Public or Private? The Split Over First Amendment Protection of Union Speech by Public Employees

Abstract

On May 16, 2018, the Second Circuit held, in Montero v. City of Yonkers, that a police officer who criticized other officers at a union meeting and then sued for retaliation in the wake of his remarks spoke “as a private citizen” and was therefore protected by the First Amendment. However, the Second Circuit limited its ruling by refusing to adopt a per se rule that any person who speaks as a union member speaks “as a private citizen” and is therefore protected from retaliation by the First Amendment. By specifically refusing to adopt a per se rule on union speech, the Second Circuit split from the Sixth, Seventh, and Ninth Circuits, which have established categorical rules stating that union speech is distinct from employee speech. This Comment argues that the categorical rules regarding union speech adopted by the Sixth, Seventh, and Ninth Circuits are in accordance with the Supreme Court’s decision in Janus v. American Federation of State, County, and Municipal Employees, and that the Second Circuit was therefore incorrect in its decision not to adopt such a categorical rule.