Public Employees Never Waived Their 1st Amendment Rights

If you’ve ever watched a television show featuring law enforcement, you probably know these words by heart, "You have the right to remain silent. Anything you say can and will be used against you in a court of law…"

Such a "Miranda" warning ends the following way, "Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?"

Police "Mirandize" suspects because, although a citizen can waive a constitutional right they have, the government cannot assume that such a right has been waived.

Miranda warnings protect citizens’ Fifth Amendment rights, but the principle applies to any constitutional right. (See Miranda v. Arizona, 384 U.S. 436 1966).   

The State of Alaska has recently asked the U.S. Supreme Court to hear a case about Alaska Gov. Mike Dunleavy’s attempt to apply this principle to protect the First Amendment rights of state employees.

Five years ago, National Right to Work Legal Defense Foundation staff attorneys argued and won the landmark Janus v. AFSCME case at the U.S. Supreme Court.

That decision established that the First Amendment prohibits government unions from requiring that public employees pay union dues and fees without their explicit and informed consent.

In the wake of Janus, the State of Alaska was among the first jurisdictions to proactively enforce the decision.

Citing Janus, Gov. Dunleavy issued an executive order directing state officials not to deduct union dues from the paychecks of public employees, unless the state has clear evidence that a worker has knowingly waived their First Amendment Janus rights.

Dunleavy set up a system that required such proof be submitted annually as a condition of the state continuing to deduct union dues.

The state cannot assume state employees want to waive their rights indefinitely: Talking to a police officer voluntarily years ago is not evidence of waiving Fifth Amendment rights in perpetuity.

Despite the straightforward justification, not to mention the fact that Dunleavy’s order doesn’t prevent a single worker from having dues deducted voluntarily, government union bosses in Alaska were livid.

They understood that if workers were regularly made aware of their rights, some might actually choose to exercise them.

That threatened union officials’ revenue and the political influence it buys.

So the union bosses sued and succeeded in convincing the Alaska Supreme Court to bar the Dunleavy administration from requiring that the state government fully enforce Janus.

The Court issued a contradictory decision, saying on one hand that to implement such a Janus waiver system the state must bargain with government union officials.

But a different part of the decision claimed that Janus was not at issue at all because no "state action" to trigger First Amendment protections exists when the state automatically deducts union dues from state workers' paychecks.

Now, Gov. Dunleavy has decided to ask the U.S. Supreme Court to hear the case and resolve whether the State of Alaska will be allowed to properly enforce Janus.

Of course, enforcing existing high court precedent should not be this difficult.

Even in a state like Alaska where the governor is attempting to enforce Janus properly, union lawyers — funded by dues taken from state workers’ paychecks — have been able to derail Dunleavy’s commonsense policies.

This is because government union bosses understand the stakes.

The Supreme Court could set off a domino effect if the Justices decide in favor the Dunleavy Administration, finding that Alaska was correct to require Janus waivers. That would mean, absent such waivers, other states are failing to properly respect public employees’ constitutional rights.

That would be a needed breakthrough: California and other union-dominated states have defied Janus and taken the position that they will deduct dues from any employee at the union’s request, even over the objections of the individual employees who have resigned their union membership.

Five years ago, the high court finally recognized in the Janus decision that the First Amendment protects government employees from being forced by the government to subsidize union speech.

Now, unfortunately, the Supreme Court is needed again to make it clear that states cannot brush Janus aside by assuming without definitive evidence that those same employees don’t want their First Amendment rights enforced.

Mark Mix is president of the National Right to Work Legal Defense Foundation and the National Right to Work Committee. To read more of his reports — Click Here Now.