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Journal of Free Speech Law: "Speaking Collectively: The First Amendment, the Public Sector, and the Right to Bargain and Strike," by Kate Andrias
Part of a Knight First Amendment Institute Symposium on Managing Government Employee Speech in a Democracy, which the Journal is publishing.
The article is here; the Introduction:
The First Amendment, as interpreted by the federal courts, provides government workers a right to associate in unions but no right to bargain collectively or to strike. Indeed, it is a crime for employees of the federal government and of many states to participate in a strike or even to join an organization that asserts the right to strike against the government. In some states, public sector workers are also prohibited from engaging in collective bargaining. States can discipline and fire workers who seek to bargain collectively about their working conditions or who, along with their coworkers, withdraw their labor in protest of their conditions.
Yet, this interpretation sits uneasily with the text of the First Amendment, its purposes, and the Supreme Court's First Amendment doctrine in other contexts. The amendment protects "the freedom of speech, … [and] the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The Court has found "a corresponding right to associate with others," including "in pursuit of … political, social, [and] economic … ends." And the primary purpose of the First Amendment, the Court has held, is to advance democratic self-governance.
How is it that the Court has not understood collective bargaining and strikes among public sector workers to fall within the First Amendment's ambit? Public sector union activity involves expression, assembly, association, and petitioning. Workers' ability to form unions and to engage in concerted action in support of their shared goals is an important part of democratic governance. Through unions, workers engage in active citizenship; through workers' association with one another, they express their views collectively and engage the government and the public on issues of public concern. Indeed, in the context of protecting the putative speech rights of union objectors, the Court has recognized that public sector collective bargaining is closely intertwined with politics and governance. Yet, with virtually no analysis, the Supreme Court and numerous lower courts have dismissed arguments for First Amendment protection of public sector bargaining and strikes.
The Supreme Court's parsimonious approach is long-standing. But, as this essay shows, public sector workers have for generations advanced a different—and more persuasive—interpretation of the Constitution. As early as the 1800s, federal government workers engaged in collective speech, assembly, and petition by striking and lobbying the government to redress their low wages and poor labor conditions. Though they made little progress for over a century and often faced significant repression, during the 1960s and 1970s, strikes by tens of thousands of public sector workers led state legislators to pass new laws that enabled collective bargaining. In a few jurisdictions, states also passed laws that protect the right to strike. And although the constitutional doctrine endured, numerous dissenting judges powerfully laid out the contrary case.
Since 2018, substantial numbers of public sector workers have, once again, engaged in pickets, protests, and strikes, even in states in which doing so is illegal. In so doing, they are reopening the question whether such activity should be considered beyond government proscription and protected as a fundamental right. Some cities and states have sought to restrain workers, including by enacting new laws that limit picketing, reduce union resources, and restrict the scope of bargaining, as well as by seeking injunctions against particular strikes. More recently, the second Trump Administration has launched an unprecedented assault on government unions. Through a series of executive orders, it has sought to reclassify thousands of federal workers as at-will employees; banned collective bargaining in numerous agencies where union rights have long been in place; refused to process automatic union dues deductions from employee paychecks; prohibited pro-union posters in some federal worksites; and terminated numerous existing collective bargaining agreements, ultimately stripping a million federal workers of union rights. The future of free speech and association rights for federal government workers is very much up for grabs.
This Essay explores the First Amendment issues pervading public sector unions' organizing, bargaining, and strikes. Part I looks at the history of public sector unionism, highlighting the extent to which these union efforts have implicated core First Amendment concerns. Part II examines how it came to be accepted doctrine that public sector employees lack a constitutional right to bargain and strike, although they have a right to unionize. Part III draws from dissents by federal and state court judges to elaborate the case for a First Amendment right to bargain and at least a qualified right to strike. It locates that right in the First Amendment's text, history, and democratic purposes, and in existing Supreme Court doctrine governing analogous contexts—and it explains why arguments to the contrary cannot withstand scrutiny. Part IV turns to the rise of public sector labor militancy since 2018, as well as to the Trump Administration's unprecedented recent attacks against public sector unions. It shows that, although the Supreme Court is unlikely to recognize public employee rights to bargain and strike, government workers and their unions are collectively exercising their First Amendment rights, engaging in a form of constitutional lawmaking from the bottom up. They have already won some support from political leaders. Ultimately, Congress, states, and a future President could make real the First Amendment's promise, notwithstanding the Supreme Court's erroneous doctrine.
