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

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. 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.

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. Franks as well as the nature of union membership generally.