OPINION OF THE COURT
DAVENPORT V. WASHINGTON ED. ASSN.
551 U. S. ____ (2007)
SUPREME COURT OF THE UNITED STATES
NOS. 05-1589 AND 05-1657
GARY DAVENPORT, et al., PETITIONERS
05–1589
v.
WASHINGTON EDUCATION ASSOCIATION
WASHINGTON, PETITIONER
05–1657 v.
WASHINGTON EDUCATION ASSOCIATION
on writs of certiorari to the supreme court of
washington
[June 14, 2007]
Justice Scalia delivered
the opinion of the Court.
The State of Washington prohibits
labor unions from using the agency-shop fees of a nonmember for
election-related purposes unless the nonmember affirmatively
consents. We decide whether this restriction, as applied to
public-sector labor unions, violates the First Amendment.
I
The National Labor Relations Act
leaves States free to regulate their labor relationships with their
public employees. See 49 Stat. 450, as amended, 29 U. S. C.
§152(2). The labor laws of many States authorize a union and a
government employer to enter into what is commonly known as an
agency-shop agreement. This arrangement entitles the union to levy
a fee on employees who are not union members but who are
nevertheless represented by the union in collective bargaining.
See,
e.g., Lehnert v.
Ferris Faculty
Assn.,
500 U.
S. 507, 511 (1991). The primary purpose of such arrangements is
to prevent nonmembers from free-riding on the union’s efforts,
sharing the employment benefits obtained by the union’s collective
bargaining without sharing the costs incurred. See,
e.g.,
Machinists v.
Street,
367 U. S. 740, 760–764
(1961). However, agency-shop arrangements in the public sector
raise First Amendment concerns because they force individuals to
contribute money to unions as a condition of government employment.
Thus, in
Abood v.
Detroit Bd. of Ed.,
431 U. S. 209, 235–236
(1977), we held that public-sector unions are constitutionally
prohibited from using the fees of objecting nonmembers for
ideological purposes that are not germane to the union’s
collective-bargaining duties. And in
Teachers v.
Hudson,
475
U. S. 292, 302, 304–310 (1986), we set forth various procedural
requirements that public-sector unions collecting agency fees must
observe in order to ensure that an objecting nonmember can prevent
the use of his fees for impermissible purposes. Neither
Hudson nor any of our other cases, however, has held that
the First Amendment mandates that a public-sector union obtain
affirmative consent before spending a nonmember’s agency fees for
purposes not chargeable under
Abood.
The State of Washington has
authorized public-sector unions to negotiate agency-shop
agreements. Where such agreements are in effect, Washington law
allows the union to charge nonmembers an agency fee equivalent to
the full membership dues of the union and to have this fee
collected by the employer through payroll deductions. See,
e.g., Wash. Rev. Code §§41.56.122(1), 41.59.060(2),
41.59.100 (2006). However, §42.17.760 (hereinafter §760), which is
a provision of the Fair Campaign Practices Act (a state initiative
approved by the voters of Washington in 1992), restricts the
union’s ability to spend the agency fees that it collects. Section
760, as it stood when the decision under review was rendered,
provided:
“A labor organization may not use agency shop fees
paid by an individual who is not a member of the organization to
make contributions or expenditures to influence an election or to
operate a political committee, unless affirmatively authorized by
the individual.”[
Footnote
1]
Respondent, the exclusive
bargaining agent for approximately 70,000 public educational
employees, collected agency fees from nonmembers that it
represented in collective bargaining. Consistent with its
responsibilities under
Abood and
Hudson (or so we
assume for purposes of these cases)
, respondent sent a
“
Hudson packet” to all nonmembers twice a year, notifying
them of their right to object to paying fees for nonchargeable
expenditures, and giving them three options: (1) pay full agency
fees by not objecting within 30 days; (2) object to paying for
nonchargeable expenses and receive a rebate as calculated by
respondent; or (3) object to paying for nonchargeable expenses and
receive a rebate as determined by an arbitrator. Respondent held in
escrow any agency fees that were reasonably in dispute until the
Hudson process was complete.
