The Supreme Court Has a Chance to Blunt the Union Scheme to Defy It

’T is the season, as the Supreme Court’s 2021 October term looms, for decisions on cert writs. One of particular interest to many conservatives is the case of Boardman v. Inslee, requesting the high court to take up the Freedom Foundation’s effort to roll back a deceptive Washington State ballot initiative that’s been used by Big Labor bureaucrats to constrain First Amendment rights of home-care workers.

But the critical matter is this: If the Court refuses to hear Boardman, it will be permitting a calculated, well-funded effort by government unions to baldly defy and weaken its recent precedents in Janus and Harris.

What a rat’s nest — and what rats. It begins with the schemes of cash-hungry government-worker unions, aided and abetted by Big Labor allies controlling legislatures and governor’s mansions, to certify home-care workers as de facto state workers. For what purpose? For the dunning of coffers-filling union dues and agency fees. This ploy was fought by pro-liberty organizations, who proved triumphant in 2014, when the Supreme Court rendered its important Harris v. Quinn ruling (Pamela Harris was an Illinois home-care worker who objected to the confiscatory dues, glommed by the Service Employees International Union, of which she was not a member) on First Amendment grounds, with Justice Samuel Alito’s ruling (determining that Harris and fellow home-health-care workers did not have to pay the agency fees) clearly indicating that the long-standing Abood labor precedent, elevating the payment of mandatory dues over workers’ free-speech rights, was in jeopardy.

And it was: In 2018, Abood bit the dust when Alito, on behalf of a 5–4 Court, rendered the historic Janus ruling that held that government workers’ First Amendment rights meant they could opt out of union membership and, in the process, stop paying the confiscatory dues that have been the financial lifeblood of America’s massive public-sector unions — and of the Democratic Party.

Several states foresaw the Janus handwriting and acted to create sneaky means to blunt the efforts of employees to exercise their First Amendment rights, or to even know about them. These efforts included strategies to prevent outside organizations, such as Freedom Foundation, from obtaining government records and data that would be used to locate and educate workers about their rights (as if the unions and state bureaucrats would, in the kindness of their hearts, perform that service).

One scheme was Washington’s innocuous-seeming Initiative 1501, a 2016 referendum crafted by Big Labor. It stated:

This measure would increase the penalties for criminal identity theft and civil consumer fraud targeted at seniors or vulnerable individuals; and exempt certain information of vulnerable individuals and in-home caregivers from public disclosure.

Who wouldn’t want to prevent little old ladies from being victimized by “consumer fraud”? The measure passed with an overwhelming 71 percent of the vote.

But this meant that state governments and partisan players controlling bureaucracies were empowered to withhold public information. As Freedom Foundation put it:

In reality, the ballot measure was a scheme pushed by the Service Employees International Union (SEIU) as a way of preventing individual caregivers, like Brad Boardman and the Freedom Foundation from obtaining in-home caregivers’ contact information to inform them of their right not to support the union with their state-subsidized paychecks.

Boardman and a handful of other home-health-care providers teamed with Freedom Foundation to sue Washington State (Jay Inslee, the governor, is the named defendant) to overturn Initiative 1501, which they claimed hindered their right to locate and inform others of their Harris rights. The defiance of the First Amendment became even more pronounced in the face of the powerful 2018 Janus ruling.

Last October, the Boardman effort received a setback: A three-judge panel of the U.S. Ninth Circuit Court ruled 2–1 against it. That decision initiated the current appeal to the Supreme Court — and Boardman has received significant amicus curiae support, including from 13 state attorneys general and an association of 25 Washington newspapers, which contends that Initiative 1501 “calls into question the scope of the right to freedom of speech and the right of certain citizens to receive information.”

The appeal, per Freedom Foundation’s reply brief for petitioners — its final argument to convince the high court to formally review the Ninth Circuit’s decision — states this as the essence of the case:

Initiative 1501 poses a dual threat to the First Amendment. It not only sanctions blatant viewpoint discrimination, skewing debate on enormously consequential issues, but also eviscerates the important First Amendment protections for quasi-public and public employees that this Court vindicated in Harris v. Quinn, 573 U.S. 616 (2014), and Janus v. AFSCME, Council 31, 138 S.Ct. 2448 (2018). In defending this extreme law and the divided Ninth Circuit decision that upheld it, respondents invite this Court to suspend disbelief and accept their claim that Initiative 1501 reflects innocuous status-based discrimination, rather than pernicious viewpoint discrimination. Far from requiring that level of naïveté, this Court’s cases demand deep skepticism of status-based distinctions, which can often cloak impermissible viewpoint discrimination. That skepticism is fully warranted here, where two incumbent unions drafted, bankrolled, and promoted an initiative designed to grant them a monopoly over quasi-public employees’ contact information and to blunt the effect of Harris and Janus.

Initiative 1501 is censorship, dressed up. It deserves a dressing down. The odds for granting cert are always long, but many conservatives — and yes, even some in the Fourth Estate — hope they are not too long and that the Supreme Court will take Boardman. The case raises serious issues, and the arguments the petitioners and their allies make on behalf of the First Amendment should be taken as such.