By Amanda Shanor, Staff Attorney, American Civil Liberties Union
JUNE 28, 2018 | 7:00 PM
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.