February 26, 2018
WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT No. 16-1466.
law permits public employees to unionize. If a majority of
employees in a bargaining unit vote to be represented by a
union, that union is designated as the exclusive
representative of all the employees, even those who do not
join. Only the union may engage in collective bargaining;
individual employees may not be represented by another agent
or negotiate directly with their employer. Non-members are
required to pay what is generally called an "agency
fee," i.e., a percentage of the full union
dues. Under Abood v. Detroit Bd. of Ed., 431 U.S.
209, 235-236, this fee may cover union expenditures
attributable to those activities "germane" to the
union's collective-bargaining activities (chargeable
expenditures), but may not cover the union's political
and ideological projects (nonchargeable expenditures). The
union sets the agency fee annually and then sends non-members
a notice explaining the basis for the fee and the breakdown
of expenditures. Here it was 78.06% of full union dues.
Petitioner Mark Janus is a state employee whose unit is
represented by a public-sector union (Union), one of the
respondents. He refused to join the Union because he opposes
many of its positions, including those taken in collective
bargaining. Illinois' Governor, similarly opposed to many
of these positions, filed suit challenging the
constitutionality of the state law authorizing agency fees.
The state attorney general, another respondent, intervened to
defend the law, while Janus moved to intervene on the
Governor's side. The District Court dismissed the
Governor's challenge for lack of standing, but it
simultaneously allowed Janus to file his own complaint
challenging the constitutionality of agency fees. The
District Court granted respondents' motion to dismiss on
the ground that the claim was foreclosed by Abood.
The Seventh Circuit affirmed.
1. The District Court had jurisdiction over petitioner's
suit. Petitioner was undisputedly injured in fact by
Illinois' agency-fee scheme and his injuries can be
redressed by a favorable court decision. For jurisdictional
purposes, the court permissibly treated his amended complaint
in intervention as the operative complaint in a new lawsuit.
United States ex rel. Texas Portland Cement Co. v.
McCord, 233 U.S. 157, distinguished. Pp. 6-7.
2. The State's extraction of agency fees from
nonconsenting public-sector employees violates the First
Amendment. Abood erred in concluding otherwise, and
stare decisis cannot support it. Abood is
therefore overruled. Pp. 7-47.
(a) Abood's holding is inconsistent with
standard First Amendment principles. Pp. 7-18.
(1) Forcing free and independent individuals to endorse ideas
they find objectionable raises serious First Amendment
concerns. E.g., West Virginia Bd. of Ed. v.
Barnette, 319 U.S. 624, 633. That includes compelling a
person to subsidize the speech of other private speakers.
E.g., Knox v. Service Employees, 567 U.S. 298, 309.
In Knox and Harris v. Quinn, 573 U.S., the
Court applied an "exacting" scrutiny standard in
judging the constitutionality of agency fees rather than the
more traditional strict scrutiny. Even under the more
permissive standard, Illinois' scheme cannot survive. Pp.
(2) Neither of Abood's two justifications for agency fees
passes muster under this standard. First, agency fees cannot
be upheld on the ground that they promote an interest in
"labor peace." The Abood Court's fears
of conflict and disruption if employees were represented by
more than one union have proved to be unfounded: Exclusive
representation of all the employees in a unit and the
exaction of agency fees are not inextricably linked. To the
contrary, in the Federal Government and the 28 States with
laws prohibiting agency fees, millions of public employees
are represented by unions that effectively serve as the
exclusive representatives of all the employees. Whatever may
have been the case 41 years ago when Abood was
decided, it is thus now undeniable that "labor
peace" can readily be achieved through less restrictive
means than the assessment of agency fees.
Second, avoiding "the risk of 'free riders,
'" Abood, supra, at 224, is not a
compelling state interest. Free-rider "arguments . . .
are generally insufficient to overcome First Amendment
objections," Knox, supra, at 311, and the
statutory requirement that unions represent members and
nonmembers alike does not justify different treatment. As is
evident in non-agency-fee jurisdictions, unions are quite
willing to represent nonmembers in the absence of agency
fees. And their duty of fair representation is a necessary
concomitant of the authority that a union seeks when it
chooses to be the exclusive representative. In any event,
States can avoid free riders through less restrictive means
than the imposition of agency fees. Pp. 11-18.
(b) Respondents' alternative justifications for
Abood are similarly unavailing. Pp. 18-26.
(1) The Union claims that Abood is supported by the
First Amendment's original meaning. But neither
founding-era evidence nor dictum in Connick v.
