In the aftermath of Janus v. AFSCME, there has been robust debate about whether and to what extent unions might suffer a drop in membership and funds. The New York Times called the decision a “sharp blow” to unions—and then clarified that while unions might get smaller, as those who were compelled to pay fees decide to drop their membership—but will not become weaker. And union lawyers opined that many unions may not be able to survive.

What has been by and large overlooked in all the policy, aka political, rhetoric, has been the Constitution. Today’s decision should not have been a close one. The First Amendment principle that the government cannot compel an employee to subsidize speech with which the employee disagrees should be uncontroversial. As Justice Jackson memorably put it: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Over 40 years ago, however, in a case called Abood, a divided Supreme Court made a mistake in permitting public sector unions to charge a fee to nonmembers. That decision was radically out of step with First Amendment law then, and had become “something of an anomaly,” according to one recent Supreme Court decision. The Abood decision stood in stark contrast to 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.”

This week, in a huge victory for the First Amendment, the Supreme Court overturned Abood. The First Amendment secures to us, the People, not only the right to speak our minds, but also the right to decide when and if to engage in public discussion. The First Amendment, in other words, contains the right not to speak; it forbids a government from compelling individuals to betray their convictions. As Justice Alito wrote, “Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning.”

Nor does the First Amendment permit a state to require individuals to subsidize third-party speech on which he or she disagrees. Justice Alito quoted Thomas Jefferson’s famous line: “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.”

At the end of the day, the closeness of the Janus decision and the animated debate the decision has engendered, speaks to the political power of unions, not core First Amendment principles. Indeed, all of the heat and light makes Mr. Janus’s point—that the speech of public unions about salaries, pensions, government budgets, and the like, is inherently political. As such, the First Amendment does not permit a government to compel public employees to subsidize their speech.


Erin Hawley is legal fellow at Independent Women’s Forum, associate professor of law at the University of Missouri, and former clerk to Chief Justice John G. Roberts Jr..