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, Washington, 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. 05ñ1589 and 05ñ1657 

_________________ 

GARY DAVENPORT, ET AL., PETITIONERS 

05ñ1589 v.

WASHINGTON EDUCATION ASSOCIATION 

WASHINGTON, PETITIONER 

05ñ1657 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 electionrelated 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 employees. See 49 Stat. 450, as amended, 29 U. S. C. ß152(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 primary purpose of such arrangements is to prevent nonmembers from free-riding on the unionís efforts, sharing 

the employment benefits obtained by the unionís collective 

bargaining without sharing the costs incurred. See, e.g.,

Machinists v. Street, 367 U. S. 740, 760ñ764 (1961). However, agency-shop arrangements in the public sector raise 

First Amendment concerns because they force individuals 

to contribute money to unions as a condition of government employment. Thus, in Abood v. Detroit Bd. of Ed., 

431 U. S. 209, 235ñ236 (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 unionís collective-bargaining duties. 

And in Teachers v. Hudson, 475 U. S. 292, 302, 304ñ310 

(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 nonmemberís 

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 collected by the employer through payroll deductions. See, 

e.g., Wash. Rev. Code ßß41.56.122(1), 41.59.060(2), 

41.59.100 (2006). However, ß42.17.760 (hereinafter ß760), 

which is a provision of the Fair Campaign Practices Act (a 

state initiative approved by the voters of Washington in 

1992), restricts the unionís 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: 

ìA labor organization may not use agency shop fees 

paid by an individual who is not a member of the organization to make contributions or expenditures 

to influence an election or to operate a political committee, unless affirmatively authorized by the 

individual.î1

 Respondent, the exclusive bargaining agent for approximately 70,000 public educational employees, collected 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 ìHudson packetî 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 nonchargeable 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 arbitrator. 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 

óóóóóó 

1Washington has since amended ß760 to codify a narrower interpretation of ìuseî of agency-shop fees than the interpretation adopted 

below by the state trial court that passed on that question. See Supp. 

Brief for Respondent 2ñ3. As respondent concedes, however, id., at 3, 

these cases are not moot. Because petitioners sought money damages 

for respondentís alleged violation of the prior version of ß760, 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 ß760ís 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 expenditures of nonmembersí agency fees. The first lawsuit was 

brought by the State of Washington, petitioner in No. 05ñ

1657, and the second was brought as a putative class 

action by several nonmembers of the union, petitioners in 

No. 05ñ1589. Both suits claimed that respondentís use of 

agency fees was in violation of ß760. Petitioners alleged 

that respondent had failed to obtain affirmative authorization from nonmembers before using their agency fees for 

the election-related purposes specified in ß760. In No. 05ñ

1657, after a trial on the merits, the trial court found that 

respondent had violated ß760 and awarded the State both 

monetary and injunctive relief. In No. 05ñ1589, a different trial judge held that ß760 provided a private right of 

action, certified the class, and stayed further proceedings 

pending interlocutory appeal. 

 After intermediate appellate court proceedings, a divided Supreme Court of Washington held that, although a 

nonmemberís failure to object after receiving respondentís 

ìHudson packetî did not satisfy ß760ís affirmativeauthorization requirement as a matter of state law, the 

statuteís imposition of such a requirement violated the 

First Amendment of the Federal Constitution. See State 

ex rel. Washington State Public Disclosure Commín v. 

Washington Ed. Assn., 156 Wash. 2d 543, 553ñ571, 130 

P. 3d 352, 356ñ365 (2006) (en banc). The court reasoned 

that this Courtís agency-fee jurisprudence established a 

balance between the First Amendment rights of unions 

and of nonmembers, and that ß760 triggered heightened 

First Amendment scrutiny because it deviated from that 

balance by imposing on respondent the burden of confirming that a nonmember does not object to the expenditure 

of his agency fees for electoral purposes. The court also 

held that ß760 interfered with respondentís 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 oneís views as to the 

desirability of agency-shop agreements, see Abood, 431 

U. S., at 225, n. 20, it is undeniably unusual for a government 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, 

ß760 is simply a condition on the unionís exercise of this 

extraordinary power, prohibiting expenditure of a nonmemberís 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, counterintuitive. 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 46ñ47. Indeed, it is 

uncontested that it would be constitutional for Washington 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 Washington placed on respondentís authorization to exact 

money from government employees is of no greater constitutional concern. 