Myers, 461 U.S. 138, 143, supports the view that the
First Amendment was originally understood to allow States to
force public employees to subsidize a private third party. If
anything, the opposite is true. Pp. 18-22.
(2) Nor does Pickering v. Board of Ed. of Township High
School Dist. 205, Will Cty., 391 U.S. 563, provide a
basis for Abood. Abood was not based on
Pickering, and for good reasons. First,
Pickering's framework was developed for use in
cases involving "one employee's speech and its
impact on that employee's public responsibilities,"
United States v. Treasury Employees, 513 U.S. 454,
467, while Abood and other agency-fee cases involve
a blanket requirement that all employees subsidize private
speech with which they may not agree. Second,
Pickering's framework was designed to determine
whether a public employee's speech interferes with the
effective operation of a government office, not what happens
when the government compels speech or speech subsidies in
support of third parties. Third, the categorization schemes
of Pickering and Abood do not line up. For
example, under Abood, nonmembers cannot be charged
for speech that concerns political or ideological issues; but
under Pickering, an employee's free speech
interests on such issues could be overcome if outweighed by
the employer's interests. Pp. 22-26.
(c) Even under some form of Pickering, Illinois'
agency-fee arrangement would not survive. Pp. 26-33.
(1)Respondents compare union speech in collective bargaining
and grievance proceedings to speech "pursuant to [an
employee's] official duties," Garcetti v.
Ceballos, 547 U.S. 410, 421, which the State may require
of its employees. But in those situations, the employee's
words are really the words of the employer, whereas here the
union is speaking on behalf of the employees.
Garcetti therefore does not apply. Pp. 26-27.
(2) Nor does the union speech at issue cover only matters of
private concern, which the State may also generally regulate
under Pickering. To the contrary, union speech
covers critically important and public matters such as the
State's budget crisis, taxes, and collective bargaining
issues related to education, child welfare, healthcare, and
minority rights. Pp. 27-31.
(3) The government's proffered interests must therefore
justify the heavy burden of agency fees on nonmembers'
First Amendment interests. They do not. The state interests
asserted in Abood- promoting "labor peace"
and avoiding free riders-clearly do not, as explained
earlier. And the new interests asserted in Harris
and here-bargaining with an adequately funded agent and
improving the efficiency of the work force-do not suffice
either. Experience shows that unions can be effective even
without agency fees. Pp. 31- 33.
(d) Stare decisis does not require retention of
Abood. An analysis of several important factors that
should be taken into account in deciding whether to overrule
a past decision supports this conclusion. Pp. 33-47.
(1) Abood was poorly reasoned, and those arguing for
retaining it have recast its reasoning, which further
undermines its stare decisis effect, e.g.,
Citizens United v. Federal Election Comm'n, 558 U.S.
310, 363. Abood relied on Railway Employes v.
Hanson, 351 U.S. 225, and Machinists v. Street,
367 U.S. 740, both of which involved private-sector
collective-bargaining agreements where the government merely
authorized agency fees. Abood did not appreciate the
very different First Amendment question that arises when a
State requires its employees to pay agency fees.
Abood also judged the constitutionality of
public-sector agency fees using Hanson's
deferential standard, which is inappropriate in deciding free
speech issues. Nor did Abood take into account the
difference between the effects of agency fees in public- and
private-sector collective bargaining, anticipate
administrative problems with classifying union expenses as
chargeable or nonchargeable, foresee practical problems faced
by nonmembers wishing to challenge those decisions, or
understand the inherently political nature of public-sector
bargaining. Pp. 35-38.
(2) Abood's lack of workability also weighs
against it. Its line between chargeable and nonchargeable
expenditures has proved to be impossible to draw with
precision, as even respondents recognize. See, e.g.,
Lehnert v. Ferris Faculty Assn., 500 U.S. 507, 519. What
is more, a nonmember objecting to union chargeability
determinations will have much trouble determining the
accuracy of the union's reported expenditures, which are
often expressed in extremely broad and vague terms. Pp.
(3) Developments since Abood, both factual and
legal, have "eroded" the decision's
"underpinnings" and left it an outlier among the
Court's First Amendment cases. United States v.
Gaudin, 515 U.S. 506, 521. Abood relied on an
assumption that "the principle of exclusive
representation in the public sector is dependent on a union
or agency shop," Harris, 573 U.S., at - but
experience has shown otherwise. It was also decided when
public-sector unionism was a relatively new phenomenon.
