holding that 18 U.S.C. § 1918(3) “insofar as it inhibits the assertion of the right to strike, is overbroad because it attempts to reach activities protected by the First Amendment and is therefore invalid.”
How later courts described this case
- holding that 18 U.S.C. § 1918(3) “insofar as it inhibits the assertion of the right to strike, is overbroad because it attempts to reach activities protected by the First Amendment and is therefore invalid.”
- “strikes by federal employees continue to be illegal ... and indeed criminal ... ”
- “It is fair to conclude that, irrespective of the reasons given, there is a unanimity of opinion in the part of courts and legislatures that government employees do not have the right to strike.”
Written by the judges who cited it.
The opinion
J. SKELLY WRIGHT, Circuit Judge
(concurring):
I concur in Part II of the majority’s opinion and in the result. My following comments are addressed to the main issue raised in Part I of the opinion — the validity of the flat ban on federal employees’ strikes under the Fifth Amendment of the Constitution. This question is, in my view, a very difficult one, and I cannot concur fully in the majority’s handling of it.
It is by no means clear to me that the right to strike is not fundamental. The right to strike seems intimately related to the right to form labor organizations, a right which the majority recognizes as fundamental and which, more importantly, is generally thought to be constitutionally protected under the First Amendment — even for public employees. See Melton v. City of Atlanta, 324 F.Supp. 315 (N.D.Ga.1971); Atkins v. City of Charlotte, 296 F.Supp. 1068 (W.D.N.C.1969). If the inherent purpose of a labor organization is to bring the workers’ interests to bear on management, the right to strike is, historically and practically, an important means of effectuating that purpose. A union that never strikes, or which can make no credible threat to strike, may wither away in ineffectiveness. That fact is not irrelevant to the constitutional calculations. Indeed, in several decisions, the Supreme Court has held that the First Amendment right of association is at least concerned with essential organizational activities which give the particular association life and promote its fundamental purposes. See Williams v. Rhodes, 393 U.S. 23 , 89 S.Ct. 5 , 21 L.Ed.2d 24 (1968); United Mine Workers, etc. v. Illinois State Bar Assn., 389 U.S. 217 , 88 S.Ct. 353 , 19 L.Ed.2d 426 (1967). I do not suggest that the right to strike is co-equal with the right to form labor organizations. Nor do I equate striking with the organizational activities protected in Williams (access to the ballot) or United Mine Workers (group legal representation). But I do believe that the right to strike is, at least, within constitutional concern and should not be discriminatorily abridged without substantial or “compelling” justification.
Hence the real question here, as I see it, is to determine whether there is such justification for denying federal employees a right which is granted to other employees of private business. Plaintiff’s arguments that not all federal services are “essential” and that some privately provided services are no less “essential” casts doubt on the validity of the flat ban on federal employees’ strikes. In our mixed economic system of governmental and private enterprise, the line separating governmental from private functions may depend more on *886 the accidents of history than on substantial differences in kind.
Nevertheless, I feel that I must concur in the result reached by the majority in Part I of its opinion. As the majority indicates, the asserted right of public employees to strike has often been litigated and, so far as I know, never recognized as a matter of law. The present state of the relevant jurisprudence offers almost no support for the proposition that the government lacks a “compelling” interest in prohibiting such strikes. No doubt, the line between “essential” and “non-essential” functions is very, very difficult to draw. For that reason, it may well be best to accept the demarcations resulting from the development of our political economy. If the right of public employees to strike — with all its political and social ramifications — is to be recognized and protected by the judiciary, it should be done by the Supreme Court which has the power to reject established jurisprudence and the authority to enforce such a sweeping rule.