Emily Gill: Freedom of speech can also include freedom not to hear it, too

On July 31, Governor Pritzker signed into law the Worker Freedom of Speech Act, which will take effect on January 1, 2025. This law prevents businesses from sanctioning or punishing employees who decline to attend meetings that put forward the religious or political views of these businesses. Employers may of course still hold such meetings, and Illinois is the eighth state to pass this sort of law. Some organizations are exempt, but entities such as 501(c)(3) charities (churches, for example) are subject to the law.

The Illinois Policy Institute (a 501(c)(3) itself), however, recently filed a federal suit, arguing not only that the law is overly broad, but also that it infringes on employers’ freedom of speech rights. A spokesperson for the Liberty and Justice Institute, which is representing the Illinois Policy Institute, stated, “Illinois has enacted a law that prohibits speech based solely on its content, political or religious,” and that thus the law should be declared unconstitutional.

It is true that the U.S. Supreme Court has ruled against viewpoint discrimination (Rosenberger v. Rector of the University of Virginia, 1995). It held that UVA could not refuse to fund the printing of a student religious group’s publication on grounds that it was religious when it funded the publications of other student groups. But this case addressed an entirely different kind of issue.

First, Rosenberger concerned equal access to public funds. For some, government neutrality toward religion means a complete separation of church and state, lest the government favor some religions over others or religion over nonreligion. For others, neutrality means equal treatment or equal access, lest religious organizations be required to forego public benefits available to secular organizations. I am extremely wary of equal access arguments for reasons beyond the scope of this article. The use of a viewpoint discrimination argument against the Worker Freedom of Speech Act does nothing to engender my enthusiasm.

Second, despite the name attached to this law, it pertains not to the speech of workers but to the speech of employers, who may still hold unlimited numbers of meetings that address political or religious issues. It merely prevents workers from being forced to serve as a captive audience at these meetings. Freedom of speech is not accompanied by freedom to address as large an audience as the speaker might wish. Whether we are discussing concerts, political rallies, or religious services, individuals are free to attend or not as they choose.

Although the Boy Scouts of America has since become fully inclusive, when the Supreme Court earlier ruled that it had the right as an expressive association to set its own terms of membership to exclude gay Scouts (Boy Scouts of America v. Dale, 2000), a number of corporations and government entities that had previously supported the Scouts with funding or the use of public facilities withdrew this support. A number of parties who agreed with the Scouts criticized these actions as a movement to “get the Boy Scouts.” Although the Scouts was entitled to express its own values through its membership policies, it was not entitled, either legally or morally, to continue to receive this voluntary support. In the present case, businesses are entitled to speech on political and religious subjects, but they are not entitled to impose this speech upon unwilling audiences.

— Emily Gill is Caterpillar Professor of Political Science Emerita, Bradley University