Mark Janus

Why There's No First Amendment Problem With Compulsory Union Agency Fees

Will Baude and I have cosigned a new amicus brief on this in Janus v. AFSCME.


In Abood v. Detroit Bd. of Ed. (1977), the Supreme Court held that requiring employees to pay funds to a union potentially violated the employees' First Amendment rights. (Union members of course paid such funds as a condition of their voluntary union membership, but under the Michigan rule, nonmembers would have to do it, too.) This burden on First Amendment rights, the Court said, was justified as to payments used for collective bargaining purposes, because of the government interests in preserving labor peace, and preventing free-riding on the union's collective bargaining activities. But, the Court unanimously held, this compelled funding had to be limited to collective-bargaining-related speech, and couldn't include funds used to pay for "other ideological causes not germane to its duties as collective-bargaining representative."

Unsurprisingly, this has led to a good deal of litigation about what is "germane" to collective bargaining, about what procedures may be used to gather the permissibly mandated fees without getting too much or too little, about how far this extends (compulsory bar dues for lawyers? compulsory student fees for university students?), and more. It has also led to calls—especially from some conservative and libertarian judges, lawyers, and scholars—to reject the entire germane/nongermane distinction, and strike down all such government-compelled payments. This term, in Janus v. ASFCME, the Supreme Court is confronting this very question.

My view, though, was the opposite: I don't think there's any First Amendment problem with compelled payments of union agency fees at all. The government can constitutionally require people to pay money to the government (in taxes), money that the government can then use for ideological purposes (e.g., supporting a war, opposing racism, promoting environmentalism, and so on). Likewise, the government can constitutionally require people to pay money to unions, money that the unions can then use for ideological purposes.

I don't say this because I support unions generally—indeed, I'm somewhat skeptical of modern American unionism, both public-sector and private-sector. But I don't see any principled First Amendment reason for forbidding governments from requiring such payments from public employees (just as I don't see any reason why the government couldn't just pay its employees less and then pay the saved sums to unions as a "labor relations consulting fee" or some such).

My coblogger Will Baude, it turns out, has the same view as to the First Amendment matter (I can't speak to his policy views on unionism). And when we were asked to sign an amicus brief in this Term's so saying, we naturally said yes. You can read the whole brief—drafted by Gregory Silbert, Adam Banks, and Samuel Zeitlin of Weil, Gotshal & Manges LLP, whom we thank for all their work—but here's the Summary of Argument:

[1.] Abood v. Detroit Board of Education, 431 U.S. 209 (1977), this Court has observed, is "something of an anomaly" when it comes to the First Amendment. Harris v. Quinn, 134 S. Ct. 2618, 2627 (2014) (internal quotation marks omitted). In fact, Abood is even more anomalous than previously acknowledged. For the first time, "Abood . . . recognized a First Amendment interest in not being compelled to contribute to an organization whose expressive activities conflict with one's 'freedom of belief.'" Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 471 (1997). Abood then concluded that some interference with this new First Amendment interest was "constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations," and the need to avoid free-riding on the public union's collective bargaining efforts. Abood, 431 U.S. at 222.

The Court has since questioned whether Abood balanced the competing interests correctly, noting, for example, that "free-rider arguments are generally insufficient to overcome First Amendment objections." Harris, 134 S. Ct. at 2627 (internal quotation marks and alterations omitted). Petitioner and his amici press similar arguments for reversing Abood here. See Pet. Br. at 36–37.

Where Abood truly went wrong, however, was not in how it applied the new First Amendment objection it recognized. Rather, Abood erred by recognizing that objection in the first place. Compelled subsidies of others' speech happen all the time, and are not generally viewed as burdening any First Amendment interest. The government collects and spends tax dollars, doles out grants and subsidies to private organizations that engage in speech, and even requires private parties to pay other private parties for speech-related services—like, for example, legal representation. To be certain, these compelled subsidies are subject to other constitutional restrictions. For example, the government cannot compel payments that violate the First Amendment's Religion Clauses or the Equal Protection Clause. But a compelled subsidy does not itself burden a free-standing First Amendment interest in freedom of speech or association.

So if Abood misapplied the First Amendment, it undercut a First Amendment interest that Abood itself miscreated. If anything in Abood should be revisited, it is the existence of the First Amendment interest itself. That is also sufficient reason to reject Petitioner's request to expand Abood's First Amendment holding by overturning it in the other direction.

