The Corner

Law & the Courts

Lily Eskelsen García’s Orwellian Description of Friedrichs

The Washington Post reports:

The Supreme Court on Tuesday said it was unable to resolve a major challenge to organized labor, and the result was a defeat for a group of California teachers who claim their free speech rights are violated when they are forced to pay dues to the state’s teachers union.

The court said it was split 4 to 4 on the issue, following the death of Justice Antonin Scalia. It was the most important case yet in which the eight-member court was unable to reach a decision.

As a result of the deadlock, the lower court’s ruling is affirmed and the status quo obtains. In consequence, public-sector unions will continue to collect “agency fees” from non-members — even if those non-members object. Abood lives to see another day.

Per the plaintiffs, this is an unreasonable outcome because it amounts to an endorsement of “forced speech” and is therefore in violation of the First Amendment. As The Atlantic explains it:

The teachers made the expansive claim that all public-sector union activities, even negotiating health benefits and pay raises, are inherently political. Scalia seemed to embrace this point at oral arguments. “The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition,” he told the advocates.

The defendants disagree, contending that:

unlike member dues, funds from the agency fees can’t be used for the union’s political purposes. The lesser fee helps avoid a free-rider problem where employees benefit from the union’s representation without paying to support it. Twenty-two other states and the District of Columbia have similar labor laws on the books.

I do not want to get into this legal debate again here. (I’m with the plaintiffs.) Rather, I want to note how downright Orwellian pro-labor groups sound when describing the case. Here, from the Washington Post’s post-decision report, is a favorite union talking point:

“The U.S. Supreme Court today rejected a political ploy to silence public employees like teachers, school bus drivers, cafeteria workers, higher education faculty and other educators to work together to shape their profession,” said National Education Association President Lily Eskelsen García.

“In Friedrichs, the court saw through the political attacks on the workplace rights of teachers, educators and other public employees. This decision recognizes that stripping public employees of their voices in the workplace is not what our country needs.”

I can understand and respect the argument that, because unions are obliged to represent everybody during negotiations, they need laws such as those that were at stake in order to avoid “freeloaders.” I can understand and respect the argument that negotiations over pay and benefits do not represent “speech” in any hard or meaningful sense. And I can understand and respect the argument that the First Amendment’s free-speech clause was not intended to apply in this area. But I will never, ever understand or respect the idea that unless people are forced to hand cash over to unions they are being “silenced.”

Note Lily Eskelsen García’s language here: “The U.S. Supreme Court,” she alleges, “rejected a political ploy to silence public employees like teachers, school bus drivers, cafeteria workers, higher education faculty and other educators to work together to shape their profession.” Really? Because from where I’m sitting it looks as if the Court declined to give those “teachers, school bus drivers, cafeteria workers, higher education faculty and other educators” an opportunity to choose with whom they wish to associate and how.

García claims that to deprive unions of the power to extract involuntary fees from the dissenters is akin to “stripping public employees of their voices in the workplace.” In fact, precisely the opposite is the case. Had the plaintiffs prevailed in Friedrichs, not a single union member would have been stripped of his ability to contribute or to join in or to use his voice as he sees fit. Not one. Rather, those who would like to use their voices in a different manner than the union would, finally, have been given the chance to do so. If the unions want to argue that the plaintiffs were wrong on the Constitution or on the political merits here, that’s fine. If they want to argue that until they are permitted to represent only their members in negotiations the law must make up the difference, that’s fine, too. But the reflexive preference for Newspeak and obfuscation? That really is a bridge too far.

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