Free Speech Rights: Public Employees v. Football Players

Source: Sharon Block, Maddy Joseph, On Labor blog, May 30, 2018

“[S]peech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Snyder v. Phelps, 562 U.S. 443, 452 (2011) (citation omitted).

Nearly every brief filed in Janus v. AFSCME advocating for the Supreme Court to invalidate as unconstitutional union fair share dues, including the Petitioner and Trump Administration’s briefs, centers this quotation and sentiment. These briefs argue that the essence of democracy hangs on the right and ability of citizens to freely express their own individual political beliefs in the marketplace of ideas. Their deepest concern is that required fair share dues compel public sector workers to subsidize political speech. The government’s brief deems this a “severe burden” on workers’ constitutional rights.

While we don’t share the view that the effect of fair share dues is to compel speech, we don’t disagree that free speech is essential to democracy and that employer coercion of worker speech is detrimental to democracy. (Indeed, a new book by Alexander Hertl-Fernandez of Columbia University argues that this is a growing problem in the American workplace.) That’s one reason why we’re troubled by the NFL’s new policy punishing taking a knee during the national anthem. As Ben recently argued in Vox, the NFL policy raises serious free speech concerns and should violate the First Amendment. President Trump and Vice President Pence actively encouraged adoption of the ban on anthem protests; NFL owners have even stated that the ban was “initiated” by the President’s interventions. The ban is exactly the kind of coercion and subsidization of political speech that Janus supporters should be howling about. Yet, as several OnLabor readers have pointed out (here and here), Janus supporters have been curiously silent about the free speech rights of NFL players. This silence raises the question of how strongly and under what circumstances Janus supporters believe their own argument…..