No. 16-1466

In the Supreme Court of the United States
MARK JANUS, PETITIONER
v.
AMERICAN FEDERATION OF STATE, COUNTY, AND
MUNICIPAL EMPLOYEES, COUNCIL 31, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
SUPPORTING PETITIONER

NICHOLAS C. GEALE
Acting Solicitor of Labor
ARTHUR F. ROSENFELD
Senior Counselor
JEFFREY LUPARDO
Senior Attorney
Department of Labor
Washington, D.C. 20210

NOEL J. FRANCISCO
Solicitor General
Counsel of Record
JEFFREY B. WALL
Deputy Solicitor General
CHRISTOPHER G. MICHEL
Assistant to the Solicitor
General
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

 QUESTION PRESENTED

Whether this Court should overrule Abood v. Detroit
Board of Education, 431 U.S. 209 (1977), and hold that
the First Amendment prohibits government employers
from compelling government employees to pay “agency
fees” to the unions that represent them.

(I)

 TABLE OF CONTENTS

Page
Interest of the United States....................................................... 1
Statement ...................................................................................... 2
Summary of argument ................................................................. 8
Argument:
The Court should overrule Abood and hold that the
First Amendment prohibits compulsory agency fees
in public employment ............................................................ 11
A. Compulsory agency fees in public employment do
not withstand First Amendment scrutiny:
1. Exacting scrutiny applies to the compelled
subsidization of speech on issues of public
policy .......................................................................... 12
2. Public-sector collective bargaining necessarily
involves issues of public policy ................................ 15
3. Compulsory agency fees in public employment
therefore require exacting scrutiny ........................ 17
4. Compulsory agency fees in public employment
do not withstand the appropriate level of
scrutiny ...................................................................... 19
B. Compulsory agency fees in public employment do
not withstand Pickering balancing................................ 22
1. Pickering balancing does not apply to
petitioner’s First Amendment challenge ............... 23
2. Even if Pickering balancing applies,
compulsory agency fees in public employment
are unconstitutional .................................................. 26
C. Stare decisis does not require reaffirming Abood ....... 29
Conclusion ................................................................................... 34
TABLE OF AUTHORITIES

Cases:
Abood v. Detroit Board of Educ., 431 U.S. 209
(1977) ........................................................................... passim
(III)

 IV
Cases—Continued:

Page

Agostini v. Felton, 521 U.S. 203 (1997) ......................... 29, 30
Amalgamated Food Emps. Union v. Logan Valley
Plaza, Inc., 391 U.S. 308 (1968) ......................................... 31
American Commc’ns Assn., C.I.O. v. Douds,
339 U.S. 382 (1950).............................................................. 22
Arizona v. Gant, 556 U.S. 332 (2009) .................................. 30
Arizona Free Enter. Club’s Freedom Club PAC v.
Bennett, 564 U.S. 721 (2011) .............................................. 22
Branti v. Finkel, 445 U.S. 507 (1980) ............................ 26, 29
Buckley v. Valeo, 424 U.S. 1 (1976)...................................... 14
Citizens United v. FEC, 558 U.S. 310
(2010) ......................................................... 9, 14, 21, 30, 31, 32
City of Madison Joint Sch. Dist. No. 8 v. Wisconsin
Emp’t Relations Comm’n, 429 U.S. 167 (1976) ............... 21
Communications Workers of Am. v. Beck,
487 U.S. 735 (1988).............................................................. 33
Connick v. Myers, 461 U.S. 138 (1983) .......................... 24, 28
Davenport v. Washington Educ. Ass’n,
551 U.S. 177 (2007).....................................1, 3, 18, 22, 31, 32
Dickerson v. United States, 530 U.S. 428 (2000) ................ 30
Elrod v. Burns, 427 U.S. 347 (1976) .............................. 25, 26
Friedrichs v. California Teachers Ass’n:
135 S. Ct. 2933 (2015) .................................................. 6, 11
136 S. Ct. 1083 (2016) .................................................... 1, 6
Garcetti v. Ceballos, 547 U.S. 410 (2006) ................. 24, 26, 27
Glickman v. Wileman Bros. & Elliott, Inc.,
521 U.S. 457 (1997)........................................................ 13, 14
Halliburton Co. v. Erica P. John Fund, Inc.,
134 S. Ct. 2398 (2014) ......................................................... 30
Harris v. Quinn, 134 S. Ct. 2618 (2014) ..................... passim
Hudgens v. NLRB, 424 U.S. 507 (1976) ........................ 31, 32

 V
Cases—Continued:

Page

International Ass’n of Machinists v. Street,
367 U.S. 740 (1961).................................................... 4, 15, 18
Keller v. State Bar, 496 U.S. 1 (1990) .................................. 15
Knox v. Service Emps. Int’l Union, 567 U.S. 298
(2012) ........................................................................... passim
Lane v. Franks, 134 S. Ct. 2369 (2014).........23, 24, 26, 27, 28
Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507
(1991) ........................................................................ 16, 17, 21
Lincoln Fed. Labor Union No. 19129 v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949) ....................... 32
Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) ........................ 31
NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175
(1967) ...................................................................................... 2
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ....... 14
Pickering v. Board of Educ., 391 U.S. 563
(1968) .................................................................... 9, 10, 23, 27
Railway Employees’ Dep’t v. Hanson, 351 U.S. 225
(1956) .......................................................................... 4, 14, 18
Riley v. National Fed’n of the Blind of N.C., Inc.,
487 U.S. 781 (1988).............................................................. 12
Ring v. Arizona, 536 U.S. 584 (2002) .................................. 32
Rumsfeld v. Forum for Academic & Institutional
Rights, Inc., 547 U.S. 47 (2006) ......................................... 12
Rutan v. Republican Party, 497 U.S. 62 (1990) ........... 25, 26
Shelby Cnty. v. Holder, 133 S. Ct. 2612 (2013) ................... 32
Snyder v. Phelps, 562 U.S. 443 (2011) ................................. 14
State v. American Fed’n of State, Cnty., & Mun.
Emps. Council 31, 51 N.E.3d 738 (Ill. 2016) .................... 16
United States v. National Treasury Emps. Union,
513 U.S. 454 (1995)........................................................ 24, 28
United States v. United Foods, Inc., 533 U.S. 405
(2001) ...............................................................5, 12, 13, 22, 31

 VI
Cases—Continued:

Page

United States Civil Serv. Comm’n v. National Ass’n
of Letter Carriers, 413 U.S. 548 (1973) ............................. 29
West Va. State Bd. of Educ. v. Barnette,
319 U.S. 624 (1943).............................................................. 14
Williams-Yulee v. Florida Bar, 135 S. Ct. 1656
(2015) .................................................................................... 14
Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353 (2009) ....... 21
Constitution and statutes:
U.S. Const. Amend. I ................................................... passim
Hatch Act, 5 U.S.C. 7321 et seq. ........................................... 29
National Labor Relations Act, 29 U.S.C. 151
et seq. ...................................................................................... 2
29 U.S.C. 152(2) ................................................................. 2
29 U.S.C. 158(a)(3)....................................................... 1, 33
29 U.S.C. 164(b) ........................................................... 1, 33
Railway Labor Act, 45 U.S.C. 151 et seq.:
45 U.S.C. 152 (Eleventh) ........................................ 1, 4, 33
Illinois Public Labor Relations Act, 5 Ill. Comp. Stat.
Ann. (West 2013):
315/2 .............................................................................. 2
315/4 (West Supp. 2017) .............................................. 2
315/6 .............................................................................. 2
315/6(a) ...................................................................... 2, 3
315/6(e) ...................................................................... 3, 7
315/7 (West Supp. 2017) .............................................. 2
5 U.S.C. 7102 .......................................................................... 20
5 U.S.C. 7103(a)(14) ............................................................... 20
5 U.S.C. 7111(a) ..................................................................... 20

