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An April 5, 2018, post on Onlabor.org [https://onlabor.org/will-masterpiece-cakeshop-and-janus-create-a-first-amendment-right-to-strike-for-teachers/] argues that, if the U.S. Supreme Court rules for petitioners Jack Phillips and Mark Janus in Masterpiece Cakeshop v. Colorado Civil Rights Commission and Janus v. AFSCME Council 31, respectively, that the two decisions, when added together, will grant public employees a First Amendment right to strike. The post asserts that:
- Phillips claims he “has a First Amendment right to withhold his labor because requiring him to offer his services is a form of compelled speech”;
- “for Janus to prevail, the Court will have to accept the argument that restrictions on the First Amendment rights of public employees are subject to strict scrutiny”; and,
- “if you add the arguments of the petitioners in Masterpiece Cakeshop and Janus together, the result is that the withholding of labor (i.e. striking) can be a form of speech protected by the First Amendment, and any restrictions on speech by public employees are subject to strict scrutiny.”
The post’s “math” is faulty because both of its premises are wrong.
Phillips does not broadly argue in Masterpiece Cakeshop that labor is usually speech. Rather, he makes the more limited argument that the artistic endeavor of designing a specialty cake has an expressive component within the meaning of the First Amendment.
Moreover, Janus does not broadly argue that restrictions on public employees’ expressive activities are subject to strict scrutiny. Rather, he makes the more limited argument that compelling public employees to fund union speech is compelled speech and, thus, subject to strict scrutiny. In fact, Janus’ briefs distinguish between compelled speech and restrictions on speech and argue against the proposition that adopting his position will make all restrictions on public employees’ speech subject to strict scrutiny.
Added together, rulings for the petitioners in Masterpiece Cakeshop and Janus will not grant public employees a First Amendment right to not show up for work. Zero plus zero does not equal three.
