The Right to Freeload Threatens Free Speech

Cutting off unions' fair share fees for collective bargaining reflects the desire of Republicans to suppress the political speech of their opponents, argues John K. Wilson.

August 16, 2018

In the recent case of Janus v. AFSCME Council 31, the U.S. Supreme Court overruled the Abood precedent and announced that the First Amendment protects public-sector workers from paying “fair share” or “agency” fees to their union for collective bargaining expenses. The 1977 Abood ruling was a compromise that allowed unions to be paid by all workers for expenses “germane” to collective bargaining but required that nonmembers could not be forced to pay for political advocacy by a public-sector union.

With the Janus decision, however, the right-wing judicial activists on the Supreme Court have invented a brand-new constitutional right to freeload.

Under the false name of protecting freedom of speech, the Janus ruling also will, in fact, endanger free expression on campuses. Unions are a leading force protecting faculty rights, and starving them of money will make professors more vulnerable and violate their First Amendment right of association. In particular, the American Association of University Professors, where I work, is the leading defender of academic freedom, and it depends on money from collective bargaining units to sustain the entire organization. Finally, the Janus case may ultimately destroy the court’s precedents protecting the use of student fees by controversial student groups.

The conservative majority in Janus claimed that any money paid unwillingly to a union was “forced speech”: “the First Amendment does not permit the government to compel a person to pay for another party’s speech …” But as Eugene Volokh and William Baude noted about the First Amendment claim in an amicus brief to the Janus case, “Abood erred by recognizing that objection in the first place.” Paying for speech activities, they noted, is not forced speech: “Stripped of Abood’s unfounded First Amendment concerns, this is an easy case.”

The mistake the Supreme Court majority made was leaping to the absurd conclusion that all forced money is forced speech. Justice Alito argued, “Many private groups speak out with the objective of obtaining government action that will have the effect of benefiting nonmembers. May all those who are thought to benefit from such efforts be compelled to subsidize this speech?”

Yes, in fact, we can. All of us are compelled to subsidize the speech of private nonprofit organizations because we must pay higher taxes due to the tax exemptions given to those groups. The conservative organizations such as the Liberty Justice Center that funded and argued the Janus case are 501(c)3 nonprofit groups, and all taxpayers are forced to subsidize the speech we dislike that led to this decision claiming that we can’t be forced to subsidize speech we dislike.

The goal of defunding unions by cutting off fair share fees is based on the desire of Republicans to suppress the political speech of their opponents. If money is indeed speech, then the Janus decision is clearly an attack on the free speech of unions. It’s an attempt to steal money away from unions in retaliation for their political activity. As Donald Trump tweeted in celebrating the Janus ruling, “Big loss for the coffers of Democrats!”

The biggest flaw of the Janus ruling is the creation of a constitutional right to freeload. The majority in Janus casually dismissed the problem of freeloaders: “avoiding free riders is not a compelling interest.”

By contrast, Justice Alito wrote with deep worry about “the heavy burden of agency fees on nonmembers’ First Amendment interests.” But there is no burden on nonmembers’ First Amendment interests. They are perfectly free to say whatever they want in opposition to the union and its ideas. They are even free to convince their fellow employees to abolish the union completely. The only burden here is the one placed on union members’ First Amendment interests by the Janus ruling, because the majority desires to have a union, and the freeloaders may make it impossible in some cases for a union to exist -- and will certainly reduce the amount of money available for political speech by the union because it must now subsidize the collective bargaining expenses of the freeloaders.

What few people realize is that union members (and fair share fees) subsidize academic freedom for all faculty members in America. The AAUP’s current membership of nearly 42,000 includes 32,000 members of the AAUP’s collective bargaining chapters (not counting the 11,000 nonmembers paying fair share fees to the AAUP). After Janus, the AAUP’s union members will have to subsidize the entire collective bargaining costs of those 11,000 nonmembers, along with anyone else who makes the rational economic decision to become a freeloader. As a result, the money available for the AAUP’s essential work protecting academic freedom will be reduced. At the AAUP’s annual meeting June 15, the AAUP’s leadership announced that they had already cut expenses to build a reserve in anticipation of losing fair share fee revenue after the Janus ruling.

Without union members, the AAUP would be a much smaller, weaker organization lacking sufficient resources to issue reports, help faculty members and investigate violations of academic freedom. In essence, more than 95 percent of the faculty members in America are freeloaders, benefiting from the AAUP’s protections for academic freedom without joining the organization to help pay for it. Thanks to the Janus case, the ranks of the freeloading faculty will grow larger, and the leading group defending academic freedom will be weakened.

