John W. Whitehead, Constitutional Attorney

WASHINGTON, D.C. — Arguing that the First Amendment forbids the government from dictating what citizens should say, whom they should support or with whom they should associate, The Rutherford Institute has asked the U.S. Supreme Court to overturn existing law that allows unions to require public-sector employees to subsidize political activities undertaken by the union.

In an amicus curiae brief filed with the Court in Friedrichs v. California Teachers Association, Rutherford Institute attorneys are challenging laws in California and elsewhere that require public employees who do not wish to support a union’s political activities to affirmatively file an “opt out,” thereby violating the employee’s right to keep his views private. Moreover, as the brief argues, such laws violate the First Amendment’s prohibitions against the government compelling speech by forcing members to financially support political activities they do not agree with and requiring employees to affirmatively opt out in order to recover back payments to the union deducted from their paychecks without their consent.

“The right to hold a position that is neither yea nor nay carries with it a concomitant right not to be perceived as taking sides. This right is both a speech right and a privacy right,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “As Thomas Jefferson recognized, ‘to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.’”

In 1977, the U.S. Supreme Court ruled that a public employee can be required to pay dues to unions that represent bargaining units the employee belongs to even if the employee does not wish to belong to the union and does not support political activities or positions of the union. However, the Court also established that the First Amendment forbids the union from using dues from an unconsenting public employee to support political causes the employee objects to and required unions to refund the portion of dues used for political activities (as opposed to collective bargaining activities) to an employee who requests such a refund. California law allows local public school districts to require teachers and other employees to either belong to a union that represents the employees in collective bargaining and pay union dues or pay a “fair share service” fee equivalent to the union dues. This fair share fee is in turn divided into chargeable and nonchargeable amounts, the latter representing the amount attributable to union activities not germane to its function as a collective bargaining representative.

In order for an employee to protect his or her First Amendment right not to subsidize a union’s “nonchargeable” activities, the employee must affirmatively opt out of supporting those activities to obtain a rebate of those monies, and must do so each year regardless of whether an opt out was filed the previous year. In 2013, teachers subject to the mandatory “fair share” payment and opt out requirement filed a federal court lawsuit alleging that the First Amendment is violated by forcing them to financially support unions engaged in quintessentially political activities or requiring them to take affirmative steps to withhold support from the unions. The teachers cited more recent Supreme Court precedent undermining its previous ruling that forced payments to public employee unions do not violate the First Amendment rights of unconsenting employees. After the teachers’ claims were denied in the lower courts, the Supreme Court agreed to hear the case in June 2015.

Affiliate attorneys Alicia Hickok and Chanda A. Miller of Drinker Biddle & Reath LLP assisted The Rutherford Institute in advancing the arguments in the amicus brief before the U.S. Supreme Court.

LEGAL ACTION

Click here to read The Rutherford Institute’s amicus brief in Friedrichs v. California Teachers Association

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