(Slip Opinion) OCTOBER TERM, 2006 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
DAVENPORT ET AL. v. WASHINGTON EDUCATION
ASSOCIATION
CERTIORARI TO THE SURPEME COURT OF WASHINGTON
No. 05–1589. Argued January 10, 2007—Decided June 14, 2007*
The National Labor Relations Act permits States to regulate their labor
relationships with public employees. Many States authorize public-
sector unions to negotiate agency-shop agreements that entitle a un
ion to levy fees on employees who are not union members but whom
the union represents in collective bargaining. However, the First
Amendment prohibits public-sector unions from using objecting non
members’ fees for ideological purposes not germane to the union’s col
lective-bargaining duties, Abood v. Detroit Bd. of Ed., 431 U. S. 209,
235–236, and such unions must therefore observe various procedural
requirements to ensure that an objecting nonmember can keep his
fees from being used for such purposes, Teachers v. Hudson, 475 U. S.
292, 304–310. Washington State allows public-sector unions to
charge nonmembers an agency fee equivalent to membership dues
and to have the employer collect that fee through payroll deductions.
An initiative approved by state voters (hereinafter §760) requires a
union to obtain the nonmembers’ affirmative authorization before us
ing their fees for election-related purposes. Respondent, a public-
sector union, sent a “Hudson packet” to all nonmembers twice a year
detailing their right to object to the use of fees for nonchargeable ex
penditures; respondent held any disputed fees in escrow until the
Hudson process was complete. In separate lawsuits, petitioners al
leged that respondent had failed to obtain the affirmative authoriza
tion required by §760 before spending nonmembers’ agency fees for
electoral purposes. In No. 05–1657, the trial court found a §760 vio
——————
* Together with No. 05–1657, Washington v. Washington Education
Association, also on certiorari to the same court.
2 DAVENPORT v. WASHINGTON ED. ASSN.
Syllabus
lation and awarded the State monetary and injunctive relief. In No.
05–1589, another judge held that §760 provided a private right of ac
tion, certified a class of nonmembers, and stayed the proceedings
pending interlocutory appeal. The State Supreme Court held that al
though a nonmember’s failure to object after receiving the Hudson
packet did not satisfy §760’s affirmative-authorization requirement,
that requirement violated the First Amendment.
Held: It does not violate the First Amendment for a State to require its
public-sector unions to receive affirmative authorization from a non
member before spending that nonmember’s agency fees for election-
related purposes. Pp. 5–13.
(a) It is undeniably unusual for a government agency to give a pri
vate entity the power to tax government employees. The notion that
§760’s modest limitation upon that extraordinary benefit violates the
First Amendment is counterintuitive, because it is undisputed that
Washington could have restricted public-sector agency fees to the
portion of union dues devoted to collective bargaining, or even elimi
nated them entirely. Washington’s far less restrictive limitation on
respondent’s authorization to exact money from government employ
ees is of no greater constitutional concern. P. 5.
(b) The State Supreme Court extended this Court’s agency-fee
cases well beyond their proper ambit in concluding that those cases,
having balanced the constitutional rights of unions and nonmembers,
required a nonmember to shoulder the burden of objecting before a
union can be barred from spending his fees for purposes impermissi
ble under Abood. The agency-fee cases did not balance constitutional
rights in such a manner because unions have no constitutional enti
tlement to nonmember-employees’ fees. The Court has never sug
gested that the First Amendment is implicated whenever govern
ments limit a union’s entitlement to agency fees above and beyond
what Abood and Hudson require. The constitutional floor for unions’
collection and spending of agency fees is not also a constitutional ceil
ing for state-imposed restrictions. Hudson’s admonition that “ ‘dis
sent is not to be presumed,’ ” 475 U. S., at 306, n. 16, means only that
it would be improper for a court to enjoin the expenditures of all
nonmembers’ agency fees when a narrower remedy could satisfy
statutory or constitutional limitations. Pp. 5–7.
(c) Contrary to respondent’s argument, §760 is not unconstitutional
under this Court’s campaign-finance cases. For First Amendment
purposes, it is immaterial that §760 restricts a union’s use of funds
only after they are within the union’s possession. The fees are in the
union’s possession only because Washington and its union-
contracting government agencies have compelled their employees to
pay those fees. The campaign-finance cases deal instead with gov
Cite as: 551 U. S. ____ (2007) 3
Syllabus
ernmental restrictions on how a regulated entity may spend money
that has come into its possession without such coercion. Pp. 7–8.