A 

 The principal reason the Supreme Court of Washington 

concluded that ß760 was unconstitutional was that it 

believed that our agency-fee cases, having balanced the 

constitutional rights of unions and of nonmembers, dictated 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 557ñ563, 130 P. 3d, at 358ñ360. The court 

reached this conclusion primarily because our cases have 

repeatedly invoked the following proposition: ìë[D]issent is 

not to be presumedóit must affirmatively be made known 

to the union by the dissenting employee.íî 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 ß760 

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 constitutional entitlement to the fees of nonmember-employees. 

See Lincoln Fed. Union, supra, at 529ñ531. We have 

never suggested that the First Amendment is implicated 

whenever governments place limitations on a unionís 

entitlement to agency fees above and beyond what Abood

and Hudson require. To the contrary, we have described 

Hudson as ìoutlin[ing] a minimum set of procedures by 

which a [public-sector] union in an agency-shop relationship could meet its requirement under Abood.î 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 unionsí 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 ìdissent is not to be presumed.î 

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 768ñ770, 772ñ775 (discussing possible judicial 

remedies for violation of a federal statute that forbade 

unions from spending objecting employeesí fees for political purposes); Abood, supra, at 235ñ236, 237ñ242 (discussing possible judicial remedies for a state statute that 

unconstitutionally authorized a public-sector union to 

spend objecting nonmembersí agency fees for ideological 

purposes not germane to collective bargaining); Hudson, 

supra, at 302, 304ñ310 (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 unionís statutory entitlement 

no more than is necessary to vindicate the rights of nonmembers does not imply that legislatures (or voters) themselves 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 ß760 is a limitation on how the union 

may spend ìitsî money, citing for that proposition the 

Washington Supreme Courtís description of ß760 as encumbering funds that are lawfully within a unionís possession. Brief for Respondent 21; 156 Wash. 2d, at 568ñ

569, 130 P. 3d, at 363ñ364. 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 campaignfinance cases. It argues that, under the rigorous First 

Amendment scrutiny required by those cases, ß760 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 Washingtonís description of ß760 

notwithstanding, our campaign-finance cases are not on 

point. For purposes of the First Amendment, it is entirely 

immaterial that ß760 restricts a unionís use of funds only 

after those funds are already within the unionís lawful 

possession under Washington law. What matters is that 

public-sector agency fees are in the unionís possession only 

because Washington and its union-contracting government 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 without the assistance of governmental coercion of its employees. See, e.g., Bellotti, supra, at 767ñ768; Austin, supra, at 

654ñ656. As applied to public-sector unions, ß760 is not 

fairly described as a restriction on how the union can 

spend ìitsî money; it is a condition placed upon the unionís 

extraordinary state entitlement to acquire and spend other 

peopleís money.2

óóóóóó 

2Respondent 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 

ß760 restricts solely the ìuse [of] agency shop fees paid by an individual 

who is not a member.î The only reason respondentís use of its membersí dues was burdened is that respondent chose to commingle those 

dues with nonmembersí agency fees. See App. to Pet. for Cert. in No. 

