A More Perfect Pickering Test: Janus v. AFSCME Council 31 and the Problem of Public Employee Speech

Abstract

n June 2018, the Supreme Court issued its long-awaited—and, for the American labor movement, long-feared—decision in Janus v. AFSCME Council 31. The decision is expected to have a major impact on public sector employee union membership but could have further impact on public employees’ speech rights in the workplace. Writing for the majority, Justice Samuel Alito’s broad interpretation of whether work-related speech constitutes a “matter of public concern” may have opened the floodgates to substantially more litigation by employees asserting that their employers have violated their First Amendment rights. Claims that would have previously been unequivocally foreclosed may now be permitted. This Note proposes a test to allow courts to meaningfully respond to this influx of claims. By explicitly incorporating the “social value” of public employee speech into the Pickering balance test as a factor of equal weight alongside the existing factors—the individual employee’s right to speech and the employer’s interest in operating an effective workplace—courts can make meaningful sense of the doctrinal conflict Janus created while also respecting and promoting the unique role public employee speech plays in public discourse.