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Symposium: The Supreme Court protects worker’s free-speech rights

Aaron D. Lindstrom is the solicitor general of Michigan, which filed an amicus brief with 19 other states in support of Mark Janus in Janus v. AFSCME. Kathryn M. Dalzell, an assistant solicitor general, also contributed to this article.

The Supreme Court’s decision today in Janus v. AFSCME is a win for the free-speech rights of government employees. Now citizens who choose to serve the public can no longer be compelled to pay fees to a private expressive organization that exists to influence government policy on matters of public importance. Mark Janus, for example, works as a child support specialist for Illinois, and he was concerned about Illinois’ fiscal crises. Despite his views on government spending and the proper size of government, he was compelled to pay about $535 per year to a private entity, the American Federation of State, County, and Municipal Employees, to support the union’s collective-bargaining efforts, efforts intended to directly affect the state budget and the provision of governmental services. As a result of the court’s decision today, employees like Janus will now have more choices — more liberty — concerning what speech they support (and what they do with that $535). They will have the freedom to opt in to pay the fees and so to continue to give money to the union, so that the union in turn may continue to lobby the government to adopt policies that the opting-in employees support (such as higher wages for public employees or increased tenure protections for teachers). Or public employees can instead contribute that money to a different organization that lobbies for different policies (such as merit pay for teachers). Or they can choose not to spend the money on any lobbying at all. But they won’t be forced by the government to subsidize the speech of a private organization with which they disagree.

One significant reason the Supreme Court overruled Abood v. Detroit Board of Education was because the court recognized that the core issues of collective bargaining, namely wages and benefits, are matters of significant public importance when the employer is the government. And it follows that compelled speech on those issues deserves the protections of the First Amendment. Abood had concluded that an employee’s First Amendment rights were infringed less by a union’s collective-bargaining activities than by a union’s more direct political efforts (such as campaigning to elect particular officials); under Abood, the latter infringement was not permissible, but the former was, because of concerns that “inter-union rivalries” would create dissension in the work force and because of concerns about free-rider problems. But the court in Janus recognized that infringing free-speech rights in the context of collective bargaining with a government employer, on issues of substantial public concern, was also impermissible.

For example, the court recognized that state and local governments across the country face, as the court put it, “severe budget problems” relating to wages and benefits for public employees. Even beyond the court’s examples specific to Illinois — the court noted that a quarter of Illinois’ budget goes toward pension and retiree healthcare liabilities — Michigan’s experience in the Detroit bankruptcy illustrates this point. According to exhibits filed in the Detroit bankruptcy, the largest unsecured claims were unfunded pension liabilities for public employees (negotiated through collective bargaining), liabilities totaling $3.5 billion out of Detroit’s $18 billion in debt. And on top of the pension liabilities, Detroit owed between $5.7 and $6.4 billion in other post-employment benefit liabilities, bringing the employee-related total to at least $9.2 billion. The municipal bankruptcies in two California cities — Stockton and San Bernardino — also support the court’s observation that unsustainable collective-bargaining agreements have contributed to other municipal bankruptcies. When Stockton filed for bankruptcy, it cited “unsustainable labor costs, retiree health benefits, and public debt” as contributing causes, and Stockton saved about $90 million in three years by cutting wages and benefits. Similarly, San Bernardino cited labor costs as about 78 percent of its general fund expenditures for a particular fiscal year. Although the Detroit bankruptcy was ultimately resolved through a “grand bargain” that protected pensions for public employees, these examples confirm the obvious: The wages and benefits paid to public employees are important political issues.

And the court was right to acknowledge that collective bargaining involving government employees extends well beyond issues of wages and benefits to other issues of public importance. On the issue of education, the court cited examples in which teachers engaged in collective bargaining on issues including what to teach about climate change, evolution and sexuality. Not all public-school teachers have the same beliefs about these subjects, and now teachers who see things differently from the union leadership will no longer be compelled to fund speech that picks a side on these controversial issues.

Given all of this, it was perhaps unsurprising that the union conceded at oral argument that much of what collective bargaining covers is of public concern. And the dissent also acknowledged that “[o]f course” economic issues have some public significance because they “have budgetary consequences.” But the dissent would have allowed the government’s “managerial interests” to outweigh the First Amendment rights of citizens who work for the government because “government employees are … just employees, even though they work for the government.” To be sure, government employees give up some rights, including rights to free speech — take, for example, a new private in the Army going through basic training or a government spokesperson, neither of whom is free to speak without regard to the interests of someone up the chain of command. But those instances of surrendering some free-speech rights exist so that the government can fulfill its governmental functions, not so that a private organization can lobby the government about its policies. In short, compelling a public servant to subsidize speech that is trying to influence government policy is quite different from recognizing that public employees in the workplace may sometimes be limited in what they say by legitimate workplace interests.

So, what happens now? One possibility is that this decision will result in more speech, not less, and so will advance the First Amendment goal of encouraging public engagement on political issues. Public employees like Janus might now decide to take the agency fees that they are no longer forced to pay to unions and contribute some or all of that money to organizations that do reflect their views. In response, public-sector unions now have an increased incentive to persuade government employees that it is in their best interest to contribute to the unions, to encourage the employees to opt in to paying agency fees. Further, unions now have an additional reason to make sure that the collective-bargaining issues they focus on are issues widely supported by their constituents, so that that their speech during collective bargaining aligns with those they would like to represent. All of these outcomes contribute to the free marketplace of ideas and so advance First Amendment principles on these issues of great public importance.

Recommended Citation: Aaron Lindstrom, Symposium: The Supreme Court protects worker’s free-speech rights, SCOTUSblog (Jun. 27, 2018, 6:47 PM),