Mark Janus

The Janus Dissent's Odd Underreading of Government Employee Speech Rights

"If an employee's speech is about, in, and directed to the workplace, she has no 'possibility of a First Amendment claim,'" say the dissenters -- but that's not what the First Amendment caselaw says.

|The Volokh Conspiracy |

The government as employer generally has considerably broader rights to control its employees' speech (through the threat of firing and other discipline) than it has over the public as a whole (through the threat of jail or fines or the like). One of the Janus dissent's arguments is that this broader authority should apply to government employer policies that require government employees to pay agency fees to unions. The dissent agrees that such policies implicate the employees' First Amendment rights, but concludes that the employer's interests justify that compulsion, just as government employer interests often justify speech restrictions.

But in the process, the dissent ends up reading government employee free speech rights oddly narrowly:

If an employee's speech is about, in, and directed to the workplace, she has no "possibility of a First Amendment claim."

And, earlier, the dissent says,

[T]he majority misunderstands the threshold inquiry set out in [the government employee speech rights cases]. The question is not, as the majority seems to think, whether the public is, or should be, interested in a government employee's speech. Instead, the question is whether that speech is about and directed to the workplace—as contrasted with the broader public square.

I don't think that's right. In Givhan v. Western Line Consolidated School District (1979), the Court concluded that the First Amendment protects speech by a schoolteacher to a principal (i.e., directed to someone in the workplace), apparently at school (in the workplace), about alleged race discrimination in the school (about the workplace).

Likewise, in Connick v. Myers (1983), the Court concluded that the First Amendment might protect speech by government employees to coworkers (i.e., directed to the workplace) at the office (in the workplace) about alleged pressure by supervisors to work on political campaigns (about the workplace). The employees in Connick ultimately lost on this point only because the Court concluded that their speech was, on the facts of the case, disruptive of workplace relationships; the Court expressly declined to take the view that such speech was just categorically unprotected against the government as employer.

More broadly, while the Court has indeed taken the view that speech about the typical individual workplace grievance is generally unprotected, on the theory that it is simply on a matter of private concern (see Connick), it has never suggested that "speech about the terms and conditions of employment—the essential stuff of collective bargaining" is categorically unprotected against the government as employer, even when said to colleagues at work. The dissent offers two hypotheticals:

Consider an analogy, not involving union fees: Suppose a government entity disciplines a group of (non-unionized) employees for agitating for a better health plan at various inopportune times and places. The better health plan will of course drive up public spending; so according to the majority's analysis, the employees' speech satisfies Pickering's "public concern" test.

Or similarly, suppose a public employer penalizes a group of (non-unionized) teachers who protest merit pay in the school cafeteria. Once again, the majority's logic runs, the speech is of "public concern," so the employees have a plausible First Amendment claim.

But it seems to me that the majority's response to these is quite right: While the government may indeed, consistently with the First Amendment, restrict employee speech in certain "times and places," such as "protest[s] … in the school cafeteria," that turns entirely on the mode or disruptiveness of the speech. If a public employer penalizes a group of teachers for simply discussing over lunch (even on employer property) whether the Legislature or the State Board of Education should implement a merit pay proposal, of course that would be speech on a matter of public concern, just as discussion about any legislative proposals are speech on a matter of public concern.

So there's much else to be said about the Janus case, whether for the majority, for the dissent, or against both. But the dissent's very narrow view of First Amendment protection for government employee speech strikes me as unsound.

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  1. The dissent agrees that such policies implicate the employees’ First Amendment rights, but concludes that the employer’s interests justify that compulsion, just as government employer interests often justify speech restrictions.

    The argument is that the employer should be able to force employee union membership because it is in the employer’s interest? I thought union membership was supposed to be about advancing the employee’s interests.

    1. Not when the employers campaign is funded by the employees.

      1. Which is not how government-labor relations actually work.

        1. how much in campaign contributions and free labor do unions provide to politicians? It’s very much how that works.

  2. I agree both that “the dissent’s very narrow view of First Amendment protection for government employee speech strikes me as unsound” and that ” there’s much else to be said about the Janus case.”

  3. Kagan is conflating the concept of restrictions on speech in the course of employment to justify compelled speech and forced payment for compelled speech. While both fall under 1A, they are separate and distinct issues.

  4. As noted in Alito’s opinion, 76% of the money is allocated to “chargable expenses”. Does anyone believe that is a credible allocation.

    1. I agree, this stinks. But credibility shouldn’t be part of the legal analysis though; that’s a finder of fact question.

      As to conflating speech restrictions with compelled speech, so far as I know the legal doctrinal protocol is the same for both – are you arguing it isn’t, or that it shouldn’t be?

