Free Speech

When Speech is Compelled

freespeechweek_logo_mainAs the country celebrates one of our most fundamental freedoms during Free Speech Week, it is important to keep in mind that the freedom of speech also means the freedom not to speak. The freedom not to speak includes the right to ensure that individuals are not forced to pay for political causes with which they disagree. Unfortunately, being forced to pay for political causes that they may disagree with is the reality that public sector workers face in at least 23 states every day.

Here’s how it works: not all states have protected workers by adopting a Right-to-Work law or other protections that prohibit labor unions from automatically collecting funds from workers. While public sector workers in these states are able to opt-out of union membership (and avoid paying membership dues) they are still required to pay “agency fees” to the union. These fees are ostensibly for non-political purposes and pay for collective bargaining agreements negotiated on behalf of all public sector workers—whether they would like it or not. However, because government unions are ultimately negotiating with taxpayers these collective bargaining agreements are inherently political in nature.

This status quo was challenged in the courts and culminated in the Friedrichs v. California Teachers Association case argued before the Supreme Court earlier this year. Rebecca Friedrichs, an Orange County public school teacher, and other California teachers pointed out that the “agency fees” she was forced to pay to the union were being used to negotiate highly political topics—and the union frequently took positions that she disagreed with. For example, these collective bargaining agreements include prohibitions on merit pay for teachers, ensuring “Last-in, First-out” (LIFO) layoff policies, and a variety of other highly political topics. Even though teachers like Rebecca believe that these policies are not in the best interest of students and has opted out of union membership, a portion of each one of her paychecks directly supports these causes.

The untimely passing of Justice Antonin Scalia resulted in a split 4-4 Supreme Court Ruling that affirmed the lower court’s decision against Rebecca Friedrichs and her co-plaintiffs. However, even though the effort narrowly lost at the Supreme Court, states have the authority to solve this problem and protect the free speech rights of teachers and all other public sector workers. There are several policy options that states could consider to ensure these rights are protected.

The first way to protect the free speech rights of public sector workers is to simply and directly address the problem by prohibiting the forced collection of dues or agency fees by a labor union. Creating a system where the labor union must win the consent of public sector workers before collecting any money from their paychecks would be a powerful protection against compelled speech. While the majority of states already have this kind of protection in place, more than 20 states still do not grant this protection to their public sector workers.

Another way to protect the free speech rights of public sector workers is to adopt a Workers’ Choice law. Essentially, a workers choice law allows public sector workers to opt-out of union collective bargaining representation and negotiate on their own if they prefer. Even in Right-to-Work states, public sector workers do not have this choice and (though they may not be required to pay for it) must accept the terms the union negotiates on their behalf, even if they disagree with those terms. Workers’ Choice laws also give government unions the right to not represent non-members (or non-fee payers), ending any concern about a free-rider problem. Currently, there is a strong effort to enact this type of reform in Michigan led by Representative Gary Glenn.

Finally, while not addressing the problem directly, ensuring that government unions must occasionally stand for election is another way to protect the rights of public sector workers. A recent analysis from James Sherk at the Heritage Foundation found that the median teacher has been on the job between 9 and 14 years while the government union representing them was typically created more than 30 years ago. This means that the vast majority of working teachers never even got the chance to vote on an organization that collects and spends up to $1,000 of their earnings every year. In some cases, it was just one percent of teachers that were even employed when the government union that represents them was established. By requiring periodic recertification elections, the voting rights of public sector workers can be restored.

So, in honor of Free Speech Week, Rebecca Friedrichs, and the many public sector workers across the country who are now forced to fund political causes with which they disagree, policymakers at all levels of government should consider reforms that will restore one of our most fundamental civil liberties.

In Depth: Free Speech

Freedom of speech is paramount for the American system of government and American culture. Born from revolution, American society has been created, evolved and progressed based in part, on the First Amendment. More specifically, free speech allows individual’s to use their own voice to ensure “We the People” would control…

+ Free Speech In Depth