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The State and the Union: SCOTUS Holds Certain Union Fees Undermine Free Speech Rights

Noel Peel

Written by

Noel Peel


January 29, 2019


By Lydia Otey

Recently, the U.S. Supreme Court issued a groundbreaking decision regarding labor unions.  In Janus v. American Federation of State, County, and Municipal Employees, Council 31, the Court addressed the question of whether a state’s extraction of union fees from non-consenting, nonunion employees violated the employees’ First Amendment rights. 585 U.S. ___ (2018). Overturning its previous holding in Abood v. Detroit Bd. Of Ed., 431 U.S. 209 (1977), the Court held that the fee arrangement in question did violate free speech protections of the First Amendment, and that stare decisis could not support the previous holding in Abood.

Mark Janus was a state employee whose unit was represented by a public-sector union in Illinois. Illinois law stated that because the union was deemed to represent all workers, including nonmembers, fees deemed chargeable by the union were automatically deducted from nonunion employees’ pay. Janus was a nonunion member who disagreed with the public policy positions of the union that represented his unit.

In determining Janus’ rights, the first consideration was whether the holding in Abood was consistent with First Amendment free speech principles.  The Court pointed out that the First Amendment protects against compelled speech as much as it protects free speech. That protection includes the right to refrain from speaking and the right to “eschew association for expressive purposes.” The Court had previously found in Knox v. Service Employees, 567 U. S. 298, 311 (2012), that compelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns. Knox used an “exacting scrutiny” test to determine whether a subsidy served a compelling state interest that could not be achieved by less restrictive means. Here, the Court did not even approach the Petitioner’s contention that the Illinois law in question should be subjected to “strict scrutiny,” finding that even under the less stringent standard of “exacting scrutiny,” the law failed.

In Abood, the main defense of the agency-fee arrangement was that it promoted “labor peace” by avoiding the potential for inter-union rivalries and disruption in the workforce as the result of employees being represented by more that one union. Here, the Court assumed that “labor peace” was indeed a compelling state interest, but found that it could undeniably be achieved by means significantly less restrictive of free speech than the assessment of agency fees. In reaching this conclusion, the Court pointed to the practices of the Federal Government and 28 states that allow for exclusive union representation, but not agency fees, and determined that the Abood Court’s fears were unfounded.

Another defense of the agency-fee arrangement in Abood was avoiding “free riders.” The Respondents in Janus contended that the agency fees were necessary to prevent nonunion members from enjoying the benefits of union representation without shouldering the cost. The Court had previously determined in Knox that free rider arguments would generally not be sufficient to overcome a First Amendment challenge, because avoiding free riders is not a compelling state interest. The Court stated simply that the First Amendment does not permit the government to compel a person to pay for someone else’s speech just because that person might benefit. Respondents argued that their case fell outside that reasoning because unions are statutorily required to represent the interest of all public employees in the union, regardless of their membership. The Court addressed two possible arguments for that position: 1) that without agency fees, unions would be otherwise unwilling to represent nonmembers, and 2) it would be unfair to force unions to represent workers who did not pay. As to the first argument, the Court pointed out that having the right to exclusive representation confers a long list of benefits, which greatly outweighs any additional burden of representing nonunion members. As to the second argument, the Court pointed out that being designated the exclusive representative of all employees greatly limits the rights of nonunion members who may want to employ other representation for their interests. As such, the duty to represent them as well and fairly as they represent union members is an essential responsibility of having the right of exclusive representation.

After a thorough discussion of Abood, the Court moved on to addressing each of the Respondents’ defenses of its holding. First, the Respondents argued that the First Amendment was not originally understood to provide protection for the free speech of public employees, an idea the Court swiftly dismissed.  This idea would require overturning “decades of landmark precedent,” a result incongruous with the Respondents’ other defense of stare decisis. The Court refused to engage in what it called “halfway originalism.”

Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, issued an impassioned dissent, contending that Abood was not an outlier, but rather fit neatly into the Court’s First Amendment jurisprudence. She was equally certain that the majority erred in determining that stare decisis should not control the outcome of this case.

