CIR Files Reply Brief in Friedrichs

The Union, the state of California, and the Obama administration, filed briefs last month in an attempt to justify their position that the First Amendment does not protect public school teachers. This week, CIR filed reply briefs that forcefully argue in defense of the First Amendment.

There is rarely any justification under the constitution for restricting the political speech of individuals. There are even fewer justifications for compelling an individual to promote or subsidize political speech. Yet the unions and their government allies argued that the free speech rights of teachers are subservient to the administrative prerogatives of the state. According to their briefs, the government can compel an individual to support the union in order to ensure that the unions remain solvent, in order to preserve “labor peace” and efficient management, and to ensure employee solidarity.

CIR’s reply brief points out the fallacies in this line of reasoning. CIR argues that any interference with an individual’s free speech demands that the courts apply rigid scrutiny to the interference and that the government provide a compelling reason as to why it is necessary. The union’s arguments in favor of agency fees provide no such compelling reason.

First, the unions argue that without agency fees they are in danger of losing money that would jeopardize the efficient operation of their mission. CIR’s brief points out that this is plainly false. Even if all California agency fee payers immediately stopped payment to their union, the California Teachers Association would still take in $160.7 million annually.

Second, the union and California argue that speech rights may be restricted in the name of efficient management. But CIR’s brief points out that many employers effectively manage their employees without a union supported by agency fees. A majority of states and the federal government operate without agency fees, and unions in those states neither lack for membership nor report difficulty in achieving their stated mission to represent public employees. CIR points out that agency fees are therefore not an interest of the state as employer, but are rather a financial interest of the union as a private organization. The finances of a private organization worth hundreds of millions of dollars are not sufficient to censor individual rights, especially when that organization would still have collected hundreds of millions without agency fees.

Finally, the unions and California argue that agency fees are necessary to promote labor peace and employee solidarity. However, CIR’s nine clients who sued their union would disagree that agency fees have promoted labor peace. CIR’s brief argues that it is counter-intuitive to suggest that solidarity is achieved by compelling individuals to subsidize an organization with which they fundamentally disagree.

Read the brief here.

Oral arguments are scheduled for January 11, 2016.