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On The Front Lines

First Amendment Victory: U.S. Supreme Court Prohibits States From Forcing Public Employees to Finance Union Activities With Which They Disagree


FURTHER READING: The Supreme Court’s opinion and The Rutherford Institute's amicus brief in Janus v. AFSCME 

WASHINGTON, D.C. — In a 5-4 ruling that errs on the side of the First Amendment, the U.S. Supreme Court has concluded in Janus v. American Federation of State, County and Municipal Employees, Council 31, that state laws forcing public-sector employees to provide financial support for unions that engage in political activities with which they disagree violates the First Amendment. In weighing in on the case, attorneys for The Rutherford Institute had argued that the Illinois law being challenged, like similar laws in many other states, violates the First Amendment’s prohibition against compelled speech by forcing employees to pay dues to unions that take positions on controversial issues even if employees object to those positions and by requiring employees to affirmatively opt out in order to recover back payments to the union deducted from their paychecks without their consent.

The ruling and amicus brief in Janus v. AFSCME are available at Affiliate attorneys D. Alicia Hickok, Chanda A. Miller, and Mark D. Taticchi of Drinker Biddle & Reath LLP assisted The Rutherford Institute in advancing the arguments in Janus before the U.S. Supreme Court.

“The right to hold a position that is neither yea nor nay carries with it a simultaneous right not to be perceived as taking sides. This right is both a speech right and a privacy right,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “The very purpose of the First Amendment, as Justice Hugo L. Black recognized, is to ensure that Americans are free to think, speak, write and worship as they please, not as the government (or employee unions) dictate. Moreover, as Thomas Jefferson recognized, ‘to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.’”

In 1977, the U.S. Supreme Court ruled that a public employee can be required to pay dues to unions even if the employee does not wish to belong to the union and does not support the union’s political activities or positions. However, the Supreme Court also held that the First Amendment forbids the union from using those dues to support political causes to which the employee objects. Thus, unions are required to refund dues to an employee when requested if those dues are used for activities to which an employee objects. Under Illinois law, public employee unions charge the employees an “agency fee” as a condition of employment, whether or not the employee is a member of the union, in order to pay for the costs of the unions’ activities. Those employees wishing to exercise their First Amendment right not to subsidize a union’s activities must affirmatively opt out of supporting those activities in order to obtain a refund of their dues.

In 2015, Mark Janus, an employee with the Illinois Department of Healthcare and Family Services, filed a complaint in federal district court claiming that forcing him to pay the agency fee to the American Federation of State, County and Municipal Employees (AFSCME) union violated his constitutional rights by forcing him to support advocacy by the union with which he disagrees. In raising the objection, Janus cited Supreme Court decisions that undermine the Court’s 1977 ruling. After Janus’ claims were denied in the lower courts, the Supreme Court agreed to hear Janus’s case and upheld his claims, overruling the 1977 case as “poorly reasoned” and inconsistent with the First Amendment’s robust protection of the individual right not to be compelled to support speech with which one disagrees.

Case History

December 06, 2017 • Rutherford Institute Asks U.S. Supreme Court to Prohibit Unions From Requiring Public Employees to Support Political Activities With Which They Disagree