Anthony T. Caso *

Since the Court's decision in Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977), the government-compelled payment of funds to a private (or quasi-private) organization that will be used by the organization for expressive purposes has been recognized to implicate First Amendment freedoms. This doctrine has remained largely unchallenged and uncontroversial, with the Court affirming the principles of Abood in a unanimous decision in 1990 (Keller v. State Bar of California, 496 U.S. 1). Recently, however, a narrowly divided Court declined to extend the doctrine to at least some elements of commercial speech in Glickman v. Wileman Bros. & Elliot 117 S.Ct. 2130 (1997), and the issue will arise next term in the universities context.

The doctrine developed in response to a form of union security in union contracts known as "agency shop fees." These are the fees paid to the union by nonunion members under the theory that the nonmembers benefit from the union's collective bargaining activities. Nonmembers eventually complained that unions, as private organizations, often used some of their funds for political activities. The nonmembers argued that Congress did not have the power to authorize these mandatory assessments if the assessments were to be used to fund expressive activity unrelated to collective bargaining. The Court agreed and, in a series of opinions, gave a tortured interpretation of the national labor laws to limit the agency fees that could be assessed to the nonmembers' pro rata share of the cost of collective bargaining related activities. The Court was finally forced to confront the constitutional issue in Abood, where it reviewed a state law. In Abood, the Court likened these compelled payments to compelled expression, citing to West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (compelled flag salute in school) and Wooley v. Maynard, 430 U.S. 705 (1977) (compelled display of state motto "Live free or die" on license plate).

The doctrine was applied outside of the labor context in Keller v. State Bar of California, 496 U.S. 1 (1990). There, the Court ruled that the states may not compel payments to the bar association that the bar will use for expressive activities beyond regulation of the practice of law and improvement of the quality of legal services available to the people of the state. Next term, the Court will address the applicability of this analysis to mandatory student fees that are distributed to campus political groups.

The doctrine began to unravel when the Court was forced to rule on the constitutionality of forcing nonunion members to finance specific programs. Instead of analyzing the case under strict First Amendment criteria, in Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991), the Court majority examined the content of the challenged expression for which contributions were forced, not for purposes of the compelling state interest test, but rather to gauge the level of First Amendment injury. The test was whether the expenditure "significantly add[ed] to the burdening of free speech that is inherent in the allowance of an agency or union shop." Id. The Lehnert majority ruled that dissenters could be forced to finance speech activities that did not implicate "political" or "public issue" topics and did not constitute an "additional infringement" of First Amendment rights. In dissent, Justice Scalia, joined by Justices O'Connor, Kennedy, and Souter, rejected the test set out in the majority opinion and argued for application of the compelling state interest test. Under that analysis, the specific activity or speech content is reviewed to determine whether it serves the purpose for which fees may be compelled, instead of weighing the First Amendment merits of the topic of the expression.

This content-based analysis was used again in Glickman v. Wileman Bros. & Elliot, 117 S.Ct. 2130 (1997). At issue there was whether tree-fruit growers subject to a marketing order could be compelled to fund generic advertising. The Court rejected the idea that the compelled assessments implicated the First Amendment. As in Lehnert, the Court turned to the substance of the speech at issue to determine the level of First Amendment interest. The Court ruled that the generic advertising did not implicate the First Amendment rights of the growers because it did not involve "political or ideological views." Id. at 2138. In other words, the Glickman Court ruled that the compelled speech doctrine does not protect against compelled "financial support for any organization that conducts expressive activities." But rather, it only protects against compelled support of "an organization whose expressive activities conflict with one's `freedom of belief.'" Id. at 2139.

Justice Souter wrote the lead dissent and was joined by Chief Justice Rehnquist and Justices Scalia and Thomas. The dissent rejected the majority's analysis and started instead from the proposition "that speech as such is subject to some level of protection unless it falls within a category, such as obscenity, placing it beyond the Amendment's scope, and that protected speech may not be made the subject of coercion to speak or coercion to subsidize speech." Id. at 2143 (Souter, J. dissenting).

It bears emphasis that the Court did not rule that the generic advertising at issue was not subject to the protections of the First Amendment. The majority opinion was not a wholesale rejection of the commercial speech doctrine. Nor was it a rejection of the broader compelled speech doctrine in the context of commercial speech. The Court did nothing to indicate it was retreating from earlier decisions in Pacific Gas and Elec. Co. v. Public Utilities Comm'n of California, 475 U.S. 1 (1986) (striking down regulations that utilities include inserts in their billing envelopes from consumer groups) or Riley v. National Federation of the Blind, 487 U.S. 781 (1988) (striking down requirements that charitable fund raisers include in their solicitations specific information about the amount of donations actually delivered to the charity). Instead, the Court was establishing limits on the right to be free from being compelled to subsidize the speech of others. Whether this trend limiting the right that the Abood Court found so fundamental will continue may be answered this next term when the Court rules on the constitutionality of compelling students at state universities to fund political student groups on campus.

* General Counsel, Pacific Legal Foundation. Served as counsel for the plaintiffs in Keller v. State Bar of California, 496 U.S. 1 (1990).