In 2001, respondent found itself in Washington
state courts defending, in two separate lawsuits, its expenditures
of nonmembers’ agency fees. The first lawsuit was brought by the
State of Washington, petitioner in No. 05–1657, and the second was
brought as a putative class action by several nonmembers of the
union, petitioners in No. 05–1589. Both suits claimed that
respondent’s use of agency fees was in violation of §760.
Petitioners alleged that respondent had failed to obtain
affirmative authorization from nonmembers before using their agency
fees for the election-related purposes specified in §760. In No.
05–1657, after a trial on the merits, the trial court found that
respondent had violated §760 and awarded the State both monetary
and injunctive relief. In No. 05–1589, a different trial judge held
that §760 provided a private right of action, certified the class,
and stayed further proceedings pending interlocutory appeal.
After intermediate appellate court
proceedings, a divided Supreme Court of Washington held that,
although a nonmember’s failure to object after receiving
respondent’s “
Hudson packet” did not satisfy §760’s
affirmative-authorization requirement as a matter of state law, the
statute’s imposition of such a requirement violated the First
Amendment of the Federal Constitution. See
State ex rel.
Washington State Public Disclosure Comm’n v.
Washington
Ed. Assn., 156 Wash. 2d 543, 553–571, 130 P. 3d 352,
356–365 (2006) (en banc). The court reasoned that this Court’s
agency-fee jurisprudence established a balance between the First
Amendment rights of unions and of nonmembers, and that §760
triggered heightened First Amendment scrutiny because it deviated
from that balance by imposing on respondent the burden of
confirming that a nonmember does not object to the expenditure of
his agency fees for electoral purposes. The court also held that
§760 interfered with respondent’s expressive associational rights
under
Boy Scouts of America v.
Dale,
530 U. S. 640 (2000). We granted
certiorari. 548 U. S. ___ (2006).
II
The public-sector agency-shop
arrangement authorizes a union to levy fees on government employees
who do not wish to join the union. Regardless of one’s views as to
the desirability of agency-shop agreements, see
Abood, 431
U. S., at 225, n. 20, it is undeniably unusual for a
government agency to give a private entity the power, in essence,
to tax government employees. As applied to agency-shop agreements
with public-sector unions like respondent, §760 is simply a
condition on the union’s exercise of this extraordinary power,
prohibiting expenditure of a nonmember’s agency fees for
election-related purposes unless the nonmember affirmatively
consents. The notion that this modest limitation upon an
extraordinary benefit violates the First Amendment is, to say the
least, counterintuitive. Respondent concedes that Washington could
have gone much further, restricting public-sector agency fees to
the portion of union dues devoted to collective bargaining. See
Brief for Respondent 46–47. Indeed, it is uncontested that it would
be constitutional for Washington to eliminate agency fees entirely.
See
id., at 46 (citing
Lincoln Fed. Union v.
Northwestern Iron & Metal Co.,
335 U. S. 525 (1949)).
For the reasons that follow, we conclude that the far less
restrictive limitation the voters of Washington placed on
respondent’s authorization to exact money from government employees
is of no greater constitutional concern.
A
The principal reason the Supreme
Court of Washington concluded that §760 was unconstitutional was
that it believed that our agency-fee cases, having balanced the
constitutional rights of unions and of nonmembers, dictated that a
nonmember must shoulder the burden of objecting before a union can
be barred from spending his fees for purposes impermissible under
Abood. See 156 Wash. 2d, at 557–563, 130 P. 3d, at
358–360. The court reached this conclusion primarily because our
cases have repeatedly invoked the following proposition:
“ ‘[D]issent is not to be presumed—it must affirmatively be
made known to the union by the dissenting employee.’ ”
Hudson, 475 U. S., at 306, n. 16 (quoting
Street, 367 U. S., at 774); see also
Abood,
supra, at 238. The court concluded that §760 triggered
heightened First Amendment scrutiny because it deviated from this
perceived constitutional balance by requiring unions to obtain
affirmative consent.
This interpretation of our
agency-fee cases extends them well beyond their proper ambit. Those
cases were not balancing constitutional rights in the manner
respondent suggests, for the simple reason that unions have no
constitutional entitlement to the fees of nonmember-employees. See
Lincoln Fed. Union, supra, at 529–531. We have never
suggested that the First Amendment is implicated whenever
governments place limitations on a union’s entitlement to agency
fees above and beyond what
Abood and
Hudson
require. To the contrary, we have described
Hudson as
“outlin[ing] a
minimum set of procedures by which a
[public-sector] union in an agency-shop relationship could meet its
requirement under
Abood.”
