It is a bedrock principle of First Amendment law that the government ordinarily cannot compel individuals to speak or to subsidize speech with which they disagree. Yet for the past forty years, nearly five million public employees have been required to pay for the speech of public-sector unions—regardless of their view on the public policy at issue. Incredibly, in 1977, in a case known as Abood, the Supreme Court held this form of compelled speech constitutional.
Next month, the Supreme Court will have an opportunity to set the record straight. It will hear argument in a case called Janus v. AFSCME. IWF has a new legal brief on this subject. You can read the whole brief here. The question presented in Janus is this: Whether the Supreme Court should overrule Abood and hold such public-sector “agency shop” arrangements unconstitutional.
The answer is clearly yes. In recent years, the Supreme Court has been signaling its discontent with the Abood rule. In 2014, in Harris v. Quinn, a majority of the Supreme Court wrote of the “bedrock principle” that, “except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”
In that same decision, the Court criticized the main argument in favor of forced union fees, that unions needed them to prevent nonmembers from free-riding on union e?orts. The Court found that “free-rider arguments” were “generally insu?cient to overcome First Amendment objections.”
The Abood Court had also failed to appreciate a critical di?erence between public-sector and private-sector collective bargaining; in the public sector, “core issues such as wages, pensions, and bene?ts are important political issues.” In other words, when public-sector unions negotiate with the state over pay and benefits for workers, this negotiation is inherently political. It involves how taxpayer dollars are spent.
Despite the fact that the Abood decision has been on the books for a long time, the Supreme Court has repeatedly signaled its interest in revisiting it. Indeed, the Supreme Court granted certiorari on the Abood question in 2015 in Friedrichs v. California Teachers Association. The oral argument in that case revealed a deeply skeptical Court. After the case was argued, however, Justice Scalia passed away, and the Court split 4-4 on the question.
The Supreme Court has once again taken up the question of public-sector “agency shop” arrangements in the Janus case. We will know more after the oral argument next month, but the Court seems poised to overrule Abood. It is high time for the Supreme Court to correct its error and to hold that public employees may not be forced to ?nance speech with which they disagree.