(d) While content-based speech regulations are presumptively inva
lid, see, e.g., R. A. V. v. St. Paul, 505 U. S. 377, 382, strict scrutiny is
unwarranted when the risk that the government may drive ideas or
viewpoints from the marketplace is attenuated, such as when the
government acts in a capacity other than as regulator. Thus, the
government can make content-based distinctions when subsidizing
speech, see, e.g., Regan v. Taxation With Representation of Wash., 461
U. S. 540, 548–550, and can exclude speakers based on reasonable,
viewpoint-neutral subject-matter grounds when permitting speech on
government property that is a nonpublic forum, see, e.g., Cornelius v.
NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 799–800, 806.
The principle underlying those cases is applicable here. Washington
voters did not impermissibly distort the marketplace of ideas when
they placed a reasonable, viewpoint-neutral limitation on the State’s
authorization. They were seeking to protect the integrity of the elec
tion process, and their restriction was thus limited to the state-
created harm that they sought to remedy. The First Amendment did
not compel them to limit public-sector unions’ extraordinary entitle
ment to nonmembers’ agency fees more broadly than necessary to
vindicate that concern. Pp. 8–11.
(e) Section 760 is constitutional as applied to public-sector unions.
There is no need in these cases to consider its application to private-
sector unions. Pp. 11–13.
No. 05–1589 and No. 05–1657, 156 Wash. 2d 543, 130 P. 3d 352, va
cated and remanded.
SCALIA, J., delivered the opinion of the Court, Parts I and II–A and
the second paragraph of footnote 2 of which were unanimous, and the
remainder of which was joined by STEVENS, KENNEDY, SOUTER, THOMAS,
and GINSBURG, JJ. BREYER, J., filed an opinion concurring in part and
concurring in the judgment, in which ROBERTS, C. J., and ALITO, J.,
joined.
Cite as: 551 U. S. ____ (2007) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 05–1589 and 05–1657
_________________
GARY DAVENPORT, ET AL., PETITIONERS
05–1589 v.
WASHINGTON EDUCATION ASSOCIATION
WASHINGTON, PETITIONER
05–1657 v.
WASHINGTON EDUCATION ASSOCIATION
ON WRITS OF CERTIORARI TO THE SUPREME COURT OF
WASHINGTON
[June 14, 2007]
JUSTICE SCALIA delivered the opinion of the Court.
The State of Washington prohibits labor unions from
using the agency-shop fees of a nonmember for election-
related purposes unless the nonmember affirmatively
consents. We decide whether this restriction, as applied to
public-sector labor unions, violates the First Amendment.
I
The National Labor Relations Act leaves States free to
regulate their labor relationships with their public em
ployees. See 49 Stat. 450, as amended, 29 U. S. C. §152(2).
The labor laws of many States authorize a union and a
government employer to enter into what is commonly
known as an agency-shop agreement. This arrangement
entitles the union to levy a fee on employees who are not
union members but who are nevertheless represented by
2 DAVENPORT v. WASHINGTON ED. ASSN.
Opinion of the Court
the union in collective bargaining. See, e.g., Lehnert v.
Ferris Faculty Assn., 500 U. S. 507, 511 (1991). The pri
mary purpose of such arrangements is to prevent non
members from free-riding on the union’s efforts, sharing
the employment benefits obtained by the union’s collective
bargaining without sharing the costs incurred. See, e.g.,
Machinists v. Street, 367 U. S. 740, 760–764 (1961). How
ever, agency-shop arrangements in the public sector raise
First Amendment concerns because they force individuals
to contribute money to unions as a condition of govern
ment employment. Thus, in Abood v. Detroit Bd. of Ed.,
431 U. S. 209, 235–236 (1977), we held that public-sector
unions are constitutionally prohibited from using the fees
of objecting nonmembers for ideological purposes that are
not germane to the union’s collective-bargaining duties.
