Eugene Volokh argues against Monday’s decision in Harris v. Quinn and “The bedrock principle that, except perhaps in the rarest of circumstances, no person … may be compelled to subsidize speech by a third party that he or she does not wish to support”:
But what I don’t see is why there should be any First Amendment problem here at all. Yes, if I’m compelled to pay union dues, I’m being “compelled to subsidize speech by a third party that [I do] not wish to support” (whether that subsidized speech is just related to collective bargaining, or to politics more broadly). But I’m compelled to pay taxes, and that compels me to subsidize speech by the government — and by various recipients of government funds — that I do not wish to support. It doesn’t matter how much I disapprove of the views (both governmental and nongovernmental) taught in public schools or public universities. It doesn’t matter how much I disapprove of the views that the government expresses on enlistment in the military, on the environment, on race relations, or on the vast range of other subjects on which the government speaks.
I agree, and would add that this whole line of cases, from Harris back through Keller v. State Bar (1990) to Abood v. Detroit Bd. of Ed. (1977), is dismally lacking in originalist foundations. Maybe it’s a First Amendment problem to require a private person to directly fund another private person’s speech (even though, as Professor Volokh says, it’s not a constitutional problem to require a private person to fund the government’s speech, or to require a person to pay taxes that the government then uses to fund another private person’s speech). But surely that proposition does not follow as a logical necessity from the text or leading concerns of the First Amendment.
That being so, it would be great for originalist justices to offer some founding-era support for the idea. I’m not aware that any material support has been offered, however. (It’s definitely not offered in Harris, which assumes a background rule of no compelled funding and then asks whether the Abood line of cases require an exception for the union speech at issue in Harris). True, one could argue that this is another area (like the Fourth Amendment warrent requirement in Riley v. California) where originalists are just following existing precedent while recognizing that the precedent is detached from the text and founding history. If that’s so, however, they should not be extending the precedent; rather (as I argue here) they should be reading it narrowly. And, although it isn’t my area at all, Harrislooks like an extension of the Abood line of cases.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.