Keller v.
State Bar
of Cal.,
496 U.
S. 1, 17 (1990) (emphasis added). The mere fact that Washington
required more than the
Hudson minimum does not trigger
First Amendment scrutiny. The constitutional floor for unions’
collection and spending of agency fees is not also a constitutional
ceiling for state-imposed restrictions.
The Supreme Court of Washington read far too
much into our admonition that “dissent is not to be presumed.” We
meant only that it would be improper for a court to enjoin the
expenditure of the agency fees of all employees, including those
who had not objected, when the statutory or constitutional
limitations established in those cases could be satisfied by a
narrower remedy. See,
e.g., Street, supra, at
768–770, 772–775 (discussing possible judicial remedies for
violation of a federal statute that forbade unions from spending
objecting employees’ fees for political purposes);
Abood, supra, at 235–236, 237–242 (discussing possible
judicial remedies for a state statute that unconstitutionally
authorized a public-sector union to spend
objecting
nonmembers’ agency fees for ideological purposes not germane to
collective bargaining);
Hudson, supra, at 302, 304–310
(setting forth procedures necessary to prevent agency-shop
arrangements from violating
Abood). But, as the dissenting
justices below correctly recognized, our repeated affirmation that
courts have an obligation to interfere with a union’s
statutory entitlement no more than is necessary to vindicate the
rights of nonmembers does not imply that legislatures (or voters)
themselves cannot limit the scope of that entitlement.
B
Respondent defends the judgment
below on a ground quite different from the mistaken rationale
adopted by the Supreme Court of Washington. Its argument begins
with the premise that §760 is a limitation on how the union may
spend “its” money, citing for that proposition the Washington
Supreme Court’s description of §760 as encumbering funds that are
lawfully within a union’s possession. Brief for Respondent 21; 156
Wash. 2d, at 568–569, 130 P. 3d, at 363–364. Relying on that
premise, respondent invokes
First Nat. Bank of Boston v.
Bellotti,
435 U. S. 765 (1978),
Austin v.
Michigan Chamber of Commerce,
494 U. S. 652 (1990),
and related campaign-finance cases. It argues that, under the
rigorous First Amendment scrutiny required by those cases, §760 is
unconstitutional because it applies to ballot propositions and
because it does not limit equivalent election-related expenditures
by corporations.
The Supreme Court of Washington’s
description of §760 notwithstanding, our campaign-finance cases are
not on point. For purposes of the First Amendment, it is entirely
immaterial that §760 restricts a union’s use of funds only after
those funds are already within the union’s lawful possession under
Washington law. What matters is that public-sector agency fees are
in the union’s possession only because Washington and its
union-contracting government agencies have compelled their
employees to pay those fees. The cases upon which respondent relies
deal with governmental restrictions on how a regulated entity may
spend money that has come into its possession without the
assistance of governmental coercion of its employees. See,
e.g., Bellotti, supra, at 767–768;
Austin,
supra, at 654–656. As applied to public-sector unions, §760 is
not fairly described as a restriction on how the union can spend
“its” money; it is a condition placed upon the union’s
extraordinary
state entitlement to acquire and spend
other people’s money.[
Footnote 2]
The question that must be asked, therefore, is
whether §760 is a constitutional condition on the authorization
that public-sector unions enjoy to charge government employees
agency fees. Respondent essentially answers that the statute
unconstitutionally draws distinctions based on the content of the
union’s speech, requiring affirmative consent only for
election-related expenditures while permitting expenditures for the
rest of the purposes not chargeable under
Abood unless the
nonmember objects. The contention that this amounts to
unconstitutional content-based discrimination is off the mark.
It is true enough that
content-based regulations of speech are presumptively invalid. See,
e.g., R. A. V. v.
St. Paul,
505 U. S. 377,
382 (1992) (citing cases). We have recognized, however, that “[t]he
rationale of the general prohibition . . . is that content
discrimination ‘raises the specter that the Government may
effectively drive certain ideas or viewpoints from the
marketplace.’ ”
Id., at 387 (quoting
Simon &
Schuster, Inc. v.
