Amendment 1 — Compelled Subsidization

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First Amendment :

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It is to be expected that disputes will sometimes arise between an organization and some of its members regarding the organization’s messaging or expression. Of course, unless there is some governmental connection, there will be no federal constitutional application to any such controversy.[1](https://www.law.cornell.edu/constitution-conan/amendment-1/compelled-subsidization#fn1amd1 " The Labor Management Reporting and Disclosure Act of 1959, 73 Stat. 537 (codified at 29 U.S.C. §§ 411–413), enacted a bill of rights for union members, designed to protect, among other things, freedom of speech and assembly and the right to participate in union meetings on political and economic subjects. ") But, in at least some instances, when government compels membership in an organization or in some manner lends its authority to such compulsion, there may be constitutional limitations arising from the First Amendment ’s protections for speech and association.[2](https://www.law.cornell.edu/constitution-conan/amendment-1/compelled-subsidization#fn2amd1 " This essay discusses the free speech aspects of these cases. For a discussion of the free association aspects, see . ") It does not always violate the constitution when compulsory fees are used to subsidize the speech of others.[3](https://www.law.cornell.edu/constitution-conan/amendment-1/compelled-subsidization#fn3amd1 " For instance, the Court has said that the First Amendment did not preclude a public university from charging its students an activity fee used to support student organizations that engage in extracurricular speech, provided that the money was allocated to those groups by use of viewpoint-neutral criteria. Bd. of Regents of the Univ. of Wisc. System v. Southworth, 529 U.S. 217 (2000) (upholding fee except to the extent a student referendum substituted majority determinations for viewpoint neutrality in allocating funds). Nor did the First Amendment preclude the government from “compel[ling] financial contributions that are used to fund advertising,” provided that such contributions did not finance “political or ideological” views. Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 471, 472 (1997) (upholding Secretary of Agriculture’s marketing orders that assessed fruit producers to cover the expenses of generic advertising of California fruit). But the Court has emphasized that the advertising funded by compelled financial contributions in Glickman was “ancillary to a more comprehensive program restricting marketing autonomy” and not “the principal object of the regulatory scheme.” United States v. United Foods, Inc., 533 U.S. 405, 411, 412 (2001) (striking down Secretary of Agriculture’s mandatory assessments, used for advertising, upon handlers of fresh mushrooms). The Court held that the First Amendment, however, was not violated when the government compelled financial contributions to fund government speech, even though the contributions were raised through a targeted assessment rather than through general taxes. Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550 (2005). ") However, the Court has recognized constitutional limitations can arise, for example, in connection with union shop labor agreements permissible under the National Labor Relations Act and the Railway Labor Act.[4](https://www.law.cornell.edu/constitution-conan/amendment-1/compelled-subsidization#fn4amd1 " The Labor-Management Relations Act of 1947 § 8(a)(3), 61 Stat. 140 (codified as amended at 29 U.S.C. § 158(a)(3)), permits the negotiation of union shop agreements. Such agreements, however, may be outlawed by state “right to work” laws.Id. at § 14(b), 61 Stat. 151 (codified as amended at 29 U.S.C. § 164(b)). See Lincoln Fed. Lab. Union v. Nw. Iron & Metal Co., 335 U.S. 525 (1949); AFL v. Am. Sash & Door Co., 335 U.S. 538 (1949). In industries covered by the Railway Labor Act, union shop agreements may be negotiated regardless of contrary state laws. 64 Stat. 1238 (codified as amended at 45 U.S.C. § 152), Eleventh; see R. Emps.’ Dep’t v. Hanson, 351 U.S. 225 (1956). ") The Court has recognized in this context that “'compelled funding of the speech of other private speakers or groups’ presents the same dangers as compelled speech.” [5](https://www.law.cornell.edu/constitution-conan/amendment-1/compelled-subsidization#fn5amd1 " Harris v. Quinn, 573 U.S. 616, 647 (2014) (quoting Knox v. SEIU, Local 1000, 567 U.S. 298, 309 (2012)). ")