 VII
Miscellaneous:

Page

AFSCME Council 31, AFSCME Endorsements:
2016 General Election (Sept. 1, 2016),
http://www.afscme31.org/news/afscme-endorsements-2016-general-election.............................................. 16
Bureau of Labor Statistics, U.S. Dep’t of Labor,
Union Members Summary (Jan. 26, 2017),
https://www.bls.gov/news.release/union2.nr0.htm .......... 20
S. Rep. No. 1272, 95th Cong., 2d Sess. (1978)..................... 20
Clyde Summers, Public Sector Bargaining:
A Different Animal, 5 U. Pa. J. Labor & Emp. L.
441 (2003) ............................................................................. 16

 In the Supreme Court of the United States
No. 16-1466
MARK JANUS, PETITIONER
v.
AMERICAN FEDERATION OF STATE, COUNTY, AND
MUNICIPAL EMPLOYEES, COUNCIL 31, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
SUPPORTING PETITIONER
INTEREST OF THE UNITED STATES

This case presents the question whether to overrule
Abood v. Detroit Board of Education, 431 U.S. 209
(1977), and hold that public employers may not compel
their employees to pay agency fees to unions. As the
nation’s largest public employer, the United States has
a substantial interest in the resolution of that question.
The United States also administers federal statutes
that address the legality of agency fees in the private
sector. See 29 U.S.C. 158(a)(3), 164(b); 45 U.S.C. 152
(Eleventh). The United States has accordingly participated in many cases involving agency fees. See, e.g.,
Friedrichs v. California Teachers Ass’n, 136 S. Ct. 1083
(2016) (per curiam); Harris v. Quinn, 134 S. Ct. 2618
(2014); Davenport v. Washington Educ. Ass’n, 551 U.S.
177 (2007).
(1)

 2
STATEMENT

1. a. The Illinois Public Labor Relations Act
(PLRA) states that “[i]t is the public policy of the State
of Illinois to grant public employees full freedom of association, self-organization, and designation of representatives of their own choosing for the purpose of negotiating wages, hours and other conditions of employment or other mutual aid or protection.” 5 Ill. Comp.
Stat. Ann. 315/2 (West 2013); see Harris v. Quinn, 134
S. Ct. 2618, 2625-2626 (2014) (discussing the PLRA).
The PLRA accordingly provides that state employees
may select a labor union to serve as their exclusive representative in bargaining with state employers over the
terms and conditions of employment. 5 Ill. Comp. Stat.
Ann. 315/6 (West 2013). The PLRA also imposes a duty
on state employers to bargain with the unions selected
as exclusive representatives. Id. at 315/4, 315/7 (West
Supp. 2017).
Serving as an exclusive representative vests a union
with significant power. The union’s role “extinguishes
the individual employee’s power to order his own relations with his employer.” NLRB v. Allis-Chalmers Mfg.
Co., 388 U.S. 175, 180 (1967). “[O]nly the union may contract the employee’s terms and conditions of employment.” Ibid. An employee “may disagree with many of
the union decisions but is bound by them.” Ibid. The
union thus wields “powers comparable to those possessed by a legislative body.” Ibid. (citation omitted). 1
b. The PLRA provides state employees “the right to
refrain from participating in any * * * concerted activities,” including joining a labor union. 5 Ill. Comp. Stat.
The PLRA is patterned on the National Labor Relations Act
(NLRA), 29 U.S.C. 151 et seq., which expressly excludes public employers, 29 U.S.C. 152(2). See Pet. Br. 4 n.1.
1

 3
Ann. 315/6(a) (West 2013). Public employees “may be
required,” however, to pay the union serving as their
exclusive representative “a fee which shall be their proportionate share of the costs of the collective bargaining
process, contract administration and pursuing matters
affecting wages, hours and other conditions of employment.” Ibid.; see also id. at 315/6(e). The fee may equal,
but may not exceed, “the amount of dues uniformly required” of union members.” Id. at 315/6(e).
Public employees may be required to pay such an
“agency fee” even if they disagree with the union’s positions and even if they do not want to be represented
by the union. Harris, 134 S. Ct. at 2627. Agency fees
are thus “state-coerced” payments. Davenport v.
Washington Educ. Ass’n, 551 U.S. 177, 190 (2007). Indeed, under the PLRA, agency fees are “deducted by
the [state] employer from the earnings of the nonmember employees and paid to the employee organization,”
without ever reaching the employee. 5 Ill. Comp. Stat.
Ann. 315/6(e) (West 2013).
2. In Abood v. Detroit Board of Education, 431 U.S.
209 (1977), public-school teachers brought a First
Amendment challenge to mandatory agency fees authorized by Michigan law. This Court acknowledged
that “compel[ling] employees financially to support
their collective-bargaining representative has an impact upon their First Amendment interests.” Id. at 222.
For example, an employee’s “moral or religious views
about the desirability of abortion may not square with
the union’s policy in negotiating a medical benefits
plan.” Ibid. The Court also recognized that “decisionmaking by a public employer is above all a political process,” and that “because public employee unions attempt to influence governmental policymaking, their

 4
activities—and the views of members who disagree with
them—may be properly termed political.” Id. at 228,
231.
Nevertheless, Abood resolved the challenge to publicsector agency fees based on two precedents involving
agency fees charged by private railroads under the
Railway Labor Act (RLA), 45 U.S.C. 152 (Eleventh).
431 U.S. at 222; see Railway Employes’ Dep’t v. Hanson, 351 U.S. 225, 235 (1956) (rejecting constitutional
challenge to RLA provision authorizing compulsory
agency fees for purposes “germane to collective bargaining”); International Ass’n of Machinists v. Street,
367 U.S. 740, 768-769 (1961) (construing the RLA to
prohibit the collection of agency fees for political purposes). Abood found these decisions “controlling,” and
accordingly drew the same line for the public sector that
the Court had previously drawn for the private sector:
agency fees could be used for “collective-bargaining,
contract administration, and grievance-adjustment
purposes,” but not for “political purposes.” 431 U.S. at
232, 234.
Justice Powell, joined by Chief Justice Burger and
Justice Blackmun, disagreed with the majority’s “novel
premise that public employers are under no greater
constitutional constraints than their counterparts in
the private sector”—a “sweeping limitation of First
Amendment rights” that they regarded as “unsupported by either precedent or reason.” Abood, 431 U.S.
at 245 (Powell, J., concurring in the judgment). In their
view, “compelling a government employee to give financial support to a union in the public sector * * * impinges seriously upon interests in free speech and association protected by the First Amendment” and cannot

 5
be justified “regardless of the uses to which the union
puts the contribution.” Id. at 255.
3. In recent years, this Court has thrice considered
whether Abood’s reasoning and result are consistent
with the First Amendment.
a. In Knox v. Service Employees International Union, 567 U.S. 298 (2012), the Court considered a First
Amendment challenge to a public-sector union’s onetime assessment of agency fees for “a broad range of
political expenses, including television and radio advertising, direct mail, voter registration,” and related activities in connection with state elections. Id. at 304 (citation omitted). The Court explained that “compulsory
subsidies for private speech”—even for relatively “mundane commercial” speech like mushroom advertising—
are generally “subject to exacting First Amendment
scrutiny.” Id. at 309-310 (citing United States v. United
Foods, Inc., 533 U.S. 405, 414 (2001)). The Court observed that Abood’s tolerance of compulsory union fees
without applying such scrutiny “represents something
of an anomaly.” Id. at 311. But the Court found it unnecessary to “revisit” whether Abood and its progeny
had “given adequate recognition to the critical First
Amendment rights at stake,” because “the new situation presented” by a one-time assessment of agency
fees for political purpose was not covered by Abood. Id.
at 311, 321. The Court thus held that the “general
rule—individuals should not be compelled to subsidize
private groups or private speech—should prevail,” and
invalidated the assessment of agency fees as a violation
of the First Amendment. Id. at 321; see id. at 323 (Sotomayor, J., concurring in the judgment).