[2.] There is certainly no First Amendment violation when the government itself engages in taxpayer-funded speech that some find objectionable. The content of that speech is protected from First Amendment scrutiny by the government speech doctrine. No matter how much we disagree with the government's message, we cannot withhold the portion of our taxes that support it. The First Amendment permits taxpayers who object to government speech to raise their own voices in opposition and to associate with others who share their views. And, of course, disgruntled voters can express their frustration at the ballot box. But those are their only remedies. They have no First Amendment interest to resist subsidizing government speech they happen to disapprove of.

The First Amendment analysis is the same when the government gives tax revenues to private entities to provide services that include speech. As with government speech, the government's choice of what services and what speech to subsidize does not implicate the First Amendment's freedom of speech and association rights, outside of certain exceptions like public forums. See Rust v. Sullivan, 500 U.S. 173, 200 (1991). Nor does the First Amendment constrain private grant recipients when they speak using government funds. Again, taxpayers who oppose these compelled expenditures have no right to withhold taxes, and no recourse besides engaging in speech or association themselves or voting for different government officials.

The only difference with the compelled subsidies challenged here (and in Abood) is that they involve payments made directly from one private party to another as a condition of public employment. But the government frequently conditions important activities on the purchase of speech-related services from private entities or individuals. Doctors and lawyers must enroll in continuing medical and legal education courses to remain in practice. States require entrants to a wide variety of occupations to purchase dozens or hundreds of hours of training and certifications. And a number of states require people buying real estate to be represented by an attorney at the closing. The government requires people to purchase non-speech services from private entities too, like car insurance and vaccinations, and the entities that receive these government-compelled funds are then free to spend them on objectionable speech.

The First Amendment does not provide freedom from any of these mandatory payments for others' speech. Practicing attorneys cannot refuse to pay for CLE programming because they disagree with the messages presented or because they choose not to associate with CLE providers. Home buyers cannot refuse representation by counsel in states that require it, even if they would prefer to spend their money on something else. These and other instances of private speech funded by government mandate need not be viewpoint-neutral, nor must they be justified by a compelling governmental interest. The First Amendment rights to freedom of speech and association simply do not guarantee that one's hard-earned dollars will never be spent on speech one disapproves of.

[3.] Stripped of Abood's unfounded First Amendment concerns, this is an easy case. The government has determined that collective bargaining is the best way to negotiate contracts and settle disputes with public employees. The government would undisputedly be free to establish a public collective bargaining agent, or to pay a private one directly from the public fisc. That it has chosen instead to pay its employees and then require them to hire the collective bargaining agent does not change the constitutional analysis.

[4.] Under the doctrine of stare decisis, Abood should not be overturned unless it reached the wrong result. It is not enough to note that Abood was badly reasoned, or that parts of the opinion were flawed. The Court should overturn Abood only if, going back to first principles, it can establish that the Free Speech Clause does protect a right that is violated by agency fees. But the First Amendment provides no such right. The judgment below should be affirmed.

NEXT: Supreme Court Will Hear Case Challenging Trump's Travel Ban 3.0

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  1. “Likewise, the government can constitutionally require people to pay money to unions”

    I don’t agree with this assertion. Government can offer incentives to do so, such as tax deductions to schools or charities, but I don’t think it would be constitutional to provide direct payment to such

    Now if the argument is they are just cutting put the middle man by not taxing an industry and then appropriating a benefit to a third party… Well the latter would give public notice of pure graft. It would have a much greater political cost.

    I just can’t support the notion that the government can force someone to pay a third party in order to make a living under any case other than the safety of the employee or consumers (medical licensing for example).

    1. Luckily, the government does not force anyone to pay a third party anything in order to make a living. There are plenty of jobs — most of the jobs in the United States, including every job that involves self-employment — that do not involve union membership.

      I hope it is a relief to learn that your worries are groundless.

      1. Except they are not groundless. People should not be forced by the government to choose jobs because of the governments forcing them to pay a private party.

        So you are utterly wrong.

      2. If they don’t have bread to eat, let them eat cake!

  2. I would generally agree with you on in the realm of private sector unions. However, I think you are mistaken when you say this:

    “But I don’t see any principled First Amendment reason for forbidding governments from requiring such payments from public employees”

    The principled first amendment reason is that the act of recognizing a public sector union is, itself, a 1st Amendment violation. In particular it is what is commonly referred to as viewpoint discrimination.

