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 understanding of their rights. 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. Yet, even these governments, when faced with sufficiently determined workers and supportive communities, have reached settlements that not only provide higher wages but also respond to workers’ efforts to transform their communities through collective action by “bargaining for the common good.”

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 recounts the development of First Amendment doctrine, examining 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 then locates that right both in the First Amendment’s democratic purposes and in existing Supreme Court doctrine governing analogous contexts. Finally, it explains why arguments to the contrary cannot withstand scrutiny. Part IV concludes by returning to the recent rise of public sector labor militancy since 2018. It shows that, although the Supreme Court is unlikely to recognize public employee rights to bargain and strike, these workers are collectively exercising their First Amendment rights, engaging in a form of constitutional lawmaking from the bottom up.

I. History of Collective Speech, Assembly, and Petitioning Among Public Sector Workers

Although public sector strikes were illegal in every jurisdiction in the United States until the late 1960s, employees of state and federal governments have long engaged in collective labor action, with over 1,000 public sector strikes having occurred from the 1830s through 1940. Union efforts among government workers in these early years—and corresponding repressive efforts by the government—went to the core of the First Amendment. That is, workers built associations; they engaged in collective expression; and they assembled in groups and sought to petition the government regarding their grievances, including how it would spend its resources. For the most part, the government responded by suppressing their collective efforts.

In the late 1800s, for example, postal workers, organized under the auspices of the National Association of Letter Carriers, sought to petition the government for better wages and working conditions. In 1895, Postmaster General William L. Wilson issued an order prohibiting any postal worker from even visiting Washington, D.C., to lobby. When postal workers continued to petition the government nonetheless, the postal service banned union membership, and President Theodore Roosevelt subsequently imposed a gag order limiting federal workers from advocating for unionization. The letter carriers’ association protested the infringement on their constitutional right to petition the government.

After years of agitation by the labor movement, Congress eventually overturned Roosevelt’s executive order with the Lloyd-LaFollette Act of 1912. That Act nullified the gag rules forbidding federal employees to seek to influence legislation and recognized a limited right of federal government employees to associate. The new law provided that “[t]he right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a Committee or Member thereof, may not be interfered with or denied” and that “[e]ach employee shall have the right to form, join, or assist any labor organization . . . freely and without fear of penalty or reprisal.” However, it limited the right to participate in unions to organizations that did not impose a strike.

Notwithstanding the postal workers’ success in overturning the gag rule, subsequent decades saw numerous restrictions imposed by both the federal government and state governments on employees’ right to form unions, to bargain with their employers, and to strike. Efforts to unionize the public sector languished even when the private sector saw a rapid rise in unionization during the New Deal.

In the aftermath of World War II, however, a massive strike wave occurred across the country. Though the bulk of the strikers worked in the private sector, they were joined by teachers and other public sector workers whose salaries had been eroded due to post-war inflation. State governments responded aggressively to the rise in public sector union activity, passing numerous anti-strike laws designed to penalize government workers who struck. For example, an ordinance passed in Dallas, Texas, in the 1940s declared, “It shall be unlawful for any . . . employee, or any group of them, of the city of Dallas, to organize a labor union, organization or club of city employees . . . [that seeks to demand changes to] working conditions or compensation ... of the City of Dallas.” The Texas courts upheld the statute.

During the quarter century after World War II, public sector employment increased dramatically. With the growth of the public sector also came a substantial increase in public employee union activity, with membership rising from about 400,000 in 1955 to 4 million in the 1970s. In order to win recognition for their unions and to obtain collective bargaining agreements, public sector workers went on strike, even though doing so was prohibited in every jurisdiction in the United States.

Teachers led the efforts in most jurisdictions. In New York City, for example, the United Federation of Teachers (UFT), a chapter of the American Federation of Teachers (AFT), organized a major strike that resulted in the city agreeing to establish collective bargaining for teachers in 1960. After several additional strikes, New York teachers won significant wage increases and improved working conditions during the 1960s. By the early 1970s, teacher salaries in New York had quadrupled. Building on the UFT’s work, teachers across the nation began striking for recognition, and 112 strikes occurred in public schools and libraries in 1968.

But strikes were not limited to teachers. Sanitation workers, air traffic controllers, social workers, municipal workers, and others struck in northern and southern states alike. In many cases, as in the Memphis, Tennessee, sanitation strike at which Martin Luther King Jr. was assassinated, public workers’ efforts were intertwined with those of the Civil Rights and Women’s Rights Movements.

Public sector unions during this period often framed their issues as social issues. They understood they needed community support and fared the best when they identified their demands as meeting the needs of all workers and citizens. They also understood that their efforts were fundamentally political in nature—they were making demands for changed behavior on the part of government. One notable example was the 1978 strike by San Francisco Public Housing workers, which focused on problems of agency mismanagement of public housing, as well as the need for higher wages for workers. Their critique of the agency was joined by the tenants’ association, which organized a rent strike in conjunction with the workers’ strikes. When the workers were offered a settlement, they voted to remain on strike until the tenants’ association achieved its goals as well. After two more days, the housing authority reached an agreement with both unions.

