First Amendment Equally Protects Rights of Independent-Minded Workers, Business Owners Dissenting Workers Should Be Free to Refuse to Bankroll ‘Messages . . . Favored by a Majority’
(Download Fact Sheet) Last month, in his majority opinion in Knox v. Service Employees International Union Local 1000, U.S. Supreme Court Justice Sam Alito observed that, in virtually all cases concerning private organizations other than labor unions, federal jurisprudence has found that the right to join and the right not to join must be equally protected under statutory law. The majority opinion further explained that the individual freedom not to join a private organization is “closely related” to a person’s freedom not to bankroll economic speech with which he or she disagrees.
To illustrate this point, Alito briefly recounted the High Court’s conclusions in United States v. United Foods, Inc. This case considered the constitutionality of a federal statute authorizing the majority of the appointed members of the government-sponsored, but private Mushroom Council to compel dissenters to bankroll advertising that promotes the consumption of both branded and unbranded mushrooms.
Respondent United Foods, Inc., a large Tennessee-based agricultural company that was acquired by Pictsweet LLC in 1999, grew and distributed many crops and products, including fresh mushrooms. Acting in what the company believed to be the best interest of its shareholders, United Foods refused in 1996 to pay mandatory assessments the Mushroom Council had imposed on handlers of fresh mushrooms. “[N]ot to exceed one cent per pound of mushrooms produced or imported,” the assessments were designated for “projects of mushroom promotion, research, consumer information, and industry information.”
United Foods objected to the assessments because, as Justice Anthony Kennedy’s opinion for a six-member majority explained, it wanted “to convey the message that its brand of mushrooms is superior to those grown by other producers.” It thus resisted bankrolling the contrary message that was evidently “favored by a majority of producers.” The specific message United Foods did not wish to subsidize was: “[M]ushrooms are worth consuming whether or not they are branded.”
Kennedy’s majority opinion found that the Mushroom Council, a private organization set up with Congress’s approval by then-U.S. Secretary of Agriculture Dan Glickman, had violated the First
Amendment rights of United Foods by seeking to compel it to pay for economic speech with which the company did not agree. Kennedy concluded that neither the fact that the compelled speech was economic, and even “commercial” in nature, rather than political or ideological, nor the fact that a majority on the Mushroom Council favored the speech could render enforced conformity for United Foods constitutionally permissible:
“The question is whether the government may underwrite or sponsor speech with a certain viewpoint using special subsidies exacted from a designated class of persons, some of whom object to the idea being advanced,” wrote Kennedy. He later elaborated:
There are some instances in which compelled subsidies for speech contradict . . . constitutional principle. Here the disagreement could be seen as minor . . . . [But] First Amendment values are at serious risk if the government can compel a particular citizen, or a discrete group of citizens, to pay special subsidies for speech on the side it favors; and there is no principle which distinguishes out of hand minor debates about whether a branded mushroom is better than just any mushroom. As a consequence, the compelled funding for the advertising must pass First Amendment scrutiny.
Unfortunately, as Alito discussed in some detail in his recent Knox opinion, “particular citizens” or “groups of citizens” who happen to be unionized workers and oppose an economic perspective favored by a government-backed union have received short shrift from the federal courts. Unionized workers, unlike United Foods and other similarly situated businesses, are routinely compelled as a condition of employment to pay “special subsidies for speech” with which the workers don’t agree, but which the government favors.
You Can Permissibly Insult Someone Whom You Have Already Injured?
Just as the government-backed Mushroom Council believes it is in the best interest of mushroom growers collectively to convince consumers that all mushrooms are equally good, government-backed unions in both the private and public sectors believe it is in the best interest of unionized employees collectively to convince employers that all employees are equally good. Just as United Foods/Pictsweet believes it is in its personal best interest to convince consumers that its mushrooms are special and worth seeking out, and perhaps even paying extra money for, many unionized employees have a clear interest in convincing their employer that they are especially hardworking and or skilled. Why is the stance of a dissenting company protected by the First Amendment, but not the stance of a dissenting unionized employee?
In his United Foods opinion, Kennedy anticipated this question, but his response seems paradoxical. It is premised on the fact that federal labor statutes and many state statutes patterned after them empower union officials not just to collect forced dues and fees from employees who prefer not to join, but also to act as monopoly-bargaining agents for union members and nonmembers alike. With regard to matters of pay, benefits, and work rules, the union acts as the sole spokesman for all the employees in a federally-delineated “bargaining unit.” Employees who choose not to join the union are nevertheless denied the option to represent themselves, or select another bargaining agent.
