that the notice requirements abridged their freedom of speech and sought a preliminary injunction against enforcement of the law. The district court denied the preliminary injunction, and the Ninth Circuit affirmed, finding that the notice requirement for licensed centers would survive the lower level of scrutiny applicable to regulations of “professional speech,” while the notice requirement for unlicensed centers would survive all levels of scrutiny.

The Supreme Court reversed in a 5–4 decision. Justice Thomas, writing for the majority, concluded that both notice requirements violated the First Amendment. With respect to the requirement applicable to licensed centers, the Court concluded that the regulation was content-based and would not likely survive intermediate scrutiny.27 The Court reasoned that compelling pregnancy centers to provide a specific notice “alters the content of [their] speech.”28 Applying intermediate scrutiny, the Court concluded that the petitioners were likely to succeed on the merits because the notice requirement was not sufficiently drawn to achieve a substantial state interest: the state had alternative means for conveying information about publicly available family planning programs.29

The majority also rejected the Ninth Circuit’s “professional speech” classification, stating that the Court has never recognized professional speech as a special class of speech.30 Justice Thomas found that the Court only has afforded less protection to professional speech in two circumstances—disclosures of factual, noncontroversial commercial information and regulations of professional conduct that incidentally involves speech.31 The Court found that neither circumstance applied here.

With respect to the notice requirement for unlicensed facilities, the Court found that it unduly burdened speech and could not survive even a lesser standard of scrutiny.32 Rejecting California’s purported concerns as “purely hypothetical,” the majority determined that the FACT Act imposes a “government-scripted, speaker-based disclosure” that is “wholly disconnected” from California’s interests, even if those concerns were valid.33 Specifically, the Court highlighted the regulations pertaining to advertising as illustrative of the significant burden the FACT Act imposes because of the precise wording and multiple translations required.34 The regulations were underinclusive as they would not apply to a variety of facilities that did not meet the definition applicable to unlicensed clinics.35

Justice Kennedy concurred, joined by Chief Justice Roberts and Justices Alito and Gorsuch, and observed that upon further factual development in the case, the notice requirements may very well have been unconstitutional viewpoint discrimination.36 He noted the legislative history of California’s disclosure requirements for crisis pregnancy centers and observed that the legislature may have specifically targeted anti-abortion groups in its enactment of the FACT Act.

In his dissent, Justice Breyer argued that both notice requirements could likely withstand constitutional scrutiny. As to the majority’s approach to “professional speech,” he noted that under this standard nearly every disclosure law, from securities to consumer protection, could now be considered an impermissible content-based regulation.37 Justice Breyer detailed the Court’s history of considering disclosure laws on reproductive health issues, noting that the Court has routinely upheld laws requiring providers to notify women seeking an abortion to discuss adoption as an alternative option. He concluded that the majority should apply First Amendment protections evenhandedly to all disclosure requirements pertaining to reproductive health.


Janus and NIFLA may well have significant ramifications for state and local government lawyers. The full implications of these cases remain to be seen, but we offer some initial questions.

Are Compulsory Payments Now Compelled Speech?

It is a natural question following the majority’s conclusion in Janus. In his amicus curiae brief filed in support of the AFSCME, Professor Eugene Volokh was particularly critical of the suggestion that compulsory payments, such as agency fees, should be viewed as compelled speech.38 He was even critical of Abood in that regard:

Compelled subsidies of others’ speech happen all the time, and are not generally viewed as burdening any First Amendment interest. The government collects and spends tax dollars, doles out grants and subsidies to private organizations that engage in speech, and even requires private parties to pay other private parties for speech-related services—like, for example, legal representation.39

Of course, we know that the Court’s recent trajectory equates money and speech. The much-maligned Citizens United v. Federal Election Commission decision was that campaign contributions by corporations constitute political speech.40 If expenditures of money are a form of speech, it is a short leap to conclude that compulsory payments are compelled speech.

As Professor Volokh correctly observed, compulsory payments to government entities—taxes, fees, etc.—will presumptively avoid scrutiny following Janus. That is because the government speech doctrine, as articulated in the fairly recent Supreme Court cases of Pleasant Grove City v. Summum41 and Walker v. Texas Division, Sons of Confederate Veterans, Inc.,42 shields speech and expenditures by the government from First Amendment scrutiny. It is thus unlikely that a plaintiff will prevail in a First Amendment challenge to, say, compulsory payment of taxes that support government messaging, no matter that the government speech doctrine may have provided an alternative to the AFSCME’s agency fees at issue in Janus. If the Illinois state government had reduced employee compensation and used the savings to provide funding to labor unions for collective bargaining negotiations, such funding may have avoided First Amendment analysis altogether.

The necessary implication of Janus is that compelled payments of money to nongovernmental entities may now be treated as compelled speech. Two categories of compelled payments come to mind as being particularly suspect after Janus: (1) bar association dues that are required as a condition of licensing for lawyers in some states, and (2) compulsory payments required of farmers under New Deal–era federal statutes, which in turn support agricultural marketing. Time will tell whether these requirements remain intact in light of Janus.

