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Supreme Court’s Big Labor Case Is About Free Speech, Not Unions

Monday, the Supreme Court hears oral arguments in a case that could stop forcing unionized workers to pay for activities they disagree with.  The case is more about free speech than unions.

“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.” So proclaimed the Supreme Court more than 60 years ago in West Virginia State Board of Education v. Barnette (1943).

Yet in 1977, in Abood v. Detroit Board of Education, the court went astray from its dedication to protecting freedom of speech and association in one particular but significant context. It ruled that states could require public-sector workers who were not union members to pay “agency fees” to support union politicking, so long as this political activity was pursued in the context of collective bargaining. Today, half the states have such “agency shop” laws.

The rationale is that whatever concessions the unions secure benefit all workers, so even non-members should be forced to pay if the state (at the behest of the union) wants them to. Rebecca Friedrichs and nine other teachers in California decided they don’t necessarily like those “benefits”—maybe they prefer merit pay to tenure protections, or smaller class sizes rather than pension guarantees—and filed a lawsuit, which has now made it up to the Supreme Court.

On January 11, the justices will hear oral argument in Friedrichs v. California Teachers Association, a case that gives the court an opportunity to correct the First Amendment anomaly it created in Abood. More than 50 briefs have been filed in the case, with numerous nonprofits, social scientists, politicians, unions, public policy organizations, and others weighing in.

I Shouldn’t Have to Fund My Opponents, Our Free Speech Perspective Should Not Be Overlooked

Although the defendant unions characterize the case as an attack on the labor movement generally, that mischaracterizes the teachers’ concerns and arguments. As Friedrichs and her colleagues say in their briefs, the issue is that many workers disagree not only with their unions’ openly political activities—electioneering and the like—but also with the positions their unions take in collective bargaining.

The plaintiffs aren’t asking the court to dismantle unions. They’re simply asking it to acknowledge workers’ rights under the First Amendment not to pay for speech and de facto lobbying with which they disagree.

In Abood, the court justified allowing the government to force workers to financially support unions they disagree with because such a rule was thought to promote labor peace and prevent free-riding. Neither of those justifications holds water.

A ruling for the plaintiffs won’t lead to labor unrest because Friedrichs doesn’t question the government’s authority to designate a particular union as the exclusive representative of a class of workers. These teachers merely ask for the right not to fund that exclusive representative if they disagree with its goals. As the Supreme Court itself said in the 2014 case of Harris v. Quinn, “A union’s status as exclusive bargaining agent and the right to collect an agency fee from non-members are not inextricably linked.”

Nor will a ruling for the plaintiffs create a free-rider problem. To reiterate, the basis for the lawsuit is that many workers disagree with their union’s collective bargaining activities. As is true of Friedrichs herself, for example, some teachers would prefer to take a small pay cut so more teachers can be retained, while their union may continue to argue for higher and higher salaries.

Facts on the ground nationally also belie the contention that Friedrichs is a facial attack on all unions. As the Mackinac Center for Public Policy pointed out in its amicus brief, Michigan and Wisconsin both recently adopted laws that allow non-member workers to decide whether to fund collective bargaining—bringing the total number of such states to 25—and neither state has seen the demise of unions.

Unions Should Represent Their Members

Will unions have to work harder to collect the same amount of money in member dues that they now collect in dues plus agency fees? Yes. But the result will be that unions will become more responsive to the workers they represent.

In American politics, elections serve the function of keeping representatives accountable to their constituents. When your representative makes decisions you dislike, you have a choice whether to re-elect that person. Similarly here, if your union fights for too many policies you dislike, you should have the choice not to financially support it. Unions that are unresponsive to the workers they claim to represent will indeed decline, but those that become better representatives for their members will flourish.

A decision in favor of the Friedrichs plaintiffs will not destroy unions but instead will protect the First Amendment rights of workers and improve the quality of representation unions provide. Ultimately, everyone—workers, unions that protect workers’ interests, taxpayers, even the court in its constitutional jurisprudence—will be better off.

Source:  The Federalist

5 Notable Americans Who Fought For Their Opponents’ Rights, One of which is Free Speech

In 2016, let’s resolve to learn the difference between disagreement and force, in addition to, fighting for our freedoms such as free speech, free religion, free press, and a free fair and speedy trial.

I live within earshot of a Civil War battlefield, where volunteers give frequent artillery demonstrations during tourist season. Throughout this past summer, the familiar blasts rattling the kitchen windows became an odd source of comfort. “I suppose we could be more divided than we are today,” I found myself thinking, “considering there was a time when Americans were firing cannons at each other.”

Not having lived through the Late Unpleasantness, however, I’ll have to rank 2015 as the most bitterly divisive year in my memory. As Americans splintered into opposing camps over race, religion, marriage, gender, abortion, guns, immigration, and even historic symbols, our ability to find common ground has deteriorated. Even when it comes to basic American values—support for the rights and freedoms articulated in the Declaration of Independence and enumerated in the Constitution—consensus has been hard to find. Instead, we’re seeing weak calls for unity based on common identity rather than shared values.