In Railway Employees’ Dep’t v. Hanson, the Supreme Court upheld the constitutionality of a law authorizing private union shop agreements that required employees to join a union, noting that the record in the case did not indicate that union dues were being “used as a cover for forcing ideological conformity or other action in contravention of the First Amendment ,” such as by being spent to support political candidates.[6](https://www.law.cornell.edu/constitution-conan/amendment-1/compelled-subsidization#fn6amd1 " 351 U.S. 225, 238 (1956). ") In International Ass’n of Machinists v. Street, where union dues had been collected pursuant to a union shop agreement and had been spent to support political candidates, the Court avoided the First Amendment issue by construing the Railway Labor Act to prohibit the use of compulsory union dues for political causes.[7](https://www.law.cornell.edu/constitution-conan/amendment-1/compelled-subsidization#fn7amd1 " 367 U.S. 740, 749–50 (1961). Justices William O. Douglas, Hugo Black, Felix Frankfurter, and John Harlan would have reached the constitutional issue, with differing results. On the same day that it decided Street, the Court, in Lathrop v. Donohue, 367 U.S. 820 (1961), declined to reach the constitutional issues presented by roughly the same fact situation in a suit by lawyers compelled to join an “integrated bar.” These issues, however, were faced squarely in Keller v. State Bar of Cal., 496 U.S. 1, 14 (1990), which held that an integrated state bar may not, against a members’ wishes, devote compulsory dues to ideological or other political activities not “necessarily or reasonably related to the purpose of regulating the legal profession or improving the quality of legal service available to the people of the State.” ")

The Supreme Court held in Janus v. American Federation of State, County, & Municipal Employees, Council 31, that “public sector agency-shop arrangements violate the First Amendment ,” [8](https://www.law.cornell.edu/constitution-conan/amendment-1/compelled-subsidization#fn8amd1 " No. 16-1466, slip op. at 33 (U.S. June 2018). ") overruling a forty-year old precedent, Abood v. Detroit Board of Education, that had generally approved of such arrangements.[9](https://www.law.cornell.edu/constitution-conan/amendment-1/compelled-subsidization#fn9amd1 " 431 U.S. 209, 229 (1977). ") However, even Abood itself had only permitted some aspects of compelled fee regimes,[10](https://www.law.cornell.edu/constitution-conan/amendment-1/compelled-subsidization#fn10amd1 " Id. at 235. ") and the Court had, for years prior to Janus, signaled its growing discomfort with Abood.[11](https://www.law.cornell.edu/constitution-conan/amendment-1/compelled-subsidization#fn11amd1 " See, e.g., Harris v. Quinn, 573 U.S. 616 (2014). In Friedrichs v. Cal. Teachers Ass’n the Court was equally divided on the question of whether to overrule Abood. 578 U.S. 1, 1 (2016). ") Understanding the historical course of the jurisprudence governing compelled agency fees is important to understand the ramifications of Janus.

In Abood v. Detroit Bd. of Education,[12](https://www.law.cornell.edu/constitution-conan/amendment-1/compelled-subsidization#fn12amd1 " 431 U.S. 209 (1977). ") the Court found Hanson and Street applicable to the public employment context.[13](https://www.law.cornell.edu/constitution-conan/amendment-1/compelled-subsidization#fn13amd1 " That a public entity was the employer and the employees consequently were public employees was deemed constitutionally immaterial for the application of the principles of Hanson and Street, id. at 226–32, but, in a concurring opinion joined by Chief Justice Warren Burger and Justice Harry Blackmun, Justice Lewis Powell found the distinction between public and private employment crucial. Id. at 244. ") Recognizing that any system of compelled support restricted employees’ right not to associate and not to support, the Court nonetheless found the governmental interests served by an “agency shop” agreement[14](https://www.law.cornell.edu/constitution-conan/amendment-1/compelled-subsidization#fn14amd1 " An agency shop agreement requires all employees, regardless of union membership, to pay a fee to the union that reflects the union’s efforts in obtaining employment benefits through collective bargaining. The Court in Abood noted that it is the “practical equivalent” of a union shop agreement. Id. at 217 n.10. ") —the promotion of labor peace and stability of employer-employee relations—to be of overriding importance and to justify the impact upon employee freedom.[15](https://www.law.cornell.edu/constitution-conan/amendment-1/compelled-subsidization#fn15amd1 " Id. at 217–23. For a similar argument over the issue of corporate political contributions and shareholder rights, see First National Bank v. Bellotti, 435 U.S. 765, 792–95 (1978), and id. at 802, 812–21 (White, J., dissenting). ") But the Court drew a different balance when it considered whether employees compelled to support the union were constitutionally entitled to object to the use of those exacted funds to support political candidates or to advance ideological causes not germane to the union’s duties as collective-bargaining representative. The Court believed that to compel one to expend funds in such a way is to violate his freedom of belief and the right to act on those beliefs just as much as if government prohibited him from acting to further his own beliefs.[16](https://www.law.cornell.edu/constitution-conan/amendment-1/compelled-subsidization#fn16amd1 " 431 U.S. at 232–37. ") The Court’s remedy, however, was not to re