Supreme Court May Side with First Amendment, Not Unions

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WASHINGTON, DC – The U.S. Supreme Court on Monday appeared skeptical of a law permitting government labor unions to extract involuntary dues from workers’ paychecks, in a case pitting the First Amendment against the power of a central pillar of the Democratic Party.

Mark Janus and two other individuals are Illinois state employees. As mandated by Illinois law, the state automatically takes union fees out of their paychecks, and gives it to the American Federation of State, County, and Municipal Employees (AFSCME), the government-worker union that negotiates with Illinois government on labor issues. They sued, arguing that the Illinois law requiring these dues violates their First Amendment rights to free speech.

The lower courts ruled against Janus because the Supreme Court held in Abood v. Detroit Board of Education that the First Amendment permits such laws. Abood was decided in 1977, a decade during which the Court strayed significantly from the original meaning of several First Amendment provisions, including the Free Speech Clause.

The Supreme Court in recent years has moved its free-speech jurisprudence back in the direction of the Constitution’s original meaning. Two decisions in the past decade have been inconsistent with Abood, and in late 2015 the Court heard Friedrichs v. California Teachers Association, where experts expected the Court to finally overrule Abood.

Then Justice Antonin Scalia died unexpectedly in February 2016. The Court dismissed Friedrichs by a 4-4 tie vote shortly thereafter.

In Janus, the Court is squarely confronting whether to overrule Abood, and hold that such compulsory union dues for government unions are unconstitutional.

Unions argue that without dues, some workers will deliberately let other people fund a union to get better pay and benefits without those workers contributing to those efforts, what Justice Sonia Sotomayor referred to during Monday’s oral argument as “free riding.”

Justice Ruth Bader Ginsburg agreed, telling the lawyers that free riding “drains [the union] of the resources that make it an equal partner in the marketing setting.”

“It’s immaterial why an individual does not wish to support union advocacy,” replied Bill Messenger, a lawyer representing Janus. “The First Amendment prohibits the government from probing into individuals’ subjective belief.”

“Have the unions at any point in this litigation or any point in their history ever said that they’re committed to the idea of viewpoint neutrality?” asked Justice Anthony Kennedy, seeming sympathetic to Janus’s argument that AFSCME could use his money to promote a political viewpoint with which Janus disagrees. “No,” answered Messenger.

Justice Elena Kagan focused on stare decisis—the judicial policy of adhering to precedent unless there is an extraordinary reason to over a prior decision—noting that much of the nation now relies on Abood. If they were to jettison that 1977 precedent, “23 states, the District of Columbia, Puerto Rico, all would have their statutes declared unconstitutional at once,” she said.

Messenger responded that Kagan’s objection was actually a reason to overrule Abood rather than keep it. “You have wide-scale First Amendment violations … in 23 states.”

U.S. Solicitor General Noel Francisco then took a turn at the podium, agreeing with Messenger that the First Amendment does not allow laws like Illinois’, and that “collective bargaining agreements are generally two- to four-year contracts.” Consequently, “I don’t think that there was an enormous amount of reliance on the continuing vitality of Abood,” Francisco explained.

Francisco added that government union negotiations are a form of political advocacy, which goes to the core of free-speech rights. In this context, the negotiation is between a private organization “and the government in order to set the overall size, scope, and structure of government.”

Illinois Solicitor General David Franklin took an opposing view, arguing during his turn that government “has a much freer hand when it manages its personnel as an employer than when it regulates its citizens as a sovereign.”

Franklin cited one major precedent for support of his case, but Kennedy brushed aside his claim, saying, “What we’re talking about here is compelled justification and compelled subsidization of a private party, a private party that expresses political views constantly.”

Justice Samuel Alito also weighed in, asking Franklin, “Do you think there are any limitations on the authority of the State of Illinois to compel its employees to say what the state wants them to say?”

Franklin’s answer was unclear, but equated compelling speech with restricting people from speaking, which employers can sometimes do.

Alito countered with the example of England’s Thomas More. He was executed by King Henry VIII not for saying that the law passed by Parliament declaring the king supreme head of the church over the pope was wrong, but instead for refusing to affirm publicly that Parliament’s law was right.

The justice asked, “When you compel somebody to speak, don’t you infringe that person’s dignity and conscience in a way that you do not when you restrict what the person says?”

The Court also heard from David Frederick, representing AFSCME, who took a pounding from a couple of the justices.

Kennedy summarized AFSCME’s argument as admitting that if the Supreme Court votes against AFSCME, then unions would have less political influence, thus implying that the law being challenged tilts the scales of political speech in the unions’ favor. “Isn’t that the end of the case?” Kennedy asked, suggesting that such a dynamic would lead him to hold that this law infringes on free-speech rights.

For his part, Alito seemed incredulous that Frederick’s brief argued “that the original meaning of the Constitution is that public employees have no free speech rights.”

One justice who did not speak at all is Justice Neil Gorsuch, the only one of the nine who was not on the Court when Friedrichs was decided, and who is now the one to break the 4-4 tie. Although he usually actively engages during oral arguments, on Monday Gorsuch followed the practice of Justice Clarence Thomas of listening to the arguments but not participating.

But there is every reason to expect that Gorsuch will adhere to the original meaning of the First Amendment here, as he has done in other matters. If so, then conservatives should expect a major First Amendment victory before July, one which will diminish the power of one of the Democratic Party’s major constituencies.

The case is Janus v. AFSCME, No. 16-1466 at the U.S. Supreme Court.

Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.

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