Bench Memos

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Important First Amendment Ruling in Knox v. SEIU—Part 1


For decades now, the Supreme Court has “countenanced a significant impingement on First Amendment rights” of employees who choose not to join the union that represents the bargaining unit in which they’re employed. Specifically, the Court has ruled that the government may compel nonmembers of a union (under so-called “union shop,” “agency shop,” or other “union security” arrangements) to pay fees to the union to support the union’s activities related to collective bargaining, and that the government may place the burden on objecting nonmembers to affirmatively opt out of paying the costs of the union’s political and ideological activities.

The passage quoted in the first sentence of this post is, in fact, from a nearly unanimous Supreme Court ruling in 1984 that stated that “[i]t has long been settled that such interference with First Amendment rights is justified by the governmental interest in industrial peace” (emphasis added)—and that leveraged that existing “interference with First Amendment rights” to justify additional interference with those rights.

Today’s ruling in Knox v. SEIU is significant less for its specific holding than for the Court’s long-overdue awakening to what it aptly calls “the critical First Amendment rights at stake.” Unions, which have benefited massively from coerced funding, will be screaming about what that reawakening may portend in future cases.

Here’s a quick summary of the legal and factual background to Knox: Under Supreme Court precedent, the government may authorize a union to charge nonmembers a fee that covers the costs both of collective-bargaining activities and of political and ideological activities, so long as nonmembers are informed of, and allowed to deduct from their payment (under an “opt out”), the portion of the costs estimated to be attributable to the union’s political and ideological activities. In June 2005, the SEIU local in California sent out its annual fee statement, which set monthly dues of 1% of gross salary, capped at $45, and estimated that some 56% of its costs would be attributable to collective-bargaining activities. Some two months later, the SEIU local, in order to generate funds to help oppose ballot propositions, raised the monthly dues for a limited period to 1.25% and removed the $45 cap. The union maintained that only those nonmembers who had objected to the annual fee statement could object to the special assessment. Further, despite the fact that the entire increase was intended for political activities, the union maintained that even those nonmembers whose objections it would recognize would have to pay 56% of the increase.

Justice Alito’s excellent majority opinion in Knox (joined by the Chief Justice and Justices Scalia, Kennedy, and Thomas) holds that the First Amendment does not allow the government to authorize a public-sector union to require objecting nonmembers to pay a special fee for the purpose of financing the union’s political activities. Here is a summary of his reasoning:

1. “[W]e do not revisit today whether the Court’s former cases have given adequate recognition to the critical First Amendment rights at stake.” The free-rider arguments that those cases have relied on (i.e., preventing nonmembers from free-riding on the union’s collective-bargaining activities) “are generally insufficient to overcome First Amendment objections” and are “something of an anomaly.” “Similarly, requiring objecting nonmembers to opt out of paying the nonchargeable portion of union dues—as opposed to exempting them from making such payments unless they opt in—represents a remarkable boon for unions.” It’s difficult to see the justification for an opt-out rule. Indeed, the Court seems to have accepted the opt-out approach “more as a historical accident than through the careful application of First Amendment principles.” (Slip op. at 10-13.)

“By authorizing a union to collect fees from nonmembers and permitting the use of an opt-out system for the collection of fees levied to cover nonchargeable expenses, our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate.” (Slip op. at 14.)

2. The SEIU “asks us to go farther.” It seeks approval of a procedure under which (a) a special assessment billed for use in electoral campaigns failed to provide a new opportunity for nonmembers to object, and (b) those nonmembers who had previously opted out were nonetheless required to pay more than half of the amount of the special increase, even though the purpose of the increase was to mount a political campaign. This procedure is “indefensible.” (Slip op. at 14.)

(a) A nonmember can’t make an informed choice about a special assessment that is unknown when the annual notice is sent. It would have been an easy matter for the union to give the nonmember a choice. A refund the following year would not have been fully compensatory, nor would it undo the violation of First Amendment rights. (Slip op. at 14-17.)

(b) The special assessment was slated for political purposes, so nonmembers should have been able to avoid paying the entire amount of the increase. The SEIU’s claim that objecting nonmembers ended up with a windfall rests on dubious statistics. Further, the risk that objecting nonmembers might pay too much or too little should be borne by “the side whose constitutional rights are not at stake”—the union. The union “has no constitutional right to receive any payment from these employees.”

While the Court’s previous rulings have substantially impinged upon the First Amendment rights of nonmembers, “we see no justification for any further impingement. The general rule—individuals should not be compelled to subsidize private groups or private speech—should prevail” in the context of this special assessment. (Slip op. at 17-22.)


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