Harris v. Quinn and the Contradictions of Compelled Speech


In Harris v. Quinn, the Supreme Court held that unionized home care workers have a First Amendment right to refuse to pay their fair share of the cost of services that the union is statutorily required to provide. The Court thus transformed what had been a legislative debate about so-called right-to-work laws, which about half of states have adopted, into a constitutional requirement for one narrow category of public sector employees. The problem with transforming this policy argument into a First Amendment requirement is that treating fair share payments to a union as compelled speech raises First Amendment rights of both supporters and opponents of the union. If expenditures on union representation are speech - as the majority in Harris thinks they are - then the union’s obligation to provide free representation compels speech by the union and its members. While, in our view, the requirement to pay for legal services is not compelled speech, the Court’s entire agency fee jurisprudence, including Harris, insists that it is. On the Court’s analysis, then, laws and contracts that require unionized employees to pay for union representational services compel speech of dissenters exactly to the same extent that their prohibition compels speech of unions and their members. Moreover, to the extent that a union must rely on member dues that it would otherwise spend on political activities to cover the costs of services for free riders, the duty of fair representation owed to nonpayers would violate the First Amendment rights of the union by siphoning off money that would otherwise be used to support these activities. Accordingly, the Court must alter its usual analysis of the constitutionality of agency fee agreements and recognize that union representation requires balancing competing freedom of speech and association interests. Once the First Amendment rights of unions and union members are recognized, agency fee or fair share provisions emerge as a constitutionally sound accommodation of the interests of dissenters, unions, and union members.

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