The US Supreme Court heard arguments this week in Janus v. AFSCME, and most observers believe the justices are prepared to strike down agency fees for government employees—that is, the mandatory dues that public-sector workers pay to the unions that represent them. The implications of this decision could be staggering: Recent research suggests that “right-to-work laws” (which prevent agency fees from being imposed on all workers) dramatically reduce Democratic vote share, shift policy to the right, and reduce working-class representation in legislatures.
If the Court does indeed rule that these fees are unconstitutional, it will be on the grounds that the payments are “compelled speech,” as the plaintiffs argued. But while the conservative justices may be sympathetic to the free-speech claims of workers and and union beneficiaries who don’t want to pay union dues, they seems far less interested in other forms of coerced speech in the workplace.
The Court’s conservative majority has already placed stark limits on the speech rights of public-sector workers. In Garcetti v. Ceballos, the five conservative justices found that a deputy district attorney who faced retaliation for writing an internal memo detailing false claims in a search warrant did not have free-speech rights, because of his position as a government worker.
In a 1990 case, Rutan v. Republican Party of Illinois, liberals on the Court held that the First Amendment barred public-sector officials from making decisions about hiring or firing based on party affiliation. But in his dissent Justice Antonin Scalia argued that “Private citizens perhaps cannot be prevented from wearing long hair, but policemen can,” and thus, in his view, free expression by public-sector workers can be curtailed.
Justice Anthony Kennedy, who appeared to favor the plaintiff’s arguments on Monday, signed on Scalia’s dissent in Rutan. It is very difficult to find a logical thread here, but it is easy to find a partisan one—conservative jurisprudence may only be interested in protecting those free-speech rights when unions would be harmed.
In addition to happily limiting the free-speech rights of public-sector employees, the Supreme Court has also never been particularly concerned with the free-speech rights of private-sector employees, despite evidence that employers sometimes push workers to engage in political speech they may not want to.
In a new book called Politics at Work, political scientist Alex Hertel-Fernandez explores another form of coerced speech: in which employers prod workers to engage in political speech that benefits their company. Hertel-Fernandez documented the ways in which corporate managers can tell workers to attend protests, write to members of Congress, and even donate to company political-action campaigns. During the final leg of the 2012 campaign, when Mitt Romney visited an Ohio coal mine, the mine owners told workers that attendance was mandatory (and that workers would not be compensated). Workers told local reporters that “they showed up to the rally out of fear of losing their jobs or being disciplined in some other way.” One woman said that she felt her husband’s boss was “pushing the Republican choice on him and he felt intimidated.” To add insult to injury, the workers were forced to give up the day’s pay. The owner of the mine, Murray Energy, is among the largest corporate donors to the Republican Party. Robert Murray, the CEO, has pressured employees to contribute to Republicans and his company internally tracks who does and does not donate. Journalist Alec MacGillis documented that individuals who don’t donate to Republican candidates risk being demoted or even fired.