BY HANK REICHMAN
Later this month the U.S. Supreme Court will hear arguments in the case of Janus v. AFSCME, Council 31, in which anti-union “right to work” forces are challenging the right of public employee unions to collect agency fees from non-members that the unions represent. These fees have since 1977 been protected by the Supreme Court’s unanimous decision in Abood v. Detroit Board of Education. The ostensible plaintiff, Mark Janus, backed by the National Right to Work Committee and other anti-union groups, claims that requiring non-members to pay for union representation at all is de facto government-compelled speech and hence a violation of the First Amendment.
Last month the AAUP joined with the National Education Association to submit an amicus curiae brief in support of the respondents, which urged the Court to reject the challenge, arguing that “the government is fully justified in ordering its own workplace affairs through collective bargaining with an exclusive representative. And in order to secure that arrangement, the government is equally justified in authorizing and entering agency fee arrangements that ensure the financial stability of its collective bargaining partner. Such a result is fully consistent with the First Amendment, which grants the government the ‘widest latitude’ in conducting its own internal affairs.”
The brief was but one of many filed on both sides, including several filed by unions and state and local governments on behalf of the respondents. Two interesting briefs from an unexpected source and an unusual partnership merit broader attention and comment. In what one account called “a surprising lifeline from an unlikely friend,” two conservative legal scholars, Eugene Volokh, professor of constitutional law at UCLA and regular blogger for the Washington Post, and William Baude, a constitutional law professor at the University of Chicago and rising star in libertarian conservative legal circles who has been cited in oral argument by Justice Neil Gorsuch, filed a brief in support of AFSCME. The two are by no means friends of unions, but their concern is with the case’s potential danger to the First Amendment.
“Compelled subsidies of others’ speech happen all the time, and are not generally viewed as burdening any First Amendment interest,” they write. “Just as non-union members may find many reasons to disagree with a public union’s speech, there are countless grounds to object to other speech supported by government funds. Many people undoubtedly disagree with a great deal of public and private speech funded by taxes or other compulsory payments. There is, however, no First Amendment interest in avoiding those subsidies.”
While the entire brief is worth reading, here is its summary of argument:
1. Abood v. Detroit Board of Education, 431 U.S.209 (1977), this Court has observed, is “something of an anomaly” when it comes to the First Amendment. Harris v. Quinn, 134 S. Ct. 2618, 2627 (2014) (internal quotation marks omitted). In fact, Abood is even more anomalous than previously acknowledged. For the first time, “Abood . . . recognized a First Amendment interest in not being compelled to contribute to an organization whose expressive activities conflict with one’s ‘freedom of belief.’” Glickman v. Wileman Bros.& Elliott, Inc., 521 U.S. 457, 471 (1997). Abood then concluded that some interference with this new First Amendment interest was “constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations,” and the need to avoid free-riding on the public union’s collective bargaining efforts. Abood, 431 U.S. at 222.
The Court has since questioned whether Abood balanced the competing interests correctly, noting, for example, that “free-rider arguments are generally insufficient to overcome First Amendment objections.” Harris, 134 S. Ct. at 2627 (internal quotation marks and alterations omitted). Petitioner and his amici press similar arguments for reversing Abood here. See Pet. Br. at 36–37.
Where Abood truly went wrong, however, was not in how it applied the new First Amendment objection it recognized. Rather, Abood erred by recognizing that objection in the first place. Compelled subsidies of others’ speech happen all the time, and are not generally viewed as burdening any First Amendment interest. The government collects and spends tax dollars, doles out grants and subsidies to private organizations that engage in speech, and even requires private parties to pay other private parties for speech-related services—like, for example, legal representation. To be certain, these compelled subsidies are subject to other constitutional restrictions. For example, the government cannot compel payments that violate the First Amendment’s Religion Clauses or the Equal Protection Clause. But a compelled subsidy does not itself burden a free-standing First Amendment interest in freedom of speech or association.