To be sure, efforts by public sector unions were not always aligned with broader civil rights and community movements. In New York City, the teachers’ union engaged in open conflict with the local civil rights movement, including by organizing a strike to oppose community control of schools. Yet this experience, too, highlighted the deeply political nature of public employee strikes. They were fundamentally an exercise in democracy: How would resources of the community be spent?

Not only were public employee strikes of this time struggles in democracy, they were also understood by the unions to be an exercise of fundamental rights. That is, the unions framed the right to bargain and strike as rights that states did not have the power to restrict or punish, notwithstanding the law on the books. For example, when the New York state legislature was considering a proposed statute that would penalize public workers for engaging in strikes, major New York unions passed a resolution declaring, “That no one, no body of legislators or government officials can take from us our rights as free men and women to leave our jobs when sufficiently aggrieved: when a group of our members are so aggrieved, then indeed they will strike.”

The AFT explained in a Q&A pamphlet published in 1970, in answer to the question whether anti-strike laws are unconstitutional, “Many legal authorities in the area of civil liberties believe that such laws and rules violate the 1st, 4th, 13th, and 14th Amendments to the United States Constitution, but it is highly doubtful that the Supreme Court would uphold an appeal by teachers at this time.” The union emphasized that teachers have “the moral right to strike even though the law or a court injunction may forbid it.” Because public employees in the 1960s and 1970s believed that restrictions on their right to strike were illegitimate, they contended they were justified in defying judicial injunctions.

Eventually, the public employee unions’ assertion of rights led to changes in the law. In 1966, Vermont loosened restrictions on strike activity for teachers. Hawaii legalized public employee strikes in 1970. In the 1980s, Ohio, Illinois, and California followed. These legal victories were important. But in many ways legal restrictions on strikes had little bearing on strike activity as employers and the public frequently treated strikes as legitimate even when they were technically illegal. As important as the law on the books was the collective effort of government workers and the broader political, economic, and social context in which workers struck.

By the 1980s, public sector strikes became less successful and ultimately less common. The financial crisis of the late 1970s led to budget cuts, hiring freezes, and efforts to clamp down on union negotiations. Cutting public sector worker salaries became popular. In 1980, President Ronald Reagan fired over 10,000 government employees—air traffic controllers—for conducting an illegal strike. These actions signaled to public and private sector employers alike the president’s support for union-busting and buoyed already growing efforts to weaken unions. The next decades saw capital flight from union-dense regions, first to the non-union South and then overseas, along with increased use of subcontractors and other precarious work arrangements, and greater use of anti-union management tactics. Though on the defensive, public sector unions largely maintained their density, while union membership in the private sector plummeted.

With the Great Recession of 2008, however, union opponents renewed their attack on public sector unions, advancing the argument that government workers “constituted an ‘elite’ whose pay and pensions were not sustainable.” The notion that public sector union contracts were undermining the finances of cities and states gained traction. Against this background, and with an increasingly conservative Supreme Court, the National Right to Work Committee (NRTWC), which had long fought unions, began a renewed attack on the ability of public sector unions to collect fees. In 2012, the conservative majority on the Supreme Court took up the cause, granting certiorari in cases presenting the constitutionality of public sector union fees, despite the absence of any circuit splits. A series of cases culminated in the Court’s holding in Janus v. AFSCME that objecting workers have a First Amendment right not to pay fees to a union, even if the union is obligated to represent those dissenting workers in bargaining and grievance procedures. Justice Alito declared: “Fundamental free speech rights are at stake.” During this same period, the NRTWC and conservative Republicans pushed for anti-union laws in previously union-friendly states, bringing the total number of states that prohibit agency fees in the private sector to 27. The right-to-work campaigns were part of a broader, long-running project to undermine unions and to weaken the Democratic Party, with which unions had long been associated.

II. The Supreme Court and the First Amendment Right of Public Employees to Organize, Bargain, and Strike

Despite the fact that public sector union activity over the last century has consistently implicated core First Amendment values and activity, the Supreme Court has provided it little constitutional protection. Indeed, with the exception of cases on union objectors, the Court’s treatment of public sector unions has been cursory, at best; nearly all of its consideration of collective labor rights has involved private sector workers.

During the early decades of the 20th century, the Court, and the federal judiciary generally, was decidedly hostile to all labor activity. The Court held that that both the federal and state governments violated the freedom to contract protected by the due process clauses of the Fifth and Fourteenth Amendments when they banned discrimination against union members, and that Congress also lacked sufficient authority under the Commerce Clause to do so. At the same time, federal courts aggressively curtailed strikes and boycotts using their injunctive power, even jailing labor leaders.

Beginning in the 1920s, the Supreme Court on a few occasions gestured favorably to the right of workers in the private sector to associate and to engage in pickets and strikes. For example, in 1921, newly appointed Chief Justice William Howard Taft rejected a conspiracy action against a union. In so doing, he recognized “the right [of workers] to combine for ... lawful purpose[s].” Unions, he emphasized, were “essential to give laborers opportunity to deal on equality with their employer.” And, he wrote, “the strike” is “a lawful instrument in a lawful economic struggle or competition between employer and employees as to the share or division between them of the joint product of labor and capital.” In 1923, the Taft Court considered the constitutionality of a Kansas state law that established compulsory arbitration for labor disputes, while prohibiting strikes. In its opinion striking down the statute, Taft emphasized that the law unduly burdened business, but he also suggested that workers had a corresponding right to strike guaranteed by the Due Process Clause of the Fourteenth Amendment.

