Catherine Fisk is Chancellor’s Professor of Law at the University of California, Irvine. Erwin Chemerinsky is Dean and Distinguished Professor of Law at the University of California, Irvine School of Law.
For decades the Supreme Court has allowed restrictions on labor picketing, but its recent decision striking down a town’s sign ordinance makes clear that the limits on labor speech can no longer survive First Amendment scrutiny. On Thursday, June 18, the Supreme Court unanimously declared unconstitutional a Gilbert, Arizona ordinance that limited outdoor signs. The Court stressed that the ordinance was unconstitutional because it discriminated among speech based on its content. But that is exactly what restrictions on labor picketing do: treat speech that is advocating a pro-labor position differently from all other speech.
Reed v. Town of Gilbert involved an ordinance that limits outdoor signs that can be displayed. It prohibits the display of outdoor signs without a permit, but exempts 23 categories of signs. Signs were treated differently based on their content. For example, “political signs,” defined as signs “designed to influence the outcome of an election,” may be up to 32 square feet and may only be displayed during an election season. But “temporary directional signs,” defined as signs directing the public to a church or other “qualifying event,” have even greater restrictions: No more than four of the signs, limited to six square feet, may be on a single property at any time, and signs may be displayed no more than 12 hours before the “qualifying event” and one hour after.
The Good News Community Church (Church), whose Sunday church services are held at various temporary locations around the Town of Gilbert, challenged the ordinance. The Church relies on signs to let people know where worship services are being held.
The Supreme Court, in an opinion by Justice Thomas, declared this unconstitutional. The Court said that content-based restrictions on speech are allowed only if they are narrowly tailored to achieve a compelling government interest. The Court declared that “[g]overnment regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.”
The Court said that the Gilbert ordinance is content-based in that it treats differently signs – such as ideological or political signs – based on content. The Court noted that, “The restrictions in the Sign Code that apply to any given sign thus depend entirely on the communicative content of the sign.” The Court said that because the ordinance was content-based on its face, it had to be deemed content-based, whatever the justifications for the ordinance.
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.
The National Labor Relations Board can no longer constitutionally enforce sections 8(b)(4) and 8(b)(7). The Regional Offices should dismiss pending complaints and the General Counsel should no longer authorize enforcement actions and pursuit of injunctions against picketing under these statutes, and the Board should use one of the cases before it to revise its law to make the law of labor picketing consistent with the First Amendment.