So if Abood misapplied the First Amendment, it undercut a First Amendment interest that Abood itself miscreated. If anything in Abood should be revisited, it is the existence of the First Amendment interest itself. That is also sufficient reason to reject Petitioner’s request to expand Abood’s First Amendment holding by overturning it in the other direction.
2. There is certainly no First Amendment violation when the government itself engages in taxpayer-funded speech that some find objectionable. The content of that speech is protected from First Amendment scrutiny by the government speech doctrine. No matter how much we disagree with the government’s message, we cannot withhold the portion of our taxes that support it. The First Amendment permits taxpayers who object to government speech to raise their own voices in opposition and to associate with others who share their views. And, of course, disgruntled voters can express their frustration at the ballot box. But those are their only remedies. They have no First Amendment interest to resist subsidizing government speech they happen to disapprove of.
The First Amendment analysis is the same when the government gives tax revenues to private entities to provide services that include speech. As with government speech, the government’s choice of what services and what speech to subsidize does not implicate the First Amendment’s freedom of speech and association rights, outside of certain exceptions like public forums. See Rust v. Sullivan, 500 U.S. 173, 200 (1991). Nor does the First Amendment constrain private grant recipients when they speak using government funds. Again, taxpayers who oppose these compelled expenditures have no right to withhold taxes and no recourse besides engaging in speech or association themselves or voting for different government officials.
The only difference with the compelled subsidies challenged here (and in Abood) is that they involve payments made directly from one private party to another as a condition of public employment. But the government frequently conditions important activities on the purchase of speech-related services from private entities or individuals. Doctors and lawyers must enroll in continuing medical and legal education courses to remain in practice. States require entrants to a wide variety of occupations to purchase dozens or hundreds of hours of training and certifications. And a number of states require people buying real estate to be represented by an attorney at the closing. The government requires people to purchase non-speech services from private entities too, like car insurance and vaccinations, and the entities that receive these government-compelled funds are then free to spend them on objectionable speech.
The First Amendment does not provide freedom from any of these mandatory payments for others’ speech. Practicing attorneys cannot refuse to pay for CLE programming because they disagree with the messages presented or because they choose not to associate with CLE providers. Home buyers cannot refuse representation by counsel in states that require it, even if they would prefer to spend their money on something else. These and other instances of private speech funded by government mandate need not be viewpoint-neutral, nor must they be justified by a compelling governmental interest. The First Amendment rights to freedom of speech and association simply do not guarantee that one’s hard-earned dollars will never be spent on speech one disapproves of.
3. Stripped of Abood’s unfounded First Amendment concerns, this is an easy case. The government has determined that collective bargaining is the best way to negotiate contracts and settle disputes with public employees. The government would undisputedly be free to establish a public collective bargaining agent, or to pay a private one directly from the public fisc. That it has chosen instead to pay its employees and then require them to hire the collective bargaining agent does not change the constitutional analysis.
4. Under the doctrine of stare decisis, Abood should not be overturned unless it reached the wrong result. It is not enough to note that Abood was badly reasoned, or that parts of the opinion were flawed. The Court should overturn Abood only if, going back to first principles, it can establish that the Free Speech Clause does protect a right that is violated by agency fees. But the First Amendment provides no such right. The judgment below should be affirmed.
This is a remarkable argument, going further than most others to argue that Abood’s own reasoning was flawed, but not in the way its challengers contend. (Volokh has also responded to critics who claim that while the Constitution provides for the taxing power, it does not authorize agency fee payments, a distinction that, he retorts, is “quite beside the point.”)