Yet the bulk of the Court’s opinions during the pre-New Deal era pulled in the opposite direction. In 1921, again with Chief Justice Taft writing, the Court invalidated a state statute limiting judges’ authority to issue injunctions in labor disputes, opining that labor picketing constituted “moral coercion” and “a law which operates to make lawful such a wrong ... deprives the owner of the business and the premises of his property without due process.” A few years later, in 1926, the Taft Court upheld the criminal conviction of a union officer for engaging in a strike, rejecting both constitutional and common law arguments for an “absolute right to strike.” Anti-union court rulings were not issued only by the Supreme Court. Between 1880 and 1930, the courts issued more than 4,000 injunctions against workers’ strikes and pickets, imprisoned numerous labor leaders, and struck down hundreds of redistributive local, state, and federal laws under the guise of the U.S. Constitution.

The passage of the Norris-LaGuardia Act in 1932 and the National Labor Relations Act (NLRA) in 1935 dramatically changed the landscape for private sector workers. The Norris-LaGuardia Act limited the power of federal courts to impose injunctions in non-violent labor disputes while the NLRA codified employees’ right to engage in concerted action, to bargain, and to strike and established an agency, the NLRB, to enforce those rights. Against the background of the Great Depression, President Franklin D. Roosevelt’s threat of court-packing, and widespread labor unrest, the Supreme Court did a constitutional about-face and upheld the statutes against Commerce Clause and due process challenges. Moreover, in NLRB v. Jones & Laughlin Steel Corp., while upholding the NLRA as a valid exercise of commerce power, the Court gestured toward an affirmative constitutional right for workers, noting that they have a “fundamental right” to organize.

During this period, it seemed that strikes, in the private sector at least, might win protection under the First Amendment. As Laura Weinrib has documented, the ACLU promoted a First Amendment “‘right of agitation’: a right of workers to picket, boycott, and strike.” After the Court’s 1937 decisions upholding the NLRA and repudiating the use of the Due Process Clause as an anti-labor tool, the First Amendment approach became more popular among labor leaders, as well as among sympathetic government officials. The basis for constitutional protection for labor activity seemed strong: The democratic concerns of the First Amendment and labor rights were closely connected.

Briefly, the view gained support from the Supreme Court. In 1937, Justice Louis Brandeis, writing for a majority, upheld a Wisconsin statute that authorized labor picketing; he emphasized that even without statutory authorization, “members of a union” could “make known the facts of a labor dispute” through peaceful picketing because “freedom of speech is guaranteed by the Federal Constitution.” Then, in 1940, in Thornhill v. Alabama, the Court upheld the right to picket as central to the First Amendment’s democratic purposes. In striking down a state statute that criminalized picketing, Justice Frank Murphy wrote: “Free discussion concerning the conditions in industry and the causes of labor disputes appears to us indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of modern industrial society.” He explained the connection between labor’s right to picket and the First Amendment’s purposes:

The safeguarding of these rights to the ends that men may speak as they think on matters vital to them and that falsehoods may be exposed through the processes of education and discussion is essential to free government. Those who won our independence had confidence in the power of free and fearless reasoning and communication of ideas to discover and spread political and economic truth. ... Abridgment of freedom of speech and of the press, however, impairs those opportunities for public education that are essential to effective exercise of the power of correcting error through the processes of popular government.

Thornhill’s companion case, Carlson v. California, added that the “liberty of communication” protected by the First Amendment also included the peaceful dissemination of “the facts of a labor dispute ... by pamphlet, by word of mouth or by banner.”

Building on Thornhill and Carlson, the Court explicitly recognized a First Amendment right to organize unions inThomas v. Collins, holding that the government could not impose onerous licensing requirements on union organizers. The case involved a criminal prosecution of a labor leader who had made a speech urging union membership without registering in advance with the state as required by Texas law. The Supreme Court acknowledged “[t]hat the State has power to regulate labor unions with a view to protecting the public interest.” But the Court declared that “[s]uch regulation ... must not trespass upon the domains set apart for free speech and free assembly.” And, the First Amendment, the Court held, protects the employees’ attempts to persuade others to join a union. Notably, the Court read the amendment holistically, emphasizing that the freedom in speech was coupled “with the rights of the people peaceably to assemble and to petition for redress of grievances.”

As Laura Weinrib has documented, when these cases were decided, they were thought to be transformative. Lee Pressman, general counsel of the Congress of Industrial Organizations (CIO) who argued Carlson in the Supreme Court, announced that “labor action is nothing more or less than the exercise of constitutional rights.” Herbert Wechsler, at the annual meeting of the Association of American Law Schools, announced that the labor picketing cases were of “major significance.”