      1. Grasp the distinction
        Forced and/or compelled speech – Janus – compelled to pay money for speech one opposes or The pledge of allegience case – compelled to recite the pledge
        vs restrictions to free speech in employment – ie receiving compensation for work and for the restrictions on speech in conjunction with that employment

        1. I tend to have a skepticism of unions, though I differ with conservatives how. I strongly support them in principle, even public employee unions My issue is more with execution; in the little corruptions and deals that have become institutionalized, as looks very much true in this case (though who knows). I’d regulate them more.

          But the sweeping Constitutional ruling is neither a good idea nor good jurisprudence. To take a page from Scalia’s book, I see nothing but a parade of horribles arising from this ‘money is speech so all money is free’ philosophy, which I believe proves way too much. (The OP’s main argument seems to be that this can’t be the argument it appears because it proves way too much…good luck with that.)

          Part of my issue is that you need to assume a distinction that the law does not – compelled speech is strict scrutiny just as forbidden speech is.
          Your parallel to conditioned speech restrictions isn’t analogous to the case at bar, since there are no conditions.

    2. Nope. Especially when one also notes the items that are “chargeable”.
      Basically Big Union considers all travel, admin, etc. expenditures as chargeable even when used for political activity because it might advice the cause of the workers.

      1. The fact that you make an unsupported assertion about ‘Big Union’ that is remarkably convenient for your side makes me skeptical, even if your scenario is not implausible.

  5. Oh good. I was reading Kagan’s dissent and thought her argument seemed to suggest that a teacher could be fired for discussing the adequacy of inadequacy of their health benefits or their salary on Reddit. Or perhaps writing a letter to the editor of a major news paper discussing this. Such discussions would certainly be “about” employment conditions.

    I would strike me as appalling if teacher’s lost this first amendment right in the interest of the Union being the only spokesperson for this sort of thing.

    Also: I know teachers discuss these things on Reddit, Twitter and other places all the time. I strongly suspect some teachers write letters to the editor at newspapers on these topics. It would be appalling if the school fired a teacher for expressing such a view in public.

    Heck, it would be appalling the fired a group of 10 teachers who arranged for a table in a forum at the county fair where they to presented their own views on teacher’s health care. Whether the teachers agree or disagree with the union, firing them for discussing their views in public would be equally appalling. So I certainly hope that is not permissible.

    At the same time, the protest in the school cafeteria struck me as something that could be prohibited particularly if the students are there.

  6. The left’s 1st Amendment jurisprudence is very much like its 2nd Amendment jurisprudence. While conservatives believe that rights are sacrosanct IN SPITE of negatives that may flow from them, liberals believe that rights can be trumped if there’s a good enough reason, the sufficiency of such reason to be determined by the government in its sole discretion.

    1. Funny how that is how the ACLU defined how they accept cases.

  7. The dissent’s arguments seems to follow the spirit of the gov’t argument in Lane v. Franks — because the testimony was about the job in that case, the gov’t argued it was not really protected by the First Amendment.
    While the argument in Lane when to whether Pickering even applied, I immediately thought back to Lane when reading this part of the dissent in Janus

  8. Both Givhan and Connick were superceded by GARCETTI v. CEBALLOS (2006). In GARCETTI, the court ruled that the only expression protected by the 1st amendment are those made “as a citizen upon matters of public concern”. In this case, we’re talking about stuff like the employees salary, compensation, benefits, etc. This seems to me to be a prototypical case of an employee not speaking as a citizen but as an employee who wants to make more money

  9. “But the dissent’s very narrow view of First Amendment protection for government employee speech strikes me as unsound.”

    What else would you expect of so-called “liberals”? That they actually take a genuinely liberal view of a fundamental right explicitly protected by the First Amendment? You obviously miscomprehend modern “liberalism”. They are only truly liberal when it comes to constitutional rights which they have fabricated through the exercise of raw judicial power, like the right to get an abortion or the right to gay marriage. They are decidedly ILliberal when it comes to constitutional rights of which they disapprove, like Second Amendment rights or First Amendment rights whenever they might inconvenience incumbent politicians (as in campaign finance restrictions), core constituencies (like public sector unions), or leftist sacred cows (like those bold enough to oppose abortion, or refuse to participate in gay marriages. In those and other cases, the so-called “liberals” are not only willing but eager to allow government to infringe upon constitutional rights. When can we rid society of the bald-faced liars who continue to call the left “liberal”, a canard which is an assault on the English language?

    1. Why just disagree on substance when you can yell about bad faith and how everything you like defines what True Liberty is?

      I’m generally skeptical of the theory that partisanship is symmetrical, but what you just wrote is exactly like some of the rants I read on more liberal forums last night, just with the ‘good but neglected’ and ‘sacred cow’ rights exchanged.

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