And in Teachers v. Hudson, 475 U. S. 292, 302, 304–310
(1986), we set forth various procedural requirements that
public-sector unions collecting agency fees must observe in
order to ensure that an objecting nonmember can prevent
the use of his fees for impermissible purposes. Neither
Hudson nor any of our other cases, however, has held that
the First Amendment mandates that a public-sector union
obtain affirmative consent before spending a nonmember’s
agency fees for purposes not chargeable under Abood.
The State of Washington has authorized public-sector
unions to negotiate agency-shop agreements. Where such
agreements are in effect, Washington law allows the union
to charge nonmembers an agency fee equivalent to the full
membership dues of the union and to have this fee col
lected by the employer through payroll deductions. See,
e.g., Wash. Rev. Code §§41.56.122(1), 41.59.060(2),
41.59.100 (2006). However, §42.17.760 (hereinafter §760),
which is a provision of the Fair Campaign Practices Act (a
state initiative approved by the voters of Washington in
1992), restricts the union’s ability to spend the agency fees
that it collects. Section 760, as it stood when the decision
Cite as: 551 U. S. ____ (2007) 3
Opinion of the Court
under review was rendered, provided:
“A labor organization may not use agency shop fees
paid by an individual who is not a member of the or
ganization to make contributions or expenditures
to influence an election or to operate a political com
mittee, unless affirmatively authorized by the
individual.”1
Respondent, the exclusive bargaining agent for ap
proximately 70,000 public educational employees, col
lected agency fees from nonmembers that it represented in
collective bargaining. Consistent with its responsibilities
under Abood and Hudson (or so we assume for purposes of
these cases), respondent sent a “Hudson packet” to all
nonmembers twice a year, notifying them of their right to
object to paying fees for nonchargeable expenditures, and
giving them three options: (1) pay full agency fees by not
objecting within 30 days; (2) object to paying for non
chargeable expenses and receive a rebate as calculated by
respondent; or (3) object to paying for nonchargeable
expenses and receive a rebate as determined by an arbi
trator. Respondent held in escrow any agency fees that
were reasonably in dispute until the Hudson process was
complete.
In 2001, respondent found itself in Washington state
——————
1 Washington has since amended §760 to codify a narrower interpre
tation of “use” of agency-shop fees than the interpretation adopted
below by the state trial court that passed on that question. See Supp.
Brief for Respondent 2–3. As respondent concedes, however, id., at 3,
these cases are not moot. Because petitioners sought money damages
for respondent’s alleged violation of the prior version of §760, it still
matters whether the Supreme Court of Washington was correct to hold
that that version was inconsistent with the First Amendment. Our
analysis of whether §760’s affirmative-authorization requirement
violates the constitutional rights of respondent is not affected by the
amendment, which merely causes that requirement to be applicable
less frequently than the state trial court thought.
4 DAVENPORT v. WASHINGTON ED. ASSN.
Opinion of the Court
courts defending, in two separate lawsuits, its expendi
tures of nonmembers’ agency fees. The first lawsuit was
brought by the State of Washington, petitioner in No. 05–
1657, and the second was brought as a putative class
action by several nonmembers of the union, petitioners in
No. 05–1589. Both suits claimed that respondent’s use of
agency fees was in violation of §760. Petitioners alleged
that respondent had failed to obtain affirmative authoriza
tion from nonmembers before using their agency fees for
the election-related purposes specified in §760. In No. 05–
1657, after a trial on the merits, the trial court found that
respondent had violated §760 and awarded the State both
monetary and injunctive relief. In No. 05–1589, a differ
ent trial judge held that §760 provided a private right of
action, certified the class, and stayed further proceedings
pending interlocutory appeal.
After intermediate appellate court proceedings, a di
vided Supreme Court of Washington held that, although a
nonmember’s failure to object after receiving respondent’s
“Hudson packet” did not satisfy §760’s affirmative-
authorization requirement as a matter of state law, the
statute’s imposition of such a requirement violated the
First Amendment of the Federal Constitution. See State
ex rel. Washington State Public Disclosure Comm’n v.
Washington Ed. Assn., 156 Wash. 2d 543, 553–571, 130
P. 3d 352, 356–365 (2006) (en banc). The court reasoned
that this Court’s agency-fee jurisprudence established a
balance between the First Amendment rights of unions
and of nonmembers, and that §760 triggered heightened
First Amendment scrutiny because it deviated from that
balance by imposing on respondent the burden of confirm
ing that a nonmember does not object to the expenditure
of his agency fees for electoral purposes. The court also
held that §760 interfered with respondent’s expressive
associational rights under Boy Scouts of America v. Dale,
530 U. S. 640 (2000). We granted certiorari. 548 U. S. ___
Cite as: 551 U. S. ____ (2007) 5
Opinion of the Court
(2006).