But by the late 1940s, in the context of another wave of mass labor uprisings, this time met with effective countermobilization by business, the Court backed away from robust constitutional protections for labor activity, even for private sector workers. It upheld numerous restrictions on private sector employees’ right to picket and strike, including the 1947 Taft Hartley Act’s prohibition on secondary strikes. Although the Court never overruled its prior broad statements of First Amendment protection for labor activity, it allowed states to prohibit a wide swath of labor picketing when such picketing was deemed to be coercive and in violation of state policy. The Court emphasized that picketing was more than pure speech and that it was economic in nature. The result was that the most effective strikes and pickets lost constitutional protection, even though comparable activity outside the labor context remained safeguarded by the First Amendment.

At the same time, the Court signaled in passing that it believed public sector workers were entitled to even fewer labor rights than their private sector counterparts. In the 1947 case, United States v. United Mine Workers, it held that the provisions of the Norris-LaGuardia Act did not apply to labor disputes involving mineworkers who had become public sector workers by virtue of the government’s seizure of their mine. In so doing, the Court observed that the purpose of the Norris-LaGuardia Act was to protect workers’ rights:

... to contribute to the worker’s “full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives ... for the purpose of collective bargaining. ... ”

However, according to the Court, “these considerations, on their face, obviously do not apply to the Government as an employer or to relations between the Government and its employees.”

Even during the massive wave of public sector organizing in the 1960s and 1970s, the Court said very little regarding public sector unions’ constitutional rights to bargain and strike. But it continued to assume few such rights existed. In 1971, the Court in United Federation of Postal Clerks v. Blount affirmed without opinion a three-judge district court’s ruling recognizing the First Amendment right to organize unions but holding that the government could condition employment on a promise not to strike. Then, in 1979, the Court in Smith v. Arkansas State Highway Employees reversed the Eighth U.S. Circuit Court of Appeals’ ruling that the First Amendment provided a right of unions to pursue grievances on behalf of their members. According to the Court, “The public employee surely can associate and speak freely and petition openly, and he is protected by the First Amendment from retaliation for doing so.” But, the Court asserted with little explanation or analysis that “the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it.”

III. The Democratic First Amendment and the Right of Public Sector Workers to Unionize, Bargain, and Strike

A. Essential organizational activity, fundamental rights, and the political nature of public sector unions

The Supreme Court has never satisfactorily explained why the First Amendment does not protect public sector employees’ rights to bargain (i.e., to present collective demands to the government) and to picket and strike in furtherance of their association’s goals. As did the Supreme Court in Smith,numerous lower courts have recognized that the right of public sector workers to associate with one another in unions is guaranteed under the First Amendment’s protection for association. The constitutional right to bargain and strike would seem to flow directly from this well-established right of association. As Judge J. Skelly Wright declared in his concurrence in Blount, the rights to bargain and strike are intimately related to the fundamental right to organize: “If the inherent purpose of a labor organization is to bring the workers’ interests to bear on management, the right to strike is, historically and practically, an important means of effectuating that purpose.” The California Supreme Court concluded the same when considering rights of sanitation workers: “[T]he right to unionize means little unless it is accorded some degree of protection regarding its principal aim—effective collective bargaining. For such bargaining to be meaningful, employee groups must maintain the ability to apply pressure or at least threaten its application. A creditable right to strike is one means of doing so.”

The Supreme Court has recognized in other contexts that essential organizational activities are part and parcel of the right to associate; in order to make real the right to associate, other organizational activities must be protected. As Judge Skelly Wright argued, the same applies, or should apply, to the right to strike: “A union that never strikes, or which can make no credible threat to strike, may wither away in ineffectiveness. That fact is not irrelevant to the constitutional calculations.” Then-Chief Justice Thomas H. Roberts of the Rhode Island Supreme Court reasoned similarly:

Obviously, the right to strike is essential to the viability of a labor union, and a union which can make no credible threat of strike cannot survive the pressures in the present-day industrial world. If the right to strike is fundamental to the existence of a labor union, that right must be subsumed in the right to organize and bargain collectively. ... The collective bargaining process, if it does not include a constitutionally protected right to strike, would be little more than an exercise in sterile ritualism.

Notably, in the context of civil rights consumer boycotts, the Supreme Court has agreed, recognizing that peaceful collective action is part and parcel of the rights of freedom of association and expression. In NAACP v. Claiborne Hardware, the Court expressly rejected the common law view that boycotts could be prohibited because of their coercive nature: “Speech does not lose its protected character ... simply because it may embarrass others or coerce them into action.” As other scholars have argued, differential treatment of consumer boycotts and labor strikes runs afoul of the well-established principle of content neutrality; no principled justification divides the two.

Indeed, the rights to bargain and strike arguably merit First Amendment protection not only as a corollary to the right to associate but because the activity itself is, at bottom, activity that involves collective expression, assembly, and petitioning. As discussed above, the Supreme Court has recognized the right of private sector workers to strike and picket in furtherance of their collective demands as fundamental, though it has allowed significant limitations on that right. Recall Justice Murphy’s admonishment that “[f]ree discussion concerning the conditions in industry and the causes of labor disputes appears to us indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of modern industrial society.”

