[P]olitical speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are “subject to strict scrutiny,” which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” [cite omitted] While it might be maintained that political speech simply cannot be banned or restricted as a categorical matter, see Simon & Schuster, 502 U. S., at 124 (KENNEDY, J., concurring in judgment), the quoted language from WRTL provides a sufficient framework for protecting the relevant First Amendment interests in this case. [. . .] Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints. [. . .] As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content.
Does the Taft-Hartley Act's prohibition on political solidarity strikes withstand this level of review? If Citizens United's logic is applied consistently, the answer appears to be clearly No. The prohibition against political solidarity strikes is a"[s]peech restriction[] based on the identity of the speaker." What makes it different from an expenditure restriction?
Ironically (and more than a bit nonsensically), political strikes against the government might survive this scrutiny. The
Citizens United Court stated that:
The Court has upheld a narrow class of speech restric-tions that operate to the disadvantage of certain persons, but these rulings were based on an interest in allowing governmental entities to perform their functions. See, e.g., Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 683 (1986) (protecting the “function of public school education”); Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U. S. 119, 129 (1977) (furthering “the legitimate penological objectives of the corrections system” (internal quotation marks omitted)); Parker v. Levy, 417 U. S. 733, 759 (1974) (ensuring “the capacity of the Government to discharge its [military] responsibilities” (internal quotation marks omitted)); Civil Service Comm’n v. Letter Carriers, 413 U. S. 548, 557 (1973) (“[F]ederal service should depend upon meritorious performance rather than political service”). The corporate independent expenditures at issue in this case, however, would not interfere with governmental functions, so these cases are inapposite.
Jones v. North Carolina Prisoners Labor Unions, Inc. involved unionizing activities by prisoners, so perhaps not quite on point here. The other cases cited by the Citizens United also offered fairly unique governmental interests (education and military.) The citation to the Civil Service Commission case is rather ironic as it cuts strongly against the Citizens United court's principal argument - that the government's interest in having its actions compromised by "political service" is not sufficient to restrict First Amendment rights. In Civil Service Commission v. Letter Carriers, the Court stated that:
We unhesitatingly reaffirm the Mitchell holding that Congress had, and has, the power to prevent Mr. Poole and others like him from holding a party office, working at the polls, and acting as party paymaster for other party workers. An Act of Congress going no farther would, in our view, unquestionably be valid. So would it be if, in plain and understandable language, the statute forbade activities such as organizing a political party or club; actively participating in fund-raising activities for a partisan candidate or political party; becoming a partisan candidate for, or campaigning for, an elective public office; actively managing the campaign of a partisan candidate for public office; initiating or circulating a partisan nominating petition or soliciting votes for a partisan candidate for public office; or serving as a delegate, alternate or proxy to a political party convention. Our judgment is that neither the First Amendment nor any other provision of the Constitution invalidates a law barring this kind of partisan political conduct by federal employees.
Frankly, this case is hard to reconcile with Citizens United. The only way to do so it to carve out an exception allowing restricting the speech of persons or entities with a direct relationship with government - employees and contractors and the like.
In this fashion, Taft-Hartley's prohibition against political solidarity strikes could be applied to public sector unions. But it seems that the logic of Citizens United would require that the ban against political solidarity strikes should not apply to private sector unions, unless such strikes affected entities with direct relations with governments.
In any event, Citizens United opens a bevy of question regarding a number of free speech issues. As I have stated earlier, my belief is that the Court simply did not think about the Pandora's Box it has opened.
Speaking for me only