Today, however, public-sector union membership has surpassed
that in the private sector, and that ascendency corresponds
with a parallel increase in public spending. Abood
is also an anomaly in the Court's First Amendment
jurisprudence, where exacting scrutiny, if not a more
demanding standard, generally applies. Overruling
Abood will also end the oddity of allowing public
employers to compel union support (which is not supported by
any tradition) but not to compel party support (which is
supported by tradition), see, e.g., Elrod v. Burns,
427 U.S. 347. Pp. 42-44.
(4) Reliance on Abood does not carry decisive
weight. The uncertain status of Abood, known to
unions for years; the lack of clarity it provides; the
short-term nature of collective-bargaining agreements; and
the ability of unions to protect themselves if an agency-fee
provision was crucial to its bargain undermine the force of
reliance. Pp. 44-47.
3. For these reasons, States and public-sector unions may no
longer extract agency fees from nonconsenting employees. The
First Amendment is violated when money is taken from
nonconsenting employees for a public-sector union; employees
must choose to support the union before anything is taken
from them. Accordingly, neither an agency fee nor any other
form of payment to a public-sector union may be deducted from
an employee, nor may any other attempt be made to collect
such a payment, unless the employee affirmatively consents to
pay. Pp. 48-49.
851 F.3d 746, reversed and remanded.
J., delivered the opinion of the Court, in which ROBERTS, C.
J., and Kennedy, Thomas, and, Gorsuch, JJ., joined.
Sotomayor, J., filed a dissenting opinion. KAGAN, J., filed a
dissenting opinion, in which Ginsburg, Breyer, and Sotomayor,
Illinois law, public employees are forced to subsidize a
union, even if they choose not to join and strongly object to
the positions the union takes in collective bargaining and
related activities. We conclude that this arrangement
violates the free speech rights of nonmembers by compelling
them to subsidize private speech on matters of substantial
upheld a similar law in Abood v. Detroit Bd. of Ed.,
431 U.S. 209 (1977), and we recognize the importance of
following precedent unless there are strong reasons for not
doing so. But there are very strong reasons in this case.
Fundamental free speech rights are at stake. Abood
was poorly reasoned. It has led to practical problems and
abuse. It is inconsistent with other First Amendment cases
and has been undermined by more recent decisions.
Developments since Abood was handed down have shed
new light on the issue of agency fees, and no reliance
interests on the part of public-sector unions are sufficient
to justify the perpetuation of the free speech violations
that Abood has countenanced for the past 41 years.
Abood is therefore overruled.
the Illinois Public Labor Relations Act (IPLRA), employees of
the State and its political subdivisions are permitted to
unionize. See Ill.Comp.Stat., ch. 5, §315/6(a) (West
2016). If a majority of the employees in a bargaining unit
vote to be represented by a union, that union is designated
as the exclusive representative of all the employees.
§§315/3(s)(1), 315/6(c), 315/9. Employees in the
unit are not obligated to join the union selected by their
co-workers, but whether they join or not, that union is
deemed to be their sole permitted representative. See
union is so designated, it is vested with broad authority.
Only the union may negotiate with the employer on matters
relating to "pay, wages, hours[, ] and other conditions
of employment." §315/6(c). And this authority
extends to the negotiation of what the IPLRA calls
"policy matters," such as merit pay, the size of
the work force, layoffs, privatization, promotion methods,
and non-discrimination policies. §315/4; see
§315/6(c); see generally, e.g., Illinois Dept. of
Central Management Servs. v. AFSCME, Council 31, No.
S-CB-16-17 etc., 33 PERI ¶67 (ILRB Dec. 13, 2016) (Board
a union as the employees' exclusive representative
substantially restricts the rights of individual employees.
Among other things, this designation means that individual
employees may not be represented by any agent other than the
designated union; nor may individual employees negotiate
directly with their employer. §§315/6(c)-(d),
315/10(a)(4); see Matthews v. Chicago Transit
Authority, 2016 IL 117638, 51 N.E.3d 753, 782; accord,
Medo Photo Supply Corp. v. NLRB, 321 U.S. 678,
683-684 (1944). Protection of the employees' interests is
placed in the hands of the union, and therefore the union is
required by law to provide fair representation for all
employees in the unit, members and nonmembers alike.