 6
b. In Harris, Illinois home-health aides “deemed to
be public employees solely for the purpose of unionization and the collection of an agency fee” asked this
Court to revisit Abood. 134 S. Ct. at 2627. The Court
again described Abood as an “anomaly” and explained
that its “analysis is questionable on several grounds,”
including that it “seriously erred in treating” precedents involving private-sector agency fees “as having all
but decided the constitutionality of compulsory payments to a public-sector union.” Id. at 2627, 2632 (citation omitted). The Court, however, did not “reach [the]
argument that Abood should be overruled,” because the
challengers were not “full-fledged public employees”
and therefore were not subject to Abood. Id. at 2634,
2638 n.19. The Court instead applied the “exacting
First Amendment scrutiny” that it had applied in
Knox—a standard it cautioned was arguably “too permissive” given that speech on public-sector collective
bargaining “does much more than” simply “propose a
commercial transaction.” Id. at 2639 (citation omitted).
The Court determined, however, that “no fine parsing
of levels of First Amendment scrutiny [was] needed,”
because the justification offered by Illinois and the union fell “far short of what the First Amendment demands,” even under the more permissive standard. Id.
at 2639, 2641.
c. This Court granted certiorari to reconsider Abood
in Friedrichs v. California Teachers Ass’n, 135 S. Ct.
2933 (2015). The Court heard argument in January
2016, but subsequently affirmed the judgment by an
equally divided Court. 136 S. Ct. 1083 (2016) (per curiam).
4. Petitioner is a public employee in the Illinois Department of Healthcare and Family Services. J.A. 68.

 7
His bargaining unit is represented exclusively by respondent, a public-sector union. Ibid. The union and
Illinois’s Department of Central Management negotiated a collective bargaining agreement addressing a
wide range of topics, including employee wages, hours,
health care, pensions, tenure, working conditions, and
strikes. Id. at 114-331. As authorized by the PLRA,
5 Ill. Comp. Stat. Ann. 315/6(e) (West 2013), the agreement includes a provision requiring agency fees to be
automatically deducted from the paychecks of employees who decline to join the union. J.A. 122-124.
Petitioner “objects to many of the public-policy positions that [the union] advocates,” including its positions
“in collective bargaining.” J.A. 87. In particular, petitioner believes the union’s “behavior in bargaining does
not appreciate the current fiscal crises in Illinois and
does not reflect his best interests or the interests of Illinois citizens.” Ibid. Petitioner also “does not agree
with what he views as the union’s one-sided politicking
for only its point of view.” Ibid.
In 2015, petitioner intervened in a First Amendment
challenge to respondents’ collection of compulsory
agency fees. J.A. 60-102. 2 Respondents “moved to dismiss” because “the case is controlled by” Abood. Pet.
App. 7a. The district court agreed that Abood is “binding” and dismissed the complaint. Ibid. The court of
appeals affirmed. Id. at 5a.

The initial challenge was filed by the Governor of Illinois. Pet.
App. 2a. The district court granted petitioner’s motion to intervene
at the same time it dismissed the Governor’s complaint for lack of
standing. Id. at 3a. The district court also allowed the Attorney
General of Illinois to intervene in defense of the law. Id. at 4a.
2

 8
SUMMARY OF ARGUMENT

This Court has explained twice in the past six years
that Abood v. Detroit Board of Education, 431 U.S. 209
(1977), is an anomaly that rests on questionable foundations and defies generally applicable principles of First
Amendment law. Now that the question is squarely presented, Abood should be overruled.
A. The First Amendment establishes a “bedrock
principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to
subsidize speech by a third party that he or she does not
wish to support.” Harris v. Quinn, 134 S. Ct. 2618, 2644
(2014). That principle has added force when applied to
the compelled subsidization of speech on public issues,
which lies at the heart of the First Amendment’s protection and triggers demanding scrutiny.
In the public sector, speech in collective bargaining
is necessarily speech about public issues. Virtually
every matter at stake in a public-sector labor agreement affects the public fisc, and therefore is a matter of
public policy concerning all citizens. Moreover, issues
like tenure for state employees, merit pay, and the size
of the state workforce are about more than money: they
concern no less than the proper structure and operation
of government. To compel a public employee to subsidize his union’s bargaining position on these questions
is to force him to support private political and ideological viewpoints with which he may strongly disagree. As
this Court held in Harris and Knox v. Service Employees International Union, 567 U.S. 298 (2012), such compulsion triggers exacting First Amendment scrutiny.
Abood, however, approved compulsory public-sector
agency fees without applying any heightened scrutiny.
Although Abood appeared to recognize the inherently

 9
political nature of public-sector bargaining, it nevertheless viewed the constitutionality of public-sector agency
fees as controlled by private-sector precedents, which
did not involve the same First Amendment concerns.
The decision also relied on an empirical assumption—
that exclusive representation in the public sector requires mandatory agency fees—that this Court has
since expressly rejected. And the decision failed to apply to collective bargaining the principles of free expression and free association that it properly held prohibit coerced financial support for political candidates.
Abood thus ultimately endorsed precisely what it simultaneously prohibited: compelled subsidization of union
speech for political or ideological causes.
When subjected to the scrutiny the First Amendment requires—either the “exacting” scrutiny that
Harris found arguably “too permissive,” 134 S. Ct. at
2639, or the traditional “strict scrutiny” that applies to
speech on public issues, Citizens United v. FEC, 558
U.S. 310, 340 (2010)—compulsory agency fees in public
employment cannot withstand review. Even assuming
that the government has a compelling interest in ensuring functioning unions as partners in collective bargaining, the government can achieve that objective through
means far less restrictive of First Amendment rights
than compulsory agency fees. As the presence of public-sector unions in the federal government and rightto-work States illustrates, unions can fulfill their obligations without compelling objecting employees to subsidize collective-bargaining speech. Compulsory agency fees accordingly violate the First Amendment.
B. The United States previously defended Abood by
relying primarily on the balancing test for public-employee speech claims established in Pickering v. Board

 10
of Education, 391 U.S. 563 (1968). But Pickering balancing was not Abood’s stated rationale. And although
Pickering applies to some government-workplace
speech claims, it is an unnatural fit for petitioner’s challenge. Pickering cases typically involve the discipline
of a single employee for speech that disrupts the workplace, not a classwide challenge to a generally applicable statute that has little relation to a public employee’s
individual job duties. That is perhaps why this Court
has not applied Pickering to claims involving the compelled subsidization of speech—claims that rarely if
ever would implicate employee discipline or the workplace environment.
In any event, even if Pickering does apply, it does
not support the result in Abood. Given that public-sector bargaining inherently involves public issues, compulsory agency fees in government employment necessarily involve public employees’ speech as citizens on
matters of public concern. Public employees’ strong interest in freedom of speech on such matters outweighs
the government’s interest in authorizing public-sector
unions to collect agency fees that they do not need to
fulfill their responsibilities.
C. Although this Court reconsiders its precedents
with caution, stare decisis does not warrant preserving
Abood’s error. Stare decisis considerations are weakest
in constitutional cases, and this Court has therefore
been willing to overrule precedents that have been undermined by subsequent legal developments. Here, this
Court has twice characterized Abood as an anomaly,
and Abood’s incompatibility with the reasoning of Harris and Knox is a sufficient justification for its overruling. Nor would barring compulsory agency fees in public employment disturb significant reliance interests,

