February 25, 2014

ACS Issue Brief Examines First Amendment Jurisprudence for Union Employees


Catherine Fisk, Erwin Chemerinsky, Harris v. Quinn, Knox v. SEIU, Local 1000

CONTACT:
Nicholas Alexiou, ACS Associate Director of Network Communications

nalexiou@acslaw.org                         

Washington, D.C. – Last month, the Supreme Court heard oral argument in Harris v. Quinn, which presents the question of whether the First Amendment allows home health care workers in Illinois to refuse to pay the union that represents them for services that the union has a statutory obligation to provide. While seemingly innocuous on its face, the case has been dubbed a potential “sleeper” of the Term for its possible overarching impact on First Amendment law and public employee unionism.

As the legal community waits for the Court’s decision in Harris, the American Constitution Society has published a new Issue Brief entitled “Unequal Treatment? The Speech and Association Rights of Employees: Implications of Knox and Harris.” This Issue Brief examines how union representation has been effected by the First Amendment, focusing on Harris and the 2012 case Knox v. SEIU, Local 1000, as well as examining the Court’s often times inconsistent application of the First Amendment’s right to be free from compelled speech, right of association, and the speech rights of governmental employees.

Authors Erwin Chemerinsky, Dean of the School of Law, Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law and Faculty Advisor for the ACS Student Chapter at University of California, Irvine School of Law, and Catherine Fisk, Chancellor’s Professor of Law at University of California, Irvine School of Law are two of the nation’s foremost experts in constitutional law and labor law, respectively.

In discussing the jurisprudential history of union representation’s intersection with the First Amendment, Chemerinsky and Fisk argue that the Court’s ruling in Knox and its potential ruling in Harris, could very well do by judicial decision “that which the National Right to Work Legal Defense Foundation has tried to accomplish through legislation for decades: to require the right-to-work regime for every public sector workplace and, perhaps, in the private sector as well.” 

When examining “interrelated strands” of the First Amendment at issue in both Knox and Harris, Chemerinsky and Fisk show instances where the Court has been “markedly inconsistent.” In Knox, the authors argue that “the Court gave no weight whatsoever to the First Amendment rights of the entity, the union, or the union’s majority who wanted to express a political message.” However, “in other contexts, the Court has made exactly the opposite choice, favoring the free speech of the entity and its majority over that of any dissenters.” Chemerinsky and Fisk point to Citizens United v. Federal Election Commission, where the Court was “emphatic on the importance of protecting the speech rights of the corporate entity.”

Chemerinsky and Fisk conclude the Issue Brief by noting the importance of unionism not only for those in the private sector, but also those in the public sector, “[t]he desire of employees to join together in a common cause to govern themselves, to learn and teach the value of social solidarity, to improve their working conditions, and to express their vision for a better political economy is foundational to the freedom of association protected by the First Amendment. The drive for equality of bargaining power, self-determination, and fairness is as important in the public sector as it is in the private sector, for in neither context is management by executive fiat consistent with democratic principles. Public employee unionization and bargaining enhances the transparency and accountability of government.”

Read the full Issue Brief here and for more analysis of Harris v. Quinn, visit the ACSblog. To speak with the author, contact Nicholas Alexiou at nalexiou@acslaw.org or (202) 741-0685.

The American Constitution Society for Law and Policy (ACS), founded in 2001 and one of the nation's leading progressive legal organizations, is a rapidly growing network of lawyers, law students, scholars, judges, policymakers and other concerned individuals. For more information about the organization or to locate one of the more than 200 lawyer and law student chapters in 48 states, please visit www.acslaw.org.