A different approach is taken in a brief submitted by the seemingly unlikely pairing of Charles Fried, professor of law at Harvard University and a former Republican Solicitor General of the United States, and Robert Post, professor of constitutional law and former dean at Yale University Law School, who is a former general counsel to AAUP and current member of Committee A, represented by Seth Waxman, Solicitor General in the Clinton administration. The two intervened on behalf of neither the petitioner nor the respondent. But they also take head-on Janus’s First Amendment claim:
In seeking a categorical prohibition on agency fees, petitioner claims that all union speech directed to the government is “political speech indistinguishable from lobbying the government.” That is manifestly incorrect. When a union discharges statutory duties, it engages in speech that “owes its existence” to the State’s chosen system for managing its workforce; funding such speech—which is directed to the government as an employer, not to the government as a sovereign—does not implicate “any liberties the employee might have enjoyed as a private citizen.” Garcetti, 547 U.S. at 422. Concluding otherwise would set in motion drastic changes in First Amendment doctrine that essentially threaten to constitutionalize every workplace dispute and, further, to unsettle other constitutional doctrines that distinguish between the government as employer (or proprietor) and as sovereign.
Most striking here is the brief’s reliance on the Court’s 2006 decision in Garcetti v. Ceballos, a decision that raised considerable concern among faculty and in the AAUP over its potential to restrict academic freedom. But it turns out that Garcetti is a two-edged sword. “Public-sector bargaining regimes involve the same state managerial prerogatives to which the Court has expressed deference in the Garcetti line of cases,” the brief states. “This Court has interpreted the First Amendment, consistent with Garcetti, to give ample room to state employers to structure public workplaces as they believed most effective, without undue First Amendment restrictions.” The brief continues:
The essential insight of the Garcetti line of cases is that if public employees are accorded categorical First Amendment rights, public employers will be denied the broad discretion they need to manage their workplaces. States will be stripped of their capacity effectively to govern in accordance with local needs and values. It is inconsistent with Garcetti’s carefully drawn distinction between speaking as an employee and speaking as a citizen to hold that the compulsory payment of agency fees is categorically protected under the First Amendment. Any such holding would therefore threaten to transform every workplace dispute into a constitutional controversy. . . .
Union representatives discharging their statutory duties therefore are speaking on behalf of employees qua employees, with funding from employees qua employees, within a statutory system created to manage the State’s relationship with its employees qua employees. Their speech “owes its existence” to the State’s chosen system of labor relations and does not implicate “any liberties the employee might have enjoyed as a private citizen.” Garcetti, 547 U.S. at 422.
That this case involves employee funding of speech, rather than employee speech itself, does not distinguish Garcetti. There can be no First Amendment claim for restricting speech made in the context of a system “commissioned or created” by the government acting as employer. 547 U.S. at 422. This principle applies with equal force to a claim of compelled speech. See Riley v. National Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 796 (1988) (the “difference between compelled speech and compelled silence … is without constitutional significance”). Indeed, public employees are routinely compelled to speak pursuant to their official duties, and courts have rejected First Amendment challenges to such compulsion under Garcetti. If the employee speech at issue here can be restricted or compelled without First Amendment challenge, so too can the funding of such speech. Because a claim of compelled funding of speech is more attenuated than a claim of compelled speech simpliciter, this conclusion follows a fortiori from Garcetti.
The brief goes on to argue that a “categorical rule holding agency fees unconstitutional would also blur the limits the Court has been careful to place on what constitutes a ‘matter of public concern’ for constitutional purposes”:
The record reveals that certain activities funded by the agency fees at issue in this case cover the very types of routine workplace matters that the Court has carefully refrained from constitutionalizing with First Amendment protections. . . .
A ruling categorically prohibiting agency fees would necessarily elevate these types of pedestrian workplace matters into matters of public concern. . . . That is irreconcilable with this Court’s precedent. Indeed, the employee’s claim in Connick “failed the public concern test” precisely because the workplace questionnaire she distributed—addressing matters like the need for a grievance committee—“was ‘most accurately characterized as an employee grievance concerning internal office policy.’” Guarnieri, 564 U.S. at 392 (describing Connick); see also Connick, 461 U.S. at 149. If the Court in this case holds that employee grievances are a matter of public concern, it will have to accept the same result in countless other scenarios—including, for example, a public employee’s complaint of a superior’s “poor management and motivational skills,” Ezekwo v. New York City Health & Hosps. Corp., 940 F.2d 775, 778 (2d Cir. 1991), a superior’s lack of leadership ability, Graziosi v. City of Greensville Mississippi, 775 F.3d 731, 738 (5th Cir.2015), and, more generally, employment conditions and personal dissatisfaction with personnel decisions, Brooks v. Arthur, 685 F.3d 367, 372 (4th Cir. 2012).