05ñ1657, pp. 99a, 105añ107a. Respondentís improvident accounting 

practices do not render ß760 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 Washingtonís invocation of 

the unionís 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 respondentís 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, 68ñ69 (2006). 
 Cite as: 551 U. S. ____ (2007) 9 

Opinion of the Court 

 The question that must be asked, therefore, is whether 

ß760 is a constitutional condition on the authorization that 

public-sector unions enjoy to charge government employees agency fees. Respondent essentially answers that the 

statute unconstitutionally draws distinctions based on the 

content of the unionís speech, requiring affirmative consent only for election-related expenditures while permitting expenditures for the rest of the purposes not chargeable under Abood unless the nonmember objects. The 

contention that this amounts to unconstitutional contentbased 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 ì[t]he rationale of the general 

prohibition . . . is that content discrimination ëraises the 

specter that the Government may effectively drive certain 

ideas or viewpoints from the marketplace.íî 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 382ñ384. Similarly, content discrimination among various instances of a class of 

proscribable speech does not pose a threat to the marketplace 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 relevance here, our cases recognize that the risk that contentbased 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, 548ñ550 (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 matter, so long as the distinctions drawn are viewpoint neutral 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, 799ñ800, 806 (1985). 

 The principle underlying our treatment of those situations is equally applicable to the narrow circumstances of 

these cases. We do not believe that the voters of Washington impermissibly distorted the marketplace of ideas when 

they placed a reasonable, viewpoint-neutral limitation on 

the Stateís general authorization allowing public-sector 

unions to acquire and spend the money of government 

employees. As the Supreme Court of Washington recognized, 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 restriction 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 nonmembersí agency fees by public-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 

ìthere is no realistic possibility that official suppression of 

ideas is afoot.î 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 neutral, 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 549ñ550 

(First Amendment does not require the government to 

enhance a personís ability to speak). In sum, given the 

unique context of public-sector agency-shop arrangements, 

the content-based nature of ß760 does not violate the First 

Amendment. 

 We emphasize an important limitation upon our holding: we uphold ß760 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 contractually required action taken by private employers rather 

than by government agencies, Washingtonís regulation of 

those private arrangements presents a somewhat different 

constitutional question.4 We need not answer that quesóóóóóó 

3Under the National Labor Relations Act, it is generally not an unfair labor practice for private-sector employers to enter into agencyshop arrangements, see 29 U. S. C. ß158(a)(3), but States retain the 

power under the Act to ban the execution or application of such agreements, see ß164(b). 4We do not suggest that the answer must be different. We have previously 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, 762ñ763 (1988) (ß158(a)(3) authorizes expenditure of 

private-sector agency fees over a nonmemberís objection only in furtherance of the unionís obligations as exclusive bargaining representative); Ellis v. Railway Clerks, 466 U. S. 435, 450ñ451 (1984) (expenditures on publications that report about a unionís 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, 633ñ634 (1980) (applying overbreadth 

doctrine).5 Instead, respondent has consistently argued 

simply that ß760 is unconstitutional as applied to itself. 

The only purpose for which it has noted the statuteís 

applicability to private-sector unions is to establish that 

the statute was meant to be a general limitation on electoral speech, and not just a condition on state agenciesí 

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 ß760, though applicable to 

all unions, served that purpose through very different 

means depending on the type of union involved: It conditioned public-sector unionsí authorization to coerce fees 

from government employees at the same time that it 

regulated private-sector unionsí collective-bargaining 

agreements. The constitutionality of the means chosen 

with respect to private-sector unions has no bearing on 

whether ß760 is constitutional as applied to public-sector 

unions. 

óóóóóó 

bargaining representative can be charged to nonmembers over their 

objection). 5Nor is it clear that the ìstrong medicineî of the overbreadth doctrine 

is even available to challenge a statute such as ß760. See Virginia v. 

Hicks, 539 U. S. 113, 118ñ120 (2003) (recognizing that the doctrineís 

benefitsóeliminating the chilling effect that overbroad laws have on 

nonpartiesómust be weighed against its costsóblocking perfectly 

constitutional applications of a law). It may be argued that the only 

other targets of the statuteís narrow prohibition, private-sector unions, 

are sufficiently capable of defending their own interests in court that 

they will not be significantly ìchilled.î 
 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 spending that nonmemberís agency fees for election-related 

purposes. We therefore vacate the judgment of the Supreme Court of Washington and remand the cases for 

further proceedings not inconsistent with this opinion. 

It is so ordered.