Are Commercial Disclosure Requirements Now Constitutionally Suspect? Where Does the Commercial Speech Doctrine Stand?

The majority opinion in NIFLA raises a legitimate question of whether any commercial disclosure requirement can survive First Amendment review. To the extent the Supreme Court now reviews any compelled disclosure—such as required safety announcements on airlines, securities disclosures, or health notices on prescription drugs—as content-based regulations of speech, we can expect an entire range of disclosure requirements to be constitutionally suspect following NIFLA.

The NIFLA majority appears to further confuse an already confused commercial speech doctrine. In 2011, in Sorrell v. IMS Health Inc., the Court found that a prohibition on pharmacies’ sale of prescriber-identifying information to prescription drug companies violated the First Amendment.43 The Court determined that the law in question was content-based—an analysis typically reserved for noncommercial speech—yet proceeded to analyze it under the four-part standard articulated in Central Hudson Gas & Electric Co. v. Public Service Commission, which typically applies to commercial speech.44

The Central Hudson test applies a modified form of intermediate scrutiny to regulations of commercial speech, requiring that a regulation both directly advance and not be more extensive than necessary in support of a substantial governmental interest.45 The Court’s approach in Sorrell was curious, given that prior decisions suggested that content-based regulation of noncommercial speech should be reviewed under strict scrutiny, but that content neutrality was irrelevant for purposes of evaluating commercial speech.

NIFLA compounds this confusion. As in Sorrell, the NIFLA majority determined that the FACT Act was content-based. What’s more, while rejecting the notion that Supreme Court precedent did not create a special category of “professional” speech, the Supreme Court completely ignored the Central Hudson test. The Court’s failure to apply or consider Central Hudson is even more curious given that earlier “professional speech” cases, including Edenfield v. Fane,46 addressing certified public accountant advertising, and Florida Bar v. Went For It, Inc.,47 pertaining to lawyer advertising, were reviewed as commercial speech cases.

The practical implications of the Court’s departures from its prior approaches to reviewing disclosure requirements are not altogether clear. Some may view NIFLA as yet another attack on the now-38-year-old commercial speech doctrine. If the Supreme Court is moving away from a special, less restrictive form of review for commercial speech regulation, several types of state and local laws may be in play. Local government regulations of commercial billboards, business activities, door-to-door solicitation, and other forms of commercial speech might be held to the higher standard that has historically applied solely to noncommercial speech.

Do Public Employees Have Expanded Free Speech Rights?

The impact of Janus on the analysis of public employee speech under Pickering may bring considerable debate. Pickering has provided the framework for judicial review of public employee free speech cases for 50 years. Under Pickering, courts first determine whether the employee’s speech in question is that of a citizen on a matter of public concern. If the employee is not speaking as a citizen or his or her speech does not address a matter of public concern, and instead relates to an employment matter, it is not deemed to carry First Amendment protection. If the speech does address a matter of public concern, courts engage in a balancing test between the employee’s interest in speaking on a matter of public concern and the employer’s interest in promoting the efficiency of delivery of public services.48 Where the government’s interest in limiting employees’ participation is indistinguishable from the government’s interest in limiting all speech on a particular matter, the government is less likely to prevail under Pickering.

The union attempted to use Pickering as a defense in Janus. The Janus majority rejected that argument, stating that Abood was decided irrespective of Pickering49 and noting that Pickering applies solely to individual employees’ speech as compared to speech of an entire labor union.50 The Court then offered a gratuitous review of Janus under the Pickering test. It characterized the union’s speech on collective bargaining matters as a matter of public concern, and found that a governmental interest in labor peace could not overcome union member employees’ interest in speaking on critical public matters relating to collective bargaining.51

If speech on collective bargaining matters—perhaps the most central of employment-related issues for unionized public employees—relates to a matter of public concern, that suggests an expansion of Pickering, even if future cases do not review union speech issues under Pickering. If union speech regarding wages and benefits is a matter of public concern, it follows that public employees may have more leeway to argue that their own negotiations over wages and benefits should be viewed as matters of public concern for First Amendment purposes.

Are Exclusive Bargaining Arrangements Now Suspect?

The premise upon which the Court invalidated agency fees—that agency fees constitute compelled speech by employees who might disagree with the union as exclusive bargaining representative—might well portend challenges to exclusive bargaining arrangements themselves. If an employee should be free from having to pay money to an exclusive bargaining representative, it follows that the employee should be able to represent himself or herself in employment negotiations with his or her governmental employer.

This question has had spirited debate. The general counsel for the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) is steadfast in his belief that Janus will not upset exclusive bargaining arrangements.52 In support of that proposition, the authors note that the Janus majority goes to pains to point out that agency fees and exclusive bargaining arrangements are not inextricably linked. Nonetheless, conservative groups that supported Janus’s case are now filing actions seeking invalidation of exclusive bargaining agreements. Justice Alito wrote that “[d]esignating a union as the employees’ exclusive representative substantially restricts the rights of individual employees,” which may not bode well for future union defendants.53

Are the Holdings in Janus and NIFLA Limited to Their Facts?

