Arnold Fleck fought hard to see a shared parenting ballot measure passed in North Dakota. He gave money in support of the measure, debated its merits on television, and devoted most of his spare time to supporting it. At the same time, though, he was funding the opposition to the measure. Why? Because Mr. Fleck is an attorney and has to be a dues-paying member of the state bar association to practice law.
The State Bar Association of North Dakota spearheaded the measure’s opposition, contributing nearly $50,000 in compelled member dues to a PAC created to oppose the measure. Ultimately, the measure failed in the November 2014 election.
This put Arnold Fleck in an untenable position. He could either continue earning a living as an attorney but be forced to fund speech he morally opposes or he could find another line of work. Rejecting those options, he filed a federal lawsuit because being forced by the government to join and fund a group in order to earn a living plainly violates the Constitution’s guarantees of free speech and free association.
Arnold Fleck’s experience is unfortunately not unique. Rebecca Friedrichs and her fellow plaintiffs in Friedrichs v. California Teachers Association, a case that will be heard by the Supreme Court on Jan. 11, 2016, are in the same position. As a public school teacher in California, Rebecca Friedrichs has a portion of her paycheck deducted and sent straight to the teachers’ union whether she wants to fund the union or not. Like Arnold Fleck, Rebecca Friedrichs rejected her two options of leaving a job she loves or funding speech she opposes. She decided to fight for her constitutional rights in court.
Unsurprisingly, mandatory bars and public-sector unions vocally oppose ending the practice of forcing individuals to fund them. Both groups argue that their forced-funding schemes are vitally necessary to ensure the continued success of their captured professions. Not only does this ignore that this violates the speech and associational rights of people like Arnold Fleck and Rebecca Friedrichs, it fails to acknowledge that using the force of law to make people fund bars and unions is unnecessary.
Attorneys can still be regulated without forcing them to join and fund a bar: 18 states, including New York, Colorado, Pennsylvania and Massachusetts do not have mandatory bars, yet attorneys that practice in those states are still properly regulated. The only difference is attorneys in non-mandatory bar states do not have to surrender their First Amendment rights in order to earn a living in their chosen profession.
The same is true for public school teachers. In 23 states, public school teachers are not forced to fund unions yet unions still exist in all of those states. If the Supreme Court rules in favor of Rebecca Friedrichs, it will not be the death of unions. It will be the restoration of public school teachers’ First Amendment rights.
When the Supreme Court first upheld the practice of states forcing attorneys to join and fund mandatory bar association in 1961, Justice Hugo Black, dissenting, wrote that “[t]he mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government.”
The same is true for public school teachers, who have the paramount responsibility of educating America’s youth. Teachers and lawyers like Rebecca Friedrichs and Arnold Fleck should not have to check their First Amendment rights at the door in order to do their jobs.
Jared Blanchard is a staff attorney at the Goldwater Institute and is representing Arnold Fleck in his legal challenge. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.
