The guideposts established by the Supreme Court for labor-related free speech rights have been shifting in recent years, but there ought to be serious doubts about the constitutionality of one Massachusetts labor law.
Section 9A of Chapter 150E of Massachusetts state law provides, “No public employee or employee organization shall engage in a strike . . . or condone any strike, work stoppage, slowdown or withholding of services by such public employees.” The statute further provides the state’s labor commission with authority to investigate violations and empowers courts to enforce its provisions, including through hefty fines and incarceration.
While federal courts have yet to weigh in on Section 9A’s constitutionality under the First Amendment, Massachusetts state courts have sustained the law in as-applied challenges. Yet in my view, Section 9A’s overbroad restrictions of free speech not only chill and prohibit important political speech; they can also result in compelled speech. As such, Section 9A is a constitutional triple-whammy.
Because the statute makes it illegal for individuals and associations to “induce, encourage or condone” strikes and related actions, it goes well beyond the traditional limitations on speech that the Supreme Court has found consistent with the First Amendment. Quoting the oft-cited Brandenburg test, the Supreme Court held in 2002 that “The government may suppress speech for advocating the use of force or a violation of law only if ‘such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.’” The Court further explained that speech which merely “whets the appetites of [lawbreakers] and encourages them to engage in illegal conduct” and is outlawed solely “because it increases the chance an unlawful act will be committed ‘at some indefinite future time’” may not constitutionally be proscribed under the First Amendment.
Under this framework, it would perhaps be constitutional to prohibit inducing a public sector strike — which is presently illegal — so long as inducement is narrowly defined as “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (though many, including famed Judge J. Skelly Wright, have suggested there many be an antecedent constitutional right to strike). However, to also prohibit encouraging or condoning a strike goes well beyond this narrow “incitement” exception to the First Amendment.
The Supreme Court has made clear that overbreadth in statutes restricting speech can be fatal because of the chilling effects that such statutes can have for individuals weighing whether to exercise their free speech rights. The potential for chilling free speech here is enormous given vague definitions of “condone” and “encourage” that might have employees questioning whether mere advocacy criticizing working conditions against the backdrop of a threatened strike hews too close to the line.
Indeed, to prohibit not just the inducement of a strike but also the encouragement or condonation of one impermissibly shuts off debate on political topics that are at the heart of political discourse. Strikes are almost always about employees’ wages, working conditions, and respect. And — for better and worse — Janus makes clear that when the discourse concerns public employees’ strikes, the conversation necessarily revolves around the government’s expenditure of funds, policies, or treatment of workers. These are, at their core, issues ripe for political engagement and redressable by political actors exercising supervisory responsibilities over workplace administrators.
To be sure, the Supreme Court has upheld laws prohibiting actions that “induce or encourage” secondary boycott designed solely to inflict economic damage upon a business as legitimate regulation of economic activity, but it has further emphasized that boycotts intended to achieve political reforms are constitutionally protected. Because the Massachusetts statute sweeps in both categories of speech, it is overbroad.
Of course, Section 9A is only applicable to “public employee[s] or employee organization[s].” Setting aside for a moment the fact that “employee organization[s]” may include individuals who are not employed by the government, the statute at issue does implicate the strand of First Amendment doctrine that governs employee speech. And yet, the prohibited conduct at issue still fails to appreciate the First Amendment’s protections, even for public employees.
When a public school teacher was fired for publishing an op-ed critical of school board officials, the Supreme Court declared this to violate the First Amendment, a holding recently reaffirmed by the Roberts Court. Justice Marshall, writing for the Court, explained:
To the extent that the Illinois Supreme Court’s opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court.
Certainly the same can be said for those advocating for public employee strikes. Indeed, the federal district court for Massachusetts, for example, recently invoked these cases when finding in favor of a teacher challenging her termination after she sent colleagues a private email encouraging them to delay a school’s accreditation to gain an advantage in negotiations. The district had invoked Section 9A to justify the termination, but the court held the teacher was acting in a personal capacity and was shielded from termination by the First Amendment.
Additionally, orders authorized under the statute to achieve compliance with its prohibitions place Section 9A deeper into constitutional jeopardy. For example, to cure prior encouragement of a strike, the labor commission has ordered union officials — under threat of incarceration and fines — to “publicly disavow” a proposed vote to strike “before the general membership by announcing this disavowal to the media in the same manner and method that the Union uses to announce other issue of importance to its membership”; to “notify the employees whom it represents of its public disavowal”; “to notify the employees whom it represents of their obligation to filly perform the duties of their employment, including the obligation not to participate in any form of strike or work stoppage”; and to rescind organizational bylaws and take other steps to ensure that the union does not engage in a strike.
These mandatory steps seem to wade deep into the realm of constitutionally prohibited compelled speech to remedy a statutory violation that itself seems to be on constitutionally shaky ground. As the Court declared some 80 years ago:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
While the Supreme Court has found an exception to the compelled speech doctrine to remedy legal violations, it has limited this exception to ordering statements of “purely factual and uncontroversial information” in the commercial context and has stated unreservedly that “where the State’s interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an individual’s First Amendment right to avoid becoming the courier for such message.”
In short, Section 9A fails to pass constitutional muster. For the law to remain in full force is a blight on the Commonwealth’s well-earned reputation as a trailblazer for constitutional liberty.