Idaho argued it's piece yesterday in an attempt to preserve the last vestiges of the Voluntary Contributions Act, passed by the Legislature in 2003 and struck down by courts ever since. You can read the transcipt here.
JUSTICE KENNEDY: If you -- if you think of the case as a principal-agent case so that the principal can direct the agent as to what to do, the agent being the county, then it seems to me that the unions might still have an argument that this is an unconstitutional condition.
I've been looking for ways to examine this case. The public forum doesn't really work for me. Subsidy doesn't really work for me. It seems to me to be an unconstitutional-condition case. At least that's the argument.
That doesn't mean you necessarily can't prevail. But suppose the State told the city: You can't have a parade that you sponsor for this particular cause. That would raise an unconstitutional-conditions argument; wouldn't it?
MR. SMITH: It might, Your Honor, but that situation, of course, is not the situation presented here.
JUSTICE KENNEDY: Why isn't it? And I say that because I think that follows on Justice Stevens's line of questioning. I didn't mean to interrupt him, but it seems to me that is consistent with what he is asking.
MR. SMITH: Because the statute at issue here, Justice Kennedy, speaks across the board to a specific kind of conduct, political activities. It does so in the a viewpoint-neutral fashion. To prohibit a particular parade might well raise viewpoint non-neutrality issues.
CHIEF JUSTICE ROBERTS: Yes, because the State couldn't --
JUSTICE KENNEDY: You stand up and say that this isn't viewpoint -- that this is -- that this is viewpoint-based. Isn't it where the union --and aren't they right about that?
MR. SMITH: Your Honor, they are incorrect about that. The district court concluded that the statute is viewpoint-neutral. Indeed --
JUSTICE GINSBURG: But does it get at any speech other than union speech? I mean you say, yes, it is content-based, but it's viewpoint neutral. But it seems that what is banned by the statute is union speech. Is any other organization affected? Does the ban affect any other organization? Isn't it simply union speech that's at stake?
MR. SMITH: The answer is no. It -- the --the statute just -- does not just affect union speech by its literal terms.
JUSTICE GINSBURG: But, in practice, is there any other application?
MR. SMITH: Well, there is no evidence in the record, Your Honor, as to any other entity who is affected by the statute. But that is hardly -- that's hardly remarkable, given the fact that the plaintiffs in the litigation are six labor organizations. I should add that --