(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 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 nonmembers’ fees for ideological purposes not germane to the union’s collective-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 using their fees for election-related purposes. Respondent, a publicsector union, sent a “Hudson packet” 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 §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 action, certified a class of nonmembers, and stayed the proceedings

pending interlocutory appeal. The State Supreme Court held that although 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 nonmember before spending that nonmember’s agency fees for electionrelated purposes. Pp. 5–13.

(a) It is undeniably unusual for a government agency to give a private 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 eliminated them entirely. Washington’s far less restrictive limitation on

respondent’s authorization to exact money from government employees 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 impermissible under Abood. The agency-fee cases did not balance constitutional 

rights in such a manner because unions have no constitutional entitlement to nonmember-employees’ fees. The Court has never suggested that the First Amendment is implicated whenever governments 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 ceiling for state-imposed restrictions. Hudson’s admonition that “ ‘dissent 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 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 

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 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, 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 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 unions’ extraordinary entitlement 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 privatesector unions. Pp. 11–13. 

No. 05–1589 and No. 05–1657, 156 Wash. 2d 543, 130 P. 3d 352, vacated 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, 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. 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 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. §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 primary purpose of such arrangements is to prevent nonmembers 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). 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, 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 collected 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 organization to make contributions or expenditures 

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

individual.”1 

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 “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 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 

—————— 

1Washington has since amended §760 to codify a narrower interpretation 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 expenditures 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 authorization 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 different 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 divided Supreme Court of Washington held that, although a 

nonmember’s failure to object after receiving respondent’s 

“Hudson packet” did not satisfy §760’s affirmativeauthorization 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 confirming 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 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,

§760 is simply a condition on the union’s exercise of this

extraordinary power, prohibiting expenditure of a nonmember’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, 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 46–47. 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 respondent’s authorization to exact 

money from government employees is of no greater constitutional 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, 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 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 constitutional 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 relationship 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 political purposes); Abood, supra, at 235–236, 237–242 (discussing 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 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 §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 encumbering funds that are lawfully within a union’s possession. 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 campaignfinance 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 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 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 

—————— 

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 

§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 members’ 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 employees agency fees. Respondent essentially answers that the

statute unconstitutionally draws distinctions based on the 

content of the union’s 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 “[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, 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, 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 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, 799–800, 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 State’s 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 nonmembers’ 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

“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 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 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 holding: 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 contractually 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-

—————— 

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. §158(a)(3), but States retain the 

power under the Act to ban the execution or application of such agreements, see §164(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, 762–763 (1988) (§158(a)(3) authorizes expenditure of

private-sector agency fees over a nonmember’s objection only in furtherance of the union’s obligations as exclusive bargaining representative); Ellis v. Railway Clerks, 466 U. S. 435, 450–451 (1984) (expenditures 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 electoral 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 conditioned 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). 5Nor 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 spending that nonmember’s 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. 
_________________ 

_________________ 

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 Washington’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 therefore 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 opinion. However, I do not join Part II–B, which addresses 

numerous arguments that respondent Washington Education 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).