Report on the Status of the
First Amendment By Gene Policinski
I
n the Bill of Rights, the First Amendment’s “blue collar” freedoms lead off. Those five freedoms — religion, speech, press, assembly and petition — are what most Americans “go to work” with every day. We employ those core rights daily, from the comments we post fearlessly on the web on virtually any subject, the political and social associations we proclaim in every Facebook post, and the office political debates we join to the diversity of religious faiths that a majority of us still choose to adopt. So it’s more than a bit ironic that the U.S. Supreme Court started off 2016 with Friedrichs v. California Teachers Association, a case involving public employee union dues that is seen by many union leaders as the greatest threat in 40 years to the everyday political power wielded for more than a century by these collective blue-collar worker groups. Given that 2016 is a political year, the Friedrichs case took on an even higher profile when it was argued in January, with a close decision going against a California public employee union widely expected. But the death of Associate Justice Antonin Scalia on Feb. 13 ultimately led to a 4-4 tie on the court.
Announced March 28, the 4-4 split left intact a lower court decision that favored a system by which a nonmember must pay a public employee union a “fair share” of dues for negotiating wages and benefits that all workers enjoy. In 1977, the Supreme Court approved a system that recognizes such collective bargaining benefits accrue to all workers — but that permitted any individual to avoid paying a portion of dues to be used for political activities, so that Democrats were not compelled to pay to subsidize campaign support for Republicans and vice versa. The challenge the court heard Jan. 11 was raised by 10 conservative California teachers who argued that even having to pay dues in support of collective bargaining against their will was a violation of their First Amendment free speech rights — advancing the idea that having the right to speak also must include the right not to speak. While some say a decision in favor of the 10 teachers will have limited impact — noting some 25 states already forbid such “agency” payments by all — others claim throwing out the current system would be an intended body blow to public sector unions, using the First Amendment argument as a ruse. The latter claim is bolstered by statistics
about union membership. Nationwide, according to the U.S. Bureau of Labor Statistics, “in 2013 there were 14.5 million members in the U.S., compared with 17.7 million in 1983. In 2013, the percentage of workers belonging to a union was 11.3%, compared to 20.1% in 1983. The rate for the private sector was 6.7%, and for the public sector 35.3%.” The numbers also tilt higher for public sector unions in a number of states considered Democratic strongholds — which, advocates of the present system say, makes the challenge on free speech grounds even more suspect. Cutting public employee unions’ access to fees from all workers will weaken — if not destroy — such unions as a powerful political force, say critics of the California challenge. Critics of the Roberts Court see a larger pattern in the expected outcome — a trend in which the court, while citing First Amendment values, effectively clears a path for the wealthy to influence elections. Most often cited is the court’s 2010 ruling, Citizens United, which removed most spending limits for corporations and unions in supporting political campaigns and candidates. To those critics, the decision opened a torrent of special interest spending