Take, for example, our recent public discourse following the San Bernardino shootings. Before the victims had even been laid to rest, prominent Democrats, led by President Obama, were proposing a flat denial of Second Amendment rights to certain Americans—based not on due process of law, but on secretive government blacklisting. GOP frontrunner Donald Trump, not to be outdone, publicly mulled the idea of trampling the First Amendment by tracking American Muslims and potentially shutting down some of their places of worship. (It’s interesting to note that this latter suggestion drew all the media outrage, while the former—you know, the one actually proposed by a sitting president—provoked barely a stir.)

The Rights We All Have including Free Speech

Amid this environment, progressive agitator Michael Moore led a social media effort designed to show solidarity with American Muslims. But rather than emphasize Americans’ shared, time-honored values—the rights we all have to exercise our faith, assemble, bear arms, and freely speak our minds—Moore chose the bizarre slogan “We Are All Muslim.”

His #weareallmuslim hashtag campaign saw several thousand progressive Americans—feminists, atheists, pork-eaters, and gay-rights supporters alike—self-identifying as believers in the doctrine that there is no god but Allah, and Mohammed is his prophet. A few Christians, meanwhile, made headlines by expressing their belief that followers of Christianity and Islam worship the same God. Both efforts, while well-intentioned, did little more than trivialize the meaningful impact of real religious faith. What a weird year.

So between the heavy-handed denial of rights on the one side and the limp-wristed denial of reality on the other, is there any sane middle ground to be found? Of course there is. It is perfectly possible, consistent, and American to express fundamental disagreement with the Islamic faith while simultaneously supporting the full rights and freedoms of American Muslims. Sadly, in 2015, too many people have lost the ability to distinguish between disagreement and oppressive force—believing the one must necessarily lead to the other.

Five Notable Americans Knew Better

It hasn’t always been this way. Countless Americans throughout history have actively championed the rights of those whose ideologies they didn’t share—without compromising or denying their own beliefs. Here are just five notable examples.

Roger Williams

Roger Williams founded the colony of Rhode Island in 1663 as the first real haven of religious freedom in America. Although Williams himself was an outspoken Christian, he didn’t believe that enforcing religious orthodoxy was the proper role of government. Rhode Island was chartered as “a lively experiment, that a most flourishing civil State may stand and best be maintained, with a full liberty of religious concernments.” Thus Williams broke with the nearly universal British practice of punishing religious infractions through the civil courts.

Much to the chagrin of surrounding Puritan colonies, Rhode Island sheltered not just Puritans, but Anglicans, Baptists, Quakers, and Jews, among others. It’s no accident that the oldest synagogue in America is located in Newport, Rhode Island—a testament not to Roger Williams’ personal alignment with the Jewish faith, but with his belief in religious liberty for all.

John Adams

John Adams is well known today as an American Founding Father and the second president of the United States. But he risked his patriotic reputation in tumultuous pre-war Massachusetts by agreeing to defend the British soldiers indicted for the “Boston Massacre” of 1770. According to biographer David McCullough, Adams accepted the position of attorney for the defense without hesitation, “firm in the belief, as he said, that no man in a free country should be denied the right to counsel and a fair trial.”

Although Adams was an outspoken opponent of the British soldiers’ occupying presence in Boston, he mounted a vigorous, facts-based defense and won an acquittal for six of the eight soldiers. Later in life, after a long career serving in the Continental Congress, overseas as a diplomat, and in the White House, he nonetheless referred to the Boston Massacre trial as “one of the best pieces of service I ever rendered my country.”

Alexander Hamilton

Alexander Hamilton, another giant of the American Revolution, was George Washington’s right-hand man during most of the long, hard war for independence. But once the war had been won, Hamilton declined to follow his fellow New Yorkers in seeking reprisals against the state’s many loyalists—despite their betrayals of the very army in which he’d served. Using the pen name Phocion, Hamilton wrote pamphlets arguing that the New York Constitution—as well as common sense and a respect for the opinion of other nations—demanded fair treatment for Americans who hadn’t supported the cause of independence.

His words sound prophetic even today: “Nothing is more common than for a free people in times of heat and violence to gratify momentary passions by letting into the government principles and precedents which afterwards prove fatal to themselves. . . . If [the legislature] may banish at discretion all those whom particular circumstances render obnoxious, without hearing or trial, no man can be safe, nor know when he may be the innocent victim of a prevailing faction. The name of liberty applied to such a government would be a mockery of common sense.”

Burton Joseph

Burton Joseph was a Jewish lawyer for the American Civil Liberties Union (ACLU) and a liberal of the old school. Growing up with parents who ran a business caring for Jewish cemeteries, he was 11 years old when the United States entered the war against Nazi Germany. Surprisingly, then, one of his most famous cases was taken up on behalf of the National Socialist Party of America.

