Labor Picketing, the Right to Protest, and the Neoliberal First Amendment

Introduction

In the labor world, all eyes have been on the Supreme Court’s use of the First Amendment to undermine the survival of public-sector unions. However, the Court’s First Amendment jurisprudence also poses a critical dilemma to private-sector unions in asserting their right to protest effectively. Unions face suffocating statutory restrictions on picketing and related protest that do not apply to any other protest speaker, restrictions that subject unions to injunctions and daunting damages. These restrictions may soon become even broader. The new Secretary of Labor may seek to extend the restrictions to non-union grassroots workers’ rights organizations, and the new majority and general counsel on the National Labor Relations Board may well seek to roll back the Board’s recent limitations on the application of these restrictions to various types of union protest. At the same time, recent Supreme Court decisions that have established sweeping First Amendment protections for corporate and commercial speech, in part by rejecting distinctions based on identity of speaker or subject matter of speech, offer a tantalizing route to challenge the prohibitions on labor picketing on constitutional grounds.

This article argues that notwithstanding some unfavorable precedents, a long line of First Amendment decisions on picketing, boycotts, and other protest speech require the Court to dismantle the statutory restrictions, even as narrowed by the appellate courts and the NLRB. At the same time, I argue, contrary to some advocates for labor’s constitutional right to picket, that unions should avoid the temptation to rely on the Court’s recent First Amendment turn. Success on those grounds would carry dangerous implications by further undermining critical distinctions between corporate or commercial speech on the one hand and labor speech on the other, and by threatening regulation of corporate or commercial speech on which unions, their members, and constituencies depend.

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