Not Peace, but a Sword: Janus and the weaponizing of free speech

By Daniel J. Root

The case and the controversy

Last June, the Supreme Court in Janus v. AFSCME, Council 31 overturned a forty-one-year-old precedent. At issue was whether public employees who are not union members can be required to pay union dues.

Under Abood v. Detroit Board of Education, non-union members could be required to pay fees necessary for the union’s collective bargaining activities but not for the union’s political activities. However, according to the Janus Court such a dichotomy is untenable. Collective bargaining for public employees is itself political, as it affects government spending.

In Janus the Court ruled that forcing nonmembers to pay fees is the same as “compelling [nonmembers] to subsidize private speech on matters of substantial public concern.” This practice therefore invokes First Amendment principles, which call for a minimum of “exacting scrutiny.” The Court held under such scrutiny the rationales of Abood do not validate the requirement of such fees, force of precedent notwithstanding.

What might otherwise seem a rather mundane workaday case, however, took on momentous significance due to Justice Kagan’s dissent. In her dissent, Justice Kagan accused the justices in the majority of “turning the First Amendment into a sword, and using it against workaday economic policy.” Under this newly “weaponiz[ed]” First Amendment, in her view, “at every stop are black-robed rulers overriding citizens’ choices.”

According to Kagan, “[t]he First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance.” But this argument is contrary to the purpose of Constitutional rights.

Freedom or democracy?

Justice Kagan’s dissent raises an existential question that any free society must answer: How can the freedom of the few be preserved against the will of the many?

In America the tyranny of the majority is prevented through the judiciary’s ability to override the will of the people when they go too far—“to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”

As Marvin Simkin wrote, “Democracy is not freedom. Democracy is two wolves and a lamb voting on what to eat for lunch. Freedom comes from the recognition of certain rights which may not be taken, not even by a 99% vote.” Constitutional rights ensure that political minorities’ freedoms are “never . . . chipped away by the whim of the majority.”

The Framers intended the “courts of justice . . . to be . . . the bulwarks of a limited Constitution against legislative encroachments.” Tocqueville writing in the 1830s lauded American courts for their ability “to correct the errors of democracy.” “[W]ithout ever being able to stop the movements of the majority,” he wrote, the courts “succeed in slowing and directing” the majority.

Few rights are more sacred than those enshrined in the First Amendment. The First Amendment protects “both the right to speak freely and the right to refrain from speaking at all.” Additionally, the amendment protects “[t]he right to eschew association for expressive purposes.”

Quoting Justice Jackson, the Janus Court affirmed as a “fixed star in our constitutional constellation” the principle that the government cannot “force citizens to confess by word or act their faith” in any prevailing political ideology. Thomas Jefferson went even further. He wrote that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.”

The Abood Court did not deny the importance of the freedom of association. It merely sought to balance this right against public policy concerns. The Court reached a compromise wherein nonmembers would only have to pay an “agency fee”—the percentage of full dues required to cover only the costs associated with collective bargaining.

However, the Janus Court found this compromise failed to realize that even collective bargaining is political. The compensation of public employees affects the state’s budget. Collective bargaining affects the compensation of public employees. Therefore, collective bargaining affects the state’s budget, which is “a matter of great public concern.” Agency fees thus fund political speech, and the Court found no sufficient state interest to require nonmembers to pay.

Conclusion

The overturning of a longstanding precedent cannot be viewed without some perturbation. In Janus the Supreme Court overturned a precedent that stood for forty-one years. If the Court overturned Abood (1977), could other precedents of that era (such as Roe (1973)) also be in jeopardy? However, predictions of this nature can rest on nothing but conjecture.

Strong arguments exist in both the majority and the dissent of Janus. The justices had an unenviable task in deciding how to rule. The reasoning in Abood seems questionable at best. However, stare decisis dictates that the Court must “stick[ ] to some wrong decisions.”

Justice Kagan’s dissent was carefully reasoned and erudite. But it went just a bit too far in its assessment of the purpose of the First Amendment. She wrote the First Amendment “was meant not to undermine but to protect democratic governance.”

On the contrary, the First Amendment (and all constitutional rights for that matter) is meant to undermine democratic governance. The Court in Janus did not “turn[ ] the First Amendment into a sword.” It ever was a sword wielded on behalf of the politically weak against the tyranny of the majority.

Whenever the majority—by democratic vote—impinges on the freedom of speech, the First Amendment shall bar the way. Indeed, the Framers gave us the First Amendment “not to send peace, but a sword.”