 11
especially in the wake of Harris and Knox. To the contrary, overruling Abood would resolve a conflict between two contradictory lines of precedent and clarify
First Amendment law.
ARGUMENT
THE COURT SHOULD OVERRULE ABOOD AND HOLD
THAT THE FIRST AMENDMENT PROHIBITS COMPULSORY AGENCY FEES IN PUBLIC EMPLOYMENT

This Court held in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), that public employers may
compel their employees to pay agency fees to unions to
cover the costs of collective bargaining, contract administration, and grievance adjustment. This is the third
time in the past five Terms that the Court has granted
certiorari to consider overruling Abood. See Friedrichs
v. California Teachers Ass’n, 135 S. Ct. 2933 (2015);
Harris v. Quinn, 134 S. Ct. 48 (2013). In those other
cases, the government contended that Abood’s result is
correct and should be reaffirmed. See U.S. Amicus Br.
at 11-33, Friedrichs, supra, No. 14-915 (Nov. 13, 2015);
U.S. Amicus Br. at 14-28, Harris, supra, No. 11-681
(Dec. 13, 2013). Following the grant of certiorari in this
case, the government reconsidered the question and
reached the opposite conclusion. Largely for the reasons articulated by this Court in Harris and during the
argument in Friedrichs, the government’s previous
briefs gave insufficient weight to the First Amendment
interest of public employees in declining to fund speech
on contested matters of public policy. Abood’s result is
inconsistent with prevailing First Amendment precedent and should be overruled.

 12
A. Compulsory Agency Fees In Public Employment Do Not
Withstand First Amendment Scrutiny
1. Exacting scrutiny applies to the compelled subsidization of speech on issues of public policy

The First Amendment establishes a “bedrock principle that, except perhaps in the rarest of circumstances,
no person in this country may be compelled to subsidize
speech by a third party that he or she does not wish to
support.” Harris v. Quinn, 134 S. Ct. 2618, 2644 (2014).
Compelling a person to subsidize private speech that he
opposes runs counter to the core textual promise of the
First Amendment: “[T]he First Amendment guarantees  ‘freedom of speech,’ a term necessarily comprising
the decision of both what to say and what not to say.”
Riley v. National Fed’n of the Blind of N.C., Inc., 487
U.S. 781, 796-797 (1988). Accordingly, “[s]ome of this
Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits
the government from telling people what they must
say.” Rumsfeld v. Forum for Academic & Institutional
Rights, Inc., 547 U.S. 47, 61 (2006). The same principle
forbids “compelling certain individuals to pay subsidies
for speech to which they object,” United States v.
United Foods, Inc., 533 U.S. 405, 410 (2001), because
the “compelled funding of the speech of other private
speakers or groups presents the same dangers as compelled speech,” Harris, 134 S. Ct. at 2639 (citation and
internal quotation marks omitted).
In light of those protections, “compulsory subsidies
for private speech are subject to exacting First Amendment scrutiny.” Knox v. Service Emps. Int’l Union, 567
U.S. 298, 310 (2012). In Knox, this Court explained that
such exacting scrutiny applies even to the compelled

 13
subsidization of speech on commercial or non-ideological subjects not “likely to stir the passions of many.” Id.
at 309-310. To support such compelled subsidization of
speech, Knox explained, the government must make at
least two showings: “First, there must be a comprehensive regulatory scheme involving a ‘mandated association’ among those who are required to pay the subsidy”—a situation that is “exceedingly rare because
* * * mandatory associations are permissible only when
they serve a compelling state interest . . . that cannot
be achieved through means significantly less restrictive
of associational freedoms.” Id. at 310 (quoting United
Foods, 533 U.S. at 414) (brackets, citation, and internal
quotation marks omitted). “Second, even in the rare
case where a mandatory association can be justified,
compulsory fees can be levied only insofar as they are a
‘necessary incident’ of the ‘larger regulatory purpose
which justified the required association.’ ” Ibid. (quoting United Foods, 533 U.S. at 414). Thus, in United
Foods, the Court struck down the compelled subsidization of generic mushroom advertising because “the
challenged scheme violated the First Amendment” under this test. Ibid.; see United Foods, 533 U.S. at 414415; cf. Glickman v. Wileman Bros. & Elliott, Inc., 521
U.S. 457, 469-470 (1997) (upholding the compelled subsidization of speech for tree-fruit advertising as an ancillary part of a comprehensive scheme of market regulation).
Knox made clear that the “exacting” scrutiny it outlined was a minimum showing derived from the “less demanding standard used in prior cases to judge laws affecting commercial speech.” 567 U.S. at 310 (citing
United Foods, 533 U.S. at 414). By contrast, when the
government compels the subsidization of private speech

 14
with “powerful political and civic consequences,” Knox
suggested that even more rigorous First Amendment
scrutiny may apply. Ibid.; see id. at 321-322 (citing Citizens United v. FEC, 558 U.S. 310 (2010)). Likewise,
the Court observed in Harris that the standard outlined
in Knox was arguably “too permissive” to evaluate
speech that “does much more than” simply “propose a
commercial transaction.” 134 S. Ct. at 2639 (citation
and internal quotation marks omitted).
As those decisions recognize, this Court has long
maintained that “speech on public issues occupies the
highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Snyder v.
Phelps, 562 U.S. 443, 452 (2011) (citation omitted); see,
e.g., Buckley v. Valeo, 424 U.S. 1, 14 (1976) (per curiam);
New York Times Co. v. Sullivan, 376 U.S. 254, 269
(1964); West Va. State Bd. of Educ. v. Barnette, 319 U.S.
624, 642 (1943). Speech “concerning public affairs is
more than self-expression; it is the essence of self-government.” Snyder, 562 U.S. at 452 (citation omitted).
Accordingly, laws that burden speech on public issues
“are subject to strict scrutiny, which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Citizens United, 558 U.S. at 340 (citation and
internal quotation marks omitted); see, e.g., WilliamsYulee v. Florida Bar, 135 S. Ct. 1656, 1665 (2015).
In keeping with that rigorous standard, this Court’s
few decisions upholding the compelled subsidization of
speech have either stressed that the laws at issue “[did]
not compel [objectors] to endorse or to finance any political or ideological views,” Wileman Bros., 521 U.S. at
469-470 (emphasis added); see Railway Employes’
Dep’t v. Hanson, 351 U.S. 225, 236-238 (1956), or instead

 15
struck down as unconstitutional the portions of the laws
that compelled subsidization of political or ideological
speech, see Keller v. State Bar, 496 U.S. 1, 14 (1990);
Abood, 431 U.S. at 235; cf. International Ass’n of Machinists v. Street, 367 U.S. 740, 788-791 (1961) (Black,
J., dissenting). The Court has thus repeatedly recognized that the “First Amendment creates a forum in
which all may seek, without hindrance or aid from the
State, to move public opinion and achieve their political
goals.” Knox, 567 U.S. at 322.
2. Public-sector collective bargaining necessarily involves issues of public policy

