Will Scalia’s Death Quash Free Speech For Union Members?

Robert Mihaly | Sculptor

California teachers have openly challenged public-sector unions. Unsurprisingly the left is seeking to limit their free speech. However, in this iconoclastic year of Trump and Bernie, the Supreme Court seemed to be listening. Now, all of a sudden, the court’s configuration is uncertain.

Public school teachers in California are assessed upwards of $1,000 dollars each year in union dues. There is a cumbersome opt-out process. Interested teachers must file every single year for a refund. Even then they can only hope to reclaim about thirty percent of their union dues. But they lose the rest, regardless of whether or not they wish to be union members. The teachers have sued to liberate themselves.

Are these cheapskate teachers merely trying to weasel out of the negotiating costs of their own higher salaries? The unions lobby for other policies with which many teachers don’t agree. For example: merit pay, seniority policies, school-choice vouchers, and whether a local government should fund parks or teacher pensions. Many of these policies have nothing to do with education. In oral arguments at the Supreme Court on January 11 last month, in Friedrichs v. California Teachers Association, Justice Scalia signaled understanding of the matter. He stated, “The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition. Should the government pay higher wages or lesser wages?”

The California Teachers Association spent over $211 million dollars on political expenditures from 2000 through 2009. Lead plaintiff Rebecca Friedrichs lamented, “Here in California, most public officials have been put into office by union dollars.” Teachers are compelled to individually spend hundreds of dollars per year to support candidates and political initiatives.

One argument mustered against public campaign finance is that it forces people to fund political speech with which they disagree. Money spent for political purposes is a form of speech, as has been recognized by the Supreme Court. Forced unilateral political funding is immeasurably worse. Teachers who disagree with union lobbying are forced to pay for political speech and to support politicians they consider abhorrent.

Friedrichs and nine other California teachers brought this suit in federal court for the right to decide for themselves whether to pay for, let alone join, a union. Friedrichs argued everything the union does is political. She contends the union violates her First Amendment rights of free speech and association. The teachers argue public unions protect ineffective teachers and that they are “more focused on self-preservation” than on educating children.

On the other side, Kamala D. Harris, California’s attorney general, says teachers who disagree with positions taken by unions suffer no First Amendment injuries because “they remain free to communicate their views to school officials, their colleagues and the public at large.” In oral arguments, Justice Kennedy smacked down this assertion. He said, “It’s odd to say that if X is required to pay $500 for someone to espouse a belief that he doesn’t share, that he is now free to go out and argue against it. That means he has to spend another $500 so that it balances out? That makes no sense.”

The unions’ attorney argued that teachers not forced to pay union dues would be “free riders.” Justice Kennedy replied, “The union basically is making these teachers compelled riders for issues on which they strongly disagree.” The forced union dues are referred to as “agency fees.” The challengers’ attorney Michael Carvin argues agency fees are unconstitutional.

In the past few years, the court has twice signaled an impatience with compelled participation in public-employee unions. In a 2014, 5-4 decision on agency fees, Harris v. Quinn, the Supreme Court stopped just short of ruling the fees unconstitutional. In Harris, dissenting Justice Elena Kagan bewailed, “the majority could not restrain itself from saying (and saying and saying) so.”

But in the present case, even Justice Kagan chastised the defendants “[it’s] like you’re drawing a distinction between restricting speech and subsidizing speech. And I had always thought that these were two sides of the same coin, that compelled speech is no less and no greater an offense than compelled silence.”

Voluntary unions of individuals engaged in collective bargaining in the private sphere might accomplish some good. But mandatory participation is malevolent. It is the same essential characteristic that, as Walter Block pointed out, made antebellum slavery morally objectionable.

Hitler’s National Socialist party nationalized Germany’s trade unions into a single, monopolistic, government-controlled union, the German Labor Front. Monopolistic public sector unions are surely the worst form of unions. They support politicians, then subsequently control both sides of the bargaining table, thereby destroying any hope of legislative restraint.  

Requiring public sector union membership and dues violates the fundamental human rights of freedom of speech and association, recognized in the Constitution. Free market public policy organizations such as The Center for Law and Freedom and the The John Locke Foundation have filed over twenty amicus briefs, in an effort to liberate these teachers from forced association with and bankrolling of political expression with which they disagree.

The Court has previously ruled the First Amendment’s right of assembly protects freedom of association. The First Amendment protects speech, both what one wishes to say, and what one may not be compelled to say. Friedrichs v. California Teachers Association put both of these aspects of the First Amendment on trial. Let’s hope Justice Scalia’s vote has been counted. The court expects the decision to be published before the current term ends June 30.

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