Don’t Pay No Union Dues

Here’s a case worth watching: this past April, the Center for Individual Rights (lead attorney Michael Rosman) and Jones Day (Michael Carvin) filed a First Amendment challenge to California’s “agency shops” for public school teachers. (An “agency shop” means that non-union members must still pay a fee to the union for activities related to collective bargaining.) Plaintiffs are teachers who have about had it with the defendant unions. The State of California will likely join the case on the defendants’ side. A recent blog on the case is here; a copy of the complaint here.

This baby ought to move fast: as the plaintiffs readily acknowledge, extant law is against them, and only the Supreme Court can fix that. Justice Alito’s opinion for the Court in Knox v. SEIU strongly suggested that the Court is willing to revisit the precedents. This lawsuit says “Thank you, Justice Alito. Invitation accepted.”

The jurisprudential issue here is a striking discontinuity in First Amendment law. Labor relations involve a lot of protected speech, laced with political content—by employers, union bosses, and (as here) workers with different opinions. Still, the New Dealers thought, you want to regulate this stuff on a comprehensive basis. To prevent the First Amendment from getting in the way, the post-New Deal Court put this stuff into a separate conceptual box called “labor law,” where ordinary protections for political speech and against compelled speech don’t apply. Over the decades, though, First Amendment doctrines have become much more protective, to the point where the conflict with the made-for-labor-regulation First Amendment is glaring.

If the Supreme Court were to align its labor cases with the First Amendment, that would be very big, and very good.

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. Before coming to AEI, Professor Greve cofounded and, from 1989 to 2000, directed the Center for Individual Rights, a public interest law firm. He holds a Ph.D. and M.A. in government from Cornell University, and completed his undergraduate studies at the University of Hamburg. Currently, Professor Greve also chairs the board of the Competitive Enterprise Institute and is a frequent contributor to the Liberty Law Blog. Professor Greve has written extensively on many aspects of the American legal system. His publications include numerous law review articles and books, including most recently The Upside-Down Constitution (Harvard University Press, 2012). He has also written The Demise of Environmentalism in American Law (1996); Real Federalism: Why It Matters, How It Could Happen (1999); and Harm-less Lawsuits? What's Wrong With Consumer Class Actions (2005). He is the coeditor, with Richard A. Epstein, of Competition Laws in Conflict: Antitrust Jurisdiction in the Global Economy (2004) and Federal Preemption: States' Powers, National Interests (2007); and, with Michael Zoeller, of Citizenship in America and Europe: Beyond the Nation-State? (2009).

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  1. Kevin R. Hardwick says

    “Third boxcar, midnight train;
    Destination . . . Bangor, Maine.”

    The snippet from the song works well enough, but the rest of the lyrics not so much. So in the end, I don’t think the title works. Spot on post though, otherwise, so I guess this is a cavil.

    It does show our age though, when we quote from Roger Miller lyrics!

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