II
The public-sector agency-shop arrangement authorizes a
union to levy fees on government employees who do not
wish to join the union. Regardless of one’s views as to the
desirability of agency-shop agreements, see Abood, 431
U. S., at 225, n. 20, it is undeniably unusual for a govern
ment agency to give a private entity the power, in essence,
to tax government employees. As applied to agency-shop
agreements with public-sector unions like respondent,
§760 is simply a condition on the union’s exercise of this
extraordinary power, prohibiting expenditure of a non
member’s agency fees for election-related purposes unless
the nonmember affirmatively consents. The notion that
this modest limitation upon an extraordinary benefit
violates the First Amendment is, to say the least, counter-
intuitive. Respondent concedes that Washington could
have gone much further, restricting public-sector agency
fees to the portion of union dues devoted to collective
bargaining. See Brief for Respondent 46–47. Indeed, it is
uncontested that it would be constitutional for Washing
ton to eliminate agency fees entirely. See id., at 46 (citing
Lincoln Fed. Union v. Northwestern Iron & Metal Co., 335
U. S. 525 (1949)). For the reasons that follow, we conclude
that the far less restrictive limitation the voters of Wash
ington placed on respondent’s authorization to exact
money from government employees is of no greater consti
tutional concern.
A
The principal reason the Supreme Court of Washington
concluded that §760 was unconstitutional was that it
believed that our agency-fee cases, having balanced the
constitutional rights of unions and of nonmembers, dic
tated that a nonmember must shoulder the burden of
6 DAVENPORT v. WASHINGTON ED. ASSN.
Opinion of the Court
objecting before a union can be barred from spending his
fees for purposes impermissible under Abood. See 156
Wash. 2d, at 557–563, 130 P. 3d, at 358–360. The court
reached this conclusion primarily because our cases have
repeatedly invoked the following proposition: “ ‘[D]issent is
not to be presumed—it must affirmatively be made known
to the union by the dissenting employee.’ ” Hudson, 475
U. S., at 306, n. 16 (quoting Street, 367 U. S., at 774); see
also Abood, supra, at 238. The court concluded that §760
triggered heightened First Amendment scrutiny because it
deviated from this perceived constitutional balance by
requiring unions to obtain affirmative consent.
This interpretation of our agency-fee cases extends them
well beyond their proper ambit. Those cases were not
balancing constitutional rights in the manner respondent
suggests, for the simple reason that unions have no consti
tutional entitlement to the fees of nonmember-employees.
See Lincoln Fed. Union, supra, at 529–531. We have
never suggested that the First Amendment is implicated
whenever governments place limitations on a union’s
entitlement to agency fees above and beyond what Abood
and Hudson require. To the contrary, we have described
Hudson as “outlin[ing] a minimum set of procedures by
which a [public-sector] union in an agency-shop relation
ship could meet its requirement under Abood.” Keller v.
State Bar of Cal., 496 U. S. 1, 17 (1990) (emphasis added).
The mere fact that Washington required more than the
Hudson minimum does not trigger First Amendment
scrutiny. The constitutional floor for unions’ collection
and spending of agency fees is not also a constitutional
ceiling for state-imposed restrictions.
The Supreme Court of Washington read far too much
into our admonition that “dissent is not to be presumed.”
We meant only that it would be improper for a court to
enjoin the expenditure of the agency fees of all employees,
including those who had not objected, when the statutory
Cite as: 551 U. S. ____ (2007) 7
Opinion of the Court
or constitutional limitations established in those cases
could be satisfied by a narrower remedy. See, e.g., Street,
supra, at 768–770, 772–775 (discussing possible judicial
remedies for violation of a federal statute that forbade
unions from spending objecting employees’ fees for politi
cal purposes); Abood, supra, at 235–236, 237–242 (discuss
ing possible judicial remedies for a state statute that
unconstitutionally authorized a public-sector union to
spend objecting nonmembers’ agency fees for ideological
purposes not germane to collective bargaining); Hudson,
supra, at 302, 304–310 (setting forth procedures necessary
to prevent agency-shop arrangements from violating
Abood). But, as the dissenting justices below correctly
recognized, our repeated affirmation that courts have an
obligation to interfere with a union’s statutory entitlement
no more than is necessary to vindicate the rights of non
members does not imply that legislatures (or voters) them
selves cannot limit the scope of that entitlement.