Collective bargaining in the public sector necessarily
implicates matters of public policy. When the government is on one side of the bargaining table, topics like
wages, pensions, and healthcare “are important political issues,” because the money to fund those benefits
comes from the public fisc. Harris, 134 S. Ct. at 2632.
Because “[p]ublic-employee salaries, pensions, and
other benefits constitute a substantial percentage of the
budgets of many” state and local governments, Knox,
567 U.S. at 520, decisions on “such issues will have a direct impact on the level of public services, priorities
within state and municipal budgets, creation of bonded
indebtedness, and tax rates,” Abood, 431 U.S. at 258
(Powell, J., concurring in the judgment). It is thus axiomatic that bargaining with a governmental agency implicates many matters of public concern.
The structure of negotiations in the public sector
also inherently implicates concerns of politics and public policy. In the private sector, unions negotiate with
management representatives who are “guided by the
profit motive and constrained by the normal operation
of the market.” Abood, 431 U.S. at 227. In the public

 16
sector, by contrast, different incentives govern. The
“parties have little concern with the product market, for
the public employer is largely immune from competition.” Clyde Summers, Public Sector Bargaining: A
Different Animal, 5 U. Pa. J. Labor & Emp. L. 441, 442
(2003) (Summers). Indeed, the government has an incentive—often a strong one—to accommodate a publicsector union’s requests, because public employees are
also constituents and potential voters. See Abood, 431
U.S. at 228. Candidates for public office thus frequently
seek and obtain the endorsements of public-sector unions. See, e.g., AFSCME Council 31, AFSCME Endorsements: 2016 General Election (Sept. 1, 2016),
http://www.afscme31.org/news/afscme-endorsements2016-general-election (endorsing more than 100 candidates for general elections, from U.S. presidential election to county coroner elections).
Moreover, a collective bargaining agreement in the
public sector must often be ratified by high-level government officials and funded by the legislature. See
Summers 443. Under Illinois law, for example, “collective bargaining agreements are subject to the appropriation power of the State, a power which may only be exercised by the General Assembly.” State v. American
Fed’n of State, Cnty., & Mun. Emps. Council 31, 51
N.E.3d 738, 750 (Ill. 2016). A public-sector collective
bargaining agreement is thus “not merely analogous to
legislation, it has all of the attributes of legislation for
the subjects with which it deals.” Abood, 431 U.S. at
252-253 (Powell, J., concurring in the judgment). And a
public-sector union’s pursuit of such an agreement is
not merely negotiation, but effectively “lobbying” the
government to adopt the union’s preferred positions on
important questions of public policy. Lehnert v. Ferris

 17
Faculty Ass’n, 500 U.S. 507, 520 (1991) (plurality opinion).
3. Compulsory agency fees in public employment therefore require exacting scrutiny

For all the reasons described above, a public-sector
union’s speech in collective bargaining necessarily has
“powerful political and civic consequences.” Knox, 567
U.S. at 310. Petitioner, for example, “objects to many
of the public-policy positions that [the union] advocates
* * * in collective bargaining.” J.A. 87. Among other
concerns, he believes the union’s positions do not “appreciate the current fiscal crises in Illinois” and do not
“reflect his best interests or the interests of Illinois citizens.” Ibid. Likewise, for example, many public-school
teachers strongly disagree with their union’s position
on teacher tenure, merit pay, classroom size, and other
issues of broad public concern. See Tr. of Oral Arg. at
42-43, Friedrichs, supra, No. 14-915 (Jan. 11, 2016).
Compelling an employee to fund speech on such important issues requires at least the “exacting First
Amendment scrutiny” that this Court has applied to the
compelled subsidization of commercial speech, if not the
strict scrutiny that this Court traditionally applies to
speech on issues of politics or public policy. Knox, 567
U.S. at 310; see Harris, 134 S. Ct. at 2639.
Abood partially recognized this principle, explaining
that the First Amendment bars a State from requiring
an objecting employee “to contribute to the support of
an ideological cause he may oppose as a condition of
holding a job as a public school teacher.” 431 U.S. at
235. Abood also recognized “the important and oftennoted differences in the nature of collective bargaining
in the public and private sectors,” and “the truism that
because public employee unions attempt to influence

 18
governmental policymaking, their activities—and the
views of members who disagree with them—may be
properly termed political.” Id. at 227, 231.
Abood did not, however, connect those two premises
and conclude that the First Amendment bars a State
from compelling financial support for the policy-laden
speech inherent in public-sector collective bargaining.
Rather, Abood treated the Court’s decisions on privatesector collective bargaining as “controlling.” 431 U.S.
at 232 (citing Hanson and Street, supra). Thus, “[i]nstead of drawing a line between the private and public
sectors, the Abood Court drew a line between” expenditures related to collective bargaining and expenditures
for “political or ideological purposes.” Harris, 134 S.
Ct. at 2632. But for reasons Abood itself explained, the
line between collective bargaining and politics is illusory in the public sector; it is a “truism” that “public
employee unions[’] attempt to influence governmental
policymaking * * * may be properly termed political.”
431 U.S. at 231.
Abood thus “seriously erred” by importing privatesector principles into public-sector bargaining, and by
overlooking the constitutional distinction “between the
core union speech involuntarily subsidized by dissenting public-sector employees and the core union speech
involuntarily funded by their counterparts in the private sector.” Harris, 134 S. Ct. at 2632; see Abood, 431
U.S. at 250 (Powell, J., concurring in the judgment)
(“[T]he distinction is fundamental.”); see also Davenport v. Washington Educ. Ass’n, 551 U.S. 177, 190
(2007) (noting that “public- and private-sector unions”
present “somewhat different constitutional question[s]”).

 19
4. Compulsory agency fees in public employment do not
withstand the appropriate level of scrutiny

Whether considered under the more permissive
standard derived from commercial-speech doctrine or
the strict scrutiny traditionally applicable to regulations of speech on public issues, compulsory publicsector agency fees cannot withstand First Amendment
review.
a. In Harris, this Court invalidated compulsory
public-sector agency fees under the standard for compelled subsidization of commercial or non-ideological
speech—a standard the Court recognized may be “too
permissive” because public-sector agency fees do
“much more than” merely “propose a commercial transaction.” 134 S. Ct. at 2639. The Court determined, however, that “no fine parsing of levels of First Amendment
scrutiny [was] needed,” because Illinois and the union
could not “satisfy even the test used in Knox”—that is,
they failed to show that the challenged agency fees
serve a “compelling state interes[t] . . . that cannot be
achieved through means significantly less restrictive of
associational freedoms.” Ibid. (quoting Knox, 567 U.S.
at 310). The Court recognized the State’s interest in
“labor peace,” but explained that compelled agency fees
bore little relation to that interest, because the employees objecting to the fees did not seek to “form a rival
union,” to “challenge the authority of the [union] to
serve as the exclusive representative,” or otherwise to
undermine labor peace. Id. at 2640. All the employees
sought was “the right not to be forced to contribute to
the union.” Ibid. A “union’s status as exclusive bargaining agent and the right to collect an agency fee from
non-members,” the Court explained, “are not inextricably linked.” Ibid. The showing made by Illinois and the

