‘The bedrock principle that, except perhaps in the rarest of circumstances, no person … may be compelled to subsidize speech by a third party that he or she does not wish to support’

Sasha has blogged about the practical implications of Harris v. Quinn — but I have a deeper objection (which Sasha alluded to) to this whole line of cases. The conservative majority in Harris suggests that perhaps Abood ought to be overturned in a future case; I tentatively agree, but think it should be overturned in the opposite direction.

First, a bit of background: In Abood v. Detroit Bd. of Ed. (1977), the Supreme Court held that requiring employees to pay funds to a union implicated the employees’ First Amendment rights. (Union members of course paid such funds as a condition of their voluntary union membership, but under the Michigan rule, nonmembers would have to do it, too.) This burden on First Amendment rights, the Court said, was justified as to payments used for collective bargaining purposes, because of the government interests in preserving labor peace, and preventing free-riding on the union’s collective bargaining activities. But, the Court unanimously held, this compelled funding had to be limited to collective-bargaining-related speech, and couldn’t include funds used to pay for “other ideological causes not germane to its duties as collective-bargaining representative.”

Unsurprisingly, this has led to a good deal of litigation about what is “germane” to collective bargaining, about what procedures may be used to gather the permissibly mandated fees without getting too much or too little, about how far this extends (compulsory bar dues for lawyers? compulsory student fees for university students?), and — in Harris v. Quinn — whether this extends to personal assistants hired for ill people, and who in some ways are employed by the particular individuals, and in other ways by the state. And Abood itself followed some earlier cases, dating back to the 1950s.

But what I don’t see is why there should be any First Amendment problem here at all. Yes, if I’m compelled to pay union dues, I’m being “compelled to subsidize speech by a third party that [I do] not wish to support” (whether that subsidized speech is just related to collective bargaining, or to politics more broadly). But I’m compelled to pay taxes, and that compels me to subsidize speech by the government — and by various recipients of government funds — that I do not wish to support. It doesn’t matter how much I disapprove of the views (both governmental and nongovernmental) taught in public schools or public universities. It doesn’t matter how much I disapprove of the views that the government expresses on enlistment in the military, on the environment, on race relations, or on the vast range of other subjects on which the government speaks.

This isn’t the rarest of circumstances — it’s the most common of circumstances. The part of our taxes that goes to government speech (especially through the educational system) is, for most of us, vastly higher than the compulsory payments to a union (or a state bar), even if we are compelled to make such payments. The government keeps talking, we keep paying for it, and there’s no constitutional problem: no need for the government to prove that a particular use of taxpayer money for speech is necessary to serve a compelling government interest, and indeed no need for any justification at all. (To be sure, the Establishment Clause imposes a narrow limit on government spending that ends up being used for religious speech, and some have suggested that there’s a limit on government spending for overtly party-based purposes, such as support of Democratic candidates and not Republican ones; but these are very narrow limits, far greater than the limits that the Court in Abood imposed on union spending of mandatory fees, or that the Court later imposed on state bar spending of mandatory lawyer dues.)

Why then would there be a constitutional problem if, instead of forcing us to pay some money to itself and spending the money on speech we disagree with, the government forces us to pay money directly to some other organization, which then spends the money on speech we disagree with? Indeed, the government can tax us and then pay a share of that money to unions, who will then say what they want with it; why does removing the intermediate payment to the government create a problem? (I realize that in cases such as Hobby Lobby, a religious objectors could claim that he views direct payment to a health insurance company — but not payment to the government that then pays the money to the company — as religiously forbidden complicity with abortion. But under the Religious Freedom Restoration Act, courts can’t second-guess that religious objectors decision about where to draw the line between forbidden complicity and permitted behavior. In cases such as Abood and Quinn, courts are required to draw that line; and I don’t see any basis for them to draw a line distinguishing payments to the government from payments to other parties.)