B
Respondent defends the judgment below on a ground
quite different from the mistaken rationale adopted by the
Supreme Court of Washington. Its argument begins with
the premise that §760 is a limitation on how the union
may spend “its” money, citing for that proposition the
Washington Supreme Court’s description of §760 as en
cumbering funds that are lawfully within a union’s pos
session. Brief for Respondent 21; 156 Wash. 2d, at 568–
569, 130 P. 3d, at 363–364. Relying on that premise,
respondent invokes First Nat. Bank of Boston v. Bellotti,
435 U. S. 765 (1978), Austin v. Michigan Chamber of
Commerce, 494 U. S. 652 (1990), and related campaign-
finance cases. It argues that, under the rigorous First
Amendment scrutiny required by those cases, §760 is
unconstitutional because it applies to ballot propositions
and because it does not limit equivalent election-related
8 DAVENPORT v. WASHINGTON ED. ASSN.
Opinion of the Court
expenditures by corporations.
The Supreme Court of Washington’s description of §760
notwithstanding, our campaign-finance cases are not on
point. For purposes of the First Amendment, it is entirely
immaterial that §760 restricts a union’s use of funds only
after those funds are already within the union’s lawful
possession under Washington law. What matters is that
public-sector agency fees are in the union’s possession only
because Washington and its union-contracting govern
ment agencies have compelled their employees to pay
those fees. The cases upon which respondent relies deal
with governmental restrictions on how a regulated entity
may spend money that has come into its possession with
out the assistance of governmental coercion of its employ
ees. See, e.g., Bellotti, supra, at 767–768; Austin, supra, at
654–656. As applied to public-sector unions, §760 is not
fairly described as a restriction on how the union can
spend “its” money; it is a condition placed upon the union’s
extraordinary state entitlement to acquire and spend other
people’s money.2
——————
2 Respondent might have had a point if, as it suggests at times, the
statute burdened its ability to spend the dues of its own members. But
§760 restricts solely the “use [of] agency shop fees paid by an individual
who is not a member.” The only reason respondent’s use of its mem
bers’ dues was burdened is that respondent chose to commingle those
dues with nonmembers’ agency fees. See App. to Pet. for Cert. in No.
05–1657, pp. 99a, 105a–107a. Respondent’s improvident accounting
practices do not render §760 unconstitutional. We note as well that,
given current technology, it will not likely be burdensome for any
nonmember who wishes to do so to provide affirmative authorization
for use of his fees for electoral expenditures.
For similar reasons, the Supreme Court of Washington’s invocation of
the union’s expressive associational rights under Boy Scouts of America
v. Dale, 530 U. S. 640 (2000), was quite misplaced, as respondent
basically concedes by not relying upon the case. Section 760 does not
compel respondent’s acceptance of unwanted members or otherwise
make union membership less attractive. See Rumsfeld v. Forum for
Academic and Institutional Rights, Inc., 547 U. S. 47, 68–69 (2006).
Cite as: 551 U. S. ____ (2007) 9
Opinion of the Court
The question that must be asked, therefore, is whether
§760 is a constitutional condition on the authorization that
public-sector unions enjoy to charge government employ
ees agency fees. Respondent essentially answers that the
statute unconstitutionally draws distinctions based on the
content of the union’s speech, requiring affirmative con
sent only for election-related expenditures while permit
ting expenditures for the rest of the purposes not charge
able under Abood unless the nonmember objects. The
contention that this amounts to unconstitutional content-
based discrimination is off the mark.
It is true enough that content-based regulations of
speech are presumptively invalid. See, e.g., R. A. V. v. St.
Paul, 505 U. S. 377, 382 (1992) (citing cases). We have
recognized, however, that “[t]he rationale of the general
prohibition . . . is that content discrimination ‘raises the
specter that the Government may effectively drive certain
ideas or viewpoints from the marketplace.’ ” Id., at 387
(quoting Simon & Schuster, Inc. v. Members of N. Y. State
Crime Victims Bd., 502 U. S. 105, 116 (1991)). And we
have identified numerous situations in which that risk is
inconsequential, so that strict scrutiny is unwarranted.
