The Bogus ‘Free Speech’ Argument Against Unions


Free speech has no fiercer advocate than Professor Eugene Volokh of the University of California at Los Angeles. As a teacher of First Amendment law, director of a First Amendment amicus brief clinic, and a founder of the libertarian-leaning Volokh Conspiracy blog, Volokh lets almost no free-speech sparrow fall anywhere in the U.S. without weighing in, usually against government and in favor of free speech objectors. Supreme Court justices have cited his opinions six times. From personal experience, I know him to be merciless when he deems a fellow academic insufficiently militant in defense of speech values.

So when Volokh weighs in before the Supreme Court in opposition to a free-speech claim, that fact should spur a careful look on all sides. Last month, Volokh filed an amicus brief in Janus v. American Federation of State County, and Municipal Employees, the pending First Amendment challenge to “agency fee” agreements between government and public-employee unions. Volokh’s brief, in support of the union, argues that the fees are fully constitutional—that, in fact, the First Amendment simply doesn’t apply to this case.

The brief was co-authored by Professor William Baude of the University of Chicago, a constitutional wunderkind and former clerk to Chief Justice John Roberts. (Justice Neil Gorsuch cited his scholarship during oral argument last month in a Fourth Amendment case, Byrd v. United States.)

Alas, there seems little chance that the justices will heed the Volokh-Baude brief; since 2011, Justice Samuel Alito has been on a mission to take down public employee unions. He seemed to be on the verge of victory in 2016, with a case called Friedrichs v. California Teachers Association. The death of Justice Antonin Scalia, it seems likely, deprived Alito of his fifth vote, and resulted in a 4-4 decision affirming the …read more

Source:: The Atlantic – Politics

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