Working with free speech

FIRST & FOREMOST

Sometimes a free speech issue is just a speech issue, and not a First Amendment issue. Other times, free speech issues harbor profound First Amendment dilemmas. These matters come to the fore in the context of speech in the workplace. Recent events with President Donald Trump and the NFL, and an important grant of certiorari by the U.S. Supreme Court last week make this a hot topic.

Trump, the NFL and Speech Involving Private Employers

In late September, President Trump unleashed a barrage of tweets, blasting NFL players for refusing to stand during the playing of the national anthem. He also criticized the NFL for not disciplining the players, and he encouraged team owners to fire players who would not stand for the anthem. Is this a free speech issue? Yes. Is this a First Amendment issue? No.

A First Amendment violation requires some form of state action. There is an argument that having the president encourage a private employer to fire an employee for ostensibly political reasons is a violation of federal law. See 18 U.S.C. Section 227. But, that law also requires the president (or member of Congress or other high ranking executive officer) take or withhold (or threaten to take or withhold) an official act or influence (or offer or threaten to influence) the official act of another "solely on the basis of partisan political affiliation."

The general rule is that private employers can regulate and control -- or tolerate -- the speech of their employees. There are exceptions, of course. For example, employers cannot engage in or condone unlawful discrimination or harassment. But, if a private employer wants to require employees to salute the flag -- that is generally allowed under the First Amendment; although some jurisdictions protect private employees from retaliation for certain types of political speech or activity. See E. Volokh, "Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation," 16 Tex. Rev. L & Pol. 295.

So the NFL players have a right to take a knee, and the team owners and NFL have a right to let them do that -- or not. But, the fact that President Trump disapproves does not, standing alone, convert this into a First Amendment issue.

The Quirks of Public Employee Speech and a New Case Heading to the Supreme Courtt

For public employees, the First Amendment does not protect on-the-job speech that is related to the employee's job duties. Garcetti v. Ceballos, 547 U.S. 410 (2006). In Garcetti, the Supreme Court held that a deputy district attorney in Los Angeles could not maintain a civil rights claim after he was allegedly subjected to adverse employment action for writing a memo describing purported misconduct in his office.

There are some relatively obvious exceptions such as the case of Lane v. Franks, 134 S. Ct. 2369 (2014), where the Supreme Court held that a subpoenaed government employee could not be punished for his testimony even if it related to his job.

Also, a government employee generally receives full First Amendment protection for speech outside the job even if the speech relates somehow to the employee's job. This is true even where the public employer punishes an employee because the employer incorrectly ascribes a political view to the employee. In Haffernan v. City of Paterson, 136 S. Ct. 1412 (2016), the Supreme Court held that a police officer could bring a civil rights suit where the officer was demoted based on his chief's mistaken belief that the officer was engaging in off-duty political speech.

But the real action in this field arises in the context of public sector unions. For years, public sector unions have charged non-members "agency fees" which go toward collective bargaining efforts. In 1977, the Supreme Court ruled that it was permissible under the First Amendment to charge agency fees to non-members. Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977). This is important because most collective bargaining agreements require employers to fire workers who are not members or do not pay the agency fees.

In later decisions, the Supreme Court expressed concern over the impact that union charges had on non-members' First Amendment rights. See Knox v. Service Employees Int'l Union, 567 U.S. 298 (2012) (holding that the First Amendment does not permit a union to charge non-members a special assessment unless those non-members opt in and give affirmative consent); Harris v. Quinn, 134 S. Ct. 2618 (2014) (holding that "partial public employees" -- e.g., home health care workers -- could not be forced to pay agency fees under the First Amendment).

The protesting non-members' argument is that, at least with public sector unions, everything the union does is inherently political so, under the First Amendment, employees should have a choice as to whether to pay to support the union. The counter is that public sector unions would be crushed without agency fees as free riders would opt out and collective bargaining would suffer irreparably.

With the decisions in Knox and Harris, it seemed Abood was in big trouble. The issue came to a head when Friedrichs v. California Teachers Ass'n reached the high court. The petitioner there challenged Abood and lost in the 9th U.S. Circuit Court of Appeals as the court there was obliged to follow existing Supreme Court precedent. Shortly after the Friedrichs case was argued in the Supreme Court, Justice Antonin Scalia died. An equally divided court affirmed the unpublished decision of the 9th Circuit, and Abood survived. 136 S. Ct. 1083 (Mem.) (2016).

On Sept. 28, the Supreme Court granted certiorari in Janus v. AFSCME with the following issue presented: "Whether Abood v. Detroit Board of Education should be overruled and public-sector 'agency shop' arrangements invalidated under the First Amendment." With Justice Neil Gorsuch taking Justice Scalia's seat on the court, there is a high probability that Abood will be overruled, and agency fees will be held in violation of the First Amendment.