 20
union thus fell “far short of what the First Amendment
demands.” Id. at 2641.
The same reasoning applies here. Petitioner does
not contest the State’s interest in labor peace or the union’s role as the exclusive bargaining representative.
As in Harris, however, Illinois and the union cannot
meet their burden of showing that no “means significantly less restrictive of associational freedoms” than
compulsory agency fees would achieve those interests.
134 S. Ct. at 2639 (quoting Knox, 567 U.S. at 310); see
id. at 2639-2641 (noting that the State and the union
must show that the challenged agency fees satisfy the
required First Amendment scrutiny). In the federal
government, for example, employees have a right to join
or refrain from joining a union, and may select a union
to serve as their exclusive bargaining representative in
negotiating “conditions of employment.” 5 U.S.C. 7102,
7111(a). 3 Federal-employee unions, however, may not
charge agency fees to employees who choose not to join
the union. 5 U.S.C. 7102; see Harris, 134 S. Ct. at 2640;
S. Rep. No. 1272, 95th Cong., 2d Sess. at 159 (1978) (noting that Section 7102 is not “intended to authorize * * *
the negotiations of an agency shop or union shop provision”). Despite the absence of agency fees, nearly a million federal employees—more than 27 percent of the
federal workforce—are union members. Bureau of Labor Statistics, U.S. Dep’t of Labor, Union Members
Summary (Jan. 26, 2017), https://www.bls.gov/news.release/union2.nr0.htm (Tbl. 3); see ibid. (noting that 29.6
percent of state-government employees are union members). Public-employee unions likewise exist in States

Those “conditions” generally exclude wages and benefits, which
are set by statute. 5 U.S.C. 7103(a)(14).
3

 21
that do not allow compulsory agency fees. See, e.g., Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 355-356
(2009). Thus, even applying the standard for compelled
subsidization of commercial speech, here as in Harris,
respondents’ showing “falls far short of what the First
Amendment demands.” 134 S. Ct. at 2641.
b. A fortiori, compulsory agency fees in the public
sector cannot satisfy the strict scrutiny traditionally required for speech on issues of public policy. Under that
standard, respondents must demonstrate that compelling public employees to finance union speech in publicsector bargaining “furthers a compelling interest and is
narrowly tailored to achieve that interest.” Citizens
United, 558 U.S. at 340 (citation omitted); see Knox, 567
U.S. at 321-322. For the reasons explained above, respondents cannot make that showing. Given the “important political issues” inextricably involved in publicsector collective bargaining, Harris, 134 S. Ct. at
2632—the functional equivalent of “lobbying” the government, Lehnert, 500 U.S. at 520 (plurality opinion)—
there is no relevant constitutional difference between
compelling financial support for particular public policy
positions and compelling the payment of agency fees.
It is true that public employees compelled to pay
agency fees remain free to speak out against their unions’ positions in other ways—for example, by lobbying
elected officials at public meetings or contributing to
candidates who are less likely to accept the unions’ demands. See City of Madison Joint Sch. Dist. No. 8 v.
Wisconsin Emp’t Relations Comm’n, 429 U.S. 167, 175
(1976). But compelling financial support for speech on
disputed issues of public policy cannot be justified on
the ground that the speaker remains free to engage in
counter-speech. The challengers to the compulsory

 22
agency fees in Harris and Knox could voice their objections in other ways, and this Court nevertheless invalidated the compulsory agency fees. See United Foods,
533 U.S. at 411 (noting that the possibility of counterspeech was “not controlling of the outcome” of the First
Amendment challenge); cf. Arizona Free Enter. Club’s
Freedom Club PAC v. Bennett, 564 U.S. 721, 739 (2011)
(invalidating law that burdened political expenditures
by granting matching funds to opposing candidate).
Nor is the contention that compulsory agency fees
are necessary to address the problem of “free riders”
any more compelling here than in Harris or Knox. As
the Court has explained, “free-rider arguments * * *
are generally insufficient to overcome First Amendment objections.” Knox, 567 U.S. at 311; see Harris,
134 S. Ct. at 2643. Although public-sector unions voluntarily assume the duty of representing all members in a
bargaining unit—a decision that yields “a tremendous
increase in the power of the * * * union,” American
Commc’ns Assn., C.I.O v. Douds, 339 U.S. 382, 401
(1950)—dissenting employees have no choice but to accept representation in collective bargaining, making
them compelled riders for issues on which they may
strongly disagree. The union’s duty of representation
accordingly does not support an entitlement to collect
agency fees to protect against free riders, especially
given that “unions have no constitutional entitlement to
the fees of nonmember-employees” in the first place.
Davenport, 551 U.S. at 185.
B. Compulsory Agency Fees In Public Employment Do Not
Withstand Pickering Balancing

In recent cases involving public-sector agency fees,
the United States defended Abood’s result under the

 23
balancing test for public-employee speech claims established in Pickering v. Board of Education, 391 U.S. 563
(1968), or a similar standard of reasonableness review.
See U.S. Amicus Br. at 11-33, Friedrichs, supra (No.
14-915); U.S. Amicus Br. at 14-28, Harris, supra (No.
11-681). As explained above, petitioner’s claims are
governed by “exacting First Amendment scrutiny,” not
Pickering balancing or some other lenient standard.
Harris, 134 S. Ct. at 2639 (quoting Knox, 567 U.S. at
310). The Pickering test is an unnatural fit for petitioner’s claims, because the concerns that underlie
Pickering—ensuring order and discipline in the government workplace—are not implicated by the compelled subsidization of private speech that takes place
well outside a government employee’s workplace. But
even if Pickering does apply, this Court should strike
the balance in favor of petitioner’s First Amendment
rights.
1. Pickering balancing does not apply to petitioner’s
First Amendment challenge

In Pickering, a public-school teacher brought a First
Amendment challenge to his dismissal for criticizing
school-funding policy in a public letter. 391 U.S. at 567.
The Court held that resolving his claim required striking a “balance between the interests of the teacher, as a
citizen, in commenting upon matters of public concern
and the interest of the State, as an employer, in promoting the efficiency of the public services it performs
through its employees.” Id. at 568.
This Court has subsequently explained that Pickering provides the general “framework for analyzing
whether the employee’s interest or the government’s interest should prevail in cases where the government
seeks to curtail the speech of its employees.” Lane v.

 24
Franks, 134 S. Ct. 2369, 2377 (2014); see, e.g., Garcetti
v. Ceballos, 547 U.S. 410, 418 (2006); Connick v. Myers,
461 U.S. 138, 140 (1983). But the central purposes of
Pickering are “promoting efficiency and integrity in the
discharge of official duties,” and “maintaining proper
discipline in public service.” Lane, 134 S. Ct. at 2381
(brackets, citation, and internal quotation marks omitted). Such managerial control is necessary because
“[g]overnment employers, like private employers, need
a significant degree of control over their employees’
words and actions; without it, there would be little
chance for the efficient provision of public services.”
Garcetti, 547 U.S. at 418; accord Connick, 461 U.S. at
151 (grounding Pickering in the government’s need for
“control over the management of its personnel and internal affairs”) (citation omitted).
Pickering’s rationale does not translate to the present context. A requirement that employees pay their
unions to engage in collective bargaining has little to do
with the government’s need to maintain an efficient
workplace or assert managerial control over its employees. Likewise, petitioner’s challenge to Illinois’ authorization of public-sector agency fees—a “wholesale” regulation of “a broad category of expression by a massive
number of potential speakers”—differs markedly from
the “post hoc analysis of one employee’s speech” at issue
in the usual Pickering case. United States v. National
Treasury Emps. Union, 513 U.S. 454, 466-467 (1995)
(NTEU). Moreover, petitioner’s challenge implicates
not a restriction on speech, as Pickering cases generally do, but the compelled subsidization of speech.
For all these reasons, it is unsurprising that the
Court has not applied Pickering to cases involving attempts by public employers to compel speech or the

