Do Public Workers Have a First Amendment Right to Strike? A New Legal Theory Challenges Decades of Precedent

When a Colorado baker refused to design a custom wedding cake in 2018, the Supreme Court weighed whether forcing him to provide his services amounted to compelled speech. Eight years later, legal scholars are asking whether that exact same constitutional logic protects a very different group of workers: public school teachers and municipal employees walking off the job. The underlying question is identical—whether the state can force an individual to provide labor when withholding it communicates a collective message.

A new paper published in September 2026 by legal scholar Kate Andrias in the Journal of Free Speech Law formally outlines this theory, arguing that public sector workers possess a First Amendment right to bargain collectively and strike. The argument flips a decade of conservative jurisprudence on its head, suggesting that if paying union dues is a form of political speech, then a coordinated work stoppage must be protected expressive association.[1]

The historical baseline for government workers has always been restrictive. When the 1935 National Labor Relations Act enshrined the right to strike for private sector employees, it explicitly excluded the public sector. Today, 38 states maintain laws that explicitly prohibit strikes by public employees, a legacy that dates back to the backlash following the 1919 Boston police strike.[3]

For decades, courts and lawmakers have treated public sector bargaining as a unique threat to state sovereignty. Early legal theorists warned that allowing government workers to strike would cede sovereign power to private organizations. Because public sector unions negotiate directly with the politicians they help elect, their strikes are viewed not as economic disputes, but as political leverage applied against the taxpayer.

That dynamic shifted dramatically with the Supreme Court's 2018 decision in Janus v. AFSCME. In that ruling, the Court determined that mandatory agency fees collected by public sector unions violated the First Amendment because all public sector bargaining is inherently political. By declaring that negotiating with the government is a form of political speech, the Court inadvertently laid the groundwork for the current legal theory.[4]

"If the Court rules in favor of Phillips [the baker], it may inadvertently create a First Amendment right to strike for public sector workers," warned labor law professor Catherine Fisk during a Columbia University symposium. Fisk's prescient analysis forms the core of the new constitutional push: if making a cake is protected expression, and negotiating a public contract is political speech, then a teacher withholding her labor to protest classroom conditions is engaging in core First Amendment activity.

The mechanics of this legal theory rely on the doctrine of strict scrutiny. If a strike is recognized as protected speech, any state law banning it must prove that the prohibition is the least restrictive means to achieve a compelling government interest. While maintaining public order is a compelling interest, blanket bans on all public work stoppages would likely fail the narrow tailoring requirement.

According to data from the Center for Economic and Policy Research, the 12 states that currently permit teachers to strike do not suffer from systemic educational failures compared to the 38 states that ban them. This empirical reality makes it difficult for states to argue that an absolute prohibition on strikes is strictly necessary to maintain government functions.

Despite the theoretical elegance of the First Amendment argument, judicial traditionalists remain deeply skeptical. Courts have consistently granted prison administrators and government officials "wide-ranging judicial deference" in managing their own institutions. In cases involving prisoners and essential workers, judges have routinely prioritized institutional order over associational rights, citing the "ever-present potential for violent confrontation" or civic chaos.

Furthermore, the First Amendment generally protects citizens from state action, not employees from their employers. However, because the employer in this context is the government itself, the line between workplace management and state censorship blurs. When a state fires a striking teacher, it is acting simultaneously as an employer managing a contract and as a sovereign entity punishing political expression.

The irony of this legal strategy is not lost on labor historians. During the early 20th-century Lochner era, courts routinely used constitutional provisions like the Due Process clause to strike down worker protections and minimum wage laws. Today, labor advocates are attempting to use the First Amendment—the very tool recently used to weaken union funding—to dismantle burdensome state regulations that prohibit collective action.

If this theory gains traction in federal appellate courts, it could fundamentally alter the balance of power in American cities. Public sector union density currently sits at roughly 33 percent, compared to just 6 percent in the private sector. Granting constitutional protection to work stoppages for one-third of the government workforce would instantly invalidate decades of state-level labor restrictions.[2]

The next phase of this debate will likely unfold in the lower courts, as local unions test the boundaries of the Janus precedent. Until a definitive ruling emerges, the tension between a worker's right to expressive association and a state's mandate to govern remains one of the most consequential unresolved questions in modern constitutional law.

The resolution of this constitutional standoff will depend entirely on how the Supreme Court chooses to define the limits of compelled speech. If the justices accept that withholding labor is an expressive act, the First Amendment may soon offer public workers a shield that statutory law has denied them for nearly a century.