who decline to join the union are not assessed full union
dues but must instead pay what is generally called an
"agency fee," which amounts to a percentage of the
union dues. Under Abood, nonmembers may be charged
for the portion of union dues attributable to activities that
are "germane to [the union's] duties as
collective-bargaining representative," but nonmembers
may not be required to fund the union's political and
ideological projects. 431 U.S., at 235; see id., at
235-236. In labor-law parlance, the outlays in the first
category are known as "chargeable" expenditures,
while those in the latter are labeled
law does not specify in detail which expenditures are
chargeable and which are not. The IPLRA provides that an
agency fee may compensate a union for the costs incurred in
"the collective bargaining process, contract
administration[, ] and pursuing matters affecting wages,
hours[, ] and conditions of employment." §315/6(e);
see also §315/3(g). Excluded from the agency-fee
calculation are union expenditures "related to the
election or support of any candidate for political
office." §315/3(g); see §315/6(e).
this standard, a union categorizes its expenditures as
chargeable or nonchargeable and thus determines a
nonmember's "proportionate share,"
§315/6(e); this determination is then audited; the
amount of the "proportionate share" is certified to
the employer; and the employer automatically deducts that
amount from the non-members' wages. See ibid.;
App. to Pet. for Cert. 37a; see also Harris v.
Quinn, 573 U.S.__, ____(2014) (slip op., at 19-20)
(describing this process). Nonmembers need not be asked, and
they are not required to consent before the fees are
the amount of the agency fee is fixed each year, the union
must send nonmembers what is known as a Hudson
notice. See Teachers v. Hudson, 475 U.S. 292 (1986).
This notice is supposed to provide nonmembers with "an
adequate explanation of the basis for the [agency] fee."
Id., at 310. If nonmembers "suspect that a
union has improperly put certain expenses in the [chargeable]
category," they may challenge that determination.
Harris, supra, at__(slip op., at 19).
illustrated by the record in this case, unions charge
nonmembers, not just for the cost of collective bargaining
per se, but also for many other supposedly connected
activities. See App. to Pet. for Cert. 28a-39a. Here, the
nonmembers were told that they had to pay for
"[l]obbying," "[s]ocial and recreational
activities," "advertising," "[m]embership
meetings and conventions," and "litigation,"
as well as other unspecified "[s]ervices" that
"may ultimately inure to the benefit of the members of
the local bargaining unit." Id., at 28a-32a.
The total chargeable amount for nonmembers was 78.06% of full
union dues. Id., at 34a.
Mark Janus is employed by the Illinois Department of
Healthcare and Family Services as a child support specialist.
Id., at 10a. The employees in his unit are among the
35, 000 public employees in Illinois who are represented by
respondent American Federation of State, County, and
Municipal Employees, Council 31 (Union). Ibid. Janus
refused to join the Union because he opposes "many of
the public policy positions that [it] advocates,"
including the positions it takes in collective bargaining.
Id., at 10a, 18a. Janus believes that the
Union's "behavior in bargaining does not appreciate
the current fiscal crises in Illinois and does not reflect
his best interests or the interests of Illinois
citizens." Id., at 18a. Therefore, if he had
the choice, he "would not pay any fees or otherwise
subsidize [the Union]." Ibid. Under his
unit's collective-bargaining agreement, however, he was
required to pay an agency fee of $44.58 per month,
id., at 14a-which would amount to about $535 per
concern about Illinois' current financial situation is
shared by the Governor of the State, and it was the Governor
who initially challenged the statute authorizing the
imposition of agency fees. The Governor commenced an action
in federal court, asking that the law be declared
unconstitutional, and the Illinois attorney general (a
respondent here) intervened to defend the law. App. 41. Janus
and two other state employees also moved to intervene-but on
the Governor's side. Id., at 60.
moved to dismiss the Governor's challenge for lack of
standing, contending that the agency fees did not cause him
any personal injury. E.g., id., at 48-49. The
District Court agreed that the Governor could not maintain
the lawsuit, but it held that petitioner and the other
individuals who had moved to intervene had standing because
the agency fees unquestionably injured them. Accordingly,
"in the interest of judicial economy," the court
dismissed the Governor as a plaintiff, while simultaneously
allowing petitioner and the other employees to file their own
complaint. Id., at 112. They did so, and the case
proceeded on the basis of this new complaint.
amended complaint claims that all "nonmember fee
deductions are coerced political speech" and that
"the First Amendment forbids coercing any money from the
non-members." App. to Pet. for Cert. 23a. Respondents
moved to dismiss the amended complaint, correctly recognizing
that the claim it asserted was foreclosed by Abood.
