Photo by Brigid Hasson

From Inside the Supreme Court, the Key Exchanges on a Case Pitting Unions vs. First Amendment

In Friedrichs v. California Teachers Association, Rebecca Friedrichs and other teachers argue that forcing them to pay fees for the union’s collective bargaining costs amounts to compelled speech in violation of their First Amendment rights.

In Abood v. Detroit Board of Education (1977), the Supreme Court upheld “agency shop” arrangements, where government employees who don’t join a union must pay an agency fee for a “fair share” of the union’s collective bargaining costs because the nonmembers supposedly benefit from collective bargaining agreements. The Court determined that unions may not spend nonmembers’ agency fees on “ideological activities unrelated to collective bargaining.”

What Constitutes Political Choices?

As the public interest law firm representing Rebecca Friedrichs explains, however, “Whether the union is negotiating for specific class sizes or pressing a local government to spend tax dollars on teacher pensions rather than on building parks, the union’s negotiating positions embody political choices that are often controversial.”

As Justice Antonin Scalia pointed out in a question at the oral argument, everything that is collectively bargained for when it comes to government employees is necessarily within the political sphere. In fact, attorneys for the defendants admitted that agency fees in California include political costs such as lobbying state legislators to support union demands.

In recent years in two other cases, Knox v. Serv. Emps. Int’l Union (2012) and Harris v. Quinn (2014), the Supreme Court has questioned the validity of the Abood case for imposing a “significant impingement” on an employee’s First Amendment free speech and associational rights.

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