    1. How does recognizing a puiblic sector union constitute viewpoint discrimination?

      1. Because by definition it is contrary to the viewpoint that there shouldn’t be public unions.

        1. What about the viewpoint that we shouldn’t have a public military?

      2. Because it is a full throated endorsement of every action taken by the union past, present, and future (until the charter is revoked). It is no different than a legislature appropriating money for commercials saying, “this union is better than all other unions,” which is, itself barely different than doing the same except saying, “Democrats are way better than Republicans.”

        1. Your conclusion does not follow.

          1. Why wouldn’t a reasonable observer conclude as such?

            1. Well, for one, observers don’t think this right now.

  3. Paying taxes to government that then uses it for its own speech is fine. Paying mandatory fees to a private entity for the purpose of speaking to government to convince it to modify laws to benefit the private entity is not a legitimate government interest, regardless of how valid reducing labor strife is.

    Government has no interest in certain viewpoints having money to lobby government to change government. Where does this come from? A particular poltical position cannot receive, as a consequence of winning (or, a priori, aid to start to win) reinforcement from government, which must remain neutral with respect to those seeking to modify it.

    All people are free to devote their efforts and money to convincing those in power to change the laws. Not sure where I can force you to pay me money so I can lobby for stuff you don’t (necessarily) like or want comes from.

    Instead of required payments, imagine government gave tax money directly to a union…so the union could give it back to government officials to convince them this cycle should be further reinforced with laws.

    Is that more palatable? Nobody should have a problem with it?

    1. Except unions have a publicly open funding divide between their negotiating and lobbying arms.

      1. It can be argued that everything a public sector does is political. During oral arguments in Friedrichs v CTA, the CTA never disputed this point and even suggested the line between chargeable and non-chargeable expenses may need to be moved (thus, admitting that they were violating the first-amendment rights of dues payers).

        1. Legal arguments are not dispositive of actual legal disposition, or even opinion.

          If you believe no line can be drawn, you argument proves waaay too much, no? Anything that’s government subsidized suddenly becomes political, and thus must abide by the restrictions we put on the government.
          That would put a vast swath of what is currently the private sector under the First Amendment, for instance.

          1. And it should. And the solution is to end the government subsidies (which are unconstitutional anyway). Problem solved!

            1. Maximum Internet: The key to the utopia you want is to maximize chaos in the sub-utopia world we have now!

              1. Did you copy that from a homeschooling outline?

  4. I find it problematic that your reasoning loosely transfers the powers government to a private entity. If compulsory money transfers can be justified on these grounds for ideological ends, how far removed is that from the compulsory funding of religion?

    1. The Establishment Clause makes that slope pretty non-slippery.

      1. Only if you incorrectly think that unions and other political entities are not religious in nature.

    2. Are you a Trump supporter?

  5. Actually, the Establishment Clause offers an excellent analogy — the government can’t require you to pay money to a church, but that’s because it can’t take money from you as taxpayers and then pay it to a church (at least when it specifically targets the church because it’s a church).

    On the other hand, the government can take money from taxpayers and pay it to advocacy groups to advocate for all sorts of things — stopping gang violence, not beating children, recycling, equal rights, and more. Likewise, there’s no First Amendment problem with the government requiring people to pay money to a group directly, even if the group ends up using it for ideological purposes. It may be good policy or bad, but it’s not unconstitutional.

    1. The difference is that those advocacy groups are attempting to advocate to the public, not to the government. Groups trying to stop gang violence work in cities where that violence occurs. Groups trying to stop child abuse work with children and parents. In other words, they have been hired by the government to do things the government wants done – an extension of the government’s own right to direct speech.

      Those groups do not, however, have the right to take those government funds and use them to lobby the government for yet more funds. Doing so creates a massive conflict of interest. And this is the entire problem with public-sector unions. They exist primarily to extract more money from the government for their members. Nothing wrong with that – until they start using government-compelled money to run the process.

      1. If union money is fungible, then church money is fungible.

        And if you don’t think that the government is too conflicted to negotiating with unions, you need to get out more.

        1. That’s irreverent.

          Unions are different.

            1. That’s easy. Right-wingers dislike them.

  6. From Eugene’s sad disingenuous flip flop on compelling artistic expression if Christians for gay weddings to forced political speech on behalf of public unions and their Democrat masters, i think it’s clear he has done a complete Posner.

    1. Well, I did offer a pretty detailed argument in the linked-to brief, and a still fairly substantial summary in the excerpt. (To be sure, they were written by the Gotshal lawyers, but Will and I made sure that it expressed our views.) What do you have to offer in response?

      1. I think you completely miss the freedom of association angle. It the opposite of Hurly, rather than letting a gay organization march in a St. Patrick’s day parade, in this case they are requiring them to march in a neo-nazi parade.