Next was the Respondents’ key defense that the holding in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968), should control. Pickering held that a public employee speaking as a citizen on a matter of public concern would be protected speech unless the interests of the employee were outweighed by the interest of the state, as an employer, in promoting efficiency in the services it performs through its employees. The Court pointed out that Pickering was not the basis of the decision in Abood, and that the defense was an attempt to find new justification for Abood out of context. Pickering examined the issue of public employee speech that could interfere with the efficient operation of a government office. In contrast, Abood addressed the issue of speech being compelled by the requirement that employees subsidize the speech someone else.

After clearly holding that public sector agency-shop arrangements violate the First Amendment, the Court turned to the issue of whether stare decisis would prevent Abood from being overturned; the Court determined it would not. The Court looked at several factors including the quality of reasoning in Abood, the workability of the precedent, developments since Abood, and potential reliance on Abood. In deciding Abood, the Court relied on caselaw that addressed whether Congress exceeded its power by merely authorizing agency fees. That caselaw did not take up the issue of what happens when a state requires the fees, and neither of the cases in Abood examined First Amendment considerations. The Court also found the precedent set by Abood unworkable in practice because the line between chargeable and nonchargeable expenses is nearly impossible to draw. The process laid out required judgement calls on a case by case basis. Not only would this invite ongoing litigation, but it presented an overly burdensome process to employees who wished to challenge the expenses. First Amendment cases taken up by the Court since Abood applied an exacting scrutiny standard, but Abood used a deferential standard, making it an anomaly in First Amendment jurisprudence. Ultimately, the Court determined that reliance on Abood would not save it from being overturned, the primary reason being that free speech trumps contract rights. The Court also pointed out that because there was no clear standard in determining which fees were chargeable, there could be no real reliance.

Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, issued an impassioned dissent, contending that Abood was not an outlier, but rather fit neatly into the Court’s First Amendment jurisprudence. She was equally certain that the majority erred in determining that stare decisis should not control the outcome of this case.  In defending Abood, Kagan pointed out that it emerged from an understanding that exclusive representation was often needed such representation costs money. The free-rider argument that the majority dismissed was, to Kagan, a logical reflection of economic behavior. For Justice Kagan, the operative question should not be whether unions would be willing to represent nonmembers without agency fees, but whether they would be able to do it.

As to the First Amendment issue, Kagan characterized the majority’s opinion as a weaponized use of the First Amendment to reach what was ultimately a decision based on policy preference. She pointed out that, when acting as an employer, the government does have wide berth to regulate employee speech when the speech is related to the terms and conditions of employment. The connection between that right and the substance of collective bargaining was, to Kagan, plain to see. Thus, she argued that Pickering is a perfectly logical example to follow. Although Pickering turned on compelling silence rather than compelling speech, earlier caselaw held that the distinction between the two was really of no constitutional significance. Additionally, the speech at issue in Pickering directly related to the conditions of the workplace. Ultimately, Kagan pointed out, speech touches nearly every aspect of human existence, but that does not mean the First Amendment should be invoked for every purpose.

As to the issue of stare decisis, Kagan disagreed that the reasoning in Abood was unsound, and pointed out that Abood has been cited positively in so much subsequent caselaw, that overturning it creates major continuity issues in First Amendment jurisprudence. Only a decade earlier, the Court had unanimously called Abood “a General First Amendment Principal.” She also rejected the majority’s assertion that Abood was unworkable. The biggest issue for Kagan in the Court’s stare decisis reasoning was the question of reliance. She pointed out that the Court has previously stated that, if a precedent has direct application to a case, it should control a decision, regardless of whether its reasoning is rejected in some other line of decisions. Thus, reliance on Abood would be clearly justified. Not only that, but overruling Abood would result in huge legislative and contract overhauls for many states.

Will Janus end up gutting union abilities in states like Illinois where there is money garnished from nonmembers?  Will unions have the ability to avoid representing nonmembers under new laws? Is any of it fair to workers on each side of the issue?

To read the full Supreme Court opinion and dissents click here.

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