In 1977, the American neo-Nazi group tried to organize a march in Skokie, Illinois, an area heavily populated with Holocaust survivors. The city imposed bureaucratic hurdles in an attempt to stop the march. When the case went to court, Joseph and the ACLU squared off against lawyers from the Anti-Defamation League, who argued that “the Nazis’ march in paraphernalia is a reminder of the most destructive movement in history” and therefore did not deserve free-speech protection.

The ACLU eventually prevailed in its case, and the Nazis finally held their “march” in June 1978—a measly gathering of 20 people that was easily overwhelmed by pro-Jewish counter-demonstrations. Popular opinion, rather than government force, had proved a far more effective undoing of the Nazis’ hateful agenda.

Keshia Thomas

Keshia Thomas—the lone member of this list who has never been a lawyer or political leader—demonstrates the power of ordinary people in standing up against a mob. She was only 18 years old in 1996, when the Ku Klux Klan decided to hold a rally in her hometown of Ann Arbor, Michigan. Thomas, an African-American, stood nearby as part of a counter-demonstration. Tensions were high, but the two sides had been separated by police fencing—until a man with an SS tattoo and Confederate flag vest ended up on the wrong side of the fence.

Alerted to his presence, the anti-KKK demonstrators chased the man down. As he fell to the ground, they began kicking him and beating him with placard sticks. Thomas, who had originally intended to verbally confront the man, now stood appalled by the quick turn to physical violence. Yelling for the crowd to stop, she dropped to the ground, shielding the man with her body to protect him from the blows. The incident was captured by a student photographer, yielding several poignant and iconic images.

Years later, explaining why she would put herself at risk for someone whose ideology was repugnant to her, Thomas gave a simple, eloquent articulation of the freedom of conscience: “Nobody deserves to be hurt, especially not for an idea.”

What Can We Learn from These Americans?

As we enter the fray of 2016, then, let’s remind ourselves exactly what these five Americans got right, and try to learn from their example.

Freedoms Must Be Given Highest Priority

First, each of them understood that certain freedoms are fundamental and must be given highest priority—higher even than their own emotions, desires, or sympathies. Anyone can apply the word “freedom” or “right” to his pet cause, but we render such terms meaningless when we place our newly invented “rights” above the foundational ones.

In 2015, we heard a lot about the specialized “rights” of various identity groups, but very little about the rights common and precious to every American: the freedoms of speech, religion, assembly, and the like. In far too many cases, basic rights are actually being pitted against special-identity rights and coming out on the bottom. We must do better. No loyalty to an identity group should rise above our loyalty to the fundamental values of America.

It’s Time To Operate at a Higher Standard

Second, these five Americans held themselves to a higher standard than their opponents did. If these stories show us anything, it’s that defending freedom will sometimes benefit ugly ideas and undeserving people. We should defend freedom anyway. I’ve heard too many people argue that American Muslims don’t deserve religious liberty, because Islamic countries oppress Christians and other religious minorities.

This latter statement is absolutely true, and absolutely irrelevant. The goal is to be different than repressive ideologies, not to adopt their values to use against them. As Hamilton warned, our overbearing laws adopted in a time of national distress will very likely come back to bite us. If we win the battle but lose our values, we’ve lost the war.

Not All Things Are Equal

Third, none of the people in these stories were under the illusion that ideological differences don’t matter. Advocating freedom doesn’t require accepting that all ideas, faiths, and worldviews are morally equivalent—quite the contrary. You didn’t see Hamilton waving a “We’re All Tories” sign, or Joseph arguing that, at the end of the day, Jews and Nazis essentially want the same thing. Indeed, Hamilton’s and Joseph’s embrace of liberty stood as a rebuke to their opponents, and a testament that their own belief system was the superior one.

The Dangers of Our Freedoms

Rather than morally equivocating, then, these Americans understood that dangerous ideas must be confronted with the right weapons. Physical force is an appropriate response to physical threats (and make no mistake: passing a law is an indirect form of physical force). But when battling an idea, the most effective weapons are opposing ideas. The National Socialist Party’s failed march on Skokie provides a perfect example of this: the Nazis were afforded free expression, but their ideas—thankfully and unsurprisingly—soundly lost the battle for hearts and minds in the public square.

While public opinion doesn’t always get it right, it’s a venue for the exchange of ideas that is far more responsive, diverse, and consistent with liberty than resorting to physical or legal force. What’s more, it’s effective in truly changing people, rather than merely arm-twisting them into orthodoxy. As William Penn observed in 1669: “Force may make hypocrites, but it can make no converts.”

Many of the ideas currently fighting for a foothold within our culture are indeed dangerous, both to freedom and to our future. It would be utter folly to gloss over these very real ideological differences, or to fail to confront them in the marketplace of ideas. But in doing so, we must never neglect the core freedoms that are the birthright of all Americans—even of those with whom we disagree.

Source:  The Federalist