The Supreme Court handed another victory to free speech with Janus vs. AFSCME (American Federation of State, County, and Municipal Employees). In a 5-4 decision, the justices determined government unions cannot require non-members to pay union dues.

A quick history of the case: Mark Janus worked as a child support specialist for the Illinois Department of Healthcare and Family Services. He was not a member of the union but was required to pay “fair share” dues. The state of Illinois took $50 from his paycheck to cover the cost of the union dues.

Janus argued that these dues “violate his free speech rights because he disagrees with many positions taken by AFSCME and that everything the public employee union does is inherently political.”

Justice Samuel Alito wrote “that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”

That precedent came from a 1977 SCOTUS decision in Abood v. Detroit Board of Education that ruled the unions could charge fair share dues, but they may not use that money for political reasons. This court struck that down:

Abood was poorly reasoned, and those arguing for retaining it have recast its reasoning, which further undermines its stare decisis effect, e.g., Citizens United v. Federal Election Comm’n, 558 U. S. 310, 363. Abood relied on Railway Employes v. Hanson, 351 U. S. 225, and Machinists v. Street, 367 U. S. 740, both of which involved private-sector collective-bargaining agreements where the government merely authorized agency fees. Abood did not appreciate the very different First Amendment question that arises when a State requires its employees to pay agency fees. Abood also judged the constitutionality of public-sector agency fees using Hanson’s deferential standard, which is inappropriate in deciding free speech issues. Nor did Abood take into account the difference between the effects of agency fees in public- and private-sector collective bargaining, anticipate administrative problems with classifying union expenses as chargeable or nonchargeable, foresee practical problems faced by nonmembers wishing to challenge those decisions, or understand the inherently political nature of public-sector bargaining. Pp. 35–38.

In the decision, the Court reiterated the importance of protecting free speech, saying SCOTUS has “held time and again that freedom of speech ‘includes both the right to speak freely and the right to refrain from speaking at all.'” From the decision:

Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional
command, and in most contexts, any such effort would be universally condemned. Suppose, for example, that the
State of Illinois required all residents to sign a document expressing support for a particular set of positions on
controversial public issues—say, the platform of one of the major political parties. No one, we trust, would seriously argue that the First Amendment permits this.

Perhaps because such compulsion so plainly violates the Constitution, most of our free speech cases have involved
restrictions on what can be said, rather than laws compelling speech. But measures compelling speech are at least
as threatening.

Alito also wrote that freedom of speech “is essential to our democratic form of government” and when “the Federal Government or a State prevents individuals saying what they think on important matters or compels them to voice ideas with which they disagree, it undermines these ends.” He continued:

When speech is compelled, however, additional damage is done. In that situation, individuals are coerced into
betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is
always demeaning, and for this reason, one of our landmark free speech cases said that a law commanding “involuntary
affirmation” of objected-to beliefs would require “even more immediate and urgent grounds” than a law demanding silence. Barnette, supra, at 633; see also Riley, supra, at 796–797 (rejecting “deferential test” for compelled speech claims).


The Liberty Justice Center sent out an enthusiastic response from Janus on the decision:

“I’m thrilled that the Supreme Court has restored not only my First Amendment rights, but the rights of millions of other government workers across the country. So many of us have been forced to pay for political speech and policy positions with which we disagree, just so we can keep our jobs. This is a victory for all of us. The right to say ‘no’ to a union is just as important as the right to say ‘yes.’ Finally our rights have been restored.”

Janus’s lawyer Jacob Huebert, who is with LJC, shared his joy:

“This is the biggest victory for workers’ rights in a generation. The First Amendment guarantees each of us, as individuals, the right to choose which groups we will and won’t support with our money. Today the Supreme Court recognized that no one should be forced to give up that right just to be allowed to work in government. The Court recognized that unions have the right to organize and to advocate for the policies they believe in – but they don’t have a special right to force people to pay for their lobbying. They have to play by the same rules as everyone else.”

Derek sums it up perfectly:

Apparently, Sen. Patty Murray (D-WA) hasn’t read the case because this has nothing to do with corporate anything, but public sector unions:

She’s not the only one:

Full decision here:

Janus v. American Federation of State, County, And Municipal Employees, Council 31, Et Al. by Legal Insurrection on Scribd


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