(Bench 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. 05ñ1589. Argued January 10, 2007óDecided June 14, 2007* 

The National Labor Relations Act permits States to regulate their labor 

relationships with public employees. Many States authorize publicsector unions to negotiate agency-shop agreements that entitle a union 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 nonmembersí fees for ideological purposes not germane to the unionís collective-bargaining duties, Abood v. Detroit Bd. of Ed., 431 U. S. 209, 

235ñ236, 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, 304ñ310. 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 ß760) requires a 

union to obtain the nonmembersí affirmative authorization before using their fees for election-related purposes. Respondent, a publicsector union, sent a ìHudson packetî to all nonmembers twice a year 

detailing their right to object to the use of fees for nonchargeable expenditures; respondent held any disputed fees in escrow until the 

Hudson process was complete. In separate lawsuits, petitioners alleged that respondent had failed to obtain the affirmative authorization required by ß760 before spending nonmembersí agency fees for 

electoral purposes. In No. 05ñ1657, the trial court found a ß760 vioóóóóóó 

*Together with No. 05ñ1657, Washington v. Washington Education 

Association, also on certiorari to the same court. 
2 DAVENPORT v. WASHINGTON ED. ASSN. 

 

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lation and awarded the State monetary and injunctive relief. In No. 

05ñ1589, another judge held that ß760 provided a private right of action, certified a class of nonmembers, and stayed the proceedings 

pending interlocutory appeal. The State Supreme Court held that although a nonmemberís failure to object after receiving the Hudson 

packet did not satisfy ß760ís 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 nonmember before spending that nonmemberís agency fees for electionrelated purposes. Pp. 5ñ13. 

 (a) It is undeniably unusual for a government agency to give a private entity the power to tax government employees. The notion that 

ß760ís 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 eliminated them entirely. Washingtonís far less restrictive limitation on 

respondentís authorization to exact money from government employees is of no greater constitutional concern. P. 5. 

 (b) The State Supreme Court extended this Courtís 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 impermissible under Abood. The agency-fee cases did not balance constitutional 

rights in such a manner because unions have no constitutional entitlement to nonmember-employeesí fees. The Court has never suggested that the First Amendment is implicated whenever governments limit a unionís entitlement to agency fees above and beyond 

what Abood and Hudson require. The constitutional floor for unionsí 

collection and spending of agency fees is not also a constitutional ceiling for state-imposed restrictions. Hudsonís admonition that ìëdissent is not to be presumed,íî 475 U. S., at 306, n. 16, means only that 

it would be improper for a court to enjoin the expenditures of all 

nonmembersí agency fees when a narrower remedy could satisfy 

statutory or constitutional limitations. Pp. 5ñ7. 

 (c) Contrary to respondentís argument, ß760 is not unconstitutional 

under this Courtís campaign-finance cases. For First Amendment 

purposes, it is immaterial that ß760 restricts a unionís use of funds 

only after they are within the unionís possession. The fees are in the 

unionís possession only because Washington and its unioncontracting 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 

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ernmental restrictions on how a regulated entity may spend money 

that has come into its possession without such coercion. Pp. 7ñ8. 

 (d) While content-based speech regulations are presumptively invalid, 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, 548ñ550, 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, 799ñ800, 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 Stateís 

authorization. They were seeking to protect the integrity of the election process, and their restriction was thus limited to the statecreated harm that they sought to remedy. The First Amendment did 

not compel them to limit public-sector unionsí extraordinary entitlement to nonmembersí agency fees more broadly than necessary to 

vindicate that concern. Pp. 8ñ11. 

 (e) Section 760 is constitutional as applied to public-sector unions. 

There is no need in these cases to consider its application to privatesector unions. Pp. 11ñ13. 

No. 05ñ1589 and No. 05ñ1657, 156 Wash. 2d 543, 130 P. 3d 352, vacated and remanded. 

 SCALIA, J., delivered the opinion of the Court, Parts I and IIñA 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.