The right not to subsidize union speech

• Published in: Communications Lawyer : Publication of the Forum Committee on Communications Law, American Bar Association American Bar Association, 2012-11, Vol.29 (2), p.17
• Main Author: Harbourt, Samuel
• Format: Article
• Language: English
• Subjects: Collective bargaining; Expenditures; Federal court decisions; Fees & charges; Finance; First Amendment-US; Freedom of speech; Government agencies; Labor unions; Laws, regulations and rules; Public sector; State court decisions; State employees; Supreme Court decisions; Union membership
• ISSN: 0737-7622

Dissenting, Justice Breyer, joined by Justice Kagan, found no constitutional misstep in SEIU's behavior. Justice Breyer emphasized that no procedure for distinguishing political and nonpolitical expenditures could be perfect, and the very notion of permitting unions to base annual charges to nonmembers on the prior year's expenditure breakdown contemplated the potential for sometimes forcing nonmembers to fund union political endeavors. The dissent conceded that the case was stronger for a new optout opportunity for nonmembers that had earlier declined to opt out of the annual fee. But Justice Breyer ultimately concluded that the First Amendment did not require unions to undertake this costly administrative procedure, particularly in light of his estimation that workers who had slept on their opt-out rights earlier in the year would be unlikely to experience a sudden awakening. On appeal, however, Justice Alito, writing for the majority, applied "exacting First Amendment scrutiny" and held that SEIU had committed three unconstitutional errors. First, he concluded that the union should have provided nonmembers a new opportunity to opt out. These workers may have been indifferent to supporting union political activities in the abstract but when confronted with concrete ballot proposals might have reconsidered their decision to finance the side of organized labor. Second, Justice Alito determined that nonmembers should have received the opportunity to opt out of the special assessment entirely, not just 43.65 percent of it. The purpose of the special assessment was to fund a political campaign; and even if the assessment had a different motive, it would have liberated other funds for additional political spending. Third, and finally, Justice Alito decided that even if an opt-out procedure for regular annual fees holds up to constitutional scrutiny, when unions levy special assessments, the First Amendment demands an affirmative opt-in arrangement.