Now Conservatives Get to Say What Free Speech Means

(Bloomberg Opinion) -- In a blow to public-sector unions, the U.S. Supreme Court has used the First Amendment to reverse a 40-year-old precedent that allows the collection of fees from nonunion members who benefit from collective bargaining.

The decision, six years in the making, shows how a conservative court can take a core constitutional value like freedom of speech and wield it as a tool to advance business interests. The outcome fits into a pattern with the Citizens United case — a pattern likely to be expanded considerably if President Donald Trump can consolidate a conservative majority with more appointments to the court.

The background to the case decided Wednesday, Janus v. AFSCME, is a case called Abood v. Detroit Board of Education. It addressed the tricky question of what the U.S. Constitution should say about public employees who choose not to join a union that represents their interests. Unions, of course, want the employees to have to pay dues, because otherwise they would be tempted to take advantage of union members who willingly pay. Governments — like other, private employers — would like employees to be able to opt out completely, which could weaken the unions to the point of possible collapse.

Back in 1977, the Burger Court adopted a compromise of the kind that was common in that bygone era of Supreme Court history. It held that nonunion members couldn’t be required to pay for unions’ ideological or political activities, but would have to pay “agency fees” in lieu of dues that went to support the unions’ collective bargaining. The reasoning was that it would violate the free speech rights of the nonunion members to make them pay for political or ideological activities, but would not violate their rights to make them pay for benefits they were receiving.

This opinion has never been popular with conservatives — or with liberals. That’s because, like most compromise decisions, the Abood case suffered from serious logical inconsistency.

QuicktakeU.S. Labor Unions

In practice, a union’s political activities are mostly undertaken with the goal of ultimately serving its members’ interests, most importantly their contract. Thus, if you think the union shouldn’t be able to exact fees from nonmembers, it doesn’t make much sense to allow it to collect agency fees.

And if you think that the union should be able to collect fees from nonunion members who are benefiting from its activities, it also makes sense for those fees to cover all the union’s activities that contribute to its influence and power.

Since 2012, Justice Samuel Alito has been aiming to reverse Abood. In 2014, he came close, writing an opinion that made it clear Abood would be overruled soon.

Alito’s plan was temporarily stalled when Justice Antonin Scalia died in February 2016, and the court split 4-4 in a case that would have meant the end for the Abood precedent. The blocking of President Barack Obama’s nominee to fill that seat, Judge Merrick Garland, and the appointment of Trump’s pick, Justice Neil Gorsuch, pretty much guaranteed that the plan would be back on track.

The basis for Alito’s decision is the free speech of the nonunion employees. He explained that the Abood case was always wrong because it failed to protect the nonunion employees’ right not to speak via the association with the union. And he rejected the rationale that the employees’ interest was outweighed by the unions’ interest in avoiding free riders.

At bottom, Alito’s logic rests on the idea that paying union dues is a form of speech, giving rise to an association that people should have the right to refuse. In today’s environment of near absolutist free speech doctrine, that is an understandable view. After all, in the Citizens United case, the Supreme Court said that corporations have the freedom of speech because they are acting on behalf of the association of their shareholders.

Justice Elena Kagan’s dissent emphasized the remarkable degree to which the majority didn’t care that it was overturning precedent. Indeed, Alito wrote that the Abood case deserved less respect as precedent because it was poorly reasoned. Given that any court that wants to overturn an earlier precedent can always say it was poorly reasoned, that doesn’t leave much to the principle of stare decisis.

Yet the truth is that First Amendment doctrine really has changed in the last 40 years — in the direction of greater and greater freedom of speech and association.

Whether the change is good or bad depends very much on your perspective, and on the case in question. Here, the court was able to use free speech and free association principles to produce a result that is bad for unions. In another case, it would in principle be possible that unions could benefit from free speech absolutism, because they are entitled to the same free speech protections as corporations.

The problem is that in the real world, the justices get to pick and choose how to apply their doctrine — and they don’t always do it consistently. Instead, they support their favored constituencies and outcomes.

That’s how the Janus case played out. The Abood compromise was no great shakes, constitutionally speaking. It’s important to understand, however, that the compromise has been invalidated now not because it was flawed, but because conservatives have the upper hand.

Expect the First Amendment to be used lots more in the years ahead to serve conservative interests. That doesn’t mean the First Amendment is broken. It means that an unashamed Supreme Court majority has the power to use the Constitution to make social policy. That’s the reality of the Supreme Court in the modern age.

©2018 Bloomberg L.P.

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