DAVENPORT et al. v. WASHINGTON EDUCATION ASSOCIATION

551US1 Unit: $U59 [09-19-11 19:37:34] PAGES PGT: OPIN
177 OCTOBER TERM, 2006
Syllabus
DAVENPORT et al. v. WASHINGTON EDUCATION
ASSOCIATION
certiorari to the supreme 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 public
sector 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 Amend
ment 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 require
ments 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 nonmem
bers 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 public-sector 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 spend
ing nonmembers’ agency fees for electoral purposes. In No. 05–1657,
the trial court found a § 760 violation 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.
*Together with No. 05–1657, Washington v. Washington Education As
sociation, also on certiorari to the same court.

551US1 Unit: $U59 [09-19-11 19:37:34] PAGES PGT: OPIN
178 DAVENPORT v. WASHINGTON ED. ASSN.
Syllabus
Held: It does not violate the First Amendment for a State to require its
public-sector unions to receive affirmative authorization from a non
member before spending that nonmember’s agency fees for election
related purposes. Pp. 184–192.
(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 Washing
ton 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. 184.
(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 man
ner because unions have no constitutional entitlement to nonmember
employees’ fees. The Court has never suggested that the First Amend
ment 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. Hud
son’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 rem
edy could satisfy statutory or constitutional limitations. Pp. 184–186.
(c) Contrary to respondent’s argument, § 760 is not unconstitutional
under this Court’s campaign-finance cases. For First Amendment pur
poses, 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 union-contracting govern
ment agencies have compelled their employees to pay those fees. The
campaign-finance cases deal instead with governmental restrictions on
how a regulated entity may spend money that has come into its posses
sion without such coercion. Pp. 186–188.
(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 unwar
ranted when the risk that the government may drive ideas or view
points from the marketplace is attenuated, such as when the govern
ment acts in a capacity other than as regulator. Thus, the government

551US1 Unit: $U59 [09-19-11 19:37:34] PAGES PGT: OPIN
179 Cite as: 551 U. S. 177 (2007)
Syllabus
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 prop
erty 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 state-created 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. 188–
190.
(e) Section 760 is constitutional as applied to public-sector unions.
There is no need in these cases to consider its application to private
sector unions. Pp. 190–192.
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 remain
der of which was joined by Stevens, Kennedy, Souter, Thomas, and
Ginsburg, JJ. Breyer, J., filed an opinion concurring in part and concur
ring in the judgment, in which Roberts, C. J., and Alito, J., joined,
post, p. 192.
Robert M. McKenna, Attorney General of Washington, ar
gued the cause for petitioners in both cases. With him on
the briefs in No. 05–1657 were Maureen A. Hart, Solicitor
General, William Berggren Collins, Deputy Solicitor Gen
eral, Linda A. Dalton, Senior Assistant Attorney General,
and D. Thomas Wendel, Assistant Attorney General. Mil
ton L. Chappell, Glenn M. Taubman, and Steven T. O’Ban
filed briefs for petitioners in No. 05–1589.
Solici tor General Clement argued the cause for the
United States in both cases as amicus curiae urging rever
sal. With him on the brief were Assistant Attorney Gen
eral Keisler, Deputy Solicitor General Garre, Daryl Josef
fer, Douglas N. Letter, August E. Flentje, Lawrence H.

551US1 Unit: $U59 [09-19-11 19:37:34] PAGES PGT: OPIN
180 DAVENPORT v. WASHINGTON ED. ASSN.
Opinion of the Court
Norton, Richard B. Bader, David Kolker, Steve N. Hajjar,
and Howard M. Radzely.
John M. West argued the cause for respondent in both
cases. With him on the briefs were Jeremiah A. Col
lins, Laurence S. Gold, Judith A. Lonnquist, and Harriet
Strasberg.*
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 election-related
purposes unless the nonmember affirmatively consents. We
decide whether this restriction, as applied to public-sector
labor unions, violates the First Amendment.
*Briefs of amici curiae urging reversal in both cases were filed for
American Educators by Robert K. Kelner, Keith A. Noreika, and Michael
E. Paulhus; for the American Legislative Exchange Council by Donald
M. Falk; for the Campaign Legal Center by Trevor Potter, J. Gerald
Hebert, and Paul S. Ryan; for the Cato Institute et al. by Erik S. Jaffe
and Manuel S. Klausner; for the Evergreen Freedom Foundation et al. by
Eric B. Martin and Harry J. F. Korrell; for the Institute for Justice by
William R. Maurer and William H. Mellor; for the National Federation
of Independent Business Legal Foundation by James Bopp, Jr., and Rich
ard E. Coleson; and for the Pacific Legal Foundation by Deborah J. La
Fetra and Timothy Sandefur.
Briefs of amici curiae urging reversal in No. 05–1657 were filed for the
State of Colorado et al. by John W. Suthers, Attorney General of Colorado,
Daniel D. Domenico, Solicitor General, and Jason Dunn, Deputy Attorney
General, and by the Attorneys General for their respective States as fol
lows: Troy King of Alabama, Lawrence G. Wasden of Idaho, Jim Petro of
Ohio, Mark L. Shurtleff of Utah, and Robert F. McDonnell of Virginia;
for the Mountain States Legal Foundation by William Perry Pendley;
and for the Religious Objector Members of the Northwest Professional
Educators by Kevin T. Snider.
Jonathan P. Hiatt, Laurence E. Gold, James B. Coppess, and Patrick J.
Szymanski filed a brief for the American Federation of Labor and Con
gress of Industrial Organizations et al. as amici curiae urging affirmance
in both cases.
Patrick J. Wright filed a brief for the Mackinac Center for Public Policy
as amicus curiae in both cases.

