Do you trade in your constitutional rights when you clock in? For many American workers, the right to free speech expires once the workday begins. Talking openly about their boss means putting their jobs on the line, and campaigning for a union or participating in political protest can trigger a disapproving boss’s retaliation. Despite minimum-wage laws, workplace-safety regulations, and other basic labor protections, employers have wide latitude to run their workplaces as autocratic fiefdoms. But the idea of the workplace as a Constitution-free zone has lately been challenged by workers who are the most closely tied to the mechanics of our democracy: Public-sector workers who are waging class war in the streets and facing union busters in the courts.
In recent weeks, public-school teachers in West Virginia, Kentucky, and Oklahoma have shuttered schools with massive “wildcat” strike actions and militant protests. Though technically barred from striking, public-school educators have advanced their struggles with widespread political and community support.
At the same time, a major pending Supreme Court case, Janus v. AFSCME, threatens to drastically curtail public-sector workers’ rights under law. Although government employees already face severe restrictions (the Taft-Hartley Act and other federal and state strictures sharply limit union activism, and many states have effectively outlawed striking), Janus could deal a devastating blow to public employees’ union power. The court is expected to overturn the precedent known as Abood v. Detroit, which would erase unions’ ability to collect mandatory fees at a unionized workplace, potentially triggering a downward spiral in both union membership and finances. Pro-business lobbyists have attacked the idea of mandatory fees for public-sector unions as a form of imposed political speech. For labor advocates, so-called “fair share” fees are simply that—a tax-like payment that all workers within a collective-bargaining unit, union members or not, owe to the body that negotiates their contracts with their boss, which is in this case the government.
Janus tests the concept of workplace democracy versus individual rights: Is everyday union activity intrinsically “political” in government workforces, with their unique relationship to the state? If so, then what about their union rights? Legal scholar Catherine Fisk challenges what she sees as an underlying hypocrisy in this rationale: privileging First Amendment rights of individual public workers over public union rights:
Do employees therefore have a First Amendment right to bargain collectively?… Or is the Court truly prepared to hold that the only First Amendment right government employees have…is the right not to pay fees to their union?
For decades, the legal presumption underlying public-sector collective bargaining was that contract discussions were sufficiently devoid of politics to avoid First Amendment controversies. Now some speculate that an unexpected outcome of an anti-labor ruling in Janus would be to liberate government employees’ speech from long-standing legal restraints. As Rachel Cohen at The Intercept points out, some union leaders envision an unintended “Pandora’s Box” scenario in which “the court would actually be elevating the free speech standards of bargaining.” For example, University of Richmond law professor Ann Hodges contends that, while now the Court currently “distinguishes employee speech from citizen speech, permitting employers to limit and control employee speech in the interests of the government as employer,” “A ruling in favor of the Janus plaintiffs could obliterate the distinction, requiring employers to tolerate much unwanted speech by their employees.”
Unwanted speech like… mass protests and agency-wide strikes? If Abood has long upheld public-sector unions by institutionalizing so-called “labor peace,” could unraveling the precedent backfire by spurring labor militancy?
At OnLabor, labor lawyer Andrew Strom raised another twist in Janus, tied to a parallel case involving free speech at work: The Masterpiece Cakeshop case deals with a Christian baker who refused to make a gay couple’s wedding cake on the grounds that doing so would violate his right to artistic free expression. In theory, if an anti-gay baker has the constitutional power to reject an order he finds morally repugnant, why can’t teachers revolt against repugnant labor conditions? In Strom’s view, “If you add the arguments of the petitioners in Masterpiece Cakeshop and Janus together, the result is that the withholding of labor (i.e. striking) can be a form of speech protected by the First Amendment.” Although such a ruling wouldn’t provide an unlimited right to strike, “it does place a heavy burden on states” to constitutionally justify any limits on First Amendment activity. For government workers, the case “may embolden teachers across the country to see whether they too have a First Amendment right to withhold their labor.”
Labor historian Joseph McCartin takes a more skeptical view, noting the court’s history of wielding both First Amendment and employment law to restrict labor’s power. On the other hand, the Court could actually “follow their own logic to the conclusion that public school teachers’ strikes amount to exercises of free speech that deserve First Amendment protection.” A future liberal Court might sculpt the ruling in a more labor-friendly direction, so the current Court “could end up empowering a future court to reach that determination.” In the long run, “the legal principles and social basis on which the collective bargaining models of the New Deal order were constructed continue to erode and the likelihood that new organizational forms and dynamics will emerge in response to this erosion continues to grow.”
According to former organizer and political consultant Shaun Richman, the impending Supreme Court rulings might mean the right should be careful what it wishes for, but are not necessary for labor to reclaim the right to strike as a civil right. Pointing to the concept of the strike as part of a broader “Labor Bill of Rights” framework, he explains:
However the Janus decision shakes out, unions should be pressing more broadly to restore workers’ rights. Because a strike is speech plus action and impacts commerce, I do think we have a higher bar to establish a First Amendment right to strike than simply saying, ‘Because Janus…’”
With labor taking increasingly radical approaches, grassroots labor action is making the strictly legal defenses unions have historically employed less important. Instead, Richman says, “We gotta win elections, we’ve got to create crises in the streets. And then when we do, they’re handing us a roadmap to greater legal powers.”
Regardless of how the Court rules, teacher uprisings in West Virginia, Oklahoma, and Kentucky—all “right to work” states—suggest that organizing outside the law can be a politically effective tactic. The more oppressive the legal environment, the more public workers may feel they have no choice but to revolt. The rebel teachers were already restricted from collective bargaining and strike actions—pressured by eroding wages and punishing funding cuts, what leverage do educators have, as workers and citizens, other than simply refusing to work for a broken system? For public workers nationwide, the final verdict won’t be delivered in court but at work, and on the march in the public square.