A third argument made in the brief against Janus and his backers concerns the Court’s longstanding balancing test in public employee speech cases:
A categorical prohibition on agency fees would also mark an abandonment of the balancing that is the final step in the Court’s public-employee speech cases. Once an employee has overcome the threshold requirements, i.e., speaking as a citizen on a matter of public concern, “[t]he question becomes whether the government entity ha[s] an adequate justification for treating the employee differently from any other member of the general public.” Garcetti, 547 U.S. at 418. . . .
Nearly half the States have chosen to authorize agency fees for unionized public workplaces; they have decided that well-funded collective-bargaining arrangements are best-suited to serving their citizens effectively and efficiently. These discretionary state judgments deserve respect and must be weighed in the balance mandated by Pickering, Connick, and Garcetti. . . .
The categorical approach sought by petitioner would ignore the balancing requirement and preclude States and localities from funding any workplace management activities through agency fees. States and localities could not even use agency fees to fund routine matters such as “[a]djusting grievances … and representing employees in proceedings under civil service laws and regulations.”
I find less persuasive the Fried-Post brief’s lengthy argument against upholding Abood’s test for determining which union fees are chargeable and which are not and its advocacy of moving to the “statutory duties” test proposed in a previous case by Justices Scalia, O’Connor, Souter, and Kennedy. While this may well be aimed at opening a door for a compromise resolution that might attract Justice Kennedy’s vote, I wonder if it will make much difference in reality, since there was not agreement among the four justices originally proposing that test about how to define its parameters. That said, through its shrewd turning of Garcetti, which limited public employee speech, against the claims of those phony “free speech” advocates behind Janus is a powerful argument that complements the one submitted by Volokh and Baude.
Nonetheless, it is questionable, if not doubtful, whether these arguments will prove effective. To be sure, both briefs speak to potential swing justices. Volokh and Baude’s arguments may be aimed at Justice Gorsuch, the one justice who has yet to indicate a stance on this issue. (Last term’s Friedrichs case raised the question, but absent Justice Scalia the Court deadlocked 4-4 and no opinions were issued. It is clear, however, that the four liberal justices — Breyer, Ginsburg, Kagan, and Sotomayor — opposed overturning Abood.) But Baude has said he does not think the brief would appeal to one justice in particular, or even a subset of justices, because its argument is based on first principles and logic. “I think all the justices are pretty committed to free speech,” he said. “They just have a lot of hard cases between what’s speech and what’s not, and this is an example of one of those boundary cases.”
Fried and Post clearly hope to sway Justice Kennedy. Justice Samuel Alito has been the main advocate on the court for the position taken by Janus. “The position Charles Fried and I took was that the Alito position is inconsistent with the First Amendment analysis of employee speech that Kennedy had set forth in Garcetti,” Post explained in an interview. “Garcetti was a case about whether public employees have First Amendment rights, and Kennedy, speaking for the court, said it depends on whether they’re speaking as employees or as citizens.”
“Kennedy was trying to make regulation of employee speech not a constitutional question every time it happened, but the Alito position completely undermines this,” Post said. “It has to be contextual, and you have to be much more nuanced about the sort of speech you’re talking about subsidizing.”
Still, the Court has not always been known for its logical consistency, especially in today’s highly politicized environment. Absent a powerful mass movement in support of unions, it is difficult to imagine how legal arguments alone will carry the day. But such arguments are not without import and worth understanding. If nothing else, their rejection will educate us about the nature of law and power in contemporary America. Sadly, it remains unlikely at best that public employee unions, including the AAUP, will once again dodge the bullet of a declaration that agency fees are unconstitutional. We must remain prepared.