551US1 Unit: $U59 [09-19-11 19:37:34] PAGES PGT: OPIN
181 Cite as: 551 U. S. 177 (2007)
Opinion of the Court
I
The National Labor Relations Act leaves States free to
regulate their labor relationships with their public employ
ees. See 49 Stat. 450, as amended, 29 U. S. C. § 152(2). The
labor laws of many States authorize a union and a govern
ment 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 the union in collec
tive bargaining. See, e. g., Lehnert v. Ferris Faculty Assn.,
500 U. S. 507, 511 (1991). The primary purpose of such ar
rangements 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 pub
lic 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

551US1 Unit: $U59 [09-19-11 19:37:34] PAGES PGT: OPIN
182 DAVENPORT v. WASHINGTON ED. ASSN.
Opinion of the Court
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 initia
tive 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 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 af
firmatively authorized by the individual.” 1
Respondent, the exclusive bargaining agent for approxi
mately 70,000 public educational employees, collected agency
fees from nonmembers that it represented in collective bar
gaining. 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 op
tions: (1) pay full agency fees by not objecting within 30
days; (2) object to paying for nonchargeable expenses and
1 Washington has since amended § 760 to codify a narrower interpreta
tion 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 respond
ent’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.

551US1 Unit: $U59 [09-19-11 19:37:34] PAGES PGT: OPIN
183 Cite as: 551 U. S. 177 (2007)
Opinion of the Court
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 courts
defending, in two separate lawsuits, its expenditures of non
members’ agency fees. The first lawsuit was brought by the
State of Washington, petitioner in No. 05–1657, and the sec
ond was brought as a putative class action by several non
members of the union, petitioners in No. 05–1589. Both
suits claimed that respondent’s use of agency fees was in vio
lation of § 760. Petitioners alleged that respondent had
failed to obtain affirmative authorization from nonmembers
before using their agency fees for the election-related pur
poses 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 non
member’s failure to object after receiving respondent’s
“Hudson packet” did not satisfy § 760’s affirmative
authorization requirement as a matter of state law, the stat
ute’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 re
spondent the burden of confirming that a nonmember does

551US1 Unit: $U59 [09-19-11 19:37:34] PAGES PGT: OPIN
184 DAVENPORT v. WASHINGTON ED. ASSN.
Opinion of the Court
not object to the expenditure of his agency fees for electoral
purposes. The court also held that § 760 interfered with re
spondent’s expressive associational rights under Boy Scouts
of America v. Dale, 530 U. S. 640 (2000). We granted certio
rari. 548 U. S. 942 (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 desir
ability 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 govern
ment 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 affirma
tively 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 de
voted to collective bargaining. See Brief for Respondent
46–47. Indeed, it is uncontested that it would be constitu
tional for Washington to eliminate agency fees entirely. See
id., at 46 (citing Lincoln Fed. Labor 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 be
lieved that our agency-fee cases, having balanced the consti

551US1 Unit: $U59 [09-19-11 19:37:34] PAGES PGT: OPIN
185 Cite as: 551 U. S. 177 (2007)
Opinion of the Court
tutional rights of unions and of nonmembers, dictated that a
nonmember must shoulder the burden of 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 pri
marily because our cases have repeatedly invoked the follow
ing 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 constitu
tional 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 bal
ancing constitutional rights in the manner respondent sug
gests, for the simple reason that unions have no constitu
tional 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 re
quire. To the contrary, we have described Hudson as “out
lin[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

551US1 Unit: $U59 [09-19-11 19:37:34] PAGES PGT: OPIN
186 DAVENPORT v. WASHINGTON ED. ASSN.
Opinion of the Court
those who had not objected, when the statutory or constitu
tional 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 ideo
logical purposes not germane to collective bargaining); Hud
son, supra, at 302, 304–310 (setting forth procedures neces
sary to prevent agency-shop arrangements from violating
Abood). But, as the dissenting justices below correctly rec
ognized, our repeated affirmation that courts have an obliga
tion 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 Su
preme 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 Su
preme Court’s description of § 760 as encumbering funds that
are lawfully within a union’s possession. Brief for Respond
ent 21; 156 Wash. 2d, at 568–569, 130 P. 3d, at 363–364. Re
lying 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
campaign-finance 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 expendi
tures by corporations.