The District Court granted the motion, id., at 7a,
and the Court of Appeals for the Seventh Circuit affirmed,
851 F.3d 746 (2017).
then sought review in this Court, asking us to overrule
Abood and hold that public-sector agency-fee
arrangements are unconstitutional. We granted certiorari to
consider this important question. 582 U.S.__(2017).
reaching this question, however, we must consider a threshold
issue. Respondents contend that the District Court lacked
jurisdiction under Article III of the Constitution because
petitioner "moved to intervene in [the Governor's]
jurisdictionally defective lawsuit." Union Brief in
Opposition 11; see also id., at 13-17; State Brief
in Opposition 6; Brief for Union Respondent i, 16-17; Brief
for State Respondents 14, n. 1. This argument is clearly
rests on the faulty premise that petitioner intervened in the
action brought by the Governor, but that is not what
happened. The District Court did not grant petitioner's
motion to intervene in that lawsuit. Instead, the court
essentially treated petitioner's amended complaint as the
operative complaint in a new lawsuit. App. 110-112. And when
the case is viewed in that way, any Article III issue
vanishes. As the District Court recognized-and as respondents
concede-petitioner was injured in fact by Illinois'
agency-fee scheme, and his injuries can be redressed by a
favorable court decision. Ibid.; see Record
2312-2313, 2322-2323. Therefore, he clearly has Article III
standing. Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-561 (1992). It is true that the District Court
docketed petitioner's complaint under the number
originally assigned to the Governor's complaint, instead
of giving it a new number of its own. But Article III
jurisdiction does not turn on such trivialities.
sole decision on which respondents rely, United States ex
rel. Texas Portland Cement Co. v. McCord, 233 U.S. 157
(1914), actually works against them. That case concerned a
statute permitting creditors of a government contractor to
bring suit on a bond between 6 and 12 months after the
completion of the work. Id., at 162. One creditor
filed suit before the 6-month starting date, but another
intervened within the 6-to-12-month window. The Court held
that the "[t]he intervention [did] not cure th[e] vice
in the original [prematurely filed] suit," but the Court
also contemplated treating "intervention ... as an
original suit" in a case in which the intervenor met the
requirements that a plaintiff must satisfy-e.g.,
filing a separate complaint and properly serving the
defendants. Id., at 163-164. Because that is what
petitioner did here, we may reach the merits of the question
Abood, the Court upheld the constitutionality of an
agency-shop arrangement like the one now before us, 431 U.S.,
at 232, but in more recent cases we have recognized that this
holding is "something of an anomaly," Knox v.
Service Employees, 567 U.S. 298, 311 (2012), and that
Abood's "analysis is questionable on
several grounds," Harris, 573 U.S., at__(slip
op., at 17); see id., at __-__(slip op., at
17-20) (discussing flaws in Abood's reasoning). We have
therefore refused to extend Abood to situations
where it does not squarely control, see Harris,
supra, at __-__(slip op., at 27-29), while
leaving for another day the question whether Abood
should be overruled, Harris, supra, at__,
n. 19 (slip op., at 27, n. 19); see Knox, supra, at
address that question. We first consider whether
Abood's holding is consistent with standard
First Amendment principles.
First Amendment, made applicable to the States by the
Fourteenth Amendment, forbids abridgment of the freedom of
speech. We have held time and again that freedom of speech
"includes both the right to speak freely and the right
to refrain from speaking at all." Wooley v.
Maynard, 430 U.S. 705, 714 (1977); see Riley v.
National Federation of Blind of N. C, Inc., 487 U.S.
781, 796-797 (1988); Harper & Row, Publishers, Inc.
v. Nation Enterprises, 471 U.S. 539, 559 (1985);
Miami Herald Publishing Co. v. Tornillo, 418 U.S.
241, 256-257 (1974); accord, Pacific Gas & Elec. Co.
v. Public Util. Comm'n of Cal., 475 U.S. 1, 9 (1986)
(plurality opinion). The right to eschew association for
expressive purposes is likewise protected. Roberts v.
United States Jaycees, 468 U.S. 609, 623 (1984)
("Freedom of association . . . plainly presupposes a
freedom not to associate"); see Pacific Gas &
Elec, supra, at 12 ("[F]orced associations that
burden protected speech are impermissible"). As Justice
Jackson memorably put it: "If there is any fixed star in
our constitutional constellation, it is that no official,
high or petty, can prescribe what shall be orthodox in
politics, nationalism, religion, or other matters of opinion
or force citizens to confess by word or act their faith
therein." West Virginia Bd. of Ed. v. Barnette, 319
U.S. 624, 642 (1943) (emphasis added).
individuals to mouth support for views they find
objectionable violates that cardinal constitutional command,
and in most contexts, any such effort would be universally
condemned. Suppose, for example, that the State of Illinois
required all residents to sign a document expressing support
for a particular set of positions on controversial public
issues-say, the platform of one of the major political
parties. No one, we trust, would seriously argue that the
First Amendment permits this.
because such compulsion so plainly violates the Constitution,
most of our free speech cases have involved restrictions on
what can be said, rather than laws compelling speech. But
measures compelling speech are at least as threatening.
speech serves many ends. It is essential to our democratic
form of government, see, e.g., Garrison v.