Members of N. Y. State Crime Victims
Bd.,
502 U. S.
105, 116 (1991)). And we have identified numerous situations in
which that risk is inconsequential, so that strict scrutiny is
unwarranted. For example, speech that is obscene or defamatory can
be constitutionally proscribed because the social interest in order
and morality outweighs the negligible contribution of those
categories of speech to the marketplace of ideas. See,
e.g.,
R. A. V., 505 U. S., at 382–384. Similarly, content
discrimination among various instances of a class of proscribable
speech does not pose a threat to the marketplace of ideas when the
selected subclass is chosen for the very reason that the entire
class can be proscribed. See
id., at 388 (confirming that
governments may choose to ban only the most prurient obscenity). Of
particular relevance here, our cases recognize that the risk that
content-based distinctions will impermissibly interfere with the
marketplace of ideas is sometimes attenuated when the government is
acting in a capacity other than as regulator. Accordingly, it is
well established that the government can make content-based
distinctions when it subsidizes speech. See,
e.g.,
Regan v.
Taxation With Representation of Wash.,
461 U. S. 540,
548–550 (1983). And it is also black-letter law that, when the
government permits speech on government property that is a
nonpublic forum, it can exclude speakers on the basis of their
subject matter, so long as the distinctions drawn are viewpoint
neutral and reasonable in light of the purpose served by the forum.
See,
e.g., Cornelius v.
NAACP Legal Defense
& Ed. Fund, Inc.,
473 U. S. 788, 799–800,
806 (1985).
The principle underlying our
treatment of those situations is equally applicable to the narrow
circumstances of these cases. We do not believe that the voters of
Washington impermissibly distorted the marketplace of ideas when
they placed a reasonable, viewpoint-neutral limitation on the
State’s general authorization allowing public-sector unions to
acquire and spend the money of government employees. As the Supreme
Court of Washington recognized, the voters of Washington sought to
protect the integrity of the election process, see 156 Wash. 2d, at
563, 130 P. 3d, at 361, which the voters evidently thought was
being impaired by the infusion of money extracted from nonmembers
of unions without their consent. The restriction on the
state-bestowed entitlement was thus limited to the state-created
harm that the voters sought to remedy. The voters did not have to
enact an across-the-board limitation on the use of nonmembers’
agency fees by public-sector unions in order to vindicate their
more narrow concern with the integrity of the election process. We
said in
R. A. V. that, when totally proscribable
speech is at issue, content-based regulation is permissible so long
as “there is no realistic possibility that official suppression of
ideas is afoot.” 505 U. S., at 390. We think the same is true when,
as here, an extraordinary and totally repealable authorization to
coerce payment from government employees is at issue. Even if it be
thought necessary that the content limitation be reasonable and
viewpoint neutral, cf.
Cornelius, supra, at 806, the
statute satisfies that requirement. Quite obviously, no suppression
of ideas is afoot, since the union remains as free as any other
entity to participate in the electoral process with all available
funds other than the state-coerced agency fees lacking affirmative
permission. Cf.
Regan, supra, at 549–550 (First Amendment
does not require the government to enhance a person’s ability to
speak). In sum, given the unique context of public-sector
agency-shop arrangements, the content-based nature of §760 does not
violate the First Amendment.
We emphasize an important limitation upon our
holding: we uphold §760 only as applied to public-sector unions
such as respondent. Section 760 applies on its face to both public-
and private-sector unions in Washington.[
Footnote 3] Since private-sector unions collect agency
fees through contractually required action taken by private
employers rather than by government agencies, Washington’s
regulation of those private arrangements presents a somewhat
different constitutional question.[
Footnote 4] We need not answer that question today,
however, because at no stage of this litigation has respondent made
an overbreadth challenge. See generally
Schaumburg v.