        This is especially problematic in government jobs, you can’t have a job funded by taxpayer money unless you pay part of your salary to an organization you oppose. Clearly that is a burden on your freedom of association.

        1. By that reasoning, a shareholder of a corporation (especially one that relies on military or other government funding) should not be compelled to fund corporate activities the shareholder opposes. Tis ostensibly would be ‘clearly a burden on freedom of association.’

          1. Again that’s different from government forced payments.

            1. How is payment of union dues for union membership any more a “government-forced payment” than payment of a brokerage account for corporate shares?

              If you don’t pay for the shares, you don’t get the shares. If you don’t pay for the union dues, you don’t get to be in the union.

              1. Incorrect. If you don’t pay for shares, you do not get to be a shareholder. If you do not pay union dues, you lose the job, rather than merely being denied union membership (indeed, the requirement to pay dues is applied to people who explicitly refuse to be union members).. There is no policy for government to force workplaces to accept only shareholders as employees, there is a policy for government to force workplaces to accept only those who pay dues to unions as as employees.

                If what you described were the actual union policy, no one would have any objections, but it appears you are not aware of how union dues work.

                1. If you don’t pay for a share, you do not get the investment, and must choose another investment.

                  If you don’t pay union dues, you do not get to be in the union, and must choose another job.

                  1. The first decision is left to be between the company and the shareholder. The government does not care if a company chooses to give shares away or whatever.

                    The second decision is something that the federal government (with opt-outs for states whose state government wishes to enact right to work laws) requires the company to do as policy. If a sufficient quorum of employees choose to unionize, then under the NLRA, unless you are in a right to work state, the employer MUST fire any dissenting employee who refuses to pay dues to the union (a closed shop, except you are allowed to call yourself a non-member as long as your wallet is a member, as it were).

                    There is nothing wrong in libertarian terms with a closed shop– in a legal context where there is no government coercing employers to close their shop. We do not live in that legal context, we live in one where government requires employers in a significant number of circumstances to close their shop, and that infringes upon the liberty of both employers and prospective employees.

                  2. The first decision is left to be between the company and the shareholder. The government does not care if a company chooses to give shares away or whatever.

                    The second decision is something that the federal government (with opt-outs for states whose state government wishes to enact right to work laws) requires the company to do as policy. If a sufficient quorum of employees choose to unionize, then under the NLRA, unless you are in a right to work state, the employer MUST fire any dissenting employee who refuses to pay dues to the union (a closed shop, except you are allowed to call yourself a non-member as long as your wallet is a member, as it were).

                    There is nothing wrong in libertarian terms with a closed shop– in a legal context where there is no government coercing employers to close their shop. We do not live in that legal context, we live in one where government requires employers in a significant number of circumstances to close their shop, and that infringes upon the liberty of both employers and prospective employees.

          2. Of course that argument is patently ridiculous. Shareholders can sell their shares at anytime for any reason. Forcing anyone who takes a government job to pay union dues to a partisan organization provides a level of coercion that is far higher. Especially when the government (Fed, state, and local) is > 30% of the economy.

            But maybe we can strike a grand bargain: Conservatives will concede forced union dues for government workers if Liberals will agree to cutting the governments share of the economy to under 15%. Then there really is more meaningful choice of options for workers that don’t want to be in the union but are forced to if they work a government job.

            1. There are more employers available than companies in which to invest.

              Forcing someone who buys a corporate share to fund partisan corporate activity seems no less coercive than forcing someone who takes a government job to pay union dues.

              1. There are not more governments available than companies in which to invest.

                And the requirement to pay union dues is not MERELY in the government’s function as an employer. It would be perfectly libertarian for an employer to offer a job contingent upon being a union member, if it so desired– if there were no government policy mandating that behavior. In non right to work states, there is such a policy.

                1. Not all employers are government employers.

                  There are more employers available than companies in which to invest.

          3. This is a poor analogy. A shareholder of a public corporation is never obligated to buy shares upon pain of firing, and can sell his or her shares at any time, for any reason. Don’t like smoking? Don’t buy Phillip Morris stock. Think Lockheed is gouging the taxpayers with its latest defense contract? Sell your Lockheed stock. It’s really that simple.

            The correct analogy would be if, as a condition of your employment, you were forced to buy stock in Halliburton, or Phillip Morris, or whatever. And if that sounds ridiculous, that’s because it is. One of the things Enron was rightly hammered for in the aftermath of its collapse was its aggressiveness in encouraging – not compelling, but encouraging – its employees to buy up as much Enron stock as they could.

