Meta Rights

November 1, 2014

Are individuals entitled to notice of their constitutional rights or assistance in exercising those rights? In most contexts, the answer is no. Yet, there are some important exceptions, in which the U.S. Supreme Court has held that special circumstances call for notice and procedural protections designed to facilitate rights invocations. This Article refers to these entitlements as “meta rights”—rights that protect rights. The most famous of these is the Miranda warning, which notifies suspects of their Fifth Amendment rights to silence and an attorney. There are others as well—among them, the First Amendment right of individuals represented by public sector labor unions and bar associations to notice of their right not to subsidize certain union or bar association speech. Certain procedural due process rights also qualify as meta rights, including the notice of the right to litigate individually to which many class members are entitled.

The reason for the Miranda warning, as well as for similar notice rights in the procedural due process context, is clear: each aids individuals in overcoming high external barriers to protecting their own rights through self-help. But what justifies meta rights that help union members and attorneys exercise their rights against compelled subsidization of political speech, where there are generally no significant barriers to self-help? Alternatively, why aren’t there meta rights in other compelled speech and subsidization contexts? And, if meta rights are appropriate, how robust should they be?

This Article takes up these questions, arguing that the self-help rationale offers a way to determine when meta rights are required in various constitutional contexts, including in the context of compelled speech and subsidization of speech. It then addresses the challenges inherent in structuring meta rights, which are accentuated where meta rights are owed by private associations—such as unions and bar associations—that have their own First Amendment rights. Ultimately, this Article argues that courts cannot ignore the competing interests of associational speakers and willing members when they determine the scope of meta rights in the compelled speech and subsidization context. Thus, to the extent that courts conclude that meta rights themselves implicate the First Amendment, they should account for the possibility that some meta rights do more than just allow dissenters to avoid unwanted speech: they actually encourage opt-outs, and correspondingly discourage speech.

November 2014

No. 2