Speech Inequality After Janus v. AFSCME

This Article explores the growing divide between the Roberts Court’s treatment of the free speech rights of wealthy individuals and corporations in campaign finance cases as compared to its treatment of the rights of public-sector labor unions and their members. First, it highlights some internal contradictions in the Janus Court’s analysis. Then, it discusses the growing—yet mostly ignored—divergence in the Court’s treatment of corporate and labor speakers with respect to the use of market influence to achieve political influence. The Article has two Parts.

In Part I, I explain how the Court reached its decision in Janus before critiquing the decision’s internal logic on several points. And in Part II, I contrast the Roberts Court’s approach in Janus to its approach in First Amendment challenges to campaign finance law, arguing that the Court’s solicitude towards the First Amendment rights of wealthy or corporate speakers is in tension with its cramped view of the First Amendment rights of unions and union members. NOTE: 2018 Stewart Lecture in Labor and Employment Law, Indiana University Maurer School of Law, Bloomington, Indiana.