The Volokh Conspiracy
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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 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.
