Turning Free Speech Upside Down

Thomas Jefferson once wrote that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.” A similar principle is rooted in the First Amendment, which generally prohibits the government from forcing people to pay for speech with which they disagree.

Federal law nevertheless permits states to impose “agency shop” arrangements under which every employee in a unionized workplace, even though not a union member, must pay to the union, as a condition of employment, a compulsory service charge equal in amount to union dues.

The Supreme Court rejected non-union employees’ challenges to such coerced charges on freedom of association grounds in Railway Employees v. Hanson (1956). But it softened that harsh result by ruling in Abood v. Detroit Board of Education (1977), that such compelled charges cannot be used over an employee’s objection for political causes he opposes, citing the First Amendment freedom from compelled speech.

Now the Washington State Supreme Court has turned upside down the latter ruling protecting First Amendment rights. In Washington v. Washington Education Association, it declared unconstitutional a Washington State law that barred public employee unions from spending a teacher’s service charges on political causes, absent affirmative consent from the teacher. The court ruled that forcing the union to get affirmative consent for such political spending, rather than putting the burden on the teacher to formally make an affirmative objection, burdened the union’s own First Amendment rights.

The U.S. Supreme Court has agreed to hear an appeal of that ruling, and will hear arguments that it be reversed on January 10.

There is something very peculiar about the Washington Supreme Court’s holding that the First Amendment creates not just a floor, but a ceiling, on the First Amendment rights of public employees over the use of their compelled union dues.

In essence, the state supreme court seems to have believed that everything not mandatory under U.S. Supreme Court precedent must be forbidden.

But the U.S. Supreme Court has never said that states cannot give dissenting employees additional safeguards against political use of their coerced dues, such as requiring affirmative consent. Nor has it ever suggested that public employee unions are entitled to have the state give them the maximum amount of union dues they are not forbidden to collect under U.S. Supreme Court precedent.

Indeed, the Supreme Court has made clear that states are free to ban “agency shop” arrangements altogether, as many “right to work” states have done, in protecting non-union employees from having to pay any dues to the union in their workplace. And the federal appeals courts have consistently upheld paycheck protection statutes like Washington’s, which protect a non-union employee from political use of her coerced dues absent her affirmative permission.

The fact that the First Amendment itself does not give non-union employees a blanket right to withhold compelled dues absent an affirmative objection to their use for political causes does not mean that state law cannot give the employees additional protections.

It is well established that a state law can give citizens broader free speech rights than federal law gives them, and states frequently do just that.

For example, under the Washington State Constitution, content-neutral restrictions on speech are subject to tougher scrutiny than under the federal First Amendment.

Under California state law, students have free speech rights in what they say in a school-sponsored newspaper, even the federal First Amendment confers no such rights, under the Supreme Court’s Hazelwood decision.

Similarly, under the Massachusetts courts’ Pyle v. South Hadley decision, students have a state constitutional right to use offensive language to express a political point of view, although such language lacks federal First Amendment protection.

A state is thus free to expand the rights of its citizens, such as students or teachers, even when doing so reduces the power of government officials or the state-conferred privileges of public employee unions.