 25
subsidization of speech. Most significantly, the Court
did not apply Pickering in Abood, Knox, or Harris. To
the contrary, although Pickering predates Abood, the
majority opinion in Abood cited Pickering only once—
in a footnote describing “exceptions not pertinent
here.” 431 U.S. at 230 & n.27. Justice Powell likewise
cited Pickering just once in his Abood opinion, followed
immediately by the caveat that “[n]evertheless, even in
public employment, ‘a significant impairment of First
Amendment rights must survive exacting scrutiny.’ ”
Id. at 259 (quoting Elrod v. Burns, 427 U.S. 347, 362
(1976) (plurality opinion)). Knox resolved a First
Amendment challenge to public-sector agency fees
without any citation to Pickering. And Harris explicitly
rejected the government’s invocation of Pickering balancing as “an effort to find a new justification for the
decision in Abood, because neither in that case nor in
any subsequent related case” has the Court “seen
Abood as based on Pickering balancing.” 134 S. Ct. at
2641.
This Court has likewise declined to apply Pickering
in cases involving First Amendment challenges by public employees to mandatory membership in a political
party, which involves an arguably analogous form of
compelled expression. In Rutan v. Republican Party,
497 U.S. 62 (1990), for example, the Court struck down
an Illinois practice of requiring party membership for
certain state jobs because the “First Amendment prevents the government, except in the most compelling
circumstances, from wielding its power to interfere with
its employees’ freedom to believe and associate, or to
not believe and not associate.” Id. at 76. The Court did
not cite Pickering, relying instead on other politicalpatronage cases that similarly applied general First

 26
Amendment scrutiny. See id. at 68-71 (citing Elrod v.
Burns, supra, and Branti v. Finkel, 445 U.S. 507
(1980)). As in that context, Pickering balancing is an
unnatural fit for reviewing petitioner’s claim here.
2. Even if Pickering balancing applies, compulsory
agency fees in public employment are unconstitutional

Even if Pickering balancing applies, compulsory
agency fees in the public sector violate the First
Amendment. See Harris, 134 S. Ct. at 2642. Under
Pickering, “two inquiries * * * guide interpretation of
the constitutional protections accorded to public employee speech.” Garcetti, 547 U.S. at 418. “The first
requires determining whether the employee spoke”—
or, in this case, was compelled to subsidize speech—“as
a citizen on a matter of public concern.” Ibid. “If the
answer is no, the employee has no First Amendment
cause of action based on his or her employer’s reaction
to the speech.” Ibid. The second step requires “balancing the employee’s interest in such speech against the
government’s efficiency interest.” Lane, 134 S. Ct. at
2378. Here, mandatory agency fees clearly compel public employees to subsidize speech on matters of public
concern, and the State lacks any interest sufficient to
overcome that serious burden on free speech rights.
a. The threshold inquiry under Pickering is “whether the employee spoke”—or was compelled to subsidize
speech—“as a citizen on a matter of public concern.”
Garcetti, 547 U.S. at 418. As explained above, collective
bargaining with a governmental employer necessarily
involves speech on matters of public concern, because a
public-sector union “takes many positions during collective bargaining that have powerful political and civic
consequences,” including on wages, pensions, and other

 27
issues that affect the budget and the level of taxes and
government services. Knox, 567 U.S. at 310. Indeed,
this Court has explained that it is “impossible to argue
that the level of * * * state spending for employee benefits * * * is not a matter of great public concern.”
Harris, 134 S. Ct. at 2642-2643.
Similarly, compelled financial support for a publicsector union’s positions in collective bargaining necessarily implicates a public employee’s speech “as a citizen,” not merely as an employee. Garcetti, 547 U.S. at
418. This Court has consistently understood speech as
an employee for purposes of the Pickering analysis to
be speech made “pursuant to [an employee’s] official duties.” Id. at 421; see Lane, 134 S. Ct. at 2379 (“The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s
duties.”); see also Harris, 134 S. Ct. at 2642 (“Under
[Pickering] cases, employee speech is unprotected if it
is not on a matter of public concern (or is pursuant to an
employee’s job duties).”). The speech subsidized by
agency fees—union negotiations with the government
over wages, benefits, and similar issues of broad interest to citizens—is far removed from the scope of most
public employees’ individual job duties. Compulsory
agency fees to subsidize a union’s efforts in collective
bargaining thus implicate a public employee’s speech
“as a citizen * * * upon matters of public concern.”
Pickering, 391 U.S. at 568.
b. At its second step, Pickering requires balancing
“the interests of the [public employee], as a citizen, in
commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its
employees.” Lane, 134 S. Ct. at 2377 (citation omitted;

 28
brackets in original). Petitioner’s interest in “commenting upon”—or, as relevant here, not being forced to subsidize someone else’s contrary commentary upon—
public policy questions like the state budget and the
level of government services is entitled to great weight.
Ibid. “[S]peech on public issues occupies the highest
rung of the hierarchy of First Amendment values, and
is entitled to special protection.” Connick, 461 U.S. at
145 (citation and quotation marks omitted). The First
Amendment interests at stake are especially significant
here, because compelled agency fees affect not just a
single employee’s speech, but “a broad category of expression by a massive number of potential speakers,”
which “gives rise to far more serious concerns than
could any single supervisory decision.” NTEU, 513 U.S.
at 467-468. Harris accordingly concluded that compulsory agency fees “unquestionably impose a heavy burden on the First Amendment interests of objecting employees.” 134 S. Ct. at 2643.
The broad “sweep” of the agency fees compelled
“makes the Government’s burden heavy” under the
Pickering balancing test. NTEU, 513 U.S. at 467. Respondents must show that impinging on public employees’ First Amendment rights by compelling them to
fund speech that they oppose is outweighed by the government’s interest in the “efficiency of the public services” that it “performs through its employees.” Lane,
134 S. Ct. at 2377 (citation omitted). Compulsory
agency fees to support the union’s efforts in collective
bargaining, however, have little to do with the concerns
of workplace discipline and efficiency usually given
weight in Pickering balancing. See e.g., NTEU, 513
U.S. at 470 (“Because the vast majority of the speech at
issue in this case does not involve the subject matter of

 29
Government employment and takes place outside the
workplace, the Government is unable to justify [the
speech restriction] on the grounds of immediate workplace disruption asserted in Pickering and the cases
that followed it.”). And although the State has an interest in labor peace, that does not imply an equivalent interest in compulsory agency fees. As Harris explained—and as the presence of functioning unions in
the federal government and right-to-work States underscores—compulsory agency fees are “not inextricably linked” to labor peace. 134 S. Ct. at 2640.
Moreover, compelling employees to subsidize speech
on politics and public policy imposes a severe burden
that even highly restrictive prohibitions on speech in
the workplace do not. This Court has held, for example,
that the government can prohibit certain partisan political speech by employees under the Hatch Act, 5 U.S.C.
7321 et seq. See United States Civil Serv. Comm’n v.
National Ass’n of Letter Carriers, 413 U.S. 548, 564
(1973). But the government could not compel partisan
political speech—or financial support for partisan political speech—by its employees. Cf. Branti, 445 U.S. at
515-516. Thus, “even if the permissibility of the agencyshop provision in the collective-bargaining agreement
now at issue were analyzed under Pickering, that provision could not be upheld.” Harris, 134 S. Ct. at 2643.
C. Stare Decisis Does Not Require Reaffirming Abood

Whether the question is analyzed under general
First Amendment principles or Pickering balancing,
Abood’s holding is incorrect. Although this Court exercises caution in reconsidering its precedents, stare decisis is “not an inexorable command.” Agostini v. Felton, 521 U.S. 203, 235 (1997) (citation omitted). In par-

