In 2018, the U.S. Supreme Court delivered a significant ruling in Janus v. AFSCME, affirming that government employees cannot be forced to financially support unions as a condition of employment. Eight years later, the question is whether the court will uphold this principle. Thus far, it has not, but two ongoing lawsuits might prompt a change.
State Laws Targeting Freedom Foundation
Oregon and New York have enacted similar laws purportedly aimed at preventing fraudulent impersonations of labor unions. Fraud is illegal, and workers should not be deceived. However, these laws have a specific target: Freedom Foundation, which informs government employees about their rights to opt out of union membership and dues.
Oregon’s law, passed last year, forbids impersonating a union representative and imposes statutory damages of $6,250 per incident. In response, Freedom Foundation sued, claiming the law chills constitutionally protected speech. After a federal district court dismissed the case, they appealed to the 9th Circuit Court of Appeals.
New York followed with Civil Service Law Section 216. The statute enables Attorney General Letitia James to act when she suspects someone is engaging in prohibited communications, with fines of $1,000 per incident. Freedom Foundation filed a lawsuit against New York on September 28.
Implications of These Laws
The constitutional issue extends beyond prosecution. It concerns the chilling effect on speech prior to prosecution. Union supporters presented no evidence that Freedom Foundation attempted deception, yet the organization risks its communications being deemed deceptive under vague legal standards.
Speech can be chilled without direct censorship if speaking is legally perilous. This connects to Janus. Since 2018, unions and allies have made opting out more challenging. Freedom Foundation has assisted workers in severing ties with unions, repeatedly asking the Supreme Court to intervene. However, the court has ignored appeals, allowing testing of Janus‘s limits.
Oregon and New York’s laws are a progression in this testing. Union allies aim to complicate employees’ rights and suppress information by making dissemination legally dangerous.
Beyond Fraud and Free Speech
Neither Janus nor the First Amendment addresses fraud, as states have legitimate measures for genuine impersonation cases. These governments exploit potential fraud allegations to stifle dissent. Public officials shouldn’t threaten speakers with severe penalties based on vague, politically sympathetic standards.
These cases are relevant beyond Freedom Foundation. The organization has challenged both statutes federally. If these cases reach the Supreme Court, the justices should clearly affirm the Janus decision.
For eight years, the Supreme Court has watched as unions tested Janus‘s limits. Enough is enough. A constitutional right obstructed by governments isn’t a true right. Justices set a boundary with Janus in 2018. If Oregon or New York’s laws reach them, they should ensure that boundary remains steadfast.
Jeff Rhodes is the vice president of news and information at the Freedom Foundation.
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