Bench Memos

The Anti-First Amendment New York Times

I’m not surprised to discover that the New York Times doesn’t care for the fact that Justice Alito’s majority opinion last week in Knox v. SEIU recognized “the critical First Amendment rights at stake” when a union compels nonmembers to pay fees to support its political activities. But the NYT’s house editorial against the ruling, replete with extravagant rhetoric, is puzzling in one respect and unfair in another.

The NYT states: “In this labor union case, there is no getting around that the legal approach is indistinguishable from politics.” I confess that I have no idea what this sentence means. My best guess is that the NYT is asserting that the “legal approach” to ascertaining the First Amendment rights of nonmembers of unions is utterly indeterminate and that it’s therefore just a matter of “politics” for the Court to determine what those rights are. If that’s what the NYT means, I don’t understand why anyone should accept its simple assertion, much less prefer it to Justice Alito’s approach of applying, to the narrow issue in Knox, the First Amendment’s “general rule [that] individuals should not be compelled to subsidize private groups or private speech.”

The core of the editorial is its adoption of Justice Sotomayor’s charge that Alito’s opinion “breaks our own rules” by supposedly deciding matters beyond the scope of the questions on which the Court granted review. But, in NYT’s characteristically one-sided manner, it doesn’t even acknowledge, much less attempt to dispute, Alito’s refutation of that charge.


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