Combination of ‘Forced Silence,’ ‘Forced Subsidization’ Exacerbates ‘First Amendment Problem’

In Harris v Quinn, a potentially landmark federal lawsuit, National Right to Work Legal Defense Foundation attorneys are representing, free of charge, a group of Illinois home care providers who do not believe they should be forced to join or pay dues to a government union in order to accept taxpayer-subsidized compensation from their patients (who are typically also their close relatives).

The U.S Supreme Court heard Harris v Quinn on January 21.  A decision is not expected until May or June.  One key Foundation argument made on behalf of the plaintiffs is that the original High Court decision giving the green light to state laws that force public employees to bankroll a union as a condition of employment, 1977’s Abood v. Detroit Board of Education, was incorrectly decided and should be overturned.

One indication of the high level interest in Harris among a wide array of Americans who have a personal stake in labor policy is that roughly 20 groups and individuals filed friends-of-the-court briefs in this case in just a few weeks between mid-November 2013 and last month’s hearing.  Among the briefs submitted by parties not directly involved in the case, one of the most impressive was prepared on behalf of several independent-minded schoolteachers in California and the Christian Educators Association International by attorneys employed by the Center for Individual Rights.

And a key point emphasized by the California schoolteachers’ brief is that Abood is logically incompatible with the High Court’s more recent ruling in United States v. United Foods (2001).  While Justice Anthony Kennedy attempted to distinguish the two cases in his United Foods majority opinion, his effort was not successful, as the California schoolteachers’ brief explains.  (The entire brief is linked below.)   Consequently, the older opinion should be reversed.

United Foods considered the constitutionality of a federal statute authorizing the majority of the appointed members of the government-sponsored, but private Mushroom Council to compel dissenters to bankroll advertising that promotes the consumption of both branded and unbranded mushrooms.

United Foods objected to paying mandatory assessments for Mushroom Council ads because, as Justice Anthony Kennedy’s opinion for a six-member majority explained, it wanted “to convey the message that its brand of mushrooms is superior to those grown by other producers.â€Â  It thus resisted bankrolling the contrary message that was evidently “favored by a majority of producers.â€Â  The specific message United Foods did not wish to subsidize was:  “[M]ushrooms are worth consuming whether or not they are branded.â€

Kennedy’s opinion found that the Mushroom Council, a private organization set up with Congress’s approval by then-U.S. Secretary of Agriculture Dan Glickman, had violated the First  Amendment rights of United Foods by seeking to compel it to pay for economic speech with which the company did not agree.

Kennedy concluded that neither the fact that the compelled speech was economic, and even “commercial†in nature, rather than political or ideological, nor the fact that a majority on the Mushroom Council favored the speech could render enforced conformity for United Foods constitutionally permissible.

As the California schoolteachers’ brief notes, under state public-sector union monopoly-bargaining laws, dissenting civil servants’ free speech is violated more egregiously than was United Foods’.  Producers such as United Foods “remained free to run ads touting the superiority of their mushrooms.”  But under Illinois labor policy, state law “precludes Petitioners from bargaining for themselves.”  As a result, the brief continues

Petitioners have no mechanism for meaningfully engaging in speech that counters the union message they already have to subsidize.  That combination of forced silence and forced subsidization exacerbates the First Amendment problem.

It is now settled law that it isn’t permissible for a government-established marketing board to force a food distributor to subsidize the message that one mushroom is as good as another.  Because of government-imposed monopoly bargaining, it is even less constitutionally acceptable for a government-backed union to force a teacher to subsidize the standard Big Labor economic message that one teacher is as good as another (with identical amounts of seniority and post-graduate education).  Therefore, Abood should not stand.

In 2001, the U.S. Supreme Court ruled that a government-established marketing association had violated a food distribution company’s First Amendment rights by forcing it to subsidize the message that one brand of mushroom is essentially as good as another. Unfortunately, the High Court has so far seen no constitutional violation when a government-authorized union forces unwilling employees to subsidize Big Labor’s message that one worker is essentially as good as another. Image: www.agmrc.org

Brief amici curiae of California Public School Teachers, et al. filed.