Catherine Fisk is Chancellor’s Professor of Law at the University of California, Irvine.
Given Justice Scalia’s consistent view that public employees have minimal free speech rights, doctrinal consistency should require him to reject the First Amendment challenge to union fair share fees in Friedrichs. As Professor Sachs points out, Justice Scalia (joined by Justice Kennedy) opined in Rutan v. Republican Party of Illinois that compelled membership and activism in the Republican Party did not violate the First Amendment. In Rutan, the Court struck down a state policy giving preference in hiring or promotion to workers who were active members of the Republican Party. (In a prior case, Elrod v. Burns, the Court struck down the patronage practice of firing public employees on the basis of political affiliation.) Justice Scalia dissented in Rutan because he does not believe the First Amendment prohibits government from requiring employees to join political parties. If that is so, why does the First Amendment prohibit compelled payment of agency fees?
It is important to note the distinction between what the majority found objectionable in Rutan and Elrod and what public sector labor laws require. Public sector labor laws do not ever require anyone to join a union or to be active in it. All employees are required to do is to pay money for services. Patronage systems, in contrast, not only require membership in an organization (which public sector labor law does not), but also they can effectively compel how employees vote, because in states without an open primary one can only vote for candidates of the party in which one is a registered voter. Unionized teachers, on the other hand, need not join the union, and can be active on behalf of, speak out for, and vote for candidates that oppose the union’s positions. The patronage system at issue in Rutan – which Justices Scalia and Kennedy found constitutionally permissible – compelled employees to be members of a particular party, prohibited voting for the Democratic party candidates (Illinois did not have an open primary), and demanded employees be active on behalf of a party with which they disagreed. Union membership does none of this, nor does paying an agency fee.
Justice Scalia’s dissent in Rutan described the many ways in which the government as employer can require or prohibit public employees from engaging in speech that the government cannot do to private citizens. He explained: “Private citizens cannot be punished for speech of merely private concern, but government employees can be fired for that reason. Private citizens cannot be punished for partisan political activity, but federal and state employees can be dismissed and otherwise punished for that reason.” And as Justice Kennedy, joined by Justice Scalia, wrote on behalf of the majority in Garcetti v. Ceballos, government employees do not have a First Amendment right to speak as employees, but only as citizens. They reasoned: “Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.”
To vote for the petitioners in Friedrichs would require Justices Scalia and Kennedy to explain why paying a fee to a union violates the First Amendment while being barred from a government job because of party affiliation does not. They would have to explain why federal and state laws can validly prohibit government workers from engaging in partisan political activity on their off-duty hours, as the Court held in Civil Service Commission v. Letter Carriers, 413 U.S. 548, 556 (1973). And they would have to explain why a public employee can be disciplined, as in Garcetti, for speaking about work matters but does have a First Amendment right to refuse to pay a fee to a union that is required by law.
Of course, Justices Scalia and Kennedy might decide that the government does have a sufficient interest – for First Amendment purposes – in requiring workers to join and be active in a political party (as they would have held in Rutan), and that it does have a sufficient interest in prohibiting workers from engaging in partisan political activity on their off hours (as the Court held in Letter Carriers) but that it does not have a sufficient interest in preventing free-riding by requiring union-represented teachers to pay their fair share of the costs of union representation. But, here recall that Justice Scalia wrote in Lehnert that the government does have an interest in preventing free-riding when the government itself has created the free rider problem by providing for exclusive representation. It is difficult to see how Justices Scalia and Kennedy could find a sufficient interest in the first set of laws but not in the union dues context, except by doing that which Justice Scalia repeatedly criticizes – substituting their vision of how the government should manage its workforce for that of the legislatures of half the states.