Union members and their supporters have been using their constitutional rights or freedom of association, assembly and speech in mass protests in the state capitol for three weeks, even receiving donations of Pizza orders for the sit in crew from Egypt. Unions have agreed to cuts in benefits and wages but are standing firm to protect collective bargaining.
The Governor layoff threat raises an interesting issue. He claims it is aimed at the underground Senators, but I believe it is actually aimed at making the union workers capitulate. As long as these workers hold out, so too will the Senators, but should they waver, the Senators will come home. Union protesters and their organized supporters are using, among other first amendment rights, the freedom of association which has been more protected by the courts than freedom of speech. In free speech we always have the danger of someone crying fire in a crowded theater; in the freedom of association we retain the right to quietly organize a group of friends to leave at the first whiff of smoke.
In NAACP v. Alabama ex rel. Patterson, 357 US 449 - Supreme Court 1958 the use of threat to freedom of association by the government was ruled unconstitutional. The state of Alabama was trying to force the NAACP to reveal their membership rolls, which would subject members to harassment from white racist organizations. The freedom of association and speech rights of labor organizations and their members was upheld in Hague v. Committee for Industrial Organization, 101 F. 2d 774 - Circuit Court of Appeals, 3rd Circuit 1939, where the Mayor of Jersey City had attempted to ban speech for organization purposes from the streets of his city. In Shelton v. Tucker, 364 US 479 - Supreme Court 1960 it was ruled that union teachers could not be discharged as a means of depriving them of freedom of association.
In NAACP v. Claiborne Hardware Co., 458 US 886 - Supreme Court 1982 the court ruled that intimidation aimed at the protest actions of an organization (a boycott) unconstitutionally deprived freedom of association and assembly. In Thornhill v. Alabama, 310 US 88 - Supreme Court 1940 ruled that legal action against the right of peaceful picket violate first amendment rights (press, speech and association). In Jones v. North Carolina Prisoners' Labor Union, Inc., 433 US 119 - Supreme Court 1977 the court affirmed labor organizations as having essentially the same freedom of association rights as other organizations, even to the extent of extending that to a prisoners labor union. If those rights apply their they must apply elsewhere. In Tinker v. Des Moines Independent Community School Dist., 393 US 503 - Supreme Court 1969, the court affirmed a district court ruling protecting freedom of association and speech in a protest (were students wore black armbands in protest against the Vietnam War and were suspended from school.) Numerous other cases can be cited protecting either the freedom of association and speech rights of union member, or those of protesters, or even simultaneously of both.
I believe that in light of the above freedom of association and speech cases the Governor of Wisconsin's threat unconstitutionally deprives both union members and their supporters of first amendment rights. I propose that labor organization in Wisconsin proceed to attempt to obtain an injunction against the Governor's actions on this basis.