Unions, Corporations, and the First Amendment: A Response to Professors Fisk and Chemerinsky
99 Cornell Law Review Online 23 (2013)
19 Pages Posted: 23 Jul 2013 Last revised: 13 Sep 2013
Date Written: July 22, 2013
In an article recently appearing in the Cornell Law Review, Professors Catherine Fisk and Erwin Chemerinsky reject the vision of union-employee relations that the Court recently laid out in Knox v. SEIU Local 1000. For unions as well as corporations and other associations, Fisk and Chemerinsky contend that, “so long as it is the entity expressing its views, with dissidents completely free to say whatever they want however they want, the use of entity money that originates with stakeholders should not be regarded as compelled speech within the meaning of the First Amendment.” In Fisk and Chemerinsky’s view, employees in unionized workplaces thus should have no right to opt out of helping to pay for unions’ political activities.
To create space for their proposal, Fisk and Chemerinsky argue that the Court has failed to develop a coherent, legally defensible First Amendment vision of its own. They argue, for example, that neither law nor logic can justify the Court’s willingness to provide robust protection to non-union-member employees who do not wish to help cover a union’s political expenditures, while giving no protection to shareholders who object to the same kinds of expenditures by their corporations.
Writing for the Cornell Law Review Online, I respond in two parts. In Part I, I challenge the premise of shareholder-employee equivalency that undergirds key portions of Fisk and Chemerinsky’s analysis. I argue that there are critical weaknesses in the equivalency they draw between employees and shareholders, and that Justices acting in good faith thus could reasonably resist any conclusion for which that equivalency is essential. In Part II, I contest the claim that Knox contributes to incoherence in the Court’s First Amendment jurisprudence. Specifically, I challenge Fisk and Chemerinsky’s argument that Knox is difficult to reconcile with the Court’s leading precedents on the speech rights of government employees, and I raise doubts about their reading of the Court’s compelled-speech cases involving complaints that one’s resources are being used to help facilitate others’ speech.
Keywords: unions, corporations, shareholders, employees, association, compelled, speech, Knox, Citizens United
JEL Classification: K10, K19, K31, K49
Suggested Citation: Suggested Citation