Citizens for Better Environment,
444 U. S. 620, 633–634
(1980) (applying overbreadth doctrine).[
Footnote 5] Instead, respondent has consistently argued
simply that §760 is unconstitutional as applied to itself. The only
purpose for which it has noted the statute’s applicability to
private-sector unions is to establish that the statute was meant to
be a general limitation on electoral speech, and not just a
condition on state agencies’ authorization of compulsory agency
fees. See Brief for Respondent 24, 48. That limited contention,
however, is both unconvincing and immaterial. The purpose of the
voters of Washington was undoubtedly the general one of protecting
the integrity of elections by limiting electoral spending in
certain ways. But §760, though applicable to all unions, served
that purpose through very different means depending on the type of
union involved: It
conditioned public-sector unions’
authorization to coerce fees from government employees at the same
time that it
regulated private-sector unions’
collective-bargaining agreements. The constitutionality of the
means chosen with respect to private-sector unions has no bearing
on whether §760 is constitutional as applied to public-sector
unions.
* * *
We hold that it does not violate
the First Amendment for a State to require that its public-sector
unions receive affirmative authorization from a nonmember before
spending that nonmember’s agency fees for election-related
purposes. We therefore vacate the judgment of the Supreme Court of
Washington and remand the cases for further proceedings not
inconsistent with this opinion.
It is so ordered.
Footnote 1
Washington has since amended §760 to codify a
narrower interpretation of “use” of agency-shop fees than the
interpretation adopted below by the state trial court that passed
on that question. See Supp. Brief for Respondent 2–3. As respondent
concedes, however,
id., at 3, these cases are not moot.
Because petitioners sought money damages for respondent’s alleged
violation of the prior version of §760, it still matters whether
the Supreme Court of Washington was correct to hold that that
version was inconsistent with the First Amendment. Our analysis of
whether §760’s affirmative-authorization requirement violates the
constitutional rights of respondent is not affected by the
amendment, which merely causes that requirement to be applicable
less frequently than the state trial court thought.
Footnote 2
Respondent might have had a point if, as it
suggests at times, the statute burdened its ability to spend the
dues of its own members. But §760 restricts solely the “use [of]
agency shop fees paid by an individual who is not a member.” The
only reason respondent’s use of its members’ dues was burdened is
that respondent chose to commingle those dues with nonmembers’
agency fees. See App. to Pet. for Cert. in No. 05–1657, pp. 99a,
105a–107a. Respondent’s improvident accounting practices do not
render §760 unconstitutional. We note as well that, given current
technology, it will not likely be burdensome for any nonmember who
wishes to do so to provide affirmative authorization for use of his
fees for electoral expenditures.
For similar reasons, the Supreme Court of
Washington’s invocation of the union’s expressive associational
rights under
Boy Scouts of America v.
Dale,
530 U. S. 640 (2000), was quite
misplaced, as respondent basically concedes by not relying upon the
case. Section 760 does not compel respondent’s acceptance of
unwanted members or otherwise make union membership less
attractive. See
Rumsfeld v.
Forum for Academic and
Institutional Rights, Inc.,
547 U. S. 47, 68–69
(2006).
Footnote 3
Under the National Labor Relations Act, it is
generally not an unfair labor practice for private-sector employers
to enter into agency-shop arrangements, see 29 U. S. C.
§158(a)(3), but States retain the power under the Act to ban the
execution or application of such agreements, see §164(b).
Footnote 4
We do not suggest that the answer must be
different. We have previously construed the authorization of
private-sector agency-shop arrangements in the National Labor
Relations Act in a manner that is arguably content based. See
Communications Workers v.
Beck,
487 U. S. 735, 738,
762–763 (1988) (§158(a)(3) authorizes expenditure of private-sector
agency fees over a nonmember’s objection only in furtherance of the
union’s obligations as exclusive bargaining representative);
Ellis v.
Railway Clerks,
466 U. S. 435, 450–451
(1984) (expenditures on publications that report about a union’s
activities as exclusive bargaining representative can be charged to
nonmembers over their objection).
Footnote 5
Nor is it clear that the “strong medicine” of
the overbreadth doctrine is even available to challenge a statute
such as §760. See
Virginia v.
Hicks,
539 U. S. 113, 118–120
(2003) (recognizing that the doctrine’s benefits—eliminating the
chilling effect that overbroad laws have on nonparties—must be
weighed against its costs—blocking perfectly constitutional
applications of a law). It may be argued that the only other
targets of the statute’s narrow prohibition, private-sector unions,
are sufficiently capable of defending their own interests in court
that they will not be significantly “chilled.”
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