Speech funded by the unwilling isn’t ‘free’

The U.S. Supreme Court ruled late last week that states may bar public employee unions from using compulsory dues for political campaigns unless the "donor" worker gives his or her explicit approval.

That's a lot better than the arrangement the unions generally favor, an "opt-out" system in which the unions simply presume they can use all dues for that purpose, unless the individual worker jumps through enough hoops to convince them otherwise.

The ruling is nowhere near as seismic as the court's 1988 ruling in Communication Workers vs. Beck, which loudly confirmed that unions have no right to use the mandatory dues of non-members to advance political causes over those workers' objections.

The issue arises in "union shop" states, in which even non-members can be required to pay dues to the union which represents them in contract negotiations.

Nationwide, 28 states authorize public unions to collect mandatory fees from all employees, while 22 states forbid it. Twelve million workers in public- and private-sector jobs are thus required to pay dues or fees to a union even if they elect not to join, according to the National Right to Work Committee.

However, under those conditions the non-members are supposed to be obliged to pay only that portion of dues which actually funds collective bargaining -- the court has held they have a free speech right not to be coerced into supporting union political speech with which they may disagree,

In last week's case, Davenport vs. Washington Education Association, the teachers union had held state restrictions on its use of the dues was an unacceptable limitation on the union's freedom of political speech.

The most impressive thing about the court's dismissal of that claim, even on a somewhat limited issue, was its unanimity: All nine judges called it nonsense, Justice Antonin Scalia speaking for the unanimous court when he wrote, "Unions have no constitutional entitlement to the fees of nonmember employees."

Freedom of speech, that is to say, does not include the right to seize someone else's pay to fund speech with which he or she may not agree.

The problem with the Beck ruling is that it barred seizing and using non-members' funds for political speech "over their objections," placing the onus on the worker to learn about and then assert his or her rights -- not always easy in a potentially hostile union shop.

Indeed, the Washington State Supreme Court decision which the high court reversed Thursday had held the union could use agency fees as it wished "unless non-members objected."

It might have been preferable had Thursday's high court ruling simply barred the use of any part of non-members' dues for political purposes unless that worker explicitly grants permission. Instead, this more limited ruing merely affirms the power of the individual states to set such provisions into law.

But it's still a step forward.

"We are thrilled," said Michael Reitz, a lawyer for the Evergreen Freedom Foundation in Olympia, Wash., which supported the dissident teachers. "This is a clear victory for the First Amendment rights of teachers not to fund political activity against their will."

Does the ruling pave the way for state legislatures to adopt paycheck protection across the country?

Time will tell.