Justice Powell in Abood — who would have restricted the compelled funding even more than the majority did — recognized this issue, and argued thus:

Compelled support of a private association is fundamentally different from compelled support of government. Clearly, a local school board does not need to demonstrate a compelling state interest every time it spends a taxpayer’s money in ways the taxpayer finds abhorrent. But the reason for permitting the government to compel the payment of taxes and to spend money on controversial projects is that the government is representative of the people. The same cannot be said of a union, which is representative only of one segment of the population, with certain common interests. The withholding of financial support is fully protected as speech in this context.

Likewise, a unanimous Court in Keller v. State Bar (1990), defended the government’s ability to express its views with tax money by saying, “Government officials are expected as a part of the democratic process to represent and to espouse the views of a majority of their constituents. With countless advocates outside of the government seeking to influence its policy, it would be ironic if those charged with making governmental decisions were not free to speak for themselves in the process. If every citizen were to have a right to insist that no one paid by public funds express a view with which he disagreed, debate over issues of great concern to the public would be limited to those in the private sector, and the process of government as we know it radically transformed.”

But whatever force such arguments might have as to the policy question (is it a good idea for the government to require people to pay money to a nongovernmental organization), I don’t see them as persuasive on the First Amendment question. That “the government is representative of the people” is generally not a justification for speech restrictions or speech compulsions. The government can’t defend a requirement that you say the Pledge of Allegiance on the grounds that “the government is representative of the people.” The government can’t defend a requirement that you not protest on the grounds that “the government is representative of the people.”

If there indeed were a “bedrock principle that, except perhaps in the rarest of circumstances, no person … may be compelled to subsidize speech by a third party that he or she does not wish to support,” then “the government is representative of the people” wouldn’t be an adequate argument for an exception when the “third party” is the government. That the government can indeed compel us to subsidize speech by it (and by its employees, contractors, and grant recipients) that we don’t wish to support, it must be because there really is no First Amendment problems with compelling any funding of third-party speech — not that there’s a bedrock principle against such compelled funding, and compelled funding of government speech just gets a bye from that principle. It’s true that government officials should be able to espouse the views of a majority of their constituents; but the permissibility of such government speech simply reflects the fact that taxpayers’ First Amendment rights aren’t really burdened by the government’s using their taxes for speech that the taxpayers disagree with.

I’m likewise unpersuaded by the Buckley v. Valeo analogy. It’s true that speech compulsions are generally treated the same under First Amendment law as speech restrictions. And it’s true that restrictions on paying money to support speech are presumptively unconstitutional (see Buckley and later cases). Therefore, the argument goes, compulsions to pay money to support speech are presumptively unconstitutional, too.

But, first, if this were true, then compulsions to pay money to support government speech (education, ads for military enlistment, and so on) would be presumptively unconstitutional — which they aren’t.

And, second, the reason that restrictions on paying money to support speech are unconstitutional is that they burden people’s ability to speak. (If one can’t spend $10,000 to buy an ad, or $10 million to start a newspaper, then one won’t be able to spread my preferred ideas as effectively.) But compulsions to pay money to support speech don’t burden our ability to speak the same way; we are still free to speak with our own money. And while we do have a bit less money to speak with (or do anything else with) once we pay the compelled fee to the union or to a state bar, that is a tiny burden compared to what we face as a result of having to pay our taxes — yet no court would say that tax law violates the Free Speech Clause because it leaves us less money to speak.

Now I realize that I’m up against a unanimous decision in Abood, and the views of many Justices whom I much respect — left, right, and center — differ from mine on this. Perhaps I’m mistaken here. But I don’t see any sound basis for the “bedrock principle” that the majority in Harris relies on.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit. Volokh is the author of the textbooks The First Amendment and Related Statutes (4th ed. 2011), The Religion Clauses and Related Statutes (2005), and Academic Legal Writing (4th ed. 2010), as well as over 70 law review articles. Volokh is also an Academic Affiliate for the Mayer Brown LLP law firm.
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Eugene Volokh | June 30