Exacerbating the real error in Abood: Is there any justification, "originalist" or otherwise, for the Court's holding in Janus that deducting agency fees abridges the freedom of speech?

Marty Lederman

On the final day of its Term last month, a 5-4 majority of the Court in Janus v. AFSCME overruled the four-decades-old Abood decision and held that when a state deducts a so-called "agency fee" from the paychecks of public employees who are not union members, and conveys that fee to the union for purposes of representing the bargaining unit (e.g., for collective bargaining and grievance processing), the state violates the employees' rights under the Free Speech Clause.  In its 1977 decision in Abood the Court had drawn a distinction among different categories of union activities:  It held that although the Free Speech Clause prohibits a state from using nonmembers' funds to subsidize a union's political and ideological activities, it could deduct a fee from employees' salary for the portion of union dues attributable to activities that are “germane to [the union’s] duties as collective bargaining representative."  The Janus Court reversed the latter part of the Abood holding, so that such deductions are now deemed an unconstitutional violation of the Free Speech Clause through and through, no matter what the union does with the money.

The most striking thing about Justice Alito's majority opinion--to me, anyway--is that the Court majority was willing (quite eager, in fact) to overrule such a well-entrenched precedent without providing virtually any basis for thinking that the fee deduction "abridges" anyone's actual speech.  As many scholars have long explained (including my colleagues Greg Klass and David Luban, as well as, more recently, Will Baude and Eugene Volokh), Justice Alito is right that "Abood was poorly reasoned"--but in the other direction.  The original sin of Abood was not the Court's failure to prohibit agency fees for collective bargaining functions, but instead in holding that employee deductions can implicate the Free Speech Clause in cases where there's no compelled association (no one is required to join the union), no possibility of any misattribution of the organization's speech to the objecting payers, and the payment in question is not triggered by the objector's own speech (as in Tornillo and PG&E).

One would think that surely would have been reason enough for the Court not to extend Abood's purported Free Speech limitations to the context of fees for services actually rendered . . . but apparently not.  Instead, the Court doubles down on, and thereby greatly exacerbates, Abood's error.

I wrote above that the Court provides "virtually" no basis for thinking that the Illinois agency fee deduction "abridges" anyone's actual speech.  The qualifier ("virtually") is necessary because Justice Alito's opinion does offer one reason, and one reason alone--a singular quotation from a 1786 state law.  That quotation isn't really on point, however--and, even read more expansively than is warranted, it can't possibly bear the weight of authority the Court assigns to it as a basis for concluding that the Illinois deduction of agency fees abridges employees' freedom of speech.

Alito begins with a brief explanation for the Court's compelled speech doctrine:

When speech is compelled, ... individuals are coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is
always demeaning, and for this reason, one of our landmark free speech cases said that a law commanding “involuntary affirmation” of objected-to beliefs would require “even more immediate and urgent grounds” than a law demanding silence.  [quoting West Virginia v. Barnette].

So far, so good:  If the state compels an individual to actually say something that betrays her convictions--the classic case being the compulsion of the young Jehovah's Witness students in Barnette to attest their allegiance to the United States, contrary to their genuine beliefs--there's a First Amendment problem.  But so what?  After all, Illinois is not forcing its employees to say anything about AFSCME, about the subject matter or bona fides of the union's negotiations, or about anything else--let alone to attest to a belief in something they don't believe (nor even to display unwanted government speech as they move throughout the day, as in Wooley v. Maynard).  So what's the constitutional problem?

Well, Justice Alito then simply asserts, as if night followed day, that "[c]ompelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns" (emphasis added, and citing three modern cases, including Abood, that are no more explanatory than Janus).  Why?  Here's the entirety of his reasoning:

As Jefferson famously put it, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.” A Bill for Establishing Religious Freedom, in 2 Papers of Thomas Jefferson 545 (J. Boyd ed. 1950) (emphasis deleted and footnote omitted).