            The public employees at issue in this case simply want the same thing that a public corporation’s shareholders already have: the ability to take their money elsewhere (or keep it in their pocket) if they don’t like what the union says or does, without losing their jobs as a result. Your analogy doesn’t prove your point – it undermines it.

      2. Dunno why Sam keeps coming to such an impure blog, but this kind of intellectual rigor is why I’ve not drifted away to the dark side of FARK or reddit or *shudder* Slate.

    2. “their Democrat masters”………

  7. Thanks for the response.

    From another angle, you make very good points in explaining how ideological agendas can be pursued, but how about ones that are overwhelmingly partisan in nature? Would it be permissible, for example, for the government to support one party over another? Could there be any such constitutionally impermissible partisan connotations for this case in that track of thinking?


  8. I don’t entirely agree with you, but I’d like to take issue specifically with footnote 3. If the government appointed a collective bargaining agent, I don’t think that agent would have a First Amendment right to lobby while on the clock, using tax money allocated for collective bargaining. Certainly it would not lead to the same analysis.

  9. “Likewise, the government can constitutionally require people to pay money to unions political parties, money that the unions political parties can then use for ideological purposes.”


    The fact is that representation of non-members is entirely at the union’s option; it is a gift, and establishes no more claim on the non-member than any gift does on any person. That some jurisdictions require unions to represent non-members is entirely at the unions’ behest, and just a fig-leaf to disguise the essential nature of the relationship.

    1. Actually it’s not a gift from the union to the unrepresented employee, it’s a benefit to the union, or so two different circuit courts panels have held.

      When Wisconsin passed its right to work laws the unions argued it was a taking because it forced them to represent nonunion employees for free. The courts held that the benefit to a recognized union of being the exclusive bargaining agent for all employees was fair compensation for representing the nonunion employees. Same result in Michigan.

      I’d be willing to bet that outside the courtroom in real life the unions would agree. Give them the choice of letting nonunion employees negotiate their own deal independently, and taking away the unions position as the exclusive bargaining agent, or representing the nonunion and union employees alike as the exclusive bargaining agent, I think 99% of the time they would choose the former. Despite their bitter complaints about the unfairness of it all.

      1. I meant the latter.

        And by the way it’s federal law that gives recognized unions the right to be the exclusive bargaining agent. So while state right to work, or a court decision mandating the right to work without being in a union would still leave the union as the exclusive bargaining agent for all workers once it was recognized. But the union has no obligation to do so, they can walk away and abrogate their right to represent the workers whenever they want.

      2. Seems like if unions have the power to be exclusive bargaining agents, then they can use that power to bury non-members. Just sign a contract that says non-members get half the wages and none of the benefits. Some unions already use multi-tier (if that’s the right term) contracts to distinguish among their own members, discriminating against recent hires in favor of those with more seniority. Why not take it the next step? See, as you say, a benefit to the union.

        1. No. When the union is negotiating as the exclusive bargaining agent then all employees in the bargaining unit get the same deal whether they are union members or not. That is what the law says. I’m sure the union would sell them down the river if they could but its difficult.

          I do have a coworker that used to work in the office of a electrical utility. Both the office workers and the linemen were represented by the IBEW, but they were in different bargaining units. The linemen regularly got better contracts with higher raises because the IBEW would make more concessions for the office workers in order to benefit the unions core membership the blue collar linemen. But in that case it was two classes of union employees.

  10. The First Amendment does not provide freedom from any of these mandatory payments for others’ speech. Practicing attorneys cannot refuse to pay for CLE programming because they disagree with the messages presented or because they choose not to associate with CLE providers. Home buyers cannot refuse representation by counsel in states that require it, even if they would prefer to spend their money on something else.

    Isn’t this an inconsistent comparison? Aren’t the people in these examples allowed to choose which service provider they associate with, even if they must purchase the service?

    As a compelled agency-fee payer, I do not have the freedom to choose the union that best meets my needs.

    1. You could get a different job and quit whining.

      1. You could get a different schtick and sound moderately sane.

        1. You consider it insane to note that most jobs do not require union membership?

          Carry on, clingers.

          1. It’s more insane that you must choose jobs based on whether some are forced by the government to pay for something you don’t want.

            1. I find the arguments for freeloading ingrates to be unpersuasive.

              The position of an employee who wants to avoid having his money fund all or part of union activity (advocacy of union interests, for example) seems similar to that of a shareholder who wishes to avoid have his money fund all or part of corporate activity (advocacy of corporate interests, for example.

