Charlotte Garden is an Assistant Professor and Litigation Director of the Korematsu Center for Law & Equality at Seattle University School of Law.  Follow her on Twitter @ProfCGarden.

The Court’s important decision in Harris v. Quinn has rightly been the subject of much discussion and analysis, including by the authors of this blog.  (I have previously written about the decision here and here.)

Some of that commentary has focused on the tension between Harris and the various cases in which the Court has held that public sector employees’ constitutional rights must often yield to the managerial prerogatives of their employers–particularly the Pickering/Garcetti line of cases.  The result of these cases has been that public employers have much the same authority over their workforces as private employers; this is particularly true when it comes to the absence of First Amendment protections for speech required of public employees as part of their jobs.  Yet, the outcome in Harris was different.  As Ben wrote, “the Court’s public employee cases give the government significant latitude to manage its workforces in ways that implicate the First Amendment; allowing the government that discretion, except when it exercises that discretion in a manner that enables unionization, would be inconsistent with the First Amendment itself.”  (Catherine Fisk discusses these cases and their inconsistency with Harris here.)

In Harris, Justice Alito offers a two-fold answer to this argument, though neither answer is convincing.  First, he writes that the Pickering/Garcetti line of cases does not apply because the state is acting neither “in a traditional employer role” nor as “proprietor in managing its internal operations” (the second quote comes from Alito’s own opinion in NASA v. Nelson; he does not explain why it does not extend to Harris).  Second, he writes that petitioners would win even if the Pickering test applied to their agency fees, because: 1) collective bargaining demands for increased wages and benefits for a group of workers—unlike similar demands made by individual employees asking one at a time–were matters of public concern; and 2) requiring workers to pay their share of the union’s bargaining was both too great an infringement of First Amendment rights and not sufficiently necessary to protect government interests.

Curiously, though, each of these answers is inconsistent with First Amendment principles recently announced by Justice Kennedy, who has been described as “the foremost defender of free-speech principles on the modern Court.”

First, take Justice Alito’s primary reason for not applying the Pickering/Garcetti cases–the fact that the Illinois home healthcare workers were “partial” public employees instead of full-fledged ones.  The idea, one assumes, is that because Illinois had less control over the home healthcare workers than over its “traditional” employees, it was correspondingly entitled to less managerial prerogative at the expense of the workers’ First Amendment rights.  But this analysis runs contrary to O’Hare Truck Service v. City of Northlake, in which Justice Kennedy wrote for a seven-Justice majority.  O’Hare held that First Amendment rights did not turn on whether the plaintiff was a public employee or an independent contractor; as Justice Kennedy put it, “those who perform the government’s work outside the formal employment relationship” receive the same First Amendment protection as full-fledged government employees.  (In addition, in another recent case, Filarsky v. Delia, a unanimous Court held that the availability of qualified immunity should not turn on “true” public employee status; there, the Court stressed the tremendous variation in how governments structure their workforces, and the harm to public services that would result were courts to begin drawing distinctions among these structures.)  If anything, the state of Illinois had greater control over the working conditions of the home healthcare aides in Harris than it would over an independent contractor like the O’Hare Truck Service; yet the Harris Court did not discuss O’Hare, despite the fact that it was addressed in both the petitioners’ and respondent’s briefs.

Second, there is Justice Alito’s fallback argument–that bargaining demands are matters of public concern because they are more important than other, more mundane workplace complaints or requests.  Here, the split is less black-and-white, but there is nonetheless a tension with Justice Kennedy’s persistent unwillingness to distinguish important from unimportant ideas in the First Amendment context.  For example, in US v. United Foods (which concerned compelled contributions to a generic advertising scheme), Justice Kennedy wrote that “the speech may be of interest to but a small segment of the population; yet [the plaintiffs] no doubt deem First Amendment protection to be just as important for them as it is for other discrete, little noticed groups in a society.”  The same impulse is visible in cases like Sorrell v. IMS Health, in which Justice Kennedy questioned whether commercial speech restrictions should remain subject to lesser scrutiny than other restrictions.  In other words, it seems unlikely that Justice Kennedy would agree that the Court should be in the business of distinguishing public concern from other public employee speech based on how much the speech is likely to matter to people other than the speaker.

It could be that Justice Kennedy would resolve this apparent disconnect by extending more First Amendment protection to all bargaining demands made by public employees, both large and small scale.  But this seems exceedingly unlikely given that he authored both Garcetti and Borough of Duryea v. Guarnieri; in the latter, Kennedy wrote that “Restraints [on public employees] are justified by the consensual nature of the employment relationship and by the unique nature of the government’s interest.”  Further, Kennedy added that these restraints on public employee expression may be imposed for reasons as diverse as public confidence in government, employee morale, and government efficiency—hardly the types of reasons likely to survive scrutiny under Harris.

It is telling that, despite this, Justice Kennedy signed onto the opinion in Harris without issuing a separate concurrence explaining his own reasoning, as he did in Hobby Lobby. This implies that he agrees with Justice Alito’s reasoning, and that there is an implicit collective bargaining exception to his more general First Amendment principles.  It would not surprise me if this were the case; I have argued elsewhere that labor law exceptionalism plagues the Supreme Court’s First Amendment cases.  This exceptionalism has generally worked to unions’ detriment, and this is unlikely to change in light of the current Court’s makeup.