More and more I’m hearing about the case Friedrichs v. California Teachers Association in the news. Unfortunately, what is actually happening in the case is often lost in all of the histrionics surrounding the case and the warnings that Friedrichs is sounding the death knell for unions. In reality, what Rebecca Friedrichs and her fellow plaintiffs are asking for in the case is quite modest: that they no longer have to fund speech they oppose in order to earn a living as public school teachers. It shouldn’t be surprising that public-sector unions oppose this. Right now, as a condition of her employment, Rebecca Friedrichs, like public school teachers in many states, has a portion of her paycheck deducted and sent straight to the teachers’ union whether she wants to fund the union or not. Given the state of the law, she only had two options if she didn’t want to keep funding the union. She could stop doing what she loved and no longer be a public school teacher or she could file her lawsuit and fight for her rights to free speech and free association.
Because the Supreme Court has already acknowledged that forcing someone to join or fund a group violates their right to free speech and free association, the Court has only tolerated this violation in rare instances. Forcing public school teachers to fund teachers’ unions to pay for collective bargaining is one instance. Forcing attorneys to join a bar association to practice law is another, but only for the limited goal of regulating the practice of law is another. In both cases, the schemes still violate individuals’ speech and associational rights and are, frankly, bad policy. I think the Goldwater Institute’s lawsuit in North Dakota can help illustrate why.
We filed a suit in North Dakota because the mandatory bar association there has been using the money North Dakota attorneys are forced to give it as its own personal political war chest. Our client, Arnold Fleck, is an attorney there. As a result, he has to be a member of the bar association and pay dues to practice law. In the November 2014 election, Mr. Fleck strongly supported a measure on the North Dakota ballot that dealt with parental rights. He gave money in support of the Measure and even went on television to debate its merits. Then he found out that he wasn’t the only one spending his money on the Measure. Despite it lacking any connection to regulating the practice of law, the North Dakota bar association led the opposition against the Measure, contributing nearly $50,000 to a PAC created to oppose it. The Association’s executive director also sat on the PAC’s committee and the Bar Association let the PAC use its email system. Ultimately, the Measure failed.
We filed suit on Mr. Fleck’s behalf because the North Dakota bar association failed to do anything to protect Mr. Fleck’s constitutional rights and instead used his own money against him and in opposition to his strongly held beliefs.
What happened to Mr. Fleck in North Dakota shows the inherent risks in forcing people to join groups and contribute to them. Not only are the risks inherent, they are entirely unnecessary. The sky won’t fall if the mandatory bar associations become voluntary: the mandatory bar states would just join the 18 other states that don’t force attorneys to join a bar association in order to practice law. Voluntary bar states already include large states like New York, Colorado, Pennsylvania, and Massachusetts and attorneys that practice in those states are still subject to regulation. The difference is attorneys in non-mandatory bar states do not have to surrender their First Amendment rights in order to earn a living in their chosen profession.
The same is true for public school teachers. Public school teachers aren’t forced to fund unions in 25 states yet unions still exist in all of those states and unions are growing across the country.
All of this raises the question: If it’s not necessary to violate attorneys’ or teachers’ First Amendment rights to regulate the practice of law or pay for collective bargaining, why do it?