551US1 Unit: $U59 [09-19-11 19:37:34] PAGES PGT: OPIN
187 Cite as: 551 U. S. 177 (2007)
Opinion of the Court
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 pos
session 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 govern
mental restrictions on how a regulated entity may spend
money that has come into its possession without the assist
ance 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
The question that must be asked, therefore, is whether
§ 760 is a constitutional condition on the authorization that
2 Respondent 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 re
spondent’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).

551US1 Unit: $U59 [09-19-11 19:37:34] PAGES PGT: OPIN
188 DAVENPORT v. WASHINGTON ED. ASSN.
Opinion of the Court
public-sector unions enjoy to charge government employees
agency fees. Respondent essentially answers that the stat
ute unconstitutionally draws distinctions based on the con
tent of the union’s speech, requiring affirmative consent only
for election-related expenditures while permitting expendi
tures for the rest of the purposes not chargeable under
Abood unless the nonmember objects. The contention that
this amounts to unconstitutional content-based discrimina
tion 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 view
points 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 identi
fied numerous situations in which that risk is inconsequen
tial, 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 govern
ments may choose to ban only the most prurient obscenity).
Of particular relevance here, our cases recognize that the
risk that content-based distinctions will impermissibly inter
fere with the marketplace of ideas is sometimes attenuated
when the government is acting in a capacity other than as
regulator. Accordingly, it is well established that the gov
ernment can make content-based distinctions when it subsi

551US1 Unit: $U59 [09-19-11 19:37:34] PAGES PGT: OPIN
189 Cite as: 551 U. S. 177 (2007)
Opinion of the Court
dizes speech. See, e. g., Regan v. Taxation With Represen
tation 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 reason
able 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 im
permissibly 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 enti
tlement 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 suppres
sion of ideas is afoot.” 505 U. S., at 390. We think the same
is true when, as here, an extraordinary and totally repealable
authorization to coerce payment from government employ
ees 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 require

551US1 Unit: $U59 [09-19-11 19:37:34] PAGES PGT: OPIN
190 DAVENPORT v. WASHINGTON ED. ASSN.
Opinion of the Court
ment. Quite obviously, no suppression of ideas is afoot,
since the union remains as free as any other entity to partici
pate in the electoral process with all available funds other
than the state-coerced agency fees lacking affirmative per
mission. Cf. Regan, supra, at 549–550 (First Amendment
does not require the government to enhance a person’s abil
ity 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 contractu
ally required action taken by private employers rather than
by government agencies, Washington’s regulation of those
private arrangements presents a somewhat different consti
tutional question.4 We need not answer that question today,
however, because at no stage of this litigation has respondent
made an overbreadth challenge. See generally Schaumburg
v. Citizens for a Better Environment, 444 U. S. 620, 633–634
3 Under the National Labor Relations Act, it is generally not an unfair
labor practice for private-sector employers to enter into agency-shop ar
rangements, 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).
4 We do not suggest that the answer must be different. We have pre
viously construed the authorization of private-sector agency-shop arrange
ments 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 obli
gations 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 bargaining representative can be
charged to nonmembers over their objection).

551US1 Unit: $U59 [09-19-11 19:37:34] PAGES PGT: OPIN
191 Cite as: 551 U. S. 177 (2007)
Opinion of the Court
(1980) (applying overbreadth doctrine).5 Instead, respond
ent has consistently argued simply that § 760 is unconstitu
tional 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 limita
tion 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, how
ever, 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 gov
ernment 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 con
stitutional as applied to public-sector unions.
* * *
We hold that it does not violate the First Amendment for
a State to require that its public-sector unions receive af
firmative authorization from a nonmember before spending
that nonmember’s agency fees for election-related purposes.
5 Nor 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 bene
fits—eliminating the chilling effect that overbroad laws have on nonpar
ties—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 ca
pable of defending their own interests in court that they will not be sig
nificantly “chilled.”

551US1 Unit: $U59 [09-19-11 19:37:34] PAGES PGT: OPIN
192 DAVENPORT v. WASHINGTON ED. ASSN.
Opinion of Breyer, J.
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.
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 Wash
ington’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 footnote 2 of the Court’s opinion.
However, I do not join Part II–B, which addresses numerous
arguments that respondent Washington Education Associa
tion 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).