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Wednesday, April 15, 2020

Court of Appeals Dismisses First Amendment Challenge Related to "Right to Work" Ordinance

On April 7, 2020, the 7th Circuit Court of Appeals issued an opinion in the case O'Brien v. Village of Lincolnshire upholding the district court's dismissal of a complaint filed by two unions and their resident members against the Village of Lincolnshire. 

In 2015, the Village Board adopted an Ordinance Pertaining to Economic Development and Worker Empowerment by Regulation of Involuntary Payroll Deductions for Private Sector Workers in the Village of LincolnshireThe purpose of the ordinance was to exercise the Village’s home rule power to create a local worker empowerment zone, also known as a “right to work” zone, to give private sector workers more individual freedom to choose whether they wanted to affiliate with a union, rather than being subject to compulsory fair share dues as required by state law. The ordinance became the target of numerous legal challenges by the unions which were decided separately from the subject case.

The unions argued that the Village’s use of taxpayer funds to pay membership dues for the Illinois Municipal League represented a violation of their First Amendment rights. They supported their argument on the holding in the U.S. Supreme Court's Janus case that the government cannot force a citizen to subsidize private speech with which the citizen disagrees. However, the Court disagreed with the fundamental premise of the plaintiff’s claim – that the Illinois Municipal League’s political advocacy is “private speech.” Instead, the Court held that any speech expressed by the Illinois Municipal League is “government speech” because (a) the Illinois Municipal League is comprised solely of municipalities, (b) its political advocacy is controlled by member municipal officials, and (c) the Village always retains discretion to disavow the League’s speech or withdraw from membership.

Many cases have held the First Amendment does not regulate or limit government speech. As a result, the unions could not state a claim for a violation of the First Amendment based on the Village’s “government speech.” As the Court noted, if taxpayers had the right to challenge every policy statement by local officials with which they disagreed, it would cause the operation of local government to come to a halt from all of the litigation. The proper place to hold local government officials accountable is the ballot box.

As a result, the Court ruled in favor of the Village and dismissed the unions' case.

Post Authored by Adam Simon, Ancel Glink


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