Freedom Foundation has filed an “friend of the court” brief on behalf of itself and client Joseph Johnson in Hoekman v. Education Minnesota, an important case in the U.S. Court of Appeals for the Eighth Circuit.
The case concerns the scope of the Supreme Court’s landmark decision in Janus v. AFSCME.
Imagine you started a new job and were informed by your employer the law required a certain amount of your pay deducted and given to a third-party employee representation organization whose values and tactics you abhorred. Still, you were told you could either become a member and pay full dues or opt out of membership but still pay an “agency fee” amounting to about 95 percent of you were paying to start with.
If this hypothetical was presented in any context other than a public labor union, we’d call this “choice” what it very plainly was — a shakedown.
Luckily for those who chose not to join, the U.S. Supreme Court in 2018 affirmed in Janus v. AFSCME that unions could no longer take nonmembers money without their consent. The ruling also specified that by agreeing to give money to a public labor union, workers are waiving their First Amendment right against compelled speech.
But the situation for those who “chose” to join is more complicated.
Since Janus, public unions and their government allies have pivoted to arguing that union membership agreements or dues authorizations entered into before the Janus case was decided are effectively waivers of the employees’ First Amendment rights.
The argument somehow ignores the fact that these employees had no real choice at the time they signed because the unions would have taken their money without their consent anyway.
In its brief, Freedom Foundation argues that Janus protects the First Amendment rights of members just as much as non-members.
Most importantly, a deduction process that is entirely controlled by unions, which have a direct interest in seeing the money continue to flow no matter what, is inherently unconstitutional. Rather than employers confirming their own employees have waived their First Amendment rights, or putting processes in place to make sure no money is taken from their paychecks unless they’ve already done so, the unions get to decide.
The First Amendment forbids such a backward and unfair scheme.
There are also specific requirements that make a waiver of constitutional rights, like the right against compelled speech, valid.
Judges are not supposed to simply assume a supposed waiver of rights is valid. Instead, they’re supposed to consider the evidence for the waiver and decide whether or not someone actually intended to do so.
This means investigating whether someone actually knew they were waiving their rights, whether they did so freely and whether their waiver was current. Unions change their political messaging all the time. Just because you consented once doesn’t mean you consent forever.
The Hoekman case has implications for the entire country. Sides are being taken and battlelines being drawn. Public-sector unions and their government allies will stop at nothing in order to see the Janus decision gutted and rendered a dead letter.
Unless we stop them.
Rest assured that wherever such actions occur, the Freedom Foundation will be there to fight back for the First Amendment rights of all public-sector workers across the United States.