              If you don’t like the corporation’s conduct to that degree, find another investment. If you don’t like the union’s activity to that degree, find another job.

  11. Professor, whatever you nay say about thus surprising position, it is decidedly not libertarian.

    The full Posner remark seems right on point. The government, as government, has the right to compel many things that no other entity possesses. Therefore, your analogy between government and union is grossly misplaced and frankly beneath your level of expertise.

    A union is no more than a PAC or the local Right to Life organization. Do you support a government mandate that workers must support Right to Life organization or be fired?

    Please reconsider this authoritarian analysis and bring back your Libertarian thoughtfulness.

    1. Unions are far from being purely lobbying organizations.

      Invoking a lack of ideological purity would seem below any true libertarians. Just debate on the merits and don’t yell anyone you disgree with is authoritarian; you sound like a hippie calling their parents fascist.

      1. Actually, no. I would argue that everything a public sector unions does is political.

        1. Could you expand on this?
          If taking government monies makes everything you do politicial, then what about faith-based organizations, as noted above?

          1. Haven’t you been paying attention, Sarcastro?

            Unions are different. Just because.

            And religion is different. Also just because.

      2. Actually that’s literally their entire job. They lobby the employer and the government.

    2. But there are many positions which are correct but not libertarian.

  12. It’s an interesting brief, and I admit I’m not sure Abood was correctly decided, but Part I.C is particularly unsatisfying. Few of the examples offered involve monopoly provision of the required service. This is a potentially important distinction because it’s not simply that public sector employees can be required to pay for representation, it’s that they must pay for representation from a specific monopoly provider. When a lawyer is required to obtain CLEs or someone’s required to hire an attorney, they have a choice of the provider — and even some choice about what service will be provided and in what way.

    My point here is not that Abood was wrong, for I’m not sure that it was. Nor is it that the First Amendment should be understood to protect against compulsory assessments, for I’m not sure of that either. My point is that Part I.C. of the brief is particularly unpersuasive because it does not focus on what is potentially most problematic about the Abood rule as applied to public sector unions in the vast majority of cases: The requirement to subsidize the monopoly provider.

    Time permitting, I may do a separate post on this.


    1. Where’s the monopoly? Most jobs do not require union membership.

      1. There are states with entire industries required to be unionized. What a weak argument you offer.

        1. Please identify a single American required to join a union. I contend no American is required to join a union.

          1. It’s irrevelent whether a single American is required to join a union. It’s relevent that ANY job requires an employee to join a union. And that is clearly unconstitiuonal.

            1. If you want to own part of a corporation (even a utility that holds a government-enforced monopoly, for example), you need to purchase a share. If you want to work for an employer with a union, you need to join the union.

              Or find another investment, or another job. Or quit whimpering and start a business.

          2. “I contend no American is required to join a union.”

            Translation: no American is required to have an occupation. You are free to starve if you don’t want to join a union that supports political ideals you oppose..

            this is essentially what you really mean.

            1. You are free to stop whimpering and find another job — one that is, to your taste, better.

    2. Perhaps I misunderstand your CLE point; in California we are obligated to take an hour of diversity/nondiscrimination content with which I expect that many disagree, no matter which provider one chooses.

  13. Say what you will about the merits, Prof. Volokh’s not flinching from a legal finding that went against his policy preferences speaks well of him.

    1. Indeed, he’s been accused of doing so to get invitations to Beverly Hills cocktail parties.

  14. Why do conservatives get so riled about union members who dislike union activities, but express no concern about corporate shareholders who dislike corporate activities?

    Other than the mindless partisanship, I mean.

    Thank you.

    1. There is a huge difference between the two, namely in the burdens of disassociation. Selling stock is for most people a trivial thing. Meandering your way through your chosen trade to find a situation where you aren’t donating to a cause you find reprehensible is far less trivial.

      1. You may regard principles as trivial.

        Your arguments seem to regard principles as trivial.

        Neither makes you persuasive.

    2. There is a huge difference between the two, namely in the burdens of disassociation. Selling stock is for most people a trivial thing. Meandering your way through your chosen trade to find a situation where you aren’t donating to a cause you find reprehensible is far less trivial.

  15. So, if I understand your arguments correctly, it would be legal/constitutional for the majority party in a legislature to pass a law requiring all public employees or even all citizens to contribute a portion of their income to the majority party, effectively estabilishing a one party state. If this is not a correct implication of your argument, please explain why not, or what limiting factor or rule prevents it.

