High Court Sides with Free Speech in Defeat for Unions

High Court Sides with Free Speech in Defeat for Unions

Compelling objecting employees to fund political speech for government unions violates the First Amendment even if you later refund that money to those employees, the Supreme Court held in Knox v. SEIU, a case that is a major blow to unions.

Under California law, non-union government employees can still be required to pay union dues funding collective bargaining for wages and benefits. The Supreme Court in 1977 (in its more liberal days) upheld such mandatory dues because those non-union employees benefited from the increased pay and perks from the union negotiations. Even then, however, the Court held that nonmembers could not be compelled to fund the unions’ “political and ideological projects.” Then in 1986, the Court added that these mandatory dues can only be for political speech related to collective bargaining for better pay and benefits. The Court also required the union to give employees notice regarding upcoming expenditures.  

Those earlier cases concerned annual union dues. But in 2005, one of the most liberal and aggressive unions, the Service Employees International Union, launched a political campaign to fight budget cuts to government employees. So they imposed a “special assessment” to raise money to fight these proposed cuts. The question in this case is whether this increase in dues to fund political speech is unconstitutional.

Writing for the majority, Justice Samuel Alito quoted an earlier case that held, “The First Amendment protects the decision of both what to say and what not to say.” This is a compelled-speech case where people are forced to finance political speech with which they disagree.

Supreme Court precedent allows for the withdrawing of employees’ money to pay for union-related activities, if authorized by state law, so long as once a year employees were given notice of these activities so that they could opt out of making any contributions. Alito said this system was a “significant impingement of First Amendment rights,” but added that the Court was not today revisiting those decisions to consider overruling them (possibly because there weren’t five votes to do so).

Alito noted that the theory behind allowing mandatory union collections for collective bargaining is to avoid “free-riders,” government employees who don’t pay union dues but benefit from the union’s work. However, Alito noted that in every other area of business there are groups that push for something at their own expense, and if they succeed everyone else in that industry benefits, but does not share in the cost. He clearly considered the earlier case’s rationale that it’s different for unions because government can pursue “labor peace” as a lame reason that appears more political than legal.

The Court rejected SEIU’s argument that it allowed anyone paying the extra assessment to file an objection, and months later they would give the money back. First, there was not even a new notice to inform employees of this unplanned special collection. And second, by giving the money back later, this amounted to an interest-free loan. The union says, “Give us your money, which we’ll use to accomplish a political goal that you don’t support, then we’ll give you your money back.”

Justice Alito concluded, “Public-sector unions have the right under the First Amendment to express their views on political and social issues without government interference… [But] when a public-sector union imposes a special assessment or dues increase, the union must provide … notice and may not exact any funds from nonmembers without their affirmative consent.”

Justice Sonia Sotomayor wrote an opinion concurring in the judgment only, joined by Ruth Bader Ginsburg. She agreed unions cannot take this money without consent. However she objected that the majority was deciding a constitutional issue broader than necessary, “disregard[ing] principles of judicial restraint that define the Court’s proper role in our system of separated powers.”

Stephen Breyer wrote a dissenting opinion, joined by Elena Kagan. To my knowledge, this marks the first instance where Kagan broke from both Sotomayor and Ginsburg–and did so to take a position more liberal than the others were willing to embrace.

Justice Breyer took the unusual step of reading part of his dissent from the bench. He argued that this case was no different than the Court’s previous cases, so the Court should side with SEIU. He added that although the Court has allowed states to impose an opt-in requirement for union dues, he objected that the First Amendment does not require it and can sustain an opt-out such as California’s system.   

This split decision was a step forward for the First Amendment. Hopefully sometime soon, the Court will reconsider those earlier cases allowing for the mandatory union deductions at all and restore this area of law in a manner consistent with free speech.

Breitbart News legal contributor Ken Klukowski is on faculty at Liberty University School of Law and a fellow with the American Civil Rights Union.