For example, speech that is obscene or defamatory can be
constitutionally proscribed because the social interest in
order and morality outweighs the negligible contribution
of those categories of speech to the marketplace of ideas.
See, e.g., R. A. V., 505 U. S., at 382–384. Similarly, con
tent discrimination among various instances of a class of
proscribable speech does not pose a threat to the market
place of ideas when the selected subclass is chosen for the
very reason that the entire class can be proscribed. See
id., at 388 (confirming that governments may choose to
ban only the most prurient obscenity). Of particular rele
vance here, our cases recognize that the risk that content-
based distinctions will impermissibly interfere with the
marketplace of ideas is sometimes attenuated when the
10 DAVENPORT v. WASHINGTON ED. ASSN.
Opinion of the Court
government is acting in a capacity other than as regulator.
Accordingly, it is well established that the government can
make content-based distinctions when it subsidizes
speech. See, e.g., Regan v. Taxation With Representation
of Wash., 461 U. S. 540, 548–550 (1983). And it is also
black-letter law that, when the government permits
speech on government property that is a nonpublic forum,
it can exclude speakers on the basis of their subject mat
ter, so long as the distinctions drawn are viewpoint neu
tral and reasonable in light of the purpose served by the
forum. See, e.g., Cornelius v. NAACP Legal Defense & Ed.
Fund, Inc., 473 U. S. 788, 799–800, 806 (1985).
The principle underlying our treatment of those situa
tions is equally applicable to the narrow circumstances of
these cases. We do not believe that the voters of Washing
ton impermissibly distorted the marketplace of ideas when
they placed a reasonable, viewpoint-neutral limitation on
the State’s general authorization allowing public-sector
unions to acquire and spend the money of government
employees. As the Supreme Court of Washington recog
nized, the voters of Washington sought to protect the
integrity of the election process, see 156 Wash. 2d, at 563,
130 P. 3d, at 361, which the voters evidently thought was
being impaired by the infusion of money extracted from
nonmembers of unions without their consent. The restric
tion on the state-bestowed entitlement was thus limited to
the state-created harm that the voters sought to remedy.
The voters did not have to enact an across-the-board
limitation on the use of nonmembers’ agency fees by pub
lic-sector unions in order to vindicate their more narrow
concern with the integrity of the election process. We said
in R. A. V. that, when totally proscribable speech is at
issue, content-based regulation is permissible so long as
“there is no realistic possibility that official suppression of
ideas is afoot.” 505 U. S., at 390. We think the same is
true when, as here, an extraordinary and totally repeal
Cite as: 551 U. S. ____ (2007) 11
Opinion of the Court
able authorization to coerce payment from government
employees is at issue. Even if it be thought necessary that
the content limitation be reasonable and viewpoint neu
tral, cf. Cornelius, supra, at 806, the statute satisfies that
requirement. Quite obviously, no suppression of ideas is
afoot, since the union remains as free as any other entity
to participate in the electoral process with all available
funds other than the state-coerced agency fees lacking
affirmative permission. Cf. Regan, supra, at 549–550
(First Amendment does not require the government to
enhance a person’s ability to speak). In sum, given the
unique context of public-sector agency-shop arrangements,
the content-based nature of §760 does not violate the First
Amendment.
We emphasize an important limitation upon our hold
ing: we uphold §760 only as applied to public-sector unions
such as respondent. Section 760 applies on its face to both
public- and private-sector unions in Washington.3 Since
private-sector unions collect agency fees through contrac
tually required action taken by private employers rather
than by government agencies, Washington’s regulation of
those private arrangements presents a somewhat different
constitutional question.4 We need not answer that ques
——————
3 Under the National Labor Relations Act, it is generally not an un
fair labor practice for private-sector employers to enter into agency-
shop arrangements, see 29 U. S. C. §158(a)(3), but States retain the
power under the Act to ban the execution or application of such agree
ments, see §164(b).