Finally, numerous judges have suggested that denying categorically the rights of bargaining and striking to public sector workers while providing them for private sector workers raises equal protection concerns. In Blount, Judge Wright wrote:

Hence the real question here, as I see it, is to determine whether there is such justification for denying federal employees a right which is granted to other employees of private business. Plaintiff’s arguments that not all federal services are “essential” and that some privately provided services are no less “essential” casts doubt on the validity of the flat ban on federal employees’ strikes. In our mixed economic system of governmental and private enterprise, the line separating governmental from private functions may depend more on the accidents of history than on substantial differences in kind.

In other contexts, the Court has recognized that to allow picketing against some targets, but not others, violates the Equal Protection Clause. On this account, the government violates the Constitution by prohibiting bargaining and striking for any workers, public or private. But even if the government were not constitutionally required to protect those rights, for the government to protect them for private sector workers while categorically denying them to all public sector workers would violate the Equal Protection Clause.

To be sure, because some public sector workers provide essential services, the state may have compelling justifications for limiting the right to strike in some circumstances, for some workers. But no compelling justification exists for a complete and categorical ban on all public sector bargaining and strikes. Again, this argument was well laid out in Thornhill:

It is true that the rights of employers and employees to conduct their economic affairs and to compete with others for a share in the products of industry are subject to modification or qualification in the interests of the society in which they exist. This is but an instance of the power of the State to set the limits of permissible contest open to industrial combatants. It does not follow that the State, in dealing with the evils arising from industrial disputes, may impair the effective exercise of the right to discuss freely industrial relations which are matters of public concern.

As Justice Murphy cautioned, “A contrary conclusion could be used to support abridgment of freedom of speech and of the press concerning almost every matter of importance to society.” That approach would defy the purpose of the First Amendment. “Abridgment of the liberty of such discussion can be justified only where the clear danger of substantive evils arises under circumstances affording no opportunity to test the merits of ideas by competition for acceptance in the market of public opinion,” Murphy wrote.

Numerous state court judges have condemned the categorical ban on public sector strikes. As Chief Justice Roger O. DeBruler of the Indiana Supreme Court wrote in dissent, “If some strikes by workers within the category of public employees would not appreciably disrupt the community or create anarchy, then there is no justification for treating those public employees differently than private employees. ... ” Likewise, Chief Justice Roberts of the Rhode Island Supreme Court emphasized that while some public employee strikes should not be protected, no basis exists for categorically denying public employees their right to speak collectively, to assemble, and to petition:

I cannot agree that every strike by public employees necessarily threatens the public welfare and governmental paralysis. ... The fact is that in many instances strikes by private employees pose the far more serious threat to the public interest than would many of those engaged in by public employees. ... In short, it appears to me that to deny all public employees the right to strike because they are employed in the public sector would be arbitrary and unreasonable.

Indeed, if anything, public sector bargaining and strikes may present an easier case for protection under the First Amendment. At the most basic level, when public employers penalize workers for seeking to bargain or for engaging in a strike, state action is necessarily present. But there is another reason why public sector bargaining and strikes implicate the First Amendment. The Court has long held that speech on political questions and matters of public concern is due the utmost protection. While all union activity implicates issues of public concern, public sector union activity inevitably and unquestionably implicates questions of democratic governance. Public sector workers’ salaries are a matter of public budgets, and their work necessarily involves public services.

The Supreme Court’s own jurisprudence on individual public employee speech underscores this point, albeit insufficiently. In Pickering v. Board of Education, the Court held that public employee speech on matters of public concern is entitled to First Amendment protection in some circumstances. As the Court recognized,“free and open debate is vital to informed decision-making by the electorate,” and public sector workers, “as a class, are members of [the] community most likely to have informed and definite opinions” regarding “how funds allotted to operation of schools should be spent.” To be sure, the Court in practice has offered only weak protection to government workers’ speech, particularly in the cases that followed Pickering.According to the Court’s doctrine, public employee speech is protected only if it is outside the scope of official duties; in addition, the government employer can restrict the speech if it can show that expression impairs the effective and efficient functioning of the workplace. Despite this overly cramped approach, however, the Court has maintained the recognition that speech by individual public employees falls within the First Amendment’s ambit and plays an important role in public debate.

More recently, the Court has again recognized the particular role public sector workers—and public sector unions—play in important political debates. In Janus v. AFSCME, the Court deployed the First Amendment to restrict public sector unions’ ability to collect fees necessary to pay for the costs of collective bargaining and representation. For reasons I have elaborated elsewhere, the Court’s decision in Janus is wrongly decided. But the opinion contains an important insight: Collective bargaining in the public sector almost always has a “political valence.” The Court’s majority observed that public sector unions engage with “sensitive political topics” that “are undoubtedly matters of profound value and concern to the public. ... [S]uch speech occupies the highest rung of the hierarchy of First Amendment values and merits special protection.”

