Document Type

Article

Publication Date

10-2024

Abstract

How is it that the Supreme 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 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, even allowing states to prohibit bargaining and criminalize strikes. This Essay traces the history of the doctrine, contrasting it with public sector unions’ own understanding of their First Amendment rights. It argues that although the Supreme Court is unlikely to recognize public employee rights to bargain and strike, public sector workers, especially since 2018, are collectively exercising their First Amendment rights, engaging in a form of constitutional lawmaking from the bottom up. Theirs is the more persuasive interpretation.

Disciplines

First Amendment | Labor and Employment Law | Law

Download

Share

COinS