4 We do not suggest that the answer must be different. We have pre
viously construed the authorization of private-sector agency-shop
arrangements in the National Labor Relations Act in a manner that is
arguably content based. See Communications Workers v. Beck, 487
U. S. 735, 738, 762–763 (1988) (§158(a)(3) authorizes expenditure of
private-sector agency fees over a nonmember’s objection only in fur
therance of the union’s obligations as exclusive bargaining representa
tive); Ellis v. Railway Clerks, 466 U. S. 435, 450–451 (1984) (expendi
tures on publications that report about a union’s activities as exclusive
12 DAVENPORT v. WASHINGTON ED. ASSN.
Opinion of the Court
tion today, however, because at no stage of this litigation
has respondent made an overbreadth challenge. See
generally Schaumburg v. Citizens for Better Environment,
444 U. S. 620, 633–634 (1980) (applying overbreadth
doctrine).5 Instead, respondent has consistently argued
simply that §760 is unconstitutional as applied to itself.
The only purpose for which it has noted the statute’s
applicability to private-sector unions is to establish that
the statute was meant to be a general limitation on elec
toral speech, and not just a condition on state agencies’
authorization of compulsory agency fees. See Brief for
Respondent 24, 48. That limited contention, however, is
both unconvincing and immaterial. The purpose of the
voters of Washington was undoubtedly the general one of
protecting the integrity of elections by limiting electoral
spending in certain ways. But §760, though applicable to
all unions, served that purpose through very different
means depending on the type of union involved: It condi
tioned public-sector unions’ authorization to coerce fees
from government employees at the same time that it
regulated private-sector unions’ collective-bargaining
agreements. The constitutionality of the means chosen
with respect to private-sector unions has no bearing on
whether §760 is constitutional as applied to public-sector
unions.
——————
bargaining representative can be charged to nonmembers over their
objection).
5 Nor is it clear that the “strong medicine” of the overbreadth doctrine
is even available to challenge a statute such as §760. See Virginia v.
Hicks, 539 U. S. 113, 118–120 (2003) (recognizing that the doctrine’s
benefits—eliminating the chilling effect that overbroad laws have on
nonparties—must be weighed against its costs—blocking perfectly
constitutional applications of a law). It may be argued that the only
other targets of the statute’s narrow prohibition, private-sector unions,
are sufficiently capable of defending their own interests in court that
they will not be significantly “chilled.”
Cite as: 551 U. S. ____ (2007) 13
Opinion of the Court
* * *
We hold that it does not violate the First Amendment
for a State to require that its public-sector unions receive
affirmative authorization from a nonmember before spend
ing that nonmember’s agency fees for election-related
purposes. We therefore vacate the judgment of the Su
preme Court of Washington and remand the cases for
further proceedings not inconsistent with this opinion.
It is so ordered.
Cite as: 551 U. S. ____ (2007) 1
Opinion of BREYER, J.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 05–1589 and 05–1657
_________________
GARY DAVENPORT, ET AL., PETITIONERS
05–1589 v.
WASHINGTON EDUCATION ASSOCIATION
WASHINGTON, PETITIONER
05–1657 v.
WASHINGTON EDUCATION ASSOCIATION
ON WRITS OF CERTIORARI TO THE SUPREME COURT OF
WASHINGTON
[June 14, 2007]
JUSTICE BREYER, with whom THE CHIEF JUSTICE and
JUSTICE ALITO join, concurring in part and concurring in
the judgment.
I agree with the Court that the Supreme Court of Wash
ington’s decision rested entirely on flawed interpretations
of this Court’s agency-fee cases and our decision in Boy
Scouts of America v. Dale, 530 U. S. 640 (2000). I there
fore concur in the Court’s judgment, and I join Parts I and
II–A and the second paragraph of n. 2 of the Court’s opin
ion. However, I do not join Part II–B, which addresses
numerous arguments that respondent Washington Educa
tion Association raised for the first time in its briefs before
this Court. See, e.g., State ex rel. Washington State Public
Disclosure Comm’n v. Washington Ed. Assn., 156 Wash. 2d
543, 565, n. 6, 130 P. 3d 352, 362, n. 6, (2006) (en banc)
(noting that one of these arguments was neither raised nor
addressed below). I would not address those arguments
until the lower courts have been given the opportunity to
address them. See, e.g., National Collegiate Athletic Assn.
v. Smith, 525 U. S. 459, 469–470 (1999).