Are Workers’ First Amendment Rights the New Liberty of Contract Doctrine?
By OREN M. LEVIN-WALDMAN, Ph.D.

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Oren M. Levin-Waldman, Ph.D., Professor at the Graduate School for Public Affairs and Administration at Metropolitan College of New York, Research Scholar at the Binzagr Institute for Sustainable Prosperity, as well as faculty member in the Milano School for International Affairs, Management, and Urban Policy at the New School. Direct email to:
olevin-waldman@mcny.edu

WESTCHESTER, NY — August 13, 2018 — Prof. Oren M. Levin-Waldman will discuss his most recent  article: “Are Workers’ First Amendment Rights the New Liberty of Contract Doctrine?” By Oren M. Levin-Waldman, on Wednesday, August 15, 2017th at 10am EDT on the Westchester On the Level Internet radio broadcast. Listen “Live” or “On Demand”. Use the following hyperlink … http://tobtr.com/s/10929881. Please recognize the broadcast is initiated at 9:55am EDT and is archived within 15 after the conclusion of the broadcast day at 12Noon. Share your perspective and/or inquiry by calling 347.205.9201. Participants are asked to be respectful and to stay on topic. This segment will air from 10-11am.

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Are Workers’ First Amendment Rights the New Liberty of Contract Doctrine? <br> By OREN M. LEVIN-WALDMAN

In the recent case of Janus v. American Federation of State, County, and Municipal Employees, Council 31, the Supreme Court decided that a public employee who chose not to join the union could not be forced to either join or pay “agency fees” — essentially a reduced union membership fee. Speaking for the Court, Justice Alito said to force somebody to pay fees in support of a union whose positions one does not support is a violation of free speech.

Since this case was decided, there has been much discussion in the popular press about just how this case affects workers, their right to unionize and the labor market generally. It is interesting to note that the Court used the precedents of free speech to decide this case; not the discredited precedents of liberty of contract, which reigned supreme from the 1890s until the late 1930s.

In the 1905 case of Lochner v. New York the Supreme Court ruled that a New York State law limiting the hours of bakers to ten hours a day and sixty hours a week was a violation of their liberty of contract. Unless there was a compelling interest to limit their liberty of contract, such as protecting women’s health for instance, states could not limit the hours of workers. And in subsequent cases, if they couldn’t legislate maximum hours they also couldn’t legislate minimum wages.

Of course, the only liberty of contract of import here was that of employers, as they had power. But in the name of workers it was being suggested that their liberty of contract was important. After all, if workers wanted to work eighty hours a week, they should have the right to do so. Still, when economic conditions made it clear that we aren’t all equals in the bargaining process, the whole string of Lochner era cases were thrown out on the grounds that economic circumstances had indeed changed, which had already infringed on liberty of contract.

Is Janus really different, or is it a liberty of contract case wrapped in the language of the First Amendment? What the Court is saying is that a worker’s right to free speech cannot be abridged and if one is forced to support an institution that holds positions inimical to those of the worker, that worker’s free speech rights are being abridged. In theory, this would appear to be true.

What, then, about the benefits that workers derive from the union they choose not to join? The worker who chooses not to join, or in this case to pay an “agency fee,” still benefits from the collective bargaining agreement. To even decide this case on the grounds of liberty of contract would be absurd because the employer is not going to negotiate with each employee separately as the liberty of contract doctrine implies. Rather, these workers will still get whatever was negotiated between the employer and the union representing most, if not all of the rest, of the workers.

The worker who derives benefits but doesn’t pay anything is the classic example of the free rider. This worker knows full well that he will benefit from the collective bargaining agreement but doesn’t pay because he reasons he does not really have to. Why pay when you can get something for free? Historically unions sensing that many workers would opt to be free riders supported what was known as a closed shop — a requirement that workers join the union as a condition of employment.

In the aftermath of the Taft Hartley Act of 1947, many states, particularly in the South, passed right-to-work laws, which effectively barred the closed shop. With workers not being required to join, organizing workers into unions became much more difficult, with the effect that union membership nationwide began to decline precipitously. In other words, workers will not join unions if they don’t have to, and the Court is saying that to force them to is to limit their free speech rights.

What, then, about the free rider objection? To Alito’s credit, he did not dismiss the objection out of hand. Rather he quoted from an earlier case where the Court held that “free rider arguments…are generally insufficient to overcome First Amendment objections.” He then goes on to argue: “To hold otherwise across the board would have startling consequences. Many private groups speak out with the objective of obtaining government action that will have the effect of benefitting nonmembers. May all those who are thought to benefit from such efforts be compelled to subsidize this speech?”

In other words, since we don’t force everybody to subsidize the beliefs of organizations they don’t agree with despite the benefits they may nonetheless derive, workers cannot be forced to subsidize the views of public sector unions they don’t subscribe to. In the public sector, these views might include endorsing particular candidates for office. Of course, that would also be true of private sector unions, which is why the effects of this case are perhaps so wide ranging.

If a closed shop is an unconstitutional abridgment of first amendment rights in the public sector, it is also an unconstitutional abridgment of those same first amendment rights in the private sector. The effect of this case, if not also its intent, is to weaken unions and collective bargaining. If workers choose not to join, employers have no real need to bargain collectively.

Although the Court said that freedom to not join was a matter of free speech, workers may opt not to join because they sense that joining will result in some type of retribution from the employer. So now the Court is favoring the rights of the employer by cloaking the argument in the First Amendment. Lochner era cases similarly favored the rights of employers by cloaking the argument in Liberty of Contract doctrine.

The two are different, but would appear to have the same effect. With Janus we can expect membership in public sector unions to decrease. Supporters of this decision claim that this will rein in public spending because public officials will no longer promise these workers things in exchange for their votes. But as we noted many times in the past, public officials will always purchase the support of anybody and everybody through distributive politics.

Because most unionized workers are public sector unions, the effect is really to weaken unions further. The effect of that is to drive down wages. Even employers whose workers aren’t unionized have an interest in weakening unions because of the spillover effects from union to non-union establishments. Moreover, if workers in the public sector can be driven down, they can also be driven down in the private sector.

It is ironic that the workers’ new free speech rights are the workers’ old and discredited liberty of contract rights. What we see is how a theoretical argument can have seriously adverse consequences. It is hard not to believe that this wasn’t the intent of a conservative majority on the Court who obviously felt the need to obfuscate by appealing to a right that most of us take to be so obvious.

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Just published Wage Policy, Income Distribution, and Democratic Theory:

http://www.routledge.com/books/details/9780415779715/#reviews

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Dr. Oren M. Levin-Waldman, Ph.D., Professor at the Graduate School for Public Affairs and Administration at Metropolitan College of New York, Research Scholar at the Binzagr Institute for Sustainable Prosperity, as well as faculty member in the Milano School for International Affairs, Management, and Urban Policy at the New School. Direct email to: olevin-waldman@mcny.edu

eHeziAre Workers’ First Amendment Rights the New Liberty of Contract Doctrine?
By OREN M. LEVIN-WALDMAN, Ph.D.

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