Reclaiming the First Amendment through Union Dues Restrictions?

University of Pennsylvania Journal of Business and Employment Law, Vol. 10, No. 3, pp. 663-716, Spring 2008

George Mason Law & Economics Research Paper No. 07-31

55 Pages Posted: 19 Sep 2007 Last revised: 26 May 2008

Harry G. Hutchison

Centre for the Study of Law & Public Policy at Oxford; Regent University - School of Law

Date Written: September 2007

Abstract

In its recent Davenport v. Washington Education Association decision, the United States Supreme Court unanimously enforced a Washington State paycheck protection initiative that placed restrictions on the extraction of labor union dues for political purposes. This decision appears to substantiate the free speech interest of union dissenters. This case also provides an additional example of the ongoing conflict between individual and group interest and between individual and group preferences that have erupted in a society that appears to be falling apart. In such a society the myth of the "universal worker" is collapsing in the face of escalating incredulity, and an increasing focus on autonomy. Although human autonomy may find some protection in the First Amendment, I argue that the Supreme Court's holding in this case cannot fully vindicate individual liberty despite the claims and counter-claims of a number of observers. Correctly understood, this decision promises little and delivers less because it fails to deal decisively and comprehensively with issues that both earlier private sector and public sector union dues disputes illuminated but failed to settle. Tied to earlier precedent, the Davenport case falls short of recapturing fully the First Amendment values of expression and association.

This article represents an extension of my prior work that has considered the union dues controversy. I provide arguments, recommendations and some speculations that are aimed at reclaiming human autonomy, individual liberty and a principled understanding of First Amendment ideals. However, ultimately, I suggest the implausibility of recapturing a principled understanding of the First Amendment in a society torn apart by simmering disagreement. While the Supreme Court rightly enforced Washington State's dues restrictions, it is unlikely that paycheck protection legislation or referenda can rescue First Amendment rights and values from adjudication that transforms principle into a wobbly platform.

Keywords: Davenport v. Washington Education Association, First Amendment, freedom of expression, labor union dues, paycheck protection, Supreme Court

JEL Classification: J51, K31

Suggested Citation

Hutchison, Harry G., Reclaiming the First Amendment through Union Dues Restrictions? (September 2007). University of Pennsylvania Journal of Business and Employment Law, Vol. 10, No. 3, pp. 663-716, Spring 2008; George Mason Law & Economics Research Paper No. 07-31. Available at SSRN: https://ssrn.com/abstract=1015377 or http://dx.doi.org/10.2139/ssrn.1015377

Harry G. Hutchison (Contact Author)

Centre for the Study of Law & Public Policy at Oxford

Belsyre Court, 57 Woodstock Road
Oxford 0X2 6HJ
United Kingdom

Regent University - School of Law ( email )

1000 Regent University Drive
Virginia Beach, VA 23464
United States

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