According to the US Supreme Court in the recent case of Janus v. American Federation of State Employees, an individual’s free speech is restricted when she is required to pay dues (or ‘agency fees’) to a union, even when the union is using those dues to support collective bargaining. Alito J. writing for the majority notes that the Court has “held time and again that freedom of speech ‘includes both the right to speak freely and the right to refrain from speaking at all’.” It is constitutionally objectionable, Alito J writes, to “[c]ompel individuals to mouth support for views they find objectionable”. He then follows the court’s earlier decision in Abood v. Detroit Bd of Ed to enlarge the wrong of compelled speech to include, “Compelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns”. However, he rejects the compromise adopted in Abood that permitted compulsory dues (agency fees) that were spent exclusively on collective bargaining, contract administration, and grievance adjustment purposes" and not on political activities.
As noted in an earlier blog post: Compelled expression is wrong because an individual's communication (what she says or writes) is closely linked to her sense of self and to her place in the community. Our ideas, feelings and, more broadly, our identity, take shape in public expression, when we give them symbolic form and make them accessible to others, who respond or react to them in different ways. Because the public articulation of ideas and feelings is so critical to the individual's identity, any interference with his or her expression, whether in the form of censorship or compulsion, is experienced as an invasion of the self.
This understanding of the right not to speak has a number of important consequences for the definition of its scope. One of these is that while it is wrong for the state to compel an individual to communicate with others, it does not follow that the free speech right should support or protect silence in the same way that it supports or protects speech. The constitutional right to free speech is understood principally as a prohibition on direct state censorship. However, because speech is a valuable activity, the right also supports or protects some of the conditions necessary for effective speech. The right is assumed, for example, to protect access to some forms of state property for purposes of communication or the right to contribute or spend money in support of speech. But if this protection of spending rests on the positive value of speech, it does not follow that the right is violated when an individual is required to contribute financially to the speech of others.
The Court’s assumption is that if the state violates the individual’s free speech rights when it prevents her from contributing money to support speech, it also violates the individual’s right when it compels her to contribute money to support political speech. This argument, though, rests on a basic mistake. While money, or property generally, may be necessary for effective communication so that limits on spending money for communication (e.g., election spending ceilings) interfere with freedom of expression, it does not follow that the payment or contribution of money is itself speech/expression. To be considered expression an act must be intended to convey a message to others. While a contribution of money may indicate support for an organization, such as the Liberal Party or Oxfam, or a cause such as famine relief or tax cuts, ordinarily it is not intended to communicate a message to an audience, except in the weakest sense that any voluntary act communicates or expresses something.
Money may be contributed to support the speech of a particular organization. For this reason, a limitation on contributions may sometimes be considered a restriction (albeit indirect) on expression. Contributions are protected because expression is a valued activity, the exercise of which requires resources. However, there is not the same reason to extend freedom of expression protection to the refusal to contribute money. The individual dues payer does not have to attend meetings or participate in the union’s speech. Since the dues are compulsory, others will not assume that the statements made by the union represent the individual contributor’s thinking, particularly if he or she is not a member of the union. It may seem unfair to take away an individual’s money to support a cause he or she does not agree with, but this unfairness has nothing to do with the compelled expression.
The Supreme Court of Canada in Lavigne v. OPSEU (1991) addressed the issue of compulsory dues but reached the opposite conclusion from its US counterpart. Mr. Lavigne was an employee at a community college. As a member of the bargaining unit, though not of the union, he was subject to mandatory dues check-off (the ‘Rand Formula’). He argued that his freedom of expression was violated when his compulsory contribution to the union was spent on political speech not directly related to collective bargaining – including union donations to the NDP, to the striking National Union of Mineworkers in the United Kingdom, and to pro-choice groups. All the members of the court agreed that compelled union dues do not violate freedom of expression under section 2(b). – the Charter’s freedom of expression provision. According to Justice Laforest, Mr. Lavigne’s contribution to the union was not intended to convey meaning nor would anyone be likely to see it as such. As well, no one would consider that Mr. Lavigne (particularly as a non-member) was in any way responsible for the way the money was spent or for the union’s speech.
Once again, the contribution of money is not a standard way in which people communicate their views. Through the contribution of money individuals give support to an organization, but they do not usually think of their contribution, not primarily at least, as communication to others of particular views or attitudes. Certainly, money is given and taken in all kinds of situations where no one imagines there is expressive intent – an intent to convey meaning to an audience. As well, because the act of paying money is often performed with very little personal involvement or commitment, it is difficult to imagine compulsion to pay money being experienced as an invasion of the individual’s personal sphere. The compulsion to contribute money, particularly when all that happens is payroll deduction, should not ordinarily be seen as compelled expression.
(For a more extensive discussion of compelled speech and union dues see R. Moon, The Constitutional Protection of Freedom of Expression (2000) 213-6).