Free-speech argument should work both ways

Bill Knight column for Monday, Tuesday or Wednesday, March 26, 27 or 28

The presence of conservative U.S. Supreme Court Justice Neil Gorsuch, appointed by President Donald Trump, leads many to predict that the court will rule 5-4 in “Janus v. AFSCME” that organized labor can’t collect any fees from workers for whom unions are obligated to negotiate. However, some unionists and even conservative legal scholars say that if the Court decides against labor, unintended consequences could result – some in labor’s favor.

 “Janus” would damage public-sector unions representing police, clerks, nurses, prison guards, food inspectors, etc., by taking resources. The premise brought by Illinois state employee Mark Janus –  as the Chicago Tribune editorialized March 3 – is “forc[ing] someone to pay for the advancement of political positions without his or her consent is incompatible with the First Amendment.”

Of course, workers still have First Amendment rights as individuals, but if that claim prevails, some say it would apply in many other ways. For example: issues at government workplaces could make almost anything a “federal case,” and beyond workplaces, that new understanding of the First Amendment could cause the collapse of many financial transactions now taken for granted.

Courts for decades separated government-as-employer from government-as-civic-authority. Upending that arrangement could cause chaos.

The same reasoning that established the requirement for workers represented by unions to share costs of negotiating pay and benefits lets government act as an employer, not as the state. If that’s struck down, the circumstance arguably returns to the government as government, not a taxpayer-funded employer.

If “money is speech,” as conservatives have declared after the Court’s 5-4 decision in “Citizens United v. the Federal Election Commission” case in 2010, isn’t ANY compulsory contribution an unconstitutional coercion? Today, employers can refuse to bargain on anything except wages, hours and working conditions; discharge workers for “disloyalty”; and require workers to attend meetings attacking unions. Wouldn’t such powers or policies become unconstitutional?

 “All of these practices are vulnerable to First Amendment challenges as government restrictions of workers’ speech,” said Shawn Richman, former organizing director at the American Federation of Teachers. “They become more vulnerable if the Supreme Court rules in ‘Janus’ that every interaction that a union has with a governmental subdivision is inherently political.”

Say a local village worker’s complaint about scheduling is ignored; isn’t that a violation of the First Amendment, which says Americans have the right “to petition the government for a redress of grievances”? If a penitentiary’s supervisor examines corrections officers’ emails, wouldn’t that violate the Fourth Amendment, which protects us against “unreasonable searches”?

In fact, two “friend of the court” briefs filed by conservative voices express concerns with overturning the status quo. Conservatives Robert Post of Yale and Harvard’s Charles Field say ruling against AFSCME would make every employment dispute a Constitutional question and become a precedent that would “unsettle other constitutional doctrines that distinguish between the government as employer (or proprietor) and as sovereign.”

Two other conservative legal minds, William Baude and Eugene Volokh, support labor’s position, arguing that groups require contributions all the time. Americans can’t “opt out” of paying taxes; doctors and lawyers must pay for continuing-education obligations to remain licensed; drivers must buy insurance, etc.

Meanwhile, Operating Engineers Local 150 in Countryside, Ill., suggests First Amendment challenges to laws that prohibit unions from organizing, and also suing to opt out of all political spending, including lobbying – especially activities pushing anti-worker agendas – incurred by government entities, even pension plans that include municipalities.

 “We’re going to immediately respond [if Janus wins] by filing suits to say these laws are unconstitutional,” said Local 150 president James Sweeney. “We’re going to put corporate powers in a position where they’re forced to explain why workers should only have free speech when it serves [corporations].”

Last month, Lincolnshire resident Dixon O’Brien used language from Janus’ case to argue that his tax dollars are being used by organizations that lobby against his interests. He’s suing the Village of Lincolnshire, a member of the Illinois Municipal League, and asking for an injunction on using tax revenue for political or lobbying expenditures. Interestingly, Fried and Post’s brief also cites the precedent established in 2006’s Supreme Court case “Garcetti v. Ceballos,” which gave government “the broad discretion they need to manage their workplaces,” stated in the majority opinion written by Justice Anthony Kennedy – a swing vote in “Janus.”

Finally, if the Supreme Court permits the First Amendment to be used as a bludgeon against unions, would the five possible Justices leaning against AFSCME be so blatantly anti-worker as to allow that ruling to apply only to labor unions?