Compelled Subsidies and the First Amendment

Why both the dissent and majority in Janus were wrong, and what the next lawsuits may look like.

Blogmaster Eugene Volokh and I have an article out now in the Supreme Court edition of the Harvard Law Review: Compelled Subsidies and the First Amendment, a comment on the Supreme Court's decision in Janus v. AFSCME which we've blogged about here extensively this summer.

In the article we argue that both the dissent and the majority opinion were wrong, but about different things. The dissent was wrong to think that public sector unionism justifies a substantial burden on First Amendment activity; but the majority opinion was wrong to think that there was any First Amendment burden in the first place. We also discuss the implications of Janus, arguing that it will imperil some other similar compelled funding regimes and may make unions retroactively liable for agency fees collected to date.

Harvard has also published two responses to our article, one by Aaron Tang and Fred Smith, and one by Erwin Chemerinsky and Catherine Fisk. Interestingly, both pieces take aim only at our discussion of the implications, especially the warning about retroactive liability. (Chemerinsky and Fisk also write a little bit about implications for other regimes, taking a more modest reading of Janus than we do.)

As for the question of retroactive liability, I think our respective pieces point to all of the important cases, so interested readers may have to make up their own minds -- and indeed, federal courts across the country will be making up their minds as these lawsuits progress, and I may find time to write more about them as that happens. But I should stress in advance that our warning about retroactive liability does not imply that these lawsuits are clear winners, or even necessarily that these lawsuits should be winners in a perfect world. Still, I continue to believe that they are not clear losers, either. And if one imagines that unsettled questions of retroactive liability might make it to the Supreme Court in the next few years, I do not think that agency fee cases are going to be the vehicle most likely to appeal to the Court's sympathies.