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Court Denies Free Speech Right for Union Button

The Bill of Rights is a nice idea, but for most workers, it disappears when they punch the clock to begin work each day, even when the employer is the government.

In Texas, a carpenter working at a public hospital challenged a ban on employees wearing pro-union buttons on uniforms as violating free speech. After winning some rounds in the courts, the full Fifth Circuit Court of Appeals last week upheld the hospital ban on union buttons, declaring that government employers are free to suppress employee demands for a union and better working conditions, since such demands are not a "matter of public concern."

That increasingly rightwing courts don't think complaints over low wages are a "matter of public concern" is hardly a surprise these days, but as the court dissenters noted, the decision highlights fundamental hypocrisy. Texas denies workers the right to collective bargaining, so a demand for a union is inherently political and a matter of public concern that deserves free speech protection. As the judges in dissent argued, "this state law prohibition [on collective bargaining] greatly increases the public-interest aspect of Herrera’s expression in support of the organizing campaign here."

The Fifth Circuit decision denying public employees free speech rights parallels the ongoing erosion of private employee statutory free speech by the federal National Labor Relations Board. Just this June, the NLRB upheld a private hospital's ban on nurses wearing pro-union buttons.

However, even if the federal constitution doesn't protect free speech in the workplace, state laws can protect employee free speech, especially for the public employees who work for those governments. Many states have such protections in place (see here for an example of California law protecting the right to wear a union button) and those rights should be expanded dramatically, especially in the fact of court decisions eroding constitutional free speech rights for public employees.

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