Citizens, United and Citizens United: The Future of Labor Speech Rights

Source: Charlotte Garden, William & Mary Law Review, Forthcoming

From the abstract:
Within hours of its announcement, the Supreme Court’s decision in Citizens United v. FEC came under attack from progressive groups. Among these groups were some of America’s largest labor unions – even though the decision applies equally to unions and for-profit corporations. The reason is clear: there exist both practical and structural impediments that will prevent unions from benefitting from Citizens United to the same extent as corporations. Therefore, Citizens United stands to unleash a torrent of corporate electioneering that could drown out the countervailing voice of organized labor.

This Article, however, takes a broader view of Citizens United to explore a possible “silver lining” for labor. It posits that, in articulating a wide-ranging vision of associations’ free speech rights, the Court undermined the intellectual basis of a lengthy string of cases limiting the First Amendment protection applicable to labor-related speech in other contexts, including picketing, boycotting, and striking. Additionally, by discounting the First Amendment interests of dissenting shareholders, Citizens United also calls into question the validity of restrictions on unions’ use of lawfully collected dues and fees for political speech and new organizing. Accordingly, this Article concludes that Citizens United has the potential to impact significantly unions’ First Amendment rights outside of the campaign finance arena.

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