Louisiana, 379 U.S. 64, 74-75 (1964), and it furthers
the search for truth, see, e.g., Thornhill v.
Alabama, 310 U.S. 88, 95 (1940). Whenever the Federal
Government or a State prevents individuals from saying what
they think on important matters or compels them to voice
ideas with which they disagree, it undermines these ends.
speech is compelled, however, additional damage is done. In
that situation, individuals are coerced into betraying their
convictions. Forcing free and independent individuals to
endorse ideas they find objectionable is always demeaning,
and for this reason, one of our landmark free speech cases
said that a law commanding "involuntary
affirmation" of objected-to beliefs would require
"even more immediate and urgent grounds" than a law
demanding silence. Barnette, supra, at 633; see also
Riley, supra, at 796-797 (rejecting
"deferential test" for compelled speech claims).
a person to subsidize the speech of other private
speakers raises similar First Amendment concerns. Knox,
supra, at 309; United States v. United Foods,
Inc., 533 U.S. 405, 410 (2001); Abood, supra,
at 222, 234-235. As Jefferson famously put it, "to
compel a man to furnish contributions of money for the
propagation of opinions which he disbelieves and abhor[s] is
sinful and tyrannical." A Bill for Establishing
Religious Freedom, in 2 Papers of Thomas Jefferson 545 (J.
Boyd ed. 1950) (emphasis deleted and footnote omitted); see
also Hudson, 475 U.S., at 305, n. 15. We have
therefore recognized that a "'significant
impingement on First Amendment rights'" occurs when
public employees are required to provide financial support
for a union that "takes many positions during collective
bargaining that have powerful political and civic
consequences." Knox, supra, at 310-311 (quoting
Ellis v. Railway Clerks, 466 U.S. 435, 455 (1984)).
the compelled subsidization of private speech seriously
impinges on First Amendment rights, it cannot be casually
allowed. Our free speech cases have identified "levels
of scrutiny" to be applied in different contexts, and in
three recent cases, we have considered the standard that
should be used in judging the constitutionality of agency
fees. See Knox, supra; Harris, supra; Friedrichs v.
California Teachers Assn., 578 U.S.__(2016) (per
curiam) (affirming decision below by equally divided
Knox, the first of these cases, we found it
sufficient to hold that the conduct in question was
unconstitutional under even the test used for the compulsory
subsidization of commercial speech. 567 U.S., at 309-310,
321-322. Even though commercial speech has been thought to
enjoy a lesser degree of protection, see, e.g., Central
Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.
Y., 447 U.S. 557, 562-563 (1980), prior precedent in
that area, specifically United Foods, supra, had
applied what we characterized as "exacting"
scrutiny, Knox, 567 U.S., at 310, a less demanding
test than the "strict" scrutiny that might be
thought to apply outside the commercial sphere. Under
"exacting" scrutiny, we noted, a compelled subsidy
must "serve a compelling state interest that cannot be
achieved through means significantly less restrictive of
associa-tional freedoms." Ibid, (internal
quotation marks and alterations omitted).
Harris, the second of these cases, we again found
that an agency-fee requirement failed "exacting
scrutiny." 573 U.S., at__(slip op., at 33). But we
questioned whether that test provides sufficient protection
for free speech rights, since "it is apparent that the
speech compelled" in agency-fee cases "is not
commercial speech." Id., at__(slip op., at 30).
up that cue, petitioner in the present case contends that the
Illinois law at issue should be subjected to "strict
scrutiny." Brief for Petitioner 36. The dissent, on the
other hand, proposes that we apply what amounts to
rational-basis review, that is, that we ask only whether a
government employer could reasonably believe that the
exaction of agency fees serves its interests. See
post, at 4 (KAGAN, J., dissenting) ("A
government entity could reasonably conclude that such a
clause was needed"). This form of minimal scrutiny is
foreign to our free-speech jurisprudence, and we reject it
here. At the same time, we again find it unnecessary to
decide the issue of strict scrutiny because the Illinois
scheme cannot survive under even the more permissive standard
applied in Knox and Harris.
remainder of this part of our opinion (Parts III-B and
III-C), we will apply this standard to the justifications for
agency fees adopted by the Court in Abood. Then, in
Parts IV and V, we will turn to alternative rationales
proffered by respondents and their amici.
