A silver lining in the Supreme Court's expected anti-union ruling

The U.S. Supreme Court heard arguments last week in a case that could devastate public-employee unions. The Court's conservative majority is expected to rule that mandatory "fair share" fees, which are paid by members and non-members to fund collective bargaining that benefits both groups, violate the Constitution.

In Janus v. American Federation of State, County, and Municipal Employees, Council 31, an Illinois state employee is arguing that, although the fair-share fees do not fund political activities, the unions' act of bargaining for better wages is "political speech" that under the First Amendment he cannot be required to subsidize.

The Court's ruling could turn every state into a "right to work" state. In non-right-to-work states, which are mostly in the Northeast and on the West Coast, more state employee unions could see their funding drop. Unions worry that, without fair-share fees, employees would opt to become "free riders" who get the advantages of union membership without paying for them.

However, every Southern state is already a right-to-work state. And the ruling in Janus could offer a silver lining for public workers in those states and others that limit or ban collective bargaining for state employees. That's because courts to date have rejected arguments that public-employee unions' collective bargaining is protected by the First Amendment. But Janus argues that unions negotiating with state governments is "political speech indistinguishable from lobbying the government."

In Virginia and the Carolinas, teachers, firefighters, and police are all prohibited from collective bargaining. Some of the same groups are prohibited from unionizing in Georgia, Tennessee, and Texas. The North Carolina law dates back to 1959 and represents an effort by employers and lawmakers to discourage interracial unionism and civil rights organizing, as Facing South has reported. Anti-union laws, including limits on picketing at the workplace, were passed across the South after a racist Texas industrialist launched the "right to work" movement.

Although courts have extended First Amendment protections to individual public employees, they have not extended the same protections to their unions and have allowed restrictions on their activities. When Dr. Martin Luther King spoke to striking public employees in his final speech 50 years ago, he criticized an "illegal, unconstitutional injunction" from a court in Memphis, Tennessee, that prohibited the sanitation workers from demonstrating.

In 1979, the U.S. Supreme Court rejected a claim that Arkansas' refusal to bargain with a state employee union violated the First Amendment. The Court distinguished union activities from the First Amendment "right of associations to engage in advocacy on behalf of their members." The justices said the First Amendment "is not a substitute for the national labor relations laws" and "does not impose any affirmative obligation on the government to … recognize the association and bargain with it."

Professor Ruben Garcia of the University of Nevada, Las Vegas has noted the inconsistency between this ruling and the constitutional argument against fair share fees: "How can bargaining not be matters of constitutional concern in those cases brought by unions and union members, and suddenly implicate major constitutional concerns when the speech claim is brought by those who dissent from the union?"

Janus could eventually open the door to broader First Amendment protections for public-sector unions. A Wisconsin union has already filed suit against the state's 2010 law limiting public-sector collective bargaining to wages, relying on Janus to argue that "all subjects of collective bargaining" are protected by the First Amendment.

A recent article by Shaun Richman for In These Times argued that Janus could "wildly increase workers' bargaining power," and it quotes one local union that plans to promptly file a lawsuit if the Court rules as expected. A former Reagan administration official filed a brief in the case arguing that a ruling against the unions could "transform every workplace dispute into a constitutional controversy."

Courts might not go as far as extending First Amendment protection to strikes by public employees like teachers, who are prohibited from striking in most states nationwide and in every Southern state except Louisiana. Even if striking was considered "speech," courts would continue to weigh the rights of unions and their members against the public interest in ensuring that schools, like police forces and fire departments, continue to function.

During the last West Virginia teachers strike in 1990, two state courts ordered teachers to return to work. The West Virginia Supreme Court upheld the orders and quoted an earlier decision: "While some constitutional protection is extended under the First Amendment to public employees to organize, speak freely and petition, it is clear that a public employer is not required to recognize or bargain with a public employee association or union." The ruling in Janus could cast doubt on that.

While the current pro-corporate U.S. Supreme Court is unlikely to extend broad new constitutional protections to unions, Richman argues that Janus could give a future liberal Court "a roadmap for restoring a legal balance of power between corporations and workers." Law professor Catherine Fisk and attorney Margaux Poueymirou argue that the ruling could also mean that laws requiring unions to represent non-members — to "speak" on their behalf — violate the First Amendment.

The justices will often undermine or chip away at previous rulings that they do not like, rather than overruling them altogether. After all, they do not want to see their own rulings easily cast aside. If a future Court disagrees with Janus but does not want to overrule, it could instead use the precedent to confer broader free speech rights on public-employee unions. These broader rights could help to mitigate the damage done.