    As far as the argument that the state couldn’t use this rule to establish a state-mandated religion, you argue in the comments that the First Amendment would prevent that. But, isn’t this only in the case that the instruction that is established is called a church? Wouldn’t the state be able to easily establish a singular state “institution of moral (and political) suasion”, call it a “no-church” or political party or union or whatever you like, that everyone has to contribute a portion of their taxes to?

    1. Why are so many on here unable to distinguish between a union and a lobbying organization or political party?!

      As to the argument about a church, the Constitution is not a semantic document, it is a functional one. Have some faith that the Supreme Court would not be fooled by some organization just changing it’s name and carrying on.

      1. Because there is no difference between unions and lobbying organization or even unions and religions. They are all, in truth, both religions and political parties.

        1. Unions negotiate with management. When management is the government, that’s still different from government-as-policymaker. Usually even a separate branch of government.

          As to all ideals being the same, I would disagree. Faith is a thing apart – people do things in the name of religion they don’t do in the name of political party.

          1. I don’t see how union’s negotiating makes them different. Churches engage in all sorts of collective action both within the church and outside it. They organize events, they collect dues, they bargain with vendors, they have employees, sometimes they themselves are vendors, they even campaign for things in the political realm. The only thing lacking is the government officially recognizing various entities officially, and as the 1st Amendment is a restriction on government, what government does cannot, by definition, change the calculus on this point.

            In addition, I’d put it to you that it is much simpler to think of things like political parties as religions masquerading as secular entities. If you gave brain scans to Trump, Sanders, or Hillary supporters during their speeches, and then to the faithful in the pews during a rousing sermon, you’d find no difference. Indeed, what things do you think people do in the name of religion but not political parties? Kill? They certainly do that for politics. Preach? Ditto, in fact many do that even moreso. Donate money & time? Yep. Try to recruit their own children? For sure.

            1. Your thesis that all institutions are the same because they all act like institutions is pretty facile.

              Similarly, tribalism is a thing all groups have to one extent or another. It does not mean all groups are identical. Not many mix up theology and political science.
              Who is killing for politics?

              1. Brownshirts, blackshirts, John Wilkes Booth, Lee Harvey Oswald, and just last year James Hodgkinson & James Fields Jr.

                More major assassinations in US history are as a result of politics than religion. The “big 3” totalitarian regimes of the 20th century (Hitler, Stalin, Mao) all engaged in party-driven massacres. One might think you could point to Islam as how religion inspires terrorism, but the reality is that government and religion are inseparable in most Islamic sects (much like how god is replaced by government in most of the communist parties).

          2. Nope. A public sector union negotiating with management = public sector policy. If my local county decides to pay all teachers 300k, but then all residents would forgo any police/fire service, clearly the county is deciding that education is be most important choice we can make with our scarce resources. More money towards public sector pensions = less money towards other government services. Essentially, Janus’s argument.

          3. “When management is the government, that’s still different from government-as-policymaker” But that’s just not true. What government employees are paid, what they’re required to do, how they can be terminated, what their pensions are, how long a school year is, etc. are all policy decisions that are being negotiated.

      2. I agree with you and I wonder how a jurist would word an objective legal definition of 1) a religious organization, 2) a union and 3) a lobbying organization that would not intertwine.

        1. Not my area of expertise, but something fact based regarding primary purpose or something. Note that lobbyists have to register, so there is that.

      3. “Why are so many on here unable to distinguish between a union and a lobbying organization or political party?!”

        Because when a union becomes an agent of a political party, which is so often the case, the difference is negligible.

        1. You are assuming your conclusion. Being a supporter is not an agency relationship. Or else I have some bad news about the NRA, and evangelical churches, and talk radio.

      4. I take it you didn’t read Eugene’s argument as presented above? Where does he make the distinction you seem to assume exists?

        1. It seems a necessary assumption for his argument, doesn’t it?

          More importantly, it is a factual matter that many are asserting that seems quite wrong.

  16. Faced with questions like this, I tend to determine their (generally quite simple) answer by first asking the question “What would James Madison, George Mason and Thomas Jefferson think of this matter?” 🙂

    1. I’d image, what they thought of unions would probably be similar to what they thought of Freemasons. In the US, it appears labor unions were first prosecuted as criminal conspiracy (Commonwealth v. Hunt) by the employees, which deprived the employer of the lower labor rate he was owed under free market conditions.

  17. I’m no expert, but wouldn’t the union dues be part of the employment contract? I would feel differently if an existing employee had a good paying job, then the company unionized, and the employee was forced pay union dues to a union that negotiated a lower wage than what the employee was getting before.

