Friedrichs Amici Brief: Constitutional Law Professors

In the run-up to oral argument in Friedrichs v. California Teachers Association, OnLabor will be reviewing some of the significant amicus briefs that have been filed in the case.

Earlier this month, OnLabor discussed an amici brief submitted by a group of corporate law professors in support of the Friedrichs respondents. Yet the nineteen professors who signed on to that brief are not the only members of the academy to weigh in on the case. Back in September, eight constitutional law scholars lent their names to an amici brief in support of petitioners (the Judicial Education Project and the Center for Constitutional Jurisprudence also signed on the brief).

The brief echoes petitioners’ characterization of Abood v. Detroit Board of Education as an “outlier” for “plac[ing] the ‘common cause’ of the public employee union over the First Amendment interests of the dissenting employee to justify compelling payment of an agency fee to subsidize the union’s First Amendment activity.” This application of First Amendment doctrine, the professors argue, was wrong:

Since the foundational decision in West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943), . . . the Court has analyzed compelled speech cases by starting with the presumption that an individual speaker controls his or her message regardless of the asserted collective interests purportedly justifying compelled speech or compelled subsidies to third parties’ speech. In the years following Abood, the Court has only strengthened this presumption — what it has described as “the general rule of speaker’s autonomy,” Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557, 578 (1989) — and applied it in a number of contexts to invalidate government-mandated speech.

While Abood heeded many of these fundamental principles in concluding that so-called “ideological” union expenditures could not be compelled (the “non-chargeable” portion of the agency fee), it ignored them in concluding that the rest of the agency fee (the “chargeable” portion) could be compelled over the objection of employees who refused to join the union.

The professors go on to contend that because Abood privileges “the collective goals of the union” — including “the preservation of ‘labor peace’ and avoiding the so-called ‘free-rider’ problem” — “over the objectors’ individual beliefs,” the decision “stray[s] far outside of this Court’s teachings on what the First Amendment requires.”

The full brief is available here (courtesy of the ABA). The amici are affiliated with Capital University, the Catholic University of America, Case Western Reserve, Chapman, Cleveland State, George Mason, and Northwestern.