This opinion piece by Catherine Fisk and Edwin Chemerinsky is quite interesting. Did the Supreme Court accidentally set a precedent to eliminate bans on labor picketing?
Reed v. Town of Gilbert’s reasoning makes it clear that restrictions on labor picketing can no longer survive First Amendment scrutiny. Sections 8(b)(4) and 8(b)(7) of the National Labor Relations Act prohibit speech, including peaceful picketing, if a “labor organization” or its agents is the speaker and based on the message. Section 8(b)(7) prohibits picketing urging workers to join a union or employers to recognize one if the picketing lasts longer than “a reasonable time” not to exceed 30 days. Thus, the National Labor Relations Board’s enforcement arm sought to enjoin workers affiliated with Organization United for Respect at Walmart (OUR Walmart) from picketing with signs saying “Stand Up, Live Better,” “Walmart, respeta a los trabajadores” (Walmart, respect workers), and “Let Walmart Associates Speak Out.” And under 8(b)(7) fast food workers can picket outside restaurants with signs asking to be paid $15 an hour or that the city adopt a $15 minimum wage ordinance, but they cannot picket for more than a reasonable time urging workers to demand $15 and a union. Section 8(b)(4) prohibits picketing urging secondary boycotts, and thus prohibits members of a labor union from picketing at a retail store urging a boycott of the store because its low prices are the result of low wages paid by a subcontractor that produces goods sold in the store or that operates the warehouse whence the store’s goods are shipped. But a store employee would be allowed to picket to urge customers to shop at the store because of its low prices.
The 8(b)(4) and 8(b)(7) restrictions on picketing clearly violate the First Amendment as the Court interpreted it in Reed v. Town of Gilbert. They prohibit speech based on its content because they, as the Court explained, “single out specific subject matter for differential treatment.”
Therefore, the picketing restrictions in section 8(b)(4) and 8(b)(7) can be upheld only if they are narrowly tailored to serve a compelling governmental interest. In Reed v. Town of Gilbert, the Court assumed for the sake of argument that the government has a compelling interest in regulating aesthetics and traffic, but rejected the Town’s contention that the regulations were narrowly tailored to protect the Town’s aesthetic appeal or traffic flow because the law was under-inclusive – it allowed signs with some messages but not others. The government might argue that 8(b)(4) and 8(b)(7) serve the compelling interest of preventing unjustified work stoppages and consumer boycotts. Eliminating work stoppages and consumer boycotts is, in our view, not a compelling governmental interest. But even if it were, prohibiting picketing is both overbroad and under-inclusive. Any group other than a labor organization is free to urge a consumer boycott or that workers strike to demand higher wages, and even labor organizations are allowed to use leaflets (rather than picket signs) to urge boycotts or strikes. The picketing prohibitions are under-inclusive if the goal is to eliminate encouragement of boycotts and strikes. And 8(b)(4) and 8(b)(7) are over-inclusive to the extent that they prohibit peaceful advocacy rather than actually striking or boycotting.
I guess my views on this are like my usual belief about the Supreme Court–that the justices will create ways to enforce their own personal political preferences. This is quite the development and may create a path forward but it’s hard for me to believe that Clarence Thomas and Antonin Scalia care one whit for precedence when it might help a labor union.