Abood, the main defense of the agency-fee
arrangement was that it served the State's interest in
"labor peace," 431 U.S., at 224. By "labor
peace," the Abood Court meant avoidance of the
conflict and disruption that it envisioned would occur if the
employees in a unit were represented by more than one union.
In such a situation, the Court predicted, "inter-union
rivalries" would foster "dissension within the work
force," and the employer could face "conflicting
demands from different unions." Id., at
220-221. Confusion would ensue if the employer entered into
and attempted to "enforce two or more agreements
specifying different terms and conditions of
employment." Id., at 220. And a settlement with
one union would be "subject to attack from [a] rival
labor organizatio[n]." Id., at 221.
assume that "labor peace," in this sense of the
term, is a compelling state interest, but Abood
cited no evidence that the pandemonium it imagined would
result if agency fees were not allowed, and it is now clear
that Abood's fears were unfounded. The
Abood Court assumed that designation of a union as
the exclusive representative of all the employees in a unit
and the exaction of agency fees are inextricably linked, but
that is simply not true. Harris, supra, at__(slip
op., at 31).
federal employment experience is illustrative. Under federal
law, a union chosen by majority vote is designated as the
exclusive representative of all the employees, but federal
law does not permit agency fees. See 5 U.S.C.
§§7102, 7111(a), 7114(a). Nevertheless, nearly a
million federal employees-about 27% of the federal work
force-are union members. The situation in the Postal Service is
similar. Although permitted to choose an exclusive
representative, Postal Service employees are not required to
pay an agency fee, 39 U.S.C. §§ 1203(a), 1209(c),
and about 400, 000 are union members. Likewise, millions of public
employees in the 28 States that have laws generally
prohibiting agency fees are represented by unions that serve
as the exclusive representatives of all the
employees. Whatever may have been the case 41 years
ago when Abood was handed down, it is now undeniable
that "labor peace" can readily be achieved
"through means significantly less restrictive of
associational freedoms" than the assessment of agency
fees. Harris, supra, at__(slip op., at 30) (internal
quotation marks omitted).
addition to the promotion of "labor peace,"
Abood cited "the risk of 'free
riders'" as justification for agency fees, 431 U.S.,
at 224. Respondents and some of their amici endorse
this reasoning, contending that agency fees are needed to
prevent nonmembers from enjoying the benefits of union
representation without shouldering the costs. Brief for Union
Respondent 34-36; Brief for State Respondents 41-45; see,
e.g., Brief for International Brotherhood of
Teamsters as Amicus Curiae 3-5.
strenuously objects to this free-rider label. He argues that
he is not a free rider on a bus headed for a destination that
he wishes to reach but is more like a person shanghaied for
an unwanted voyage.
description fits the majority of public employees who would
not subsidize a union if given the option, avoiding free
riders is not a compelling interest. As we have noted,
"free-rider arguments . . . are generally insufficient
to overcome First Amendment objections." Knox,
567 U.S., at 311. To hold otherwise across the board would
have startling consequences. Many private groups speak out
with the objective of obtaining government action that will
have the effect of benefiting non-members. May all those who
are thought to benefit from such efforts be compelled to
subsidize this speech?
that a particular group lobbies or speaks out on behalf of
what it thinks are the needs of senior citizens or veterans
or physicians, to take just a few examples. Could the
government require that all seniors, veterans, or doctors pay
for that service even if they object? It has never been
thought that this is permissible. "[P]rivate speech
often furthers the interests of nonspeakers," but
"that does not alone empower the state to compel the
speech to be paid for." Lehnert v. Ferris Faculty
Assn., 500 U.S. 507, 556 (1991) (Scalia, J., concurring
in judgment in part and dissenting in part). In simple terms,
the First Amendment does not permit the government to compel
a person to pay for another party's speech just because
the government thinks that the speech furthers the interests
of the person who does not want to pay.
supporting agency fees contend that the situation here is
different because unions are statutorily required to
"represen[t] the interests of all public employees in
the unit," whether or not they are union members.
