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 grievance.
The First Amendment comes into play when the government or a public employer requires employees to join or financially support a union as a condition of employment.1 Requiring employees to subsidize a union—even when membership is not required2 —compels employees to fund the union’s speech, implicating both speech and expressive association.3
For over forty years, the Court’s decisions allowed such government-compelled union fees to some extent. In 1977, in Abood v. Detroit Board of Education, the Court ruled that public-sector employers could require their employees to pay agency fees to their union representatives for the purposes of collective bargaining, contract administration, and grievance procedures.4 Compulsory union fees—also called “agency fees” —could not, however, be used for political purposes.5 The Court reasoned that the First Amendment bars a state from compelling an individual “to contribute to the support of an ideological cause he may oppose as a condition” of public employment.6
Abood's allowance of fees for activities germane to collective bargaining, though criticized at times by Members of the Court,7 held sway until 2018, when the Supreme Court overruled this aspect of the decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31.8 The Janus Court held that compulsory agency fees unduly burdened the speech and association of public-sector employees who did not want to join or financially support their workplace union.9
- Similar arrangements in the private sector would not trigger First Amendment protection absent governmental action. Janus v. AFSCME, Council 31, No. 16-1466, slip op. at 35 n.24 (U.S. June 27, 2018).
- See Ry. Emps.’ Dep’t v. Hanson, 351 U.S. 225, 231, 238 (1956) (suggesting that “forcing ideological conformity” through union membership would violate the First Amendment).
- See Knox v. SEIU, Local 1000, 567 U.S. 298, 310–11 (2012) (explaining that when the government “exacts compulsory union fees as a condition of public employment,” those fees “constitute a form of compelled speech and association” ).
- 431 U.S. 209, 225–26 (1977), overruled by Janus v. AFSCME, Council 31, No. 16-1466, slip op. at 2 (U.S. June 27, 2018).
- Id. at 235–36.
- Id. at 235.
- Cases applying or questioning the Abood decision are discussed in more detail in Amdt188.8.131.52 Compelled Subsidization.
- Janus, 3slip op. at 497.
- Id. at 12, 17, 33.