Janus, Union Member Speech, and the Public Employee Speech Doctrine

Abstract

In Janus v. American Federation of State, County, and Municipal Employees (“AFSCME”), the Supreme Court held that public sector unions can no longer collect fees from nonmembers to fund the costs of representing them in collective bargaining and grievance proceedings.1 The Court determined that virtually all union speech is political speech and that collection of these fees is impermissible compelled speech under the First Amendment. However, not everything in Janus harms public union interests. The Janus Court’s discussion of Garcetti v. Cabellos and Connick v. Myers actually helps protect union member speech in the context of First Amendment retaliation cases.2 This Article argues that, after Janus, speech by union representatives on behalf of their union is not “employee speech” under Garcetti and is almost always a matter of public concern under Connick. Further, this Article argues that ordinary union member speech and union grievance filings are not “employee speech” either. In support of the latter, this Article also looks to the Supreme Court’s decision in Lane v. Franks3 as well as the nature of union membership generally. * The author serves as a clerk for Colorado Court of Appeals Judge Terry Fox. The views expressed here are the author’s alone and do not represent the views of his former employer, the Colorado Office of the Attorney General. The author thanks Professor Alan Chen and Judge Terry Fox for reviewing previous versions of this Article, as well as Professor Nancy Ehrenreich for her advice during the research process. Lastly, the author would not have completed this Article without the support of his wife, Louise. 1. 138 S.Ct. 2448 (2018). 2. Id. 3. 573 U.S. 228 (2014).