The majority also revealed how ignorant the conservatives on the Supreme Court are about basic economics: “We recognize that the loss of payments from nonmembers may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members.” Only an idiot thinks that the loss of fair share fees will have an economic cost to unions only “in the short term,” which will completely disappear once unions make “adjustments.” Why would any workers who refused to join the union when they still had to pay fair share fees suddenly decide to join the union now that they have a much greater financial incentive to be freeloaders? Of course, the “adjustment” obviously preferred by these right-wingers who want to suppress speech is for unions to swear off all political activity.

Student Fees and the Southworth Case

The Janus ruling also threatens to destroy one of the key U.S. Supreme Court rulings protecting student organizations on campuses. In the 2000 decision Board of Regents of University of Wisconsin System v. Southworth, a federal district court and the Seventh Circuit Court of Appeals originally declared student fees for the University of Wisconsin at Madison invalid under the Abood precedent. In Southworth, the Supreme Court overturned the lower courts and ruled that Abood “provide[s] the beginning point for our analysis,” while declaring, “The proposition that students who attend the university cannot be required to pay subsidies for the speech of other students without some First Amendment protection follows from the Abood and Keller cases.”

The Southworth majority found that Abood’s key principle was “limiting the required subsidy to speech germane to the purposes of the union.” However, because defining “germane” was difficult even with a union, and much more difficult when applied to a university, the Supreme Court in Southworth decided that student fees could be allowed at public colleges: “The standard of germane speech as applied to student speech at a university is unworkable, however, and gives insufficient protection both to the objecting students and to the university program itself.”

But that logic no longer applies now that Abood has been overturned by Janus. There is no longer a germaneness standard; instead, there is a near-absolute right under Janus not to fund speech you dislike, even if it means you are a freeloader.

In the Janus ruling, Justice Alito acknowledged that the government can impose greater regulations on employee speech than others. If the right to freeload exists for unionized public employees, then it must exist at a much higher level for nonemployees, such as students at a public college. That means an even stronger right to freeload applies to student fees than fair share fees.

In the Southworth case, three justices (David Souter, John Paul Stevens, Stephen Breyer) issued a concurring opinion that was effectively a dissent on the majority’s approach to the case. Souter’s concurrence would have given far more deference to universities to institute student fees. But the majority chose a much different approach, relying on the difficulty of applying Abood. Now that Abood is overturned, Southworth would logically follow it into the dustbin of history.

In fact, the argument for student fees is much weaker than that for union fair share fees. Public employees receive a clear advantage from union representation in the form of higher wages and benefits. But students who care nothing about extracurricular activities have no benefit from student fees and must purely suffer the “harm” of forced money/speech.

If Southworth is overturned in the wake of the Janus ruling for freeloaders, it would mean the end of student fees supporting student organizations or any controversial speech at public colleges. Under the clear terms of the Janus ruling, even a refundable fee system would be prohibited; instead, universities would be required to get clear, advance consent to charge any student fees. Such an obviously unfair system of freeloading would have to be abolished by colleges.

It’s possible that some of this funding could continue in a different form. The Southworth majority declared, “If the challenged speech here were financed by tuition dollars and the university and its officials were responsible for its content, the case might be evaluated on the premise that the government itself is the speaker.” However, this legal maneuver (even if it works) would amplify one of the worst trends afflicting higher education in recent decades: the growth in administrative power. Forcing student organizations to depend directly on the administration rather than student fees for their funding and eliminating the viewpoint-neutrality rule could lead to greater administrative control to suppress controversial speech.

The only reason why the Southworth precedent might survive the Janus decision is that the Supreme Court is dominated by political hacks with no real concern about the consistent application of legal principles. Instead, they are motivated by ideologically driven political results. If the conservative justices believe that viewpoint-neutral student fees are essential for conservative student groups to receive funding, they may save Southworth. If the conservative justices believe liberal views are the main beneficiaries of student fees, and conservative groups can easily get outside funding, they will reverse Southworth and ban student fees.

When I call the five conservative justices right-wing political hacks, I mean it literally. Justice Alito argued in the Janus opinion, “This ascendance of public-sector unions has been marked by a parallel increase in public spending,” which has “given collective-bargaining issues a political valence …” It’s absolutely repulsive that Supreme Court justices would openly announce that their political opposition to government spending could justify a legal ruling to undermine unions. In the minds of the right-wing justices, the fact that unions improve wages for workers is evidence for why unions should be stopped by any means necessary, including the invention of a new constitutional right to freeload that should be anathema to anyone with true conservative values.

The Supreme Court’s ruling in Janus was widely depicted as a defense of First Amendment rights for workers who hate their unions. But, in reality, there is no right to be a freeloader, and the Janus decision attacking public-sector unions endangers freedom of campus expression and the fundamental First Amendment rights of students and faculty members.


John K. Wilson is the co-editor of the American Association of University Professors’ “Academe” blog and the editor of the Illinois AAUP’s “Illinois Academe.” He is the author of eight books, including Patriotic Correctness: Academic Freedom and Its Enemies and President Trump Unveiled: Exposing the Bigoted Billionaire.


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