Janus and NIFLA both addressed topics that are widely recognized as being particularly politically divisive: organized labor and reproductive rights. In both cases, the five-justice conservative majority rejected regulations that are supported by left-leaning interest groups. Justice Breyer’s dissent in NIFLA exposed an inconsistency in the Court’s rationale pertaining to disclosure requirements: in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court approved of compelled disclosures applicable to medical facilities that provide abortion services.54 As some Court watchers have noted, hot-button political issues tend to generate more balkanized decision-making by the Court. So, are the Court’s decisions in Janus and NIFLA single-issue decision-making? It’s anyone’s guess.

Does the Supreme Court Care about Civil Procedure?

While we may have always answered this question in the negative, Janus gives us even more reason to be critical of the Court’s application of the rules of civil procedure. The district court’s decision in Janus was entered on a motion to dismiss filed by the union defendant. The Seventh Circuit affirmed the dismissal of Janus’s claim. Apparently forgetting Rule 12(b) of the Federal Rules of Civil Procedure, the Supreme Court not only reversed the Seventh Circuit, but it also analyzed factual evidence—for which there had been no discovery and no weighing of evidence by a finder of fact—and rendered a decision on the merits of the case in favor of the plaintiff! We suggest with tongue firmly in cheek that the seriousness of the Court’s decisions might be enhanced with greater adherence to the rules.

While the Court was slightly more respectful of the rules in NIFLA, we feel compelled to point out that the Court additionally made a decision on the merits, without giving the parties the opportunity to develop the facts, while reversing the Ninth Circuit’s decision to deny a motion for preliminary injunction.


The Supreme Court concluded the 2017–18 term on a divisive note, rendering decisions in Janus and NIFLA that appeased conservative interests and riled the political left. The extent to which these decisions will permeate First Amendment jurisprudence remains indecipherable, yet it appears that the Court is clearly focused on expanding individual free speech rights and limiting government efforts to compel speech.


1. 138 S. Ct. 2448 (2018).

2. 138 S. Ct. 2361 (2018).

3. 431 U.S. 209, 235–36 (1977).

4. See Janus, 138 S. Ct. at 2460–61.

5. Abood, 431 U.S. at 224.

6. Janus, 138 S. Ct. at 2461.

7. Id. at 2461–62.

8. Id. at 2460.

9. Id.

10. Id. at 2463.

11. Id. at 2464.

12. Id.

13. Id. at 2465.

14. Id. at 2465–66.

15. Id. at 2466.

16. Id.

17. Id.

18. 391 U.S. 563 (1968).

19. Janus, 138 S. Ct. at 2471.

20. Id. at 2472.

21. Id. at 2473.

22. Id. at 2474.

23. 138 S. Ct. 2361, 2368 (2018).

24. Id.

25. Id. at 2368–70.

26. Id. at 2369.

27. Id. at 2371.

28. Id.

29. Id. at 2375–76.

30. Id. at 2372.

31. Id.

32. Id. at 2377.

33. Id.

34. Id. at 2378.

35. Id. at 2377.

36. Id. at 2379 (Kennedy, J., concurring).

37. Id. at 2380 (Breyer, J., dissenting).

38. Brief of Professors Eugene Volokh and William Baude as Amici Curiae in Support of Respondents, Janus v. Am. Fed’n of State, Cty. & Mun. Emps., Council 31, 138 S. Ct. 2448 (2018) (No. 16-1466).

39. Id. at 2.

40. 558 U.S. 310, 342, 360 (2010).

41. 555 U.S. 460 (2009).

42. 135 S. Ct. 2239 (2015).

43. 564 U.S. 552 (2011).

44. Id. at 572.

45. 447 U.S. 557, 566 (1980).

46. 507 U.S. 761 (1993).

47. 515 U.S. 618 (1995).

48. Janus v. Am. Fed’n of State, Cty. & Mun. Emps., Council 31, 138 S. Ct. 2448, 2471 (2018).

49. Id. at 2472.

50. Id.

51. Id. at 2476.

52. James Coppess, Symposium: Four Propositions That Follow from Janus, ScotusBlog (June 28, 2018),

53. Robert Iafolla, What SCOTUS’ Janus Decision Could Mean for Exclusive Representation, Reuters Legal (July 16, 2018),

54. NIFLA, 138 S. Ct. 2361, 2385 (2018) (Breyer, J., dissenting).

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

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

Brian J. Connolly and J. Thomas Macdonald are shareholders in the law firm of Otten Johnson Robinson Neff + Ragonetti PC in Denver, Colorado. Chelsea M. Marx is a rising third-year law student at the University of Denver Sturm College of Law, and was a summer law clerk at the firm in 2018.