February 20, 2018
Free Speech and Government Employment: A Plea for Consistency and Fairness
Barbara Nachtrieb Armstrong Professor of Law, University of California at Berkeley School of Law
Janus v. AFSCME
*This is part of ACSblog's Symposium on Janus v. AFSCME
Janus v. American Federation of State, County, and Municipal Employees, Council 31 presents a First Amendment challenge to Illinois public-sector labor-relations statutes and contracts that require union-represented employees to pay a fee to the union for services that the union is required by law to provide. Hundreds of such municipal and state laws have been on the books for over half a century in about half the states, and the Supreme rejected a First Amendment challenge to them in 1977 in Abood v. Detroit Board of Education. To overturn this settled practice will upend labor relations affecting tens of thousands of teachers, first responders, health care providers, clerks, and other public servants. To rule for the challengers will also require the Supreme Court to make new law in the area of free speech with implications far beyond the working conditions of public employees.
Collective bargaining in both the public and private sector is modeled on political democracy. A union is elected by a majority. Like an elected government, it develops and implements rules governing the community and must be able to charge those whom it represents for the cost of doing so. In the political sphere those payments are known as taxes; in the workplace they are known as dues (for those who choose to join the union) or agency fees or fair-share fees (for those who don’t).
Unlike elected political leaders, however, unions have a duty to represent all fairly. This legally enforceable duty of fair representation prohibits union representatives from discriminating against those who oppose or choose not to join the union. And it requires unions to provide services to all, not just to those who pay their fair share.
Janus argues that nobody should have to pay fees because paying the fee is speech, or at least it is a subsidy for speech, and the government cannot compel speech. The Supreme Court would never accept this argument about taxes. If taxes were optional, people would free ride on the bus or on their neighbor’s willingness to pay taxes to fund schools and parks. Nor would anyone claim that a private organization (which is what a union is) must give away services for free: airlines don’t have to let passengers fly free, and insurance companies don’t have to pay the medical bills of someone who didn’t purchase insurance. As Justice Antonin Scalia explained in Lehnert v. Ferris Faculty Association, in which the Court unanimously upheld a Michigan law requiring fair-share fees, “where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost.”
The business groups who challenge Illinois law in Janus argue that the burden on unions is small because they benefit from the opportunity to bargain and because the burden of providing free representation is small. They rely on the Court’s 2014 decision in Harris v. Quinn, which invalidated an Illinois law providing for fair-share fees for home-care workers because, in the Court’s judgment, that particular legal regime gave the union insufficient responsibilities in contract negotiation or administration to warrant charging nonmembers. The Harris Court minimized the significance of the statutory requirement of fair representation, explaining that “private speech often furthers the interests of nonspeakers, and that does not alone empower the state to compel the speech to be paid for.” But there is no other circumstance where, as Justice Scalia emphasized in Lehnert, the law allows “free riders whom the law requires the union to carry--indeed, requires the union to go out of its way to benefit, even at the expense of its other interests.”
The threat of free riding prompted the Supreme Court to reject First Amendment challenges to compulsory bar dues for lawyers (Keller v. State Bar of California), and compulsory student-activity fees at public universities (Board of Regents v. Southworth) even though such dues and fees are used to fund speech with which some lawyers and some students disagree. Harris distinguished bar dues and student fees on the ground that the state has a greater interest in requiring lawyers and students to fund the admission, discipline and student activity systems than did Illinois in requiring home-care workers to fund the negotiation and administration of a contract. But that distinction is not available in Janus: given the importance to state and local governments of managing their workforces, it would be a shocking departure from federalism principles for the Supreme Court to decide that governments have no interest in requiring cost-sharing of the elaborate personnel processes that public employment often entails.
What Janus asks the Court to rule is unprecedented elsewhere in the law. Cities routinely hire lobbyists to protect their interests in state and federal legislatures. Could taxpayers object to cities using their funds to engage in lobbying with which the taxpayers disagree? Every employee who is covered by a health or pension plan contributes some tiny amount to the insurance company’s lobbying or other political speech or a pension plan’s investment in companies that engage in speech with which the employee may disagree. Neither taxpayers nor pension or health plan participants can object to government or plan lobbying or other speech because we treat it as the speech of the organization, not the individual.
The rules should be the same for unions as other private organizations that collect mandatory fees for services. Unions have a First Amendment right to spend their money to advance the goals chosen by the elected leadership. If it violates an objecting employee’s free speech right to pay her fair share of contract negotiation and administration, why does it not equally violate the rights of the union and its members to force them to use their money to enforce the contract rights of the free rider? It can’t be the dissenting nonmember has First Amendment right not to pay for very same thing that the union and its members are required by the duty of fair representation to provide to that nonmember.
A balanced approach to the First Amendment would reject the compelled speech claim. Contractually required fees for union representational services are no more a compelled subsidy for expressive activity than is the union’s duty to provide fair representation to all represented employees. Like insurance companies, homeowners’ associations, and utility companies, unions pool money contributed by many stakeholders and spend it to provide services and to engage in expressive activity. When they do so, they advance the interests of the entity and its stakeholders who support the action, and, sometimes, they thwart the interests of stakeholders who oppose it. But they do not violate anyone’s First Amendment rights because the speech is the entity’s, not that of the individual stakeholders.
It is important to remember that government employees have no First Amendment rights to engage in speech on the job. In Garcetti v. Ceballos, the Supreme Court held that a deputy district attorney had no First Amendment protection for writing a memo to his supervisor raising concerns about the use of possibly false police testimony in a criminal case. In Borough of Duryea v. Guarnieri, the Court held that a police chief had no First Amendment protection for complaints he made about oversight of how he did his job. Because government employees have no First Amendment right to speak to their supervisors about their working conditions, it is logically inconsistent to say they have a right not to pay the cost of such speech. The Court should not hold there is a First Amendment right to refuse to pay money to support speech that is not itself protected by the First Amendment. In all other compelled-speech cases, including its compelled-fee cases, the speech that was being compelled was protected by the First Amendment. In West Virginia Board of Education v. Barnette, the original compelled-speech case, the right to refuse to salute the flag existed because a flag salute is First Amendment speech.
One final thought about the implications of a ruling for Janus. If government employees cannot be compelled to pay their fair share of collective bargaining because the negotiation and administration of a contract is First Amendment speech, does that mean that collective bargaining is speech protected by the First Amendment? Do employees therefore have a First Amendment right to bargain collectively? Does it call into doubt content-based restrictions on which employees may bargain, such as Wisconsin enacted after Scott Walker’s election 2011 when it stripped bargaining rights from teachers but left them for police officers, or such as many states have that prevent teachers from bargaining over class size but allow them to bargain over pay? One doubts the Court would so hold. Or is the Court truly prepared to hold that the only First Amendment right government employees have regarding speech related to their working conditions is the right not to pay fees to their union?