Ultimately, the Janus Court applied “exacting scrutiny” to strike down the system of fair-share fees. Catherine Fisk has argued that Janus’ reasoning requires a different approach to union expression: “If anti-union government employees have a First Amendment right to resist paying money to the union to negotiate over working conditions, formal equality would suggest that pro-union government employees have a First Amendment right to discuss their working conditions collectively.” By the same logic, if the freedom of association contained in the First Amendment protects the right of a public sector employee not to participate in political speech compelled by his or her employer, then it should also protect their right to participate in political speech.

Of course, there are limitations to the symmetry under this Court’s logic: According to the Court, the union fee cases involve compelled speech. In contrast, a First Amendment right to organized public sector employee expression and association would not involve compelled speech but would rather require the government employer to permit expression and association that are contrary to its own views and (arguably) disruptive of the effective and efficient execution of its public mission. But even under the Court’s own logic, some protection for the core rights would be warranted. More importantly, as the next sections of this essay elaborate, an approach to the First Amendment that reads the amendment holistically and foregrounds its democratic purposes would reject the notion that the right of a dissenting member to “exit” a democratic structure deserves greater protection that the collective majority’s speech, association, and petition interests. Likewise, it would reject the notion that the managerial prerogative can wholly extinguish workers’ First Amendment rights.

B. Policy arguments against a public sector right to bargain and strike

In addition to the arguments that public sector bargaining and strikes lack First Amendment protection due to their economic dimensions or potential for coercion, opponents of public sector bargaining rights offer a series of policy-based objections that derive from government workers’ particular relationship to the state but that wholly ignore the First Amendment’s democratic goals.

One such argument sounds in sovereignty. On this account, the right to govern belongs exclusively to elected officials. Agreeing to bargain entails inappropriately relinquishing sovereignty insofar as doing so delegates decisions that public officials should be making on their own; put even more strongly, granting a right to strike grants a right to destroy the sovereign. Courts have relied on common law for this proposition: For example, an Ohio court in 1949 declared that “the government is a servant of all of the people. And a strike against the public, a strike of public employees, has been denominated ... as a rebellion against government. The right to strike, if accorded to public employees ... is one means of destroying government.”

This argument falters quickly under inspection. As Chief Justice Roberts of the Rhode Island Supreme Court wrote,

Perpetuation of the doctrine of sovereign immunity in tort law led to a great many inequities, its application affecting many incongruous results. Similarly, the application of the doctrine that one cannot strike against the sovereign leads to unfair results. Clinging to a doctrine that prohibits employees of the government the right to strike denies those individuals their constitutional right while applying an idea that is archaic and no longer logically supportable.

Even for jurisdictions that maintain sovereign immunity in tort, the doctrine is inapposite: Public sector bargaining does not undermine sovereignty but rather involves the sovereign engaging in democratic decision-making with its citizens. There is nothing unusual about allowing non-governmental officials to play a role in decision-making. Governments delegate a wide range of decisions through contracting. They also routinely consult with non-governmental officials in making decisions. As the California Supreme Court commented in 1985, the worry about sovereignty is simply “inconsistent with modern social reality.”

A second argument is that public employee unions distort the political process: They exercise outsized political power when allowed to bargain because they are then able to affect decision-making both as voters and workers. Yet, empirical work has demonstrated that public employee strikes have no such distorting effects. Rather, as discussed below, sufficient checks on bargaining exist that the outcome of bargaining reflects democratic pressures. Indeed, “legalizing public employee strikes does not cause an increase in strikes and may encourage more realistic bargaining.” In any event, the First Amendment guarantees citizens the right to pressure the government through means other than voting. In that respect, public sector workers’ ability to engage in political speech should not be limited to the ballot box any more than that of other citizens.

Relatedly, opponents of public sector unions also argue that, unlike private sector workers, public workers face no market competition and therefore there are no market pressures that keep unions’ demands in check. They also get to pick their bosses through elections. Daniel DiSalvo argues that unions end up picking those who sit across from them. But of course, the same is true for all others who interact with the government regarding government contracts and benefits. Moreover, as the California Supreme Court has recognized, “wages lost due to strikes are as important to public employees as they are to private employees.” And the “public’s concern over increasing tax rates” and the threat of subcontracting also discipline public unions. Empirical work confirms that laws enabling public sector collective bargaining have not, in practice, led to excessive pay.

More generally, arguments that public sector bargaining and strikes are incompatible with democracy or economically ruinous are undermined by the significant jurisdictions that recognize a right to strike in the public sector. Forty-two states and the District of Columbia provide for some collective bargaining for at least some public workers, and a dozen states have granted some of their public employees a right to strike. Looking abroad, nearly all industrial democracies permit bargaining and strikes among most public sector workers, and international law protects the right.

That is not to suggest that there must be an absolute right to strike by all workers by any means. As with other First Amendment rights, the right to strike and bargain may be balanced against compelling governmental interests, such as public safety. But the courts have largely failed to engage in such analysis. And they have offered no persuasive justification for categorically denying bargaining and strike rights to all public employees, particularly when doing so undermines the core democratic purpose of the First Amendment.