§315/6(d); see, e.g., Brief for State
Respondents 40-41, 45; post, at 7 (KAGAN, J.,
dissenting). Why might this matter?
think of two possible arguments. It might be argued that a
State has a compelling interest in requiring the payment of
agency fees because (1) unions would otherwise be unwilling
to represent nonmembers or (2) it would be fundamentally
unfair to require unions to provide fair representation for
nonmembers if nonmembers were not required to pay. Neither of
these arguments is sound.
it is simply not true that unions will refuse to serve as the
exclusive representative of all employees in the unit if they
are not given agency fees. As noted, unions represent
millions of public employees in jurisdictions that do not
permit agency fees. No union is ever compelled to seek that
designation. On the contrary, designation as exclusive
representative is avidly sought. Why is this so?
without agency fees, designation as the exclusive
representative confers many benefits. As noted, that status
gives the union a privileged place in negotiations over
wages, benefits, and working conditions. See §315/6(c).
Not only is the union given the exclusive right to speak for
all the employees in collective bargaining, but the employer
is required by state law to listen to and to bargain in good
faith with only that union. §315/7. Designation as
exclusive representative thus "results in a tremendous
increase in the power" of the union. American
Communications Assn. v. Douds, 339 U.S. 382, 401 (1950).
addition, a union designated as exclusive representative is
often granted special privileges, such as obtaining
information about employees, see §315/6(c), and having
dues and fees deducted directly from employee wages,
§§315/6(e)-(f). The collective-bargaining agreement
in this case guarantees a long list of additional privileges.
See App. 138-143.
benefits greatly outweigh any extra burden imposed by the
duty of providing fair representation for nonmembers. What
this duty entails, in simple terms, is an obligation not to
"act solely in the interests of [the union's] own
members." Brief for State Respondents 41; see
Cintron v. AFSCME, Council 31, No. S-CB-16-032, p.
1, 34 PERI ¶105 (ILRB Dec. 13, 2017) (union may not
intentionally direct "animosity" toward nonmembers
based on their "dissident union practices");
accord, 14 Penn Plaza LLC v. Pyett, 556 U.S. 247,
271 (2009); Vaca v. Sipes, 386 U.S. 171, 177 (1967).
does this mean when it comes to the negotiation of a
contract? The union may not negotiate a collective-bargaining
agreement that discriminates against non-members, see
Steele v. Louisville & Nashville R. Co., 323
U.S. 192, 202-203 (1944), but the union's bargaining
latitude would be little different if state law simply
prohibited public employers from entering into agreements
that discriminate in that way. And for that matter, it is
questionable whether the Constitution would permit a
public-sector employer to adopt a collective-bargaining
agreement that discriminates against nonmembers. See
id., at 198-199, 202 (analogizing a private-sector
union's fair-representation duty to the duty "the
Constitution imposes upon a legislature to give equal
protection to the interests of those for whom it
legislates"); cf. Rumsfeld v. Forum for Academic and
Institutional Rights, Inc., 547 U.S. 47, 69 (2006)
(recognizing that government may not "impose penalties
or withhold benefits based on membership in a disfavored
group" where doing so "ma[kes] group membership
less attractive"). To the extent that an employer would
be barred from acceding to a discriminatory agreement anyway,
the union's duty not to ask for one is superfluous. It is
noteworthy that neither respondents nor any of the 39
amicus briefs supporting them-nor the dissent-has
explained why the duty of fair representation causes
public-sector unions to incur significantly greater expenses
than they would otherwise bear in negotiating
about the representation of nonmembers in grievance
proceedings? Unions do not undertake this activity solely for
the benefit of nonmembers-which is why Illinois law gives a
public-sector union the right to send a representative to
such proceedings even if the employee declines union
representation. §315/6(b). Representation of nonmembers
furthers the union's interest in keeping control of the
administration of the collective-bargaining agreement, since
the resolution of one employee's grievance can affect
others. And when a union controls the grievance process, it
may, as a practical matter, effectively subordinate "the
interests of [an] individual employee ... to the collective
interests of all employees in the bargaining unit."
Alexander v. Gardner-Denver Co., 415 U.S. 36, 58, n.
19 (1974); see Stahulak v. Chicago, 184 Ill.2d 176,
180-181, 703 N.E.2d 44, 46-47 (1998); Ma-honey v.
Chicago, 293 Ill.App.3d 69, 73-74, 687 N.E.2d 132,
135-137 (1997) (union has "'discretion to refuse to
process'" a grievance, provided it does not act
"arbitrarily]" or "in bad faith"
event, whatever unwanted burden is imposed by the
representation of nonmembers in disciplinary matters can be
eliminated "through means significantly less restrictive
of associational freedoms" than the imposition of agency
fees. Harris, 573 U.S., at__(slip op., at 30)
(internal quotation marks omitted). Individual nonmembers
could be required to pay for that service or could be denied
union representation altogether. Thus, ...