  18. Professor Volokh,

    I’ve interpreted your views over the years as suggesting that Free Exercise rights are essentially equivalent to Free Speech Rights, and that religion is essentially a kind of speech from a constitutional standpoint. I’ve disagreed with that view over the years.

    This is the first case I can recall you blogging about where you’ve identified an explicit distinction between Free Speech and Free Exercise rights. Your posts suggests that religious speakers can’t be compelled to subsidize views they object to (at least sometimes of religious speakers, at least some time) because of the Religion Clauses, whereas the same compulsion doesn’t violate the separate free speech right absent a religion element.

    1. This jumped out at me as well. I have a hard time accepting an understanding of the First Amendment that says compelled support of ideas via religion is prohibited by compelled support of ideas via speech is not.

  19. It’s not just compelled subsidy of speech, it’s compelled subsidy of speech that presents itself as speaking *for you*. Bob is compelled to give money to Union A, and then Union A starts saying “on behalf of Bob, we say thus”.

  20. I wonder if a distinction can be made based on the proximity of the speaker to the speech.

    When the government collects taxes, the funds are deposited in the general treasury and used for a variety of purposes. Some of those uses will no doubt include speech which a given taxpayer does not approve of. However, because of the exceedingly large number of other taxpayers, and the consequently marginal (even nominal) contribution that his individual taxes make to the speech, a reasonable observer would not interpret the original payment of taxes as the taxpayer implicitly endorsing the government’s position or speech.

    While I am still strictly responsible in a logical sense, no one but a Paine-like absolutist would feel compelled to act because of that. Psychologically, people intuit they are distanced and not endorsing the government’s every view by paying taxes, as they are lost and absolved in the crowd.

    By contrast, dues paying members are seen as being much more intimately involved in the speech made on their behalf because of the much smaller number of constituents involved. Rightly or wrongly, observers see most constituents of the union as implicitly endorsing the speech because the speech is coming from a relatively small organ. No one assigns the same responsibility to every Catholic for the views of the Church of Rome in the same way they would assign responsibility to members of the Westboro Baptist congregation.

  21. Additionally, union members each individually have a much larger likelihood of each of their votes influencing the direction and speech of the dues paid to their union, than voters do in influencing the use of their taxes. It’s sort of the flip side of the voter’s rational ignorance that has been discussed at length on this site. When you do have control over the message, people assume that your not working hard to change a message you disagree with implies endorsement.

    I do not see the analogy to being compelled to attend CLE, CME, or other such licensing courses, since those do not imply any advocacy on my behalf, as a union does. It is speech made to me, not for me, which I may choose to disregard. And a lawyer representing you at closing also makes no public policy advocacy, and in fact would presumably be bound by ethical guidelines to express the messages I instruct him to.

  22. I would like to firstbthank the Professor for responding to my post. I am beyond flattered.

    That being said, I still do not understand how the First Amendment is anything but a Libertarian document. And it should be so read and interpreted.

    The Bill of Rights was argued for and adopted in order to protect and preserve the libertarian idea that there are inalienable rights which the government could NEVER lawfully impinge.

    Therefore, the Congress is prohibited from passing any restriction on speech. Period. Thisbsolves the Federal Constitutional issue.

    The complexity in this area is caused by a separate error, the incorporation doctrine under the 14th Amendment.

    However, even under the disastrous incorporation theory, there is no basis for a governmental power for states to ban or compel speech or association.

    As I have written in a different article, the 14th Amendment is a limit on authority of the states and is a source of additional liberty. It cannot, ever, be read as restricting liberty. That turns it on its head.

    So, please reconsider your brief because you have been persuaded by a stronger argument. The nation needs your strong voice in favor of the correct reading of the First Amendment, one the sees it as the world’s greatest libertarian legal document.

    1. Therefore, the Congress is prohibited from passing any restriction on speech. Period.

      That explains the lack of laws (and convictions) concerning pornography, especially child pornography.

      Thank you for the explanation.

  23. It strikes me as an awfully slippery slope to justify what a private organization can do – in this case, public-sector unions extracting payments from employees – simply by saying that the federal government is already allowed to do it. Particularly since the 1930s, when SCOTUS obliterated many of the Constitution’s restrictions on the federal government’s power.

    It doesn’t take a heck of a lot of creativity to come up with things that the federal government can do that private organizations and individuals cannot. I’d list some, but I’m too busy negotiating a treaty with Bulgaria and planning my invasion of Canada.

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