Tag Archive for: First Amendment

Supreme Court holds First Amendment protects expressive speech even in commercial setting, despite anti-discrimination statutory provisions

In 303 Creative, LLC v. Elenis, the Supreme Court held that the First Amendment protects expressive speech even in commercial setting, despite anti-discrimination statutory provisions. The highly controversial decision came in a party-line split decision and is sure to draw more litigation and eventual review by a future Supreme Court. Even the majority opinion noted its ruling fell in line with such previous decisions as one that protected Nazi speech and another that protected protests at soldiers’ funerals. The majority failed to provide any explanation or boundaries that future courts can use to identify protected “expressive speech,” holding there was no need to do so because, in this case, it contended, that the State of Colorado had stipulated the speech in this case — hypothetical speech since the case was filed by the speaker’s company prior to being asked to engage in any particular kind of speech — qualified as “expressive speech.”

Future courts will have to grapple not only with the soundness of the majority’s decision but its reach in cases where the parties have not entered into stipulations as far-reaching as the State of Colorado had here. For example, as the majority noted, the stipulations here included the following:

45. Through 303 Creative, Ms. Smith offers a variety of creative services to the public, including graphic design, and website design, and in concert with those design services, social media management and consultation services, marketing advice, branding strategy, training regarding website management, and innovative approaches for achieving client goals.
46. All of Plaintiffs’ graphic designs are expressive in nature, as they contain images, words, symbols, and other modes of expression that Plaintiffs use to communicate a particular message.
47. All of Plaintiffs’ website designs are expressive in nature, as they contain images, words, symbols, and other modes of expression that Plaintiffs use to communicate a particular message.

It is unlikely future litigants will be willing to enter into such stipulations in contended cases. As the dissent noted, the case also raised an issue of ripeness, which the majority held was resolved by the parties’ far-reaching stipulations, but absent such stipulations in future cases, ripeness may will be a significant challenge for would-be speakers’ rights proponents.

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Supreme Court holds public school coach’s midfield post-game prayer, with students, is protected by First Amendment

A 6-3 majority of the Supreme Court held in Kennedy v. Bremerton School Dist. that a public school coach’s midfield post-game prayer, with students, is protected by the First Amendment.

Respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head. Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech.

The dissent noted that the prayer was anything but post-game, as it occurred during the entire overall game-night event, which the coach began with a locker-room prayer, and while student-athletes weren’t ordered to participate they were, the evidence established, effectively coerced, allowing the coach to evangelize his public school government employee job.  Indeed, the dissent pointed out, evidence showed that others viewed the coach’s behavior as a sign that the public school itself was endorsing his prayers, itself a violation of the First Amendment’s church-state separations.

Readers are reminded that the First Amendment does not apply as against private employers.

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Hah-hah, just kidding. Not so much, says Board

The National Labor Relations Board held a company in violation for its CEO’s joke on the CEO’s personal Twitter stream. The CEO of the company posted, “FYI (company twitter handle) first one of you tries to unionize I swear I’ll send you back to the salt mine.” The employees who submitted evidence agreed the tweet was a joke. The Board disagreed and held the tweet was on its face a threat of anti-union retaliation, even if cloaked in a purported joke.

“In viewing the totality of the circumstances surrounding the tweet, this tweet had no other purpose except to threaten the (company’s) employees with unspecified reprisal, as the underlying meaning of ‘salt mine’ so signifies.”

The company argued that the CEO had a First Amendment right to speak on his personal Twitter account, and the Board agreed but noted, in footnote 9, that the First Amendment does “not extend to threats made by employers to workers” in violation of the NLRA.

Source: FDRLST Media, LLC, 370 NLRB No. 49 (11/24/2020).

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Rat balloon soon to be deflated by NLRB?

Bloomberg BNA reports that the NLRB General Counsel is looking to litigate one of organized labors’ favorite forms of protest: A giant inflatable rat. The effectiveness of the baloon is certainly questionnable, but it is equally undeniable that the presence of one draws attention. Often inflated in the back of a pickup truck, parked lawfully at a meter, or simply on the side of a street where a vehicle might otherwise park, these rats typically stand about twice as tall as a human: Usually under any local ordinance’s height limits.

