As readers of this blog will know, last month the Supreme Court held in Janus v. AFSCME that it is unconstitutional -- it violates the First Amendment -- for the state to force its employees to give any money to public sector labor unions. This decision overruled an earlier decision called Abood, which had imposed a compromise on this issue. Abood had said that forcing workers to give money to causes they opposed raised serious First Amendment problems, but that these concerns were outweighed if the money was spent on collective bargaining or other activities that were not overly political. Janus holds that this compromise is wrong, and that the money can't be exacted for either purpose.

In a new article, Compelled Subsidies and the First Amendment, Eugene Volokh and I assess the Janus decision, and the more general First Amendment issue. We argue that if you accept the premise that these compelled subsidies raise serious First Amendment problems, then the majority in Janus is quite plausibly correct. And this premise has been widely accepted or conceded by many thoughtful people, including the decision in Abood and the dissent in Janus. In other words, the logical implication of Abood is the overruling of Abood.

But we then argue that this premise is incorrect: compelling people to give money, by itself, is not a First Amendment problem but is rather akin to taxation. Taxation may be objectionable for many reasons, but it does not raise free speech problems, even when the government spends the money to advance causes we oppose, as it often does. We then analyze the consequences of the decision, including implications for bar dues, student activity fees, and the retroactive liability issues I've blogged earlier in this space.

Read more at The Volokh Conspiracy