C. Public sector unions and democracy

Let us return, then, to the basic goal of the First Amendment and its relationship to public sector bargaining and strikes. Courts and scholars agree that an important purpose, even the primary purpose, of the First Amendment is to advance democratic self-governance. The most prominent proponent of the democracy theory of the First Amendment was Alexander Meiklejohn. He argued that free speech is constitutionally valuable because it produces an informed citizenry that makes democracy work better. On this account, guaranteeing the freedom of speech enables people to govern themselves in politics. As Owen Fiss put it, “We allow people to speak so others can vote. Speech allows people to vote intelligently and freely, aware of all the options and in possession of all the relevant information.” Robert Post offers an overlapping through distinct account: The First Amendment’s purpose is democratic, but the focus should be on the speaker, not the audience—that is, on the ability of citizens to participate in self-governance through the formation of public opinion.

The Supreme Court has recognized the political aims of the First Amendment, though it has focused almost all of its attention on the Free Speech Clause. But as other scholars have demonstrated, and as the Court has occasionally acknowledged, when the Free Speech Clause is read in context of the whole First Amendment, the democratic purposes of the amendment become even clearer. Together, speech, assembly, petition, and press all enable the democracy to function. As the Court wrote in Thomas v. Collins, “It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable.” They enable an active citizenry, one that collectively participates in public debate and that engages with the government, not just through speech but through action, in order to shape governance.

Notably, the Assembly Clause and the Petition Clause have special relevance for public sector bargaining and strikes. Although the Supreme Court has not addressed the Assembly Clause in decades, historical research suggests the clause was added to the Constitution by the Framers specifically to protect group membership and to further popular sovereignty; the goal was to enable people to assemble to advocate for the public good. Meanwhile, the Petition Clause was designed to further active political engagement and an ability to influence government, particularly for those who lacked significant political power. Indeed, through much of its history, the Petition Clause was also understood to require a response from the government.

Extending First Amendment protection to public sector strikes fits clearly with these overlapping rights of speech, assembly, association, and petition and ultimately serves the First Amendment’s democratic purposes. A significant and growing body of scholarship demonstrates that unions strengthen democracy and enable a more robust public debate. First, they increase rates of political participation among workers: There is a consistent, positive relationship between union membership and increased political participation; in particular, union members are more likely to vote, protest, sign petitions, lobby, and join associations. Thus, unions encourage workers to democratically self-govern through an array of approaches, fulfilling the First Amendment’s goal of enabling participation in self-governance.

Second, unions aggregate workers’ political voice in ways that help fix an imbalance in public debate, in turn producing a more representative government and redistributive policy. They serve as a countervailing force against the disproportionate power that wealthy corporations and elites exercise in politics; they influence the kinds of candidates that succeed and the public policies that prevail. As such, unions’ advocacy informs the citizenry and adds to public discussion, furthering the First Amendment’s goal of advancing a robust public debate.

Third, they have the potential to strengthen social ties among different kinds of workers, serving as a bulwark against racial divisions on which anti-democratic forces of authoritarianism and ethno-nationalism prey. The mechanisms here are several: Unions provide opportunities for people of different racial and ethnic identities to interact on a daily basis, undermining prejudice through exposure; members work toward a common goal across racial and ethnic lines, promoting cooperation, enhancing respect and mutuality, and shifting ideas about intergroup competition. In addition, unions build social solidarity when they urge, and help bring about, broad social welfare reforms. Unions also tend to give workers greater faith in the possibility and promise of democracy. By engaging workers in democratic practice at work and by exercising collective political power, they help counteract the perception that the government serves the elites and is not responsive to ordinary people. Finally, high collective bargaining rates are one of the most effective ways to reduce economic inequality, which researchers have identified as a key threat to democracy. In short, not only are public sector bargaining and strikes acts of expression, assembly, and petition, but protecting those rights advances the democratic goals of the First Amendment.

IV. Conclusion: Constitutional Lawmaking From the Bottom Up

There is virtually no chance the current Supreme Court will conclude that public employees have a First Amendment right to bargain and strike. The conservative super-majority on the Court has shown itself to be deeply hostile to the claims of labor unions and workers’ rights and sympathetic to business interests. Nonetheless, history teaches that workers can prevail when they collectively assert their fundamental rights, even when the law on the books does not recognize those rights, if they garner sufficient public support. And through collective action, over time and in certain circumstances, social movements have been able to transform the law, including understandings of the Constitution.

The recent wave of public sector labor activity has the potential to do just that. In 2018 and 2019, in what came to be known as “Red for Ed,” more than 100,000 public school teachers withheld their labor in states across the country, including in states with no bargaining rights for teachers. The West Virginia Education Association led the strike wave, with 35,000 teachers striking in February and March of 2018. Under West Virginia law, public workers are not permitted to strike or participate in any work stoppage. Public workers in West Virginia also do not have a right to engage in collective bargaining. The teachers struck nonetheless for higher wages and improved education. The West Virginia attorney general threatened to take legal action to stop the strike but ultimately did not do so; instead, the state negotiated a settlement and teachers returned to work.

