Paul M. Secunda (University of Mississippi School of Law) has posted The Solomon Amendment, Expressive Associations, and Public Employment on SSRN. Here is the abstract:
Few employment law commentators have paid attention to the Solomon Amendment case of Rumsfeld v. FAIR and its discussion of the right to expressive association under the First Amendment. This is hardly surprising given the less than obvious employment law connections in this case. Nevertheless, there are some very real, if unintended, employment law consequences stemming from this decision.
Part of the issue is that there has never been a satisfactory conception of what groups make up protected expressive associations for First Amendment purposes. This fact has been lamented by Professor Morriss in his recent pre-FAIR piece on whether law schools should be considered expressive associations. He points out that past expressive association cases like Roberts, Duarte, Hurley, and Dale really do not say much about how to determine who is and who is not an expressive association.
Not only did FAIR not help matters in this regard, but it might have made things worse by apparently conceding that public employers, in the guise of public law school members of the FAIR association, have expressive association rights. This state of affairs could now mean that public employers could gain constitutional rights at the expense of pubic employees. Thus, to the extent that public employers are considered expressive associations, public employees may see their free speech and other constitutional rights diminished (even more so than they recently have been by the Garcetti v. Ceballos decision).
Thankfully, I cannot imagine that the Court, if faced with the question directly, would find that public employers have First Amendment rights of any kind. This is just structurally unsound from the standpoint that the Bill of Rights protects the governed, not the governing, and I have not found, or am unaware of any case, holding that a public employer, let alone any public entity, has constitutional rights. To the extent that public employers have interests in promoting messages consistent with their public mission and image, it is instead better to conceive of these interests as those discussed in the Pickering line of cases concerning the need for governmental efficiency and lack of disruption in the public employment sector when discussing public employee First Amendment rights.
The purpose of this paper then is to hopefully point out an inadvertent error that the Court made in FAIR on its way to doing the heavy analytical lifting in that case and thus, permit this mistake to be corrected before the specter of public employer expressive associations causes substantial harm to public employee civil rights in the workplace.
