“YOU HAVE THE right to remain silent.” Fans of cop shows are familiar with those words that remind criminal suspects of their constitutional right to avoid incriminating themselves. While this guarantee comes from the Fifth Amendment, the First Amendment freedom of speech also protects the right to remain silent—a right that PLF has unswervingly defended for our entire history.
Most frequently, people invoke the First Amendment to avoid censorship, as in Minnesota Voters Alliance v. Mansky, which invalidated a Minnesota statute prohibiting voters from wearing certain apparel in polling places. But there are two sides to the First Amendment coin—people also have the right to refrain from speaking. That is, the government cannot compel you to make or support statements you do not believe or wish to support.
In our first free-speech case at the U.S. Supreme Court, Keller v. State Bar of California, we represented then-future Superior Court Judge Eddie Keller and a couple dozen other California attorneys who deeply resented having to pay mandatory dues to the state bar for its left-leaning political activism. The California state courts offered no relief, but the Supreme Court unanimously held that the State Bar could not require attorneys to subsidize political or ideological activities that did not involve regulation of the legal profession or improving the quality of legal services available to Californians.
PLF attorneys spent the next decade filing multiple lawsuits to force the Bar to comply with Keller. Among the most noteworthy, we represented Ventura County District Attorney Michael Bradbury, who was responsible for paying the bar dues of the 82 attorneys who worked in his office. When he tried not to pay the political portion of those dues, the State Bar balked. We sued and received a unanimous California Court of Appeal victory. The court said paying these political bar dues was the same as using tax-dollars for a direct contribution “to a political party or candidate.” The court concluded that this “would be worse than totally unnecessary or useless or without public benefit—it would be a wholly inappropriate encroachment by government into the political arena, and thus a waste of public funds.”
We then took this fight to public university campuses, representing UC-Berkeley students who objected to mandatory “activity fees” that subsidized politically active groups. In Smith v. Regents of University of California, the California Supreme Court struck down mandatory student activity fees used to support student groups that pursue political and ideological causes. Relying on the principles developed in Keller, the court held that “the constitutional guarantees of free speech and association do not permit the state to make speech a matter of compulsion and coercion.”
PLF has repeatedly defended the right of workers not to be compelled to make involuntary payments to support political or expressive activities with which they disagree.
In Knox v. SEIU, the Supreme Court addressed a public sector union’s taking of workers’ wages for mid-year politicking, adopting a solution that only PLF advocated for in its friend-of-the-court brief. It held that unions could extract mid-year or special assessments from nonmembers only with their “affirmative consent,” or, as it is sometimes called, an opt-in requirement. The workers sought the lesser “optout” solution—a notice from the union and the opportunity to register a dissent to obtain a deduction or refund. The Court agreed with PLF that workers who have suffered infringement of their First Amendment right to remain silent could not be forced to register objections; the union must bear the burden of acquiring consent.
People also have the right to refrain from speaking. That is, the government cannot compel you to make or support statements you do not believe or wish to support.
Building on Knox, PLF continued to support workers’ First Amendment rights to refrain from subsidizing public sector union politicking and advocated for opt-in for annual agency fee payments in Harris v. Quinn and Friedrichs v. California Teachers Association. Workers, supported by a coalition of groups that included PLF, finally prevailed in this year’s blockbuster case, Janus v. AFSCME. Janus held that the opt-in, affirmative consent requirement that Knox applied to mid-year special assessments would apply to every attempt by public sector unions to take money from non-union workers.
While some organizations long known for their defense of free speech have retreated in order to avoid upsetting their supporters who favor group rights over individual rights, PLF remains steadfast in its defense of First Amendment speech rights—fighting both censorship and compelled speech for the benefit of all Americans.