The West Virginia strikes were followed by teacher strikes in numerous other states that provide no right to strike or bargain, including Arizona, Kentucky, North Carolina, and Oklahoma. In several instances, government officials sought injunctions or other penalties, yet the teachers persisted, sometimes expressly invoking the First Amendment, albeit unsuccessfully in court. In subsequent years, strikes also occurred among teachers in states that allow collective bargaining, including California, Washington, New Jersey, Illinois, Massachusetts, Minnesota, and Colorado. There, too, governments often resisted, seeking to repress the unions’ speech, assembly, and petition efforts. In California, for example, one school district adopted a rule prohibiting picketing on school property and banned use of signs and banners without prior approval from the school superintendent; the Ninth U.S. Circuit Court of Appeals rejected this ban.

All of the recent strikes and bargaining implicate the First Amendment and its democratic function. While many of the strikes focused on teacher pay and funding for public schools—questions of how to allocate school funds within the public schools—others focused on such policy questions as vouchers for private school tuition and the use of charter schools. Other strikes took on even broader social problems. The Chicago teachers’ union, for example, has made clear that its members aspire not only to win higher wages but to bargain “for the common good”—their strike in 2019 demanded not only smaller class sizes, better wages, and improved school conditions but also changes to housing policy in a city where many students face homelessness.

The rise in public sector strikes has been not limited to teacher strikes. A total of 53,000 University of California workers struck in May 2018. Other large public sector strikes in recent years include health care workers at the University of California, graduate students at the University of Michigan and the University of Illinois, hospital workers in Illinois, service workers in Cook County, Illinois, and academic workers across the University of California system.

During some of these strikes, the workers expressly appealed to a broad conception of fundamental rights, claiming that there is no such thing as an “illegal strike.” In other cases, they made claims that were explicitly constitutional. For example, after having its strike enjoined, the Clark County Education Association in Nevada filed a lawsuit alleging that Nevada’s anti-strike law is unconstitutional; the case is ongoing. Striking graduate students in Michigan made clear their view that “no law or policy can restrict a person’s fundamental right to strike. ... [N]o court can decide to suspend our strike as the decision to strike (or not) is up to the rank-and-file members of our union.”

Academic workers at Rutgers University made similar claims. In the lead-up to the strike, Rutgers President Jonathan Holloway sent a university-wide email warning that any strike would be unlawful. A group of academics from hundreds of universities signed an open letter to Holloway, quoting Dr. Martin Luther King Jr. for the proposition that strikes are core to First Amendment rights and condemning the characterization of the strike as unlawful. Though the union acknowledged that courts have issued injunctions to stop strikes in the past, it committed to fighting any injunction the university filed. After the strike began, Holloway stated again that he would seek legal action if no progress was made in negotiations. New Jersey Governor Phil Murphy asked him to delay any legal action; Holloway honored the request and ultimately did not file for an injunction. A union spokesperson defended the strike, referencing the workers’ “fundamental right of free speech and free assembly.” The parties reached an agreement before any legal action was taken.

Even where the unions made no explicit rights-based claims, “their actions rejected the existing statutory and judge-made constitutional law, instead offering an alternative vision of rights—and of how we should constitute ourselves as a nation.” They echoed efforts of past generations of workers who, as James Pope has shown, engaged in conscious, collectively organized rule creation and enforcement through a form of lawmaking-through-lawbreaking from below.

Ultimately, the constitutional arguments in support of public sector bargaining and strikes are strong. Bargaining and strikes by public workers are fundamentally expressive acts—acts of association, assembly, and petition. And they inevitably engage problems of governance and democracy. As the Court has itself recognized, public sector union speech is inherently political. Yet, the current doctrine gets things backwards—collective speech and protest by majorities of public sector workers deserve just as much First Amendment protection as speech by dissenters, if not more. The doctrine should do more to protect voice—collective voice through democratic organization—rather than simply encouraging exit. At its core, the First Amendment is designed to enable such democratic engagement.

Although this Court will certainly not reverse course and recognize even a qualified a right to bargain and strike, the current wave of strikes among public sector workers should be understood as a moment of constitutional lawmaking from the bottom up. These movements are advancing their view of their rights through praxis, even when they don’t explicitly lay claim to the First Amendment. Ultimately, a coherent alternative doctrine is emanant in the efforts of worker movements—and more often than not, in practice, that vision is prevailing.

Acknowledgments

Thanks to Sam Lebovic, Katy Glenn Bass, and the Knight Institute for organizing the symposium at which this paper was presented. I am grateful to the symposium participants and to Margaret Hassel and Jeremy Kessler for helpful feedback; to Louis Dugré, Margaret Hassel, Henry Merschat, Lydia Murray, Harmukh Singh, and Neha Sundaram for excellent research assistance; and to the Columbia law librarians for help with sources.

 

© 2024, Kate Andrias.

Cite as: Kate Andrias, Speaking Collectively: The First Amendment, The Public Sector, and the Right to Bargain and Strike, 24-17 Knight First Amend. Inst. (Oct. 11, 2024), https://knightcolumbia.org/content/speaking-collectively-the-first-amendment-the-public-sector-and-the-right-to-bargain-and-strike[https://perma.cc/UQV7-Z3KC].