The rats often draw much more attention than protesters might simply standing and handing out information to passersby, and that’s the point: Labor law generally distinguishes between handbilling and picketing. Handbilling is typically seen as pure speech, and as such, protected by the First Amendment, and subject to limited governmental constraints. Picketing is more easily constrained; picketing is subject to strict rules under the National Labor Relations Act for example.

In the NLRB’s 2011 Sheet Metal Workers Local 15, the Board held these rats were more like handbilling than picketing, and as such constitute symbolic speech within the First Amendment. Now, according to Bloomberg BNA, the NLRB General Counsel is looking to re-litigate that holding, contending that they should, instead, be subject to the picketing rules, and/or are at most a form of commercial speech. Commercial speech is generally afforded less protection under the First Amendment, though, in a perhaps curious twist, recent rulings by the Supreme Court seem to be suggesting the Court will afford put it on a higher constitutional footing.

 

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NLRB requires unions to state explicitly that they will work not to harm neutral employers when threatening “area standards” picketing

When companies work at the same site or even just near each other, a union — unhappy with one of them — may come to feel that actions at that location — such as that particular employer’s wage or benefit levels — are depressing “area standards.” Unions (like everyone) have a right to protest actions that affect their community, even if for example none of their members work for that employer. That is often the case because that particular employer is often a non-union company that the union is trying to organize.

Before commencing their protest activities, the union may warn not only that employer but all the employers at that location. The Board calls those other employers “neutrals.”

The Board require unions who give such warnings to explicitly state that they will work to minimize the impact on neutrals.

A union’s broadly worded and unqualified notice, sent to a neutral employer, that the union intends to picket a worksite the neutral shares with the primary employer is inherently coercive. Without any details, such a notice is ambiguous about whether the threatened picketing will lawfully target only the primary employer or will unlaw- fully enmesh the neutral employer. The neutral would understandably question why the union is sending a strike notice to an employer with no role in the dispute, and this question would reasonably lead it to at least sus- pect, if not believe, that its business would be targeted by the picketing and that it would be prudent to cease doing business with the primary employer to avoid losses. It would be unrealistic to expect neutral employers, many with little experience in arcane common-situs picketing law, to assume the union would avoid enmeshing them in the picketing. Thus, an unqualified picketing threat communicated to a neutral at a common situs is an am- biguous threat, and such an ambiguous threat enables a union to achieve the proscribed objective of coercing the neutral employer to cease doing business with the prima- ry employer—the very object a union seeks to achieve when it makes a blatantly unlawful threat to picket or unlawfully pickets a neutral. Accordingly, as our dis- senting colleague refuses to acknowledge, it is reasona- ble to conclude that when a union sends to a neutral an unqualified and therefore ambiguous notice of its intent to picket a common situs, it does so with an object to coerce the neutral to cease doing business with the pri- mary employer. A union may still lawfully inform a neutral of its intent to picket as long as it qualifies the notice by clearly indicating that its picketing will comply with legal limitations on such picketing.

Source: Electrical Workers IBEW Local 357, N.L.R.B., Case 28-CC-115255, 12/27/18

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Impact of Supreme Court’s Janus decision continues to expand, even beyond labor law

Bloomberg BNA published an interesting article looking at the expanding reach of the Supreme Court’s Janus decision in 2018, which held that public employers could not, under the First Amendment, be required to pay union dues or even a service fee. Many have predicted that Janus will have a major impact on unions in America. Its application to unionized workforces in the private sector is already being litigated. Bloomberg BNA’s article notes that its impact is expanding even beyond labor law:

  • Legal commentators are debating whether it has heightened the protections afforded commercial speech under the First Amendment. Historically commercial speech has of course enjoyed less protection than political speech.
  • It may have rendered unconstitutional laws in states that require attorney bar membership.
  • It may mean that statutes, like Title VII, which require one party to pay the other’s attorney fees are unconstitutional.
  • It may have rendered the NLRB’s longstanding rules that require, within limitations, that employers sometimes allow workers to wear political or pro-union buttons in the workplace.
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