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Goldwater Brief: Washington State Unions Can’t Flout the First Amendment

April 23, 2021

April 23, 2021
By Jacob Huebert

Today, the Goldwater Institute is taking its latest step in standing up to union power, teaming up with the Illinois Policy Institute on a brief taking on unions’ attempt to flout the First Amendment.

In 2014, the Supreme Court ruled in Harris v. Quinn that the First Amendment bars state governments from forcing in-home care providers who receive Medicaid subsidies (but who aren’t government employees) to pay fees to a union. That foreshadowed the 2018 Janus v. AFSCME decision, in which the Court ruled that the First Amendment also prohibits governments from forcing their employees to pay union fees.

After the Court decided Harris, the Freedom Foundation—a Washington State-based policy institution—began informing in-home care providers in Washington of their right not to join or pay a union. Some providers also spread that message themselves, and some urged providers to oust their incumbent union and replace it with another. The Freedom Foundation and the others were able to inform providers of their right to opt out because they obtained providers’ names and contact information through public records requests—after overcoming unions’ efforts to stop the state from disclosing the information.

Their message was well-received: Many providers chose to opt out of paying union fees after learning of their right to do so. How did the unions respond? Not by trying to persuade providers of the value of joining a union, but by passing a law to prevent people from learning of their right not to join.

The union drafted and promoted a new ballot measure, which would amend Washington’s public records laws to deny virtually everyone except incumbent unions access to providers’ names and contact information. And they admitted their purpose: stopping the Freedom Foundation and others from talking to providers about their right not to pay the union and reasons why they might not want to join a union. The measure was deceptively marketed as seeking to prevent “identity theft,” even though it had nothing to do with identity theft, and Washington voters approved it.

The Freedom Foundation and several individuals sued to challenge the law, arguing that it violated the First Amendment because it effectively discriminated against groups other than incumbent unions based on their point of view. A Washington federal district court and the U.S. Court of Appeals for the Ninth Circuit rejected their claim, so now the plaintiffs are asking the Supreme Court to hear their case, Boardman v. Inslee.

In our amicus brief supporting their petition, we show that giving outside groups and individuals access to providers’ names and contact information is essential to allow providers to become informed of and exercise their First Amendment right not to join or support a union.

If outside groups can’t inform providers of their rights, it’s unlikely that anyone else will. Public sector employers often don’t inform providers or employees of their right not to support a union, and polling has shown that many public sector employees don’t know about Janus or the right it upheld. And, in fact, the Washington ballot measure that the Boardman plaintiffs challenge is one of many laws that states with powerful-public unions have enacted to prevent in-home care providers and government employees from learning about and exercising their rights under Harris, Janus, and the First Amendment.

For example, Illinois enacted a law that prohibits the state government from communicating with government employees about their rights. Instead, all questions must be directed to an employee’s union. And union-allied officials in many states have enacted laws giving unions the right to meet with providers and employees for the purpose of persuading them to sign union membership agreements. People who want to present other points of view are excluded. In fact, California even enacted a law—signed on the day the Supreme Court decided Janus—that prohibits the government from disclosing where employee meetings with the union will occur, so that people who wish to provide an alternative perspective can’t speak to workers before they enter the meeting.

Many of those laws are unconstitutional. Washington’s flagrantly discriminatory law, specifically designed to prevent parties other than incumbent unions from communicating with in-home care providers, is especially egregious. The Supreme Court should hear the Boardman case and strike it down.

Jacob Huebert is a Senior Attorney at the Goldwater Institute.



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