As the High Court has freely and repeatedly acknowledged, employees who are denied by federal or state statutes the freedom to bargain individual contracts may suffer economic harm as a consequence. It is acceptable for legislators to harm employees by abridging their freedom of contract, the High Court has found, for the sake of the “greater good”:
[I]t is urged that some employees may lose by the collective agreement, that an individual workman may sometimes have, or be capable of getting, better terms than those obtainable by the group, and that his freedom of contract must be respected on that account. We are not called upon to say that under no circumstances can an individual enforce an agreement more advantageous than a collective agreement, but we find the mere possibility that such agreements might be made no ground for holding generally that individual contracts may survive or surmount collective ones. The practice and philosophy of collective bargaining [look] with suspicion on such individual advantages. Of course, where there is great variation in circumstances of employment or capacity of employees, it is possible for the collective bargain to prescribe only minimum rates or maximum hours or expressly to leave certain areas open to individual bargaining. But, except as so provided, advantages to individuals may prove as disruptive of industrial peace as disadvantages. They are a fruitful way of interfering with organization and choice of representatives; increased compensation, if individually deserved, is often earned at the cost of breaking down some other standard thought to be for the welfare of the group . . . .
Incredibly, Kennedy’s majority opinion in United Foods concluded that the very fact that unions wield monopoly-bargaining power over employees renders the forced extraction of fees from union nonmembers to advance economic viewpoints contrary to their own constitutionally permissible! Since the Mushroom Council had not similarly “collectivized” mushroom producers’ ability to market and sell their products, it couldn’t impinge on individual producers’ First Amendment rights, either.
‘Mushroom Growers Are Not Forced To Associate as a Group That Makes Cooperative Decisions’
Kennedy’s opinion spelled out his perspective in a passage that quoted from an earlier appellate court decision favoring United Foods:
Mushroom producers are not forced to associate as a group which makes cooperative decisions. “The mushroom growing business . . . is unregulated, except for the enforcement of a regional mushroom advertising program,” and “the mushroom market has not been collectivized, exempted from antitrust laws, subjected to uniform price, or otherwise subsidized through price supports or restrictions on supply. . . .”
Before addressing whether a conflict with freedom of belief exists, a threshold inquiry must be whether there is some state imposed obligation which makes group membership less than voluntary; for it is only the overriding associational purpose which allows any compelled subsidy for speech in the first place.
In the world of jurisprudence, it may make sense to permit the insult of forced financial support for economic speech contrary to one’s views to be visited on a person because he or she has already suffered the injury of being “forced to associate” with a “group which makes cooperative [economic] decisions.” This is what the Supreme Court has done to millions of unionized workers and to a relatively very small number of other Americans who are subjected to somewhat analogous governmental constraints on their personal economic liberty.
But ordinary Americans will never accept the logic the federal judiciary has used to accord different levels of constitutional protection to different groups of citizens. Common sense tells us that the First Amendment equally protects the rights of independent-minded workers and business owners.
Since the Supreme Court long ago abrogated its responsibility to apply the First Amendment evenhandedly to all Americans, and does not appear ready to change course any time soon, it is up to Congress to remedy the injustices it instigated in the 1935 National Labor Relations Act and the 1951 Railway Labor Act amendment. An excellent first step would be to repeal all the provisions in these two laws that authorize the firing of employees for refusal to pay dues or fees to an unwanted union.
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 533U.S. 405 (2001).
 See, e.g., James Sherk and Ryan O’Donnell, “RAISE Act Lifts Pay Cap on Millions of American Workers,” Heritage Foundation Backgrounder No. 2702, June 19, 2012.
 From Justice Robert Jackson’s opinion, for an 8-1 majority, in J.I. Case Co. v. Labor Board, 321 U.S. 332 (1944). See also, e.g., the High Court’s ruling in Ford Motor Co. v. Huffman, 345 U.S. 330 (1953). This decision found that union officials properly exercised their monopoly-bargaining power under federal law when they negotiated an amendment to an existing contract granting increased seniority to a particular group of employees at the expense of others who were laid off as a consequence of the deal.
 See, e.g., Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457 (1997).