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Symposium: For this court, the First Amendment reigns supreme and small business is cheering

Karen R. Harned is the executive director of the NFIB Small Business Legal Center, which filed an amicus brief in support of Mark Janus in Janus v. AFSCME.

Today, small-business owners celebrate the United States Supreme Court’s landmark decision in Janus v. American Federation of State, County and Municipal Employees. Why is the small-business community celebrating a case involving public sector unions? After all, America’s small-business owners run private businesses — they don’t have public employees. Whether or not public employees are forced to pay union dues should be of little consequence to the private sector — right?

Wrong. Today’s decision is not only one for public employees and small businesses, but for all Americans. And here’s why. With Janus v. AFSCME, the Supreme Court takes a positive step forward in ensuring that all Americans receive the full complement of individual protections that the First Amendment was enacted to provide. In its present composition, the Supreme Court appears to be steadily marching toward a very broad view of First Amendment protections for all Americans. Indeed, the dissenters lament this very fact, noting, “Today is not the first time the Court has wielded the First Amendment in such an aggressive way.” As an example, the dissenters point to Sorrell v. IMS Health, which rejected the notion that commercial speakers are entitled to fewer constitutional protections and began to peel back the arbitrary distinctions previous courts drew between “commercial speech” and other speech.

Moreover, last year in Matal v. Tam, the Supreme Court sent a strong message that government cannot censor certain small-business messages under the First Amendment. In Reed v. Town of Gilbert, Arizona, the court affirmed that the government cannot regulate the content of signs — a ruling that we believe should protect small businesses just as much as a church or anyone else. Likewise, Janus speaks to the fact that government cannot lightly infringe upon free speech rights.

The court stressed that the First Amendment doesn’t just protect the right to speak freely in America — it adds an exclamation mark to that point. Whether or not one associates with a group of people is a form of expression under the First Amendment, and consequently you have a right to refuse association with groups with which you disagree. Today’s opinion stressed that “freedom of speech ‘includes both the right to speak freely and the right to refrain from speaking at all.’” As Justice Samuel Alito put it: “Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned.”

Alito rightly compared compulsory union fees to an unconscionable law requiring citizens to endorse controversial political positions with which they disagree, which Thomas Jefferson maintained would be “tyrannical.” Thus, the court stressed that the First Amendment prohibits government from forcing dissenters to pay for another party’s speech. And importantly, the majority emphasized that this protection — like other free speech rights — is “essential to our democratic form of government.”

With its ruling today, the court overcame a significant hurdle of prior precedent. The unions argued strenuously that the court should reaffirm Abood v. Detroit Board of Education, which previously upheld laws compelling dissenting employees to pay for public union activities. They called emphatically for continued adherence to that decision, trumpeting the doctrine of stare decisis. But as the Supreme Court has stressed in the past — and again today — “the doctrine ‘is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.’”

Alito agreed with the fundamental point that the National Federation of Independent Businesses, the nation’s leading small-business advocacy organization, stressed in its amicus brief to the court: When the Supreme Court has improperly denied constitutional rights in the past, the proper course is to fix the mistake going forward. “Abood went wrong from the start,” and as a result the unions have both violated constitutional rights and enjoyed a huge “windfall … for the past 41 years.” Although the unions suggest that this will hamstring their political efforts, the court today said, without mincing words, that “no reliance interests on the part of public-sector unions are sufficient to justify the perpetuation of the free speech violations that Abood has countenanced for the past [four decades].”

This brings us to what may be the sleeper issue for those who have not been following this case. As a practical matter, Janus is sure to level the playing field for the many voices that raise a myriad of concerns in state capitals across this country. NFIB represents hundreds of thousands of small businesses nationwide, and in representing their interests, NFIB’s legislative agenda includes lowering taxes and fighting new employer mandates. By contrast, public-employee unions frequently have promoted extreme labor policies at the state or local level that result in higher labor costs for businesses. The reality is that many small businesses are crushed under the weight of excessive regulation — especially when consumers are unwilling to pay higher costs for products or services.

Unions also fought to maintain ever more costly government benefits and pensions that amass significant debt for state governments and result in higher taxes. In fact, the court notes that the dramatic “ascendance of public-sector unions has been marked by a parallel increase in public spending” over the years. Government costs have “ballooned” over the past half-century, and, without doubt, public unions have played a major role in creating fiscal crises in Illinois, California and other states.

It’s easy to see how small-business priorities are directly in conflict with the legislative priorities of public unions. Small businesses simply cannot afford many of these policies. Janus is a major win for small businesses and all Americans because the unions will no longer have a guaranteed stream of income to fund their lobbying efforts and to bankroll their political campaigns. In other words, they will no longer be allowed inordinate political power, effectively shutting out other voices, like that of small business. Although the unions may, as Alito noted, “experience unpleasant transition costs,” the court was absolutely right to say that there can be no justification for “the perpetuation of the free speech violations” that have taken billions of dollars from nonmembers over the years.

Small businesses do hope that Justice Elena Kagan is correct, and that the road ahead provides many opportunities for the court when it comes to restoring First Amendment protections. The fact is that no one should be required to waive their First Amendment rights as a condition of going to work, and no one should be required to waive other constitutional rights as a condition of running an honest business.

Recommended Citation: Karen Harned, Symposium: For this court, the First Amendment reigns supreme and small business is cheering, SCOTUSblog (Jun. 27, 2018, 6:12 PM),