Reflection: First Amendment and the protection of inaction

By Emma Collins, F/G Scholar

Although the labor movement struggled at first, the protests led by laborers did eventually secure rights for the workers. It was only by exercising their First Amendment rights to protest that they were able to achieve this. As a result of the movement, laborers were able to form unions to protect their rights and fight for them if necessary. In many cases, union membership became mandatory, and in some cases where membership was not mandatory, nonmembers were still required to pay union fees. Mandatory fees have not always sat well with people, and it begs the question: Is requiring nonmembers to pay fees a violation of the First Amendment?

The First Amendment is usually thought of as offering protections against actions, such as speaking, protesting and assembling. But it also offers protections for inaction. This is sometimes referred to as the “compelled speech doctrine,” which prevents the government from punishing someone “for refusing to articulate, advocate, or adhere to the government’s approved messages” (Hudson). The compelled speech doctrine stems from Supreme Court cases that affirmed an individual’s right to silence. Some would argue that mandatory fees for nonmembers is a violation of the compelled speech doctrine (Hudson).

The Supreme Court affirmed that argument earlier this year in its ruling in Janus v. American Federation of State, County, and Municipal Employees, Council 31. Mark Janus is an employee of the Illinois Department of Healthcare and Family Services whose employees are represented by the American Federation of State, County, and Municipal Employees, Council 31. Janus refused to join the AFSCM union because he disagreed with its positions, specifically its use of collective bargaining; however, he was still required to pay union fees, also known as agency fees. Janus filed a suit alleging that requiring agency fees was unconstitutional because the money was used to support actions he did not agree with, in this case collective bargaining. The district and circuit courts both rejected Janus’ suit on the grounds that the Supreme Court had already determined that the Illinois law requiring nonunion members to pay fees was constitutional in a previous case, Abood v. The Detroit Board of Education (1977) (Janus).

Janus then appealed to the Supreme Court, which agreed to hear his case. The Court reversed the district court’s decision by concluding that Abood violated the First Amendment and that requiring fees for nonmembers was unconstitutional. As a result, Abood, which the district court’s decision was based on, was overturned (Janus).

The Court’s decision in Janus relied on a number of past First Amendment cases, particularly The West Virginia Board of Education v. Barnette (1943), which said requiring students to salute the flag and say the Pledge of Allegiance was a violation of their First Amendment rights (West Virginia Board of Education). Janus argued the same concept in his suit against the union, by claiming that requiring him to support a cause he disagreed with was unconstitutional.
Overturning Abood has dealt a significant blow to unions and their supporters. The decision in Abood ruled that nonunion government employees could be required to pay a fee to the union as long as the service fees were not used for political or ideological purposes that were opposed by the nonunion members. In essence, required fees were not a violation of the First Amendment if the fees were used for collective bargaining purposes (Hudson). Janus disagreed with the union’s use of collective bargaining, which is why he challenged the law. He took the case in Abood one step further by claiming even the fees used for the benefits of all employees were unconstitutional (Janus).

Like Janus, the Abood suit also dealt with the First Amendment and union fees for nonmembers. In that decision, the Supreme Court justified the legality of those fees by stating those required fees benefited all of the employees who were and could be members of the union, so they were legal. The Court expressed concern about “free riders,” or employees who might refuse to join the union and pay fees while still benefiting from the union’s work. In the Janus decision, the Court noted that this concern was irrelevant considering that unions readily represented nonmembers who didn’t pay fees. In addition, if free riders did pose a problem, the state had other, less restrictive ways to prevent that than by requiring fees (Janus). This is a key tenant of First Amendment law. The least restrictive method must be employed, and in this case, the Supreme Court said there were other, less restrictive options.

The majority opinion for Janus was written by Justice Samuel Alito. In the opinion, Alito noted the “importance of following precedent unless there are strong reasons for not doing so” and acknowledged that overturning a previous Supreme Court decision was a serious move. He went on to say that in this situation, however, Abood “was poorly reasoned” and is inconsistent with other First Amendment cases (Janus).

In his opinion, Alito also noted that requiring a person to “provide financial support for a union ‘that takes many positions during collective bargaining’” is unconstitutional and a violation of the First Amendment (Janus).

Justice Elena Kagan, who wrote the dissenting opinion, argued that in Abood, the Court correctly struck a balance between free speech and employee requirements. Preventing fees from being used for ideological or political purposes maintained employees’ First Amendment rights because, while they still had to pay the fees, those fees were instead used to benefit the employees themselves, not to support a cause (Janus).

It should be noted that the Court ruled in favor of Janus by a narrow margin of 5-4. Such a decision seems to imply that whether or not requiring those fees violates the First Amendment has hardly been settled, nor is the answer clear. At the time of the Janus ruling, which was this past June, 22 states had this “fair share” provision like Illinois. The other 28 states were “right-to-work” states which barred employers from requiring employees to pay union fees as nonmembers (Semuels).

So, does requiring nonmembers to pay union fees violate the First Amendment? Is it, as the Supreme Court ruled, a form of compelled speech? An internet search of the subject reveals that it is a heavily partisan issue, with the left saying Abood had already settled the issue and the right declaring this a victory for the working man. But most of these editorials do very little to address the question of the First Amendment. Instead, they praise or condemn the decision because of how it will impact both employees and unions.

Perhaps they fail to answer that question because there is no clear answer. The argument in the dissenting opinion is sound because the fees aren’t being used for political or ideological purposes. But as Alito points out in his majority opinion, Janus was not objecting to fees being used for those purposes; he was objecting to them being used in collective bargaining, the very thing Abood determined they could be used for (Janus).

At its core, the argument Janus is making is if he doesn’t want to pay money in support of something, then he shouldn’t have to, and that seems to be supported by the First Amendment. But is giving money to an organization, in this case a union, that bargains for your wages and benefits really expressing support of anything? Or is it merely paying someone to represent you? Ultimately, requiring nonmembers to pay union fees does appear to be a violation of the First Amendment. If that is the case, however, then can anti-death penalty advocates refuse to pay taxes to the state because some of that money funds death row? Yes, that money also funds construction on roads and bridges and benefits them more than it hurts them, but then couldn’t the argument be made that the union fees do the same for Janus? The Court has entered a slippery area with its Janus ruling. That’s not to say it was the incorrect decision; from a First Amendment standpoint it seems to be correct. But the Court may soon be faced with dealing with people who want to have their benefits without having to pay.

Works Cited
Hudson Jr., David. “Compelled Speech.” The First Amendment Encyclopedia, Middle Tennessee State University, 21 Oct. 2018.

Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al. 585 U.S. Supreme Court. 2013. Web.

Semuels, Alana. “Is this the end of public-sector unions in America?” The Atlantic, 27 June 2018. 21 Oct. 2018.

“West Virginia Board of Education v. Barnette.” Legal Information Institute, Cornell Law School,, 22 Oct. 2018.

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