Marcus Todd v. American Federation of State, County and Municipal Employees, Council 5

In Janus v. AFSCME, this Court held that a public-sector union cannot obtain direct payroll deductions from a nonmember unless it has “clear and compelling evidence” that the nonmember consented. This protects nonmembers’ First Amendment rights not to associate with the union or support union speech with which they disagree. Following Janus, however, multiple Courts of Appeals have concluded that the First Amendment does not protect nonmembers from forced association when the union obtains payroll diversions by incorrectly telling a government employer that a nonmember has consented to join the union. Instead, the Courts of Appeals have concluded that public-sector unions are not state actors in that context, so the First Amendment does not apply and the nonmembers’ only recourse is a state-law tort or contract claim. The result is that unions can get the same payroll diversions forbidden under Janus by falsely asserting that an employee is a union member—even with little proof, no proof, or fraudulent proof—and the courts apply no First Amendment scrutiny at all. The question presented is: When a public-sector union gets the government to divert an employee’s pay by stating that he consented to join the union, is it a state actor such that the “clear and compelling evidence” First Amendment standard of Janus applies?