 30
ticular, the Court “has not hesitated to overrule decisions offensive to the First Amendment.” Citizens
United, 558 U.S. at 363 (citation omitted). Having thoroughly catalogued Abood’s errors, see Harris, 134 S. Ct.
at 2632-2634; Knox, 567 U.S. at 310-311, the Court
should now overrule it.
1. Stare decisis is “at its weakest” in constitutional
cases, because errors in constitutional “interpretation
can be altered only by constitutional amendment or by
overruling” prior decisions. Agostini, 521 U.S. at 235;
see Halliburton Co. v. Erica P. John Fund, Inc., 134
S. Ct. 2398, 2411 (2014) (contrasting the “special force”
of stare decisis in statutory cases) (citation omitted).
Here, the Court has recognized that Abood “seriously
erred” by importing decisions involving private-sector
collective bargaining into the public sector. Harris, 134
S. Ct. at 2632. Moreover, “[i]n the years since Abood,
as state and local expenditures on employee wages and
benefits have mushroomed, the importance of the difference between bargaining in the public and private
sectors has been driven home.” Ibid. In light of these
developments, Abood’s “rationale no longer withstands
careful analysis.” Arizona v. Gant, 556 U.S. 332, 348
(2009) (citation and internal quotation marks omitted).
2. Overruling precedent generally requires a “ ‘special justification,’ not just an argument that the precedent was wrongly decided.” Halliburton, 134 S. Ct. at
2407 (quoting Dickerson v. United States, 530 U.S. 428,
443 (2000)). One such justification is that “subsequent
cases have undermined [the] doctrinal underpinnings”
of the precedent in question. Dickerson, 530 U.S. at
443. That is precisely what Harris and Knox, among
other decisions, have done to Abood. See Harris, 134

 31
S. Ct. at 2632-2634, 2638 (describing Abood’s “questionable foundations,” “unwarranted” assumption, and “serious[] err[or]”); Knox, 567 U.S. at 310-311, 314 (calling
Abood “an anomaly” that may “cross * * * the limit of
what the First Amendment can tolerate”); see also Davenport, 551 U.S. at 190 (noting the “somewhat different
constitutional question” presented by “public- and private-sector unions”); United Foods, 533 U.S. at 410-414
(evaluating commercial speech under more exacting
scrutiny than applied by Abood). Perhaps most telling,
Abood’s advocates have sought primarily “to find a new
justification for the decision.” Harris, 134 S. Ct. at
2641. “When neither party defends the reasoning of a
precedent, the principle of adhering to that precedent
through stare decisis is diminished.” Citizens United,
558 U.S. at 363.
Hudgens v. NLRB, 424 U.S. 507 (1976), another case
at the intersection of labor law and the First Amendment, is instructive. There, the Court considered
whether to overrule Amalgamated Food Employees
Union v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968),
which held that unionized employees had a First
Amendment right to picket at a private shopping center. The Court observed that it had criticized Logan
Valley in a subsequent decision, Lloyd Corp. v. Tanner,
407 U.S. 551 (1972), but that Lloyd ultimately distinguished Logan Valley rather than overruling it. Hudgens, 424 U.S. at 517. When the question of overruling
Logan Valley was squarely presented in Hudgens, however, the Court acknowledged that the reasoning in
“Lloyd cannot be squared with” Logan Valley, and
overruled Logan Valley. Id at 518.
Here, Harris and Knox play a role similar to Lloyd.
Although the Court distinguished rather than overruled

 32
Abood in Harris and Knox, the reasoning of those decisions fundamentally undercut Abood’s rationale. Unless one “analyzes the question presented as if [Harris
and Knox] never happened,” Shelby County v. Holder,
133 S. Ct. 2612, 2631 (2013), Abood “cannot be squared”
with current First Amendment law, Hudgens, 424 U.S.
at 518. That is a strong justification for overruling it.
See Ring v. Arizona, 536 U.S. 584, 609 (2002) (overruling precedent that was “irreconcilable” with reasoning
of subsequent case); cf. U.S. Br. at 15-16, Agostini, supra, No. 96-552 (Feb. 28, 1997) (urging overruling of “an
outlier in this area of constitutional law”).
Moreover, Abood has not created significant reliance
interests. See Citizens United, 558 U.S. at 362. Publicsector unions have long known that they “have no constitutional entitlement to the fees of nonmember-employees,” Davenport, 551 U.S. at 185 (citing Lincoln
Fed. Labor Union No. 19129 v. Northwestern Iron &
Metal Co., 335 U.S. 525, 529-531 (1949)), and they have
been on notice that Abood is in serious jeopardy since
Harris and Knox. Overruling Abood would not alter
the substantive provisions of existing collective bargaining agreements on wages, hours, benefits, and
other similar subjects; it would only remove one of the
union’s sources of funding, to the extent the union is unable to persuade non-members to pay dues. See J.A.
328 (severability clause). Although some collective bargaining agreements may have been negotiated on the
assumption that Abood would remain the law, there is
no indication that unions negotiated for the power to
collect agency fees at the expense of better wages and
benefits for their employees. Cf. Harris, 134 S. Ct. at
2641. And to the extent that agency-fee provisions did
affect the substantive terms of the bargain, that only

 33
underscores that agency fees are inextricably intertwined with speech on public-policy issues, and that
Abood applied insufficient scrutiny to the widespread
compelled subsidization of highly protected speech.
3. Finally, overruling Abood on the grounds outlined
here would not undermine the validity of private-sector
agency-fee arrangements authorized by the NLRA and
the RLA, see 29 U.S.C. 158(a)(3), 164(b); 45 U.S.C. 152
(Eleventh), because collective bargaining in the private
sector does not inherently implicate the public-policy issues that public-sector collective bargaining does.
None of the opinions questioning Abood’s rationale has
doubted the constitutionality of private-sector agency
fees. To the contrary, Harris criticized Abood precisely
for failing to draw “a line between the public and private
sectors.” 134 S. Ct. at 2632; see ibid. (noting that Abood
“failed to appreciate the difference” between speech involuntarily subsidized in the public and private sectors).
Justice Powell’s opinion in Abood likewise relied on the
“constitutional distinction between what the government can require of its own employees and what it can
permit private employers to do”—a distinction he
termed “fundamental.” 431 U.S. at 250. Moreover, the
NLRA’s mere authorization of private-sector agency
fees in States that do not outlaw such fees, 29 U.S.C.
164(b), may not constitute state action necessary to implicate the First Amendment. See Communications
Workers of Am. v. Beck, 487 U.S. 735, 761 (1988) (reserving state-action question, but citing precedents that
“do[] not involve state action”); see also U.S. Amicus Br.
at 25-26, Beck, supra, No. 86-637 (Apr. 30, 1987) (arguing that NLRA does not give rise to state action in private-sector agency-fee context).

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By authorizing state and local governments to compel public employees to finance speech on matters of
central public concern with which they disagree, Abood
conflicts with prevailing precedents and with “the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled
to subsidize speech by a third party that he or she does
not wish to support.” Harris, 134 S. Ct. at 2644. Abood
should accordingly be overruled.
CONCLUSION

The judgment of the court of appeals should be reversed.
Respectfully submitted.
NICHOLAS C. GEALE
Acting Solicitor of Labor
ARTHUR F. ROSENFELD
Senior Counselor
JEFFREY LUPARDO
Senior Attorney
Department of Labor

DECEMBER 2017

NOEL J. FRANCISCO
Solicitor General
JEFFREY B. WALL
Deputy Solicitor General
CHRISTOPHER G. MICHEL
Assistant to the Solicitor
General