Speech Inequality After Janus v. AFSCME
The right to free speech does not hinge on wealth, but the ability to be heard often does. This practical reality links income (or wealth) inequality with speech inequality – the unequal distribution of opportunities to persuade. Speech inequality has many manifestations, but one of the most obvious is electoral politics: the most effective means of persuading others to support a particular candidate also tend to be the most expensive.
The good news is that speech inequality is not an inevitable feature of American politics. In addition to campaign finance reform, a key way to combat speech inequality is to empower labor unions, which both attack the root problem of income inequality, and pool working class resources (including shoe leather) to exert influence in the political realm. The bad news is that the Roberts Court has asymmetrically disempowered labor unions’ political participation.
This project explores the growing divide between the Roberts Court’s treatment of the free speech rights of wealthy individuals and corporations, as compared to labor unions. Over the last ten years, the Court has struck down several attempts to limit the role of money in politics, establishing a principle that in the “marketplace of ideas,” the First Amendment demands a laissez-faire approach. The major exception concerns labor unions and their members: they must pay what amounts to a surcharge before spending member dues on politics in order to vindicate the First Amendment interests of the non-members they represent.
This project has two goals. First, to highlight the growing – yet mostly ignored – divergence in the Court’s treatment of the use of market leverage to achieve political leverage by corporate and labor speakers. And second, to sketch a route toward a more coherent First Amendment approach to the relationship between economic power and the metaphorical marketplace of ideas.
1 hour Indiana CLE credit available.
Charlotte Garden is an expert in labor law and the regulation of work & workers. She is an Associate Professor at the Seattle University School of Law, where she teaches Labor Law, Constitutional Law, Appellate Litigation and Legislation & Regulation. She also teaches in the Civil Rights Amicus Clinic, serves as the Faculty Advisor for the School's chapter of the American Constitution Society, and is the Litigation Director at the School's Korematsu Center for Law & Equality.
Professor Garden's scholarship focuses on the intersection of work/labor law and the Constitution. Her articles have appeared in the Emory Law Journal, Boston University Law Review, George Washington Law Review, Fordham Law Review, William & Mary Law Review, and the Harvard Civil Rights-Civil Liberties Law Review. She regularly writes opinion and analysis pieces for non-academic audiences at popular outlets such as The Atlantic, SCOTUSblog, Salon and the blog of the American Constitution Society. Her legal analysis has been featured in the mainstream media, on platforms such as the New York Times, APR's Marketplace, Bloomberg News, the Washington Post, The Nation, and Politico. Professor Garden is a co-author of a Labor Law casebook, with collaborators Seth Harris, Anne Marie Lofaso, and Joe Slater.
In addition to her teaching and scholarship, Professor Garden serves on the Executive Committee of the AALS Section on Labor Relations and Employment Law, is a co-chair of the Labor Rights Collaborative Research Network of the Law & Society Association, and is a co-editor of the Work Law section for the online legal journal JOTWELL. She also regularly authors amicus briefs in cases affecting unions and workers, most recently in Vergara v. California, Friedrichs v. California Teachers Association, M&G Polymers USA, LLC v. Tackett, and Harris v. Quinn.
Before joining Seattle University, Professor Garden was a teaching fellow in the Appellate Litigation Clinic at Georgetown University Law Center, where she also received her LL.M. While there, she argued cases before the Fourth and D.C. Circuits. Professor Garden then clerked for Judge Thomas L. Ambro of the U.S. Court of Appeals for the Third Circuit. A graduate of NYU School of Law and McGill University, Professor Garden also spent several years in practice as a public interest litigator. From 2005-2008, she was an associate at the union-side labor law firm Bredhoff & Kaiser, PLLC in Washington, D.C. Before that, she was a guardian ad litem at the Children's Law Center in Washington D.C., and held the Abraham Fuchsberg Fellowship at Public Citizen Litigation Group, where she focused on consumer safety issues, class action fairness, and Internet privacy.