Whether government employers and unions need clear and compelling evidence of employees' knowing, intelligent, and voluntary waiver of First Amendment rights to seize union payments from nonmember employees

QUESTION PRESENTED Petitioners are public employees in the States of California and Oregon who exercised their FirstAmendment rights to resign their union memberships, revoke their authorizations for their public employers to withhold further union payments from their wages after they became nonmembers, and object to subsidizing union speech. The respondent government employers and unions ignored petitioners’ revocations and continued seizing payments for union speech from these objecting nonmembers until an escape period (contained in their dues deduction authorizations) for stopping union deductions occurred. In 2018, the Court in Janus v. AFSCME, Council 31 held that nonunion public employees have a First Amendment right not to subsidize union speech. 138 S. Ct. 2448, 2486 (2018). The Court also held that governments and unions violate that right by seizing union payments from nonmembers unless there is clear and compelling evidence the employees waived their constitutional right. Id. Petitioners’ deduction authorizations contain no First Amendment waiver language. Respondents offered none. The Ninth Circuit, however, held government employers and unions need only proof of employee contractual consent to join the union and pay membership dues (without any waiver) to seize payments for union speech after these employees become nonmembers. ii The questions presented are: 1. Under the First Amendment, to seize payments for union speech from employees who resigned union membership, became nonmembers, and objected to subsidizing union speech, do government employers and unions need clear and compelling evidence that those nonmember employees knowingly, intelligently, and voluntarily waived their First Amendment rights to refrain from subsidizing union speech in order to constitutionally seize union payments from these employees? 2. When a union acts jointly with government to deduct and collect union payments from nonmember employees’ wages, is that union a state actor participating in a state action under 42 U.S.C. § 1983?