That's it.  A single quotation from a Virginia statute drafted by Thomas Jefferson and enacted by the Virginia legislature five years before the First Amendment was ratified.  Similarly, a few pages later Alito again cites the same sentence from the 1786 Virginia bill as alleged support for the Court's insistence that overruling Abood and holding that the agency fee is unconstitutional is consistent with "the original understanding of the First Amendment":

[P]rominent members of the founding generation condemned laws requiring public employees to affirm or support beliefs with which they disagreed.  As noted, Jefferson denounced compelled support for such beliefs as "sinful and tyrannical," and others expressed similar views.

Who are these "others" in the founding generation who allegedly expressed "similar views"?  Alito cites only two:  Noah Webster and Oliver Ellsworth (both of whom were invoked in the amicus brief of certain California teachers).  But neither of those men suggested that compelled payments are unconstitutional, let alone violations of the Free Speech Clause.  Ellsworth wrote in 1787 that laws requiring people to “make a public declaration of … belief … in order to qualify themselves for public employments” were “useless, tyrannical, and peculiarly unfit for the people of this country”--but of course Illinois does not require its employees to make any declaration of belief, public or otherwise.  Similarly, in 1790 Webster condemned “test laws, oaths of … abjuration, and partial exclusions from civil offices” as “instruments of slavery” and “badge[s] of tyranny.”  He didn't write anything at all about compelled payments.

And so it turns out that the only support for the Court's central assumption--that compelling a person to subsidize the speech of other private speakers raises First Amendment concerns "similar" to compelled speech itself--is a single statement in a Jefferson-penned Virginia statute from 1786.  That isolated sentence would hardly be enough to demonstrate that the Illinois deductions implicate the Free Speech Clause even if it were right on point.  But it's not.

First of all, the "sinful and tyrannical" statement does not purport to have anything to do with freedom of speech.  Nor has the Court ever treated the statement as reflecting a general constitutional prohibition--Free Speech-based or otherwise--on compelling a person to "furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s]":  after all, we are all often are required to subsidize the propagation of opinions that we do not share, or that we even abhor.  Every few hours, for example, my tax dollars are used to subsidize statements and tweets by Donald Trump that I find odious and that the government could never require or coerce me to say myself.

The quotation in question, and the Virginia Bill more broadly, was widely understood to reflect an antiestablishment limit on the state's use of treasury funds to fund churches.  That's why the bill itself was entitled "An act for establishing religious freedom."  And so, for a very long time, the Court used the Jefferson quotation as part of its justification for reading the Establishment Clause of the First Amendment as prohibiting state funding of religious establishments.*  Notably, the Court has recently even abandoned this principle, in Trinity Lutheran Church v. Comer.  And of course Justice Alito does not conclude that the Illinois law violates the Establishment Clause.

One other thing, too:  Even if the Virginia Bill quotation were taken literally, and for all it might be worth, the Court simply assumes, without discussion, that the Illinois law at issue in Janus involves compelling objecting employees to "furnish contributions of money" to the union.  But that's not necessarily so.  The employees, after all, never receive the money in question, and therefore are never required to "contribute" it--they don't cut a check to the union.  Instead, the State of Illinois itself notes a "deduction" on the paycheck it provides to employees and then itself conveys the amount of that deduction to the union.  To be sure, Illinois has denominated that fee to be nominally part of the employee's "wages" in the first instance.  Imagine, however, that instead of doing so, Illinois simply negotiated for a lower employees' salary (correlated to the amount of the fee), and then cut a check to the union from the state treasury in that same amount in order to facilitate the union's collective bargaining activities.  That alternative mechanism would result in exactly the same transfer of funds from the state to the union, without the formality of calling the fee a "deduction" from employee "wages."  (The only reason Illinois does not do so is that Illinois law itself prohibits it.  See Daniel Hemel and David Louk for further thoughts about such an alternative mechanism.)  The First Amendment obviously would not prohibit that system, and the Jefferson quotation would not describe it, under any understanding.  It therefore is, at a minimum, strange to think that the Free Speech Clause kicks in simply because Illinois chooses to deem the fee part of never-received employee "wages" in the first instance.  As Justice Scalia wrote for the Court in Johanns v. Livestock Marketing Ass'n (2005), the constitutionality of a compelled funding scheme should not turn on "the Government's mode of accounting."**  (Aaron Tang suggests that the availability of such a "workaround" only confirms the unconstitutionality of an agency-fee deduction because it demonstrates that the state has less restrictive ways of accomplishing its ends.  As I see it, however, the two ways are equally "restrictive," in that they are substantively, as well as functionally, identical, and neither requires any employees to, in Tang's words, "give financial support directly to an organization advancing objectionable messages," let alone to "speak."  See also Ben Sachs for further thoughts on why "agency fees are not properly understood as payments made by employees to unions.")

