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Law School Case Brief

Janus v. AFSCME, Council 31 - 138 S. Ct. 2448 (2018)


Free speech serves many ends. It is essential to the democratic form of government and it furthers the search for truth. Whenever the federal government or a state prevents individuals from saying what they think on important matters or compels them to voice ideas with which they disagree, it undermines these ends. When speech is compelled, however, additional damage is done. In that situation, individuals are coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning, and for this reason, a landmark free speech case decided by the Supreme Court of the United States says that a law commanding involuntary affirmation of objected-to beliefs would require even more immediate and urgent grounds than a law demanding silence. Compelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns. As Jefferson famously put it, to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors is sinful and tyrannical. Thus, a significant impingement on First Amendment rights occurs when public employees are required to provide financial support for a union that takes many positions during collective bargaining that have powerful political and civic consequences. 


Petitioner Mark Janus was a state employee whose unit was represented by respondent American Federation of State, County, and Municipal Employees, Council 31 ("Union"). He refused to join the Union because he opposed many of its positions, including those taken in collective bargaining. Illinois' governor, similarly opposed to many of these positions, filed suit in federal district court challenging the constitutionality of a state law authorizing agency fees. Under that law, if a majority of the employees in a bargaining unit voted to be represented by a union, that union was designated as the exclusive representative of all the employees, even those did not join. Nonmembers were also required to pay what was generally called an "agency fee," i.e., a percentage of the full union dues. The state attorney general intervened to defend the law, while Janus filed a motion to intervene on the governor's side. The district court dismissed the governor's challenge for lack of standing, but it simultaneously allowed Janus to file his own complaint challenging the constitutionality of agency fees. The district court granted the motion by the Union and state attorney general to dismiss Janus' complaint on the ground that the claim was foreclosed. On appeal, the appellate court affirmed. Janus was granted a writ of certiorari.


Was it constitutional to charge non-union members agency fees?




The Supreme Court of the United States reversed the appellate court's decision and remanded the matter for further proceedings. The Court held that the provision of the Illinois law, which forced public employees to subsidize a union, even if they chose not to join and strongly objected to the positions the union took in collective bargaining and related activities, violated the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern. The Court prohibited states and public-sector unions from extracting agency fees from nonconsenting employees such as Janus. The Court expressly overruled its prior precedent, Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), which had held that such agency fees were constitutional.

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