February 28, 2014

Compelled union dues are compelled speech

By Compelled union dues are compelled speech

The United States Supreme Court recently heard oral argument in Harris v. Quinn, an important compelled-speech case. This case challenges Illinois’ classification as “state employees” of all home health-care workers that receive reimbursements from the government’s Medicaid program. As a part of that classification, Illinois forced all of those workers to pay union dues to a public-sector labor union, even if they were not union members.

Several of those workers sued Illinois, arguing: (1) they should not be considered state employees and therefore should not be forced to support a labor union under Illinois law, and (2) the First Amendment forbids the state from forcing any non-union members to pay dues to a union.

The second argument raises an interesting constitutional question that is the focus of the amicus brief PLF filed in this case. The issue is based on the Supreme Court’s compelled-speech doctrine, which has developed over a long line of cases. Under that doctrine, the First Amendment’s “freedom of speech” clause forbids the government from forcing people to speak. In other words, in addition to protecting the right to speak, the First Amendment protects the right to not speak. This doctrine may be traced back to at least 1943, when the Supreme Court held that a public school may not force its students to salute the American flag.

The Supreme Court has also long recognized that being forced to financially support someone else’s speech is compelled speech. In the 1977 case Abood v. Detroit Board of Education, the Supreme Court ruled that the government may not force public employees to pay for labor unions’ political activity, such as lobbying. That principle has been reaffirmed in several other Supreme Court cases, including one of Pacific Legal Foundation’s unanimous Supreme Court victories, Keller v. State Bar of California.

In spite of the Supreme Court’s affirmation that the Constitution protects against compelled speech in the form of forced financial contributions, it ruled in Abood that the government may force all public employees to pay for labor unions’ activity that relates to collective bargaining. The pending Harris case seeks to have the Supreme Court overturn that holding. Friedrichs v. California Teachers Association, which is working its way through federal courts in California, has the same goal. The gist of the argument is that the distinction between political activity and collective-bargaining activity is difficult to define and arbitrary. If the government may not force someone to pay for one type of activity, then it should not be able to force someone to pay for the other type.

Because compelled speech is likely unconstitutional, the lawyers who defended Illinois in Harris tried to argue the case does not involve compelled speech. During oral argument, those two lawyers tried to persuade the Supreme Court that the case belongs in the Court’s line of cases involving public employees who got punished for their work-related speech. That line of cases dates back to at least Pickering v. Board of Education in 1968, in which the Supreme Court ruled that a school board violated the First Amendment by firing a teacher for criticizing the school board’s financial decisions in a letter to the editor. A Harvard Law School professor also recently suggested in a blog post that compelled union dues are justified under the Pickering line of cases. The reason for making that argument is that the Supreme Court is more likely to allow compelled union dues if framed as a limit on public employees’ speech rather than framed as compelled speech.

During oral argument in Harris, Justice Antonin Scalia entertained that argument. This is one reason why the media speculated post-oral argument that Justice Scalia might vote to uphold Illinois’ compelled union dues. But a more accurate view is that Justice Scalia was interested in knowing how Harris should be categorized. He seems to recognize that compelled union dues are compelled speech. After all, he joined the majority opinion in a case two years ago that said “compelled funding of the speech of other private speakers or groups” is “[c]losely related to compelled speech.” (In that case, the Court limited a union’s ability to extract money from non-members.)

Indeed, as noted above, the Court in Abood recognized that compelled union dues were compelled speech. The Court agreed with the workers that the state may not compel them to support a union’s political activity because that would be unjustified compelled speech. The Court reasoned that the workers “have been prohibited, not from actively associating, but rather from refusing to associate.” Similarly, being required to support a union’s collective bargaining is compelled speech. “To be required to help finance the union as a collective-bargaining agent might well be thought . . . to interfere in some way with an employee’s freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit.” However, the Court upheld the compelled collective-bargaining dues because it felt bound by precedent.

So, what did the Court in Abood have to say about the public-employee-speech doctrine? After all, because Pickering was decided nine years before Abood, one would expect the Abood decision to rely on Pickering if compelled-dues cases fit into the public-employee-speech doctrine, right? Well, the majority opinion in Abood mentioned Pickering only one time – in a footnote to explain that Pickering was not relevant.

The passage is:

A public employee who believes that a union representing him is urging a course that is unwise as a matter of public policy is not barred from expressing his viewpoint. Besides voting in accordance with his convictions, every public employee is largely free to express his views, in public or private orally or in writing. With some exceptions not pertinent here,27 public employees are free to participate in the full range of political activities open to other citizens.

In footnote 27, the Court cited Pickering and other cases. In other words, the Court was saying that the government may impose a few limits on public employees’ free-speech rights. One of those limits, according to the majority opinion in Abood, is that the state may force its employees to financially support labor unions’ collective bargaining. Another limit – which is “not pertinent” in compelled-dues cases – is that the state may punish its employees for certain work-related speech.

The Court was clearly correct to note that compelled-dues cases are not part of the Pickering line of cases. Pickering and its progeny generally involved public employees who engaged in oral or written speech, were punished by their employers for that speech, and then sued their employers for that punishment. Compelled-dues cases involve none of those facts. Rather, they involve public employees who sue the state for forcing them to pay dues to a union they don’t belong to.

Because compelled union dues are akin to compelled speech, the Supreme Court seems likely to decide that compelled collective-bargaining dues are unconstitutional, if it reaches that issue in Harris or Friedrichs.

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