But even if you don't buy this argument about the lack of any transfer of money by the complaining employees, the Jefferson quotation is hardly a basis for any Free Speech Clause concern, for the reasons explained above.  And yet Justice Alito offers nothing other than that quotation as a justification for finding any constitutional infirmity.  (The bulk of the opinion is devoted to assessing the state interest, once the Court has already concluded that heightened constitutional scrutiny applies.)

I'm genuinely curious:  Does anyone--especially, but not limited to, originalists--think that the "sinful and tyrannical" quotation does the trick, or that there's any other basis, neglected by the Court, for concluding that the Free Speech Clause prohibits the state from compelling its nonunion employees to make payments to third parties for expression that the employees disapprove?

I can certainly understand why some people might think such compelled payments are terrible policy--perhaps even "sinful and tyrannical" in certain circumstances.  Property-rights fanciers might even think that "[i]t is against all reason and justice,” and thus perhaps even unconstitutional, to "entrust a legislature" to "take[] property from A. and give[] it to B." (Calder v. Bull (1798) (Chase, J.)).  Although I wouldn't agree with such views, and they wouldn't describe current doctrine, at least they'd be understandable.

But a violation of the Free Speech Clause?  One that's so plain that it justifies abandoning stare decisis with respect to a 41-year-old precedent that's been repeatedly reaffirmed?

Isn't that an idea that all true originalists and textualists should abandon?  If so, what explains the votes of, e.g., Justices Thomas and Gorsuch?  (That last one is a rhetorical question.  For a sense of what the answer might be, see footnote 7 of the Court's opinion.)

[UPDATE:  It has been brought to my attention that Mike Ramsey has, in fact, commendably written about why Janus/Abood are "very problematic from an originalist perspective":

To an originalist, constitutional rights come with the extent and limits recognized at the time of adoption, whatever we may now think of them.  But that observation highlights the crucial point: no one (so far as I am aware) has shown that compelled payments were understood as contrary to "the freedom of speech" at the relevant time. 

Of course, no one has shown that compelled payments are consistent with "the freedom of speech" either.  But as Volokh and Baude argue, Abood held that some compelled payments are consistent with the freedom of speech.  To overrule that conclusion, the Court would seem to need some evidence it was wrong -- and an originalist should need some originalist evidence. 

The reasons that Janus is a problem for originalism, then, it that the originalist-oriented Justices seem likely to overrule Abood without any originalist reasons for doing so. That outcome, if it occurs, weakens originalism by suggesting that it is just a tool for conservative results, to be discarded when it does not lead to conservative results.  Originalism would emerge much stronger if Janus came out the other way (or if at least someone in the majority in Janus explained its originalist foundation).]

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* In Janus, Alito also cites footnote 15 of Teachers v. Hudson (1986), but that footnote merely repeats the quotation from the Virginia religious freedom bill, together with a similar disestablishment quotation from Madison ("Who does not see . . . [t]hat the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment may force him to conform to any other establishment in all cases whatsoever?").

** Imagine, for example, that a state runs both an arts festival, at which it offers opera performances, and a grant program to private parties engaged in cutting-edge arts and humanities.  The state decides to use proceeds from the former to fund the latter.  One alternative is that it might designate a small portion of opera ticket sales--denominated a "deduction"--and then transfer such "deducted" funds to other artists and groups, some of which engage in expression that's disfavored by many ticket-buying opera-goers.  Alternatively, it could simply raise the opera ticket prices slightly and then make payments out of the state treasury to those same grant recipients, much to the chagrin of the objecting opera fanciers.  Is there any reason to think that the Free Speech Clause prohibits the former scheme but not the latter?
Posted 8:51 AM by Marty Lederman [link]