Friday, June 22, 2012
Opt in, opt out
The opt-in/opt-out question is an important, but infrequently discussed, aspect of First Amendment doctrine. Broadly speaking, how should the First Amendment handle people who want to take themselves out of the expressive marketplace? Two main groups may want to do this. One is unwilling speakers, those who do not want to speak or to support speech, exemplified by the objecting nonmember dues payers in Knox. A second group is unwilling listeners, those who do not want to listen or see someone else's expression.As to listeners, the general rule has been opt-out. The burden is on the listener to avoid objectionable speech. This is reflected in the rule against hecklers' vetoes and the command of Cohen that those who want to avoid an objectionable message must "avert their eyes." It also explains Lamont v. Postmaster General, where the Court invalidated a postal regulation requiring the seizure of certain mail unless the recipient affirmatively requests that the mail be sent to him. The onus was on the unwilling recipient to block the mail, which also protects the willing listener from having to affirmatively declare to the government that he wants to receive communist propaganda. Finally, it also explains why the FCC imposed a do-not-call list to limit telemarketing, putting the burden on the callee to stop the calls. Protecting unwilling listeners from offense or annoyance (as opposed to genuine harm) will rarely be a sufficient government interest to uphold a restriction on speech; hence the line between a cross burned as a threat and one burned as part of a broader public statement.
There are examples in the other direction. Most notable are abortion-facility-protest cases, under which protesters can be prohibited from approaching or communicating with patients unless invited. But this typically involves face-to-face speech, which receives less protection. There is the so-called captive-audience doctrine, but again relatively limited. And the Court rejected opt-out in favor of opt-in as to public libraries' use of internet filters.
So the jurisprudential trend places the onus on the unwilling listener to avoid unwanted speech in favor of allowing the willing speaker greater freedom. And the opt-out default generally makes sense here. A willing speaker has a greater right than an unwilling listener, at least where the speaker is speaking to the public and not to the listener alone. There is no way that someone addressing a mass audience can get the permission of the entire audience, so administrative simplicity favors putting the burden there. This also is consistent with the First Amendment's preference for "more speech," which we get both by reducing the cost and burden on a speaker to produce and disseminate his speech and by ensuring a wider possible audience.
So what about unwilling speakers/funders, as in Knox? Here, we have a willing speaker (the union) pitted against unwilling speakers (nonmember dues payers) who have a right not to speak, including a right not to have to fund someone else's speech. If an opt-out is enough to protect an unwilling listener, should it be sufficient to protect an unwilling speaker?
The majority in Knox viewed the unwilling speaker's rights as largely trumping the willing speaker's, so it felt comfortable placing the entire burden on the latter. The likely reduction in "more speech" that comes with an opt-in was justified by the need to protect the unwilling speaker from ever having his money used for objectionable political purposes, even for a brief time and even if he ultimately will get it back. This is a very broad understanding of compelled speech; even the momentary use of one's money for objectionable speech violates the First Amendment. Moreover, the Court was implicitly saying that the administrative burden on the willing speaker is not so much greater with an opt-in than an opt-out; the union is obligated to provide (and update) notice in either event, so the nature of the notice was irrelevant.
Is this the proper balance? If an opt-out is appropriate as to unwilling listeners, there may be a benefit to using the same standard for all unwilling speech actors, so we have some consistency. Moreover, I think the Court downplayed too much the loss of speech and the burden on the union from opt-in, while overplaying the burden on the objectng funder from a temporary payment. The Court recognized the union's rights (cleverly citing Citizens United for the proposition), but then seemed to minimize the effects of an opt-in command on those rights. The goal of "more speech" seemed to fall by the wayside.
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As a broad principle, Knox seems to contravene Southworth, 529 U.S. 217, where Wisconsin was allowed to subsidize campus speech with a mandatory student activity fee. One could argue that entry into the university is voluntary, but one could also argue that entry into a closed-shop field of work is also voluntary.
Posted by: AndyK | Jun 22, 2012 10:48:40 AM
SG Kagan during CU orals raised concerns about the de facto non-consenting investor of funds in a corporation as a reason to regulate corporations differently. Another post on this blog noted some parallels between corporations and unions. This would, I think, make an interesting article though perhaps someone already wrote it.
Posted by: Joe | Jun 22, 2012 11:55:58 AM
I'm sorry, but what in the world do unwilling speakers and unwilling listeners have in common, other than that they're both unwilling? How can you even classify the latter as "speech actors"? I see every reason in the world to treat them differently. The First Amendment guarantees a right to speak, which necessarily includes some rights to control what one doesn't speak; listening, on the other hand, just isn't a First Amendment right.
Posted by: Asher | Jun 22, 2012 1:35:11 PM
Joe: I already wrote it. We argued that the First Amendment concerns are not comparable because no law requires purchase of stock in a particular company. And while entry into a profession in an area that has a closed shop is voluntary, the burden on the ability to earn a living in a particular place was a sufficient burden. Several people have disagreed with us, including, I believe, Adam Winkler. There was discussion on this blog after Citizens United about whether a state could statutorily protect shareholders by imposing some sort of opt-out or opt-in requirements before a corporation can engage in political spending.
Andy: Interesting point. The difference in Southworth was that germaneness could not work in the university, since everything is germane to the intellectual inquiry that occurs at a university. I actually believe the better way to analyze Southworth would have been to hold that students were not funding speakers (and thus not funding speech), they were funding a public forum, just as if the money went to upkeep of a public square on campus. That would strengthen the distinction with the union cases.
Asher: Willing listeners do have rights under the First Amendment, although the basis and theory of them has not really been developed. Unwilling listeners also have some rights; whether we call them First Amendment rights or privacy rights, something is going on there.
Posted by: Howard Wasserman | Jun 22, 2012 7:26:53 PM
Two points. First, I hate to be a labor law pedant, but it would be good to avoid the term "closed shop," which (i) has a specific historical meaning in U.S. labor relations, and (ii) hasn't been legal since 1947. In a closed shop, one must be a union member as a condition of being hired (and continue to be one to remain employed). The Taft-Hartley Act of 1947 made that illegal. Then there was the union shop (you had to join the union and pay full dues after being hired), but that was made illegal by a combination of cases culminating in the Beck decision.
Nowadays, the *most* that is legal (meaning, what is legal in states that are not "right to work" states) is an agreement between an employer and union that employees the union represents must pay a "fair share" of dues to cover the costs of representing the employee. The employee does not have to be a "member" and does not have to pay dues that go to activities not related to collective bargaining. Not a closed shop at all.
Second, the opposite problem with the corporate analogy is that corporations don't have to provide services to folks who don't pay them money. Unions do. In right-to-work jurisdictions, unions still have an obligation to represent employees who don't pay dues, and in non-right-to-work jurisdictions, unions can't discriminate against those who are not union members and who don't pay full dues. The better analogy, I think, is to a political jurisdiction: a union only exists where there is majority support, it provides services, the members of the workforce share in what the union provides, and the union should be able to "tax" employees through dues.
Also, employees who don't like the union have another option besides quitting: they can vote out the current union leadership (again, the political model) or even vote out union representation, if they have enough support.
Posted by: Joseph Slater | Jun 23, 2012 6:37:28 PM
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