The Supreme Court Applies the First Amendment to Some, but Not to Others

The Constitution protects the fundamental freedoms of speech and association. It protects all speakers equally.  Until it doesn’t — as the Supreme Court made clear on the last day of the term, in its highly anticipated decision in Janus v. American Federation of State, County, and Municipal Employees. The case pitted the First Amendment claims of anti-union public-sector employees against the interests of pro-union employees and employers. And instead of reaching a careful balance, the court sided entirely with the rights of some over the rights of others.

For nearly half a century, the court had embraced a compromise that balanced the First Amendment rights of employees who oppose a union, on the one hand, and employees who support that union on the other. In Janus, a 5-4 majority composed of the court’s conservative justices chose to protect only the speech of employees who oppose unions. It protected, in short, only the speech it liked.

At stake in Janus was whether it violates the First Amendment for a state to authorize a public employee union to collect a “fair share fee” from nonmembers for the cost of benefits that the union is legally required to provide all employees, such as representing them in grievance procedures against the employer. 

Over 40 years ago, in Abood v. Detroit Board of Education, the court crafted a stable compromise to balance the various interests, including First Amendment rights, at stake in public workplaces.  It held that public employees who choose not to join a union can be charged fees to cover the costs of benefits the union has to provide them — but cannot be compelled to join the union or pay for its ideological speech.  Such fees, the court reasoned, “distribute fairly the cost” of providing the benefits “among those who benefit” by permitting the union to seek reimbursement for expenses it must pay.  Abood’s balance also recognized the interest of governmental employers to choose to deal with a single union to further labor peace.

The court in Janus threw out that compromise and adopted two transparently flawed arguments. 

First, it shrugged off the interests of pro-union employees. It rejected Abood’s reasoning that the First Amendment permits everyone to pick up their own costs. Instead, the court held that pro-union employees must pay the costs of anti-union employees. The majority, in short, gave constitutional imprimatur to free riders. That is the opposite of the evenhandedness the First Amendment requires. Now, under Janus, it protects the right to get something for nothing.  

Second, the court disregarded the interests of communities, through their representatives, to choose to work with unions to manage public workplaces. In so doing, the court turned its back on a fundamental distinction in First Amendment law:  that governments as employers have greater latitude to regulate their employees’ speech than they have when regulating citizens at large. If I were a lawyer for the government, for example, I would not have a First Amendment right to argue anything I wanted to in court — even if the government could not stop me from making the same argument as a private citizen on a street corner.  

Governments have greater latitude to manage employees who work for them, including what they say. The court ignored that distinction in Janus, saying that it is different when government employers regulate an individual employee’s speech instead of groups of employees. But that makes no sense. Most rules at work apply to employees generally. It is unthinkable that the court intended to strip public school administrators of their authority, say, to stop a group of teachers from protesting in the cafeteria, simply because the rule against doing so applied across the board. Rather, it appears that the majority created an unprincipled “unions only” carve-out to First Amendment law.

The decision in Janus directly undermines the interests of those who want to associate in a union. Now they have to pay not only for their own services but for services they are legally required to provide to others. It is particularly troubling because public-sector unions often represent the voices of communities and economic interests that are increasingly marginalized. The court authorized free riders to drain these unions of already limited resources. And it dismisses the interests of governments and the people they represent, including nearly half the states plus the District of Columbia and Puerto Rico, that work productively with unions and think fair share agreements make for good labor relations and better governance.

But the decision is also a tragedy for American democracy and the First Amendment and for the legitimacy of the Supreme Court. In our democracy, the First Amendment is supposed to protect all voices equally. Neither it, nor the court, is supposed to take political sides. The First Amendment has, instead, long been heralded as “the guardian of our democracy.” That it must ensure open debate — not pick winners and losers — has long been accepted as “a fundamental principle of our constitutional system.”

The Janus decision reads as the product of a politicized court choosing to protect the speech, and political interests, that it prefers. As Justice Kagan wrote in a powerful dissent:  “The First Amendment was meant for better things.”

This article was first published on Take Care

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Is it possible to sue the SCOTUS?

Eric Owens

While it may not be the legal argument, the obvious answer is the natural born human right to free association. The very basis upon which unions can exist in a free society in the first place. And peaceful protest. And to practice, or not, the religion of your choice. And professional organizations. Among many, many other things.

Private sector unions are voluntary: the contract between the employer and employees is voluntary. Customers are free to choose whether or not to support such a business arrangement. Investors are free to not invest in the company. Don't want to be part of the union? Seek another employer. This even respects the property rights of all involved.

Public sector unions are no such thing at any level. They force all their employers (every single tax payer), at the barrel of a government gun, to pay wages that a very large portion of those employers are opposed to. Doing jobs that many of those same employers don't believe should exist in the public sector in the first place (if article 1 section 8 means anything).

But I wouldn't expect the ACLU to have concern about the voluntary association of people over social agenda.


IT seems that union members are not hampered in any way. They are not "required to pay for services" to non-union members. Any benefits that non-union members receive are inadvertent.
If I spend money on enhancing my yard which the entire neighborhood benefits from, should each neighbor pay me?


Your nice yard doesn’t benefit everyone if you don’t allow them in it. You don’t have to let anyone in it but the union does have to give what it gains to the non union worker equally.


The Supreme Court Applies the First Amendment to Some, but Not to Others - I understand the ruling, the First Amendment right not to be compelled to join, participate in, or financially support a group with which you disagree.

I do not understand the second part of your position. How does this ruling deny first amendment rights for workers who chose to join and support the union?


Okay, you go to a fast food restaurant. Everyone else is paying for their food. Yet, you demand that everyone else pay for your food too. That is the essence of the whole "right-to-work" BULLSHIT!

Dr. Timothy Leary

There is always a double standard in everything, get used to it.


Even for the ACLU this is a bizarre twist of logic. They say the Court is treading on Pro-Union employees and employers 1st Amendment rights by 'making them' cover the costs of providing Union benefits such as grievance hearings to non-Union employees.
This is rubbish... It is the public sector employers, in collusion with the Unions, that passed the rules requiring Unions to represent non-members in grievances and in collective bargaining, in order to justify the so-called 'fair-share' payments that fund their core services to members.
Most anti-Union employees would be happy to have the Union simply leave them alone. Let them handle their own affairs, and keep out of their business. If I am a better than average teacher, for example, let me negotiate my own higher than average pay package, not be shoe-horned into the Unions 'one-size-fits-all' collective package. If I don't want to, I can *choose* to join the Union. THAT is freedom of expression.

Buster Casey

You couldn't be more wrong. The law provided that the Union had to represent non-union members, even in the absence of paying anything for those services. That's the case in Right to Work states. The Union must represent non-members. That existed for years before agency fees, and weren't concocted to charge non-members. You are spreading falsehoods.


It seems to me that I finally have a choice, a voice, and of what utility has been the union to me that my “Share Fair Fees” contributed towards? Unions operate on your beliefs in ways that serve their political agendas, only without you having any say in the matter as a “free rider,” and that has been entirely confusing to me, and has real associated costs for these particular workers most affected by the decision, as well as for the unions.


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