The Speaker the Court Forgot: Re-Evaluating NLRA Section 8(b)(4)(B)'s Secondary Boycott Restrictions in Light of Citizens United and Sorrell
In the staggeringly unpopularCitizens United v. Federal Election Commission decision, the Supreme Court overruled precedent and struck down a federal law that placed restrictions on campaign spending by corporations and unions. Justice Stevens, writing for the dissent, observed that “[t]he basic premise underlying the Court’s ruling is . . . the proposition that the First Amendment bars regulatory distinction based on a speaker’s identity, including its ‘identity’ as a corporation.” Several commentators have argued that this basic premise will lead to the erosion or even the complete abandonment of the commercial speech doctrine, which holds that commercial speech—“speech which does no more than propose a commercial transaction”—is a less protected form of speech under the First Amendment. As Tamara Piety, a fierce opponent of the deregulation of corporate and commercial speech, put it: “[i]f a for-profit corporation is entitled to full First Amendment protection when it engages in political speech—speech which is in some sense peripheral to its existence—then it would seem [that] full protection for [commercial speech,] its core expressive activity[,] should follow.” Piety’s observation was prescient: in Sorrell v. IMS Health Inc., decided barely a year and a half after Citizens United, the Supreme Court appears to have begun reformulating the commercial speech doctrine, reasoning that a Vermont statute regulating commercial speech warranted “heightened judicial scrutiny” because the law “impose[d] a content- and speaker-based burden on . . . speech.”
Sorrell suggests that the Court intends to adhere to Citizens United’s basic premise and increasingly scrutinize—and strike down—restrictions on all forms of corporate speech. This leads to an obvious question without an obvious answer: if the First Amendment bars all regulatory distinction based on a speaker’s identity, including its identity as a corporation, does it also bar all regulatory distinctions based on the speaker’s identity as a labor union? If the Citizens United and Sorrell decisions existed in a legal, historical, and political vacuum, the answer to this question would surely be yes. After all, the law that the Court so vehemently struck down in Citizens United regulated the political expenditures of both corporations and unions. If the Court is now (albeit tacitly) applying Citizens United’s rationale to commercial speech—speech that is quintessentially an economic activity, not a form of self-expression—it follows that union speech, whether on political or economic matters, should be treated no differently by the Court than similar speech by corporations, non-corporate institutions, and individuals.
But case law does not exist in a vacuum. For over half a century, the Supreme Court has evidenced a bias against union speech. The scope of this bias was eloquently conveyed by James Pope nearly three decades ago:
[W]hile secondary boycott picketing by a civil rights organization demanding economic justice for blacks has been protected under the First Amendment, secondary boycott picketing by unions demanding economic justice for workers and protesting the Soviet invasion of Afghanistan has not. . . . Corporate speech may not be restricted solely on the ground that the speaker is a corporation, but labor picketing may be restricted under statutes that apply only to labor unions, leaving other groups free to engage in precisely the same activities. . . . Civil rights organizations have been accorded First Amendment protection against anti-communist affidavit requirements; labor unions have not. Civil rights organizations have been permitted to conduct sit-in protests against private business practices on private property, labor unions have not.
As noted by Pope, the double standard that the Court has applied to union speech is well illustrated in the context of secondary boycotts, which are restricted by section 8(b)(4)(B) of the National Labor Relations Act. The term secondary boycott has been succinctly defined “as a combination to influence A by exerting economic or social pressure against persons with whom A deals.” The employer with which a union has a dispute is known as the “primary” employer. During secondary boycotts, unions employ handbilling, picketing, or striking to put pressure on a “secondary” employer—an employer “with which the primary employer has a business relationship”; “the object of such pressure usually is to alter that business relationship to the detriment of the primary employer and thereby to raise the cost to the primary employer of continuing the labor dispute.” The following example helps to illustrate how section 8(b)(4)(B) restricts unions’ ability to engage in a secondary boycott.
Imagine the following scenario: two people stand in front of a Best Buy store, each carrying a sign. One of the two people is a unionist; her sign asks consumers to boycott the store because it sells iPads that are produced by non-union child labor in China. The second sign is carried by a Best Buy employee; her sign advertises that iPads are currently on sale in the store at a bargain price. While the store’s advertising activity in this scenario is legal, the unionist’s activity—known as secondary consumer picketing—is barred by section 8(b)(4)(ii)(B) of the NLRA because it is a form of secondary boycott. Even though this restriction is “a textbook example of viewpoint discrimination,” section 8(b)(4)(ii)(B) has been upheld by the Court for over fifty years.
Now picture a third person in front of the store, also holding a sign. This person is a human rights activist; her sign instructs consumers to boycott Best Buy because it sells iPads, which are manufactured by Apple, a company that exploits Chinese workers. “Like the unionist, the human rights activist is urging a secondary boycott of the store. However, her activity is not illegal under the [NLRA] because section 8(b)(4)(ii) applies only to unionists, leaving others to engage in precisely the same activities.” Even under pre-Citizens United jurisprudence, labor scholars argued that—because section 8(b)(4)(ii)(B) applies only to unions—it “violates the First Amendment principle of neutrality among speakers.” But this argument was slightly off the mark because the neutrality principle that served as the argument’s foundation—the principle that “[t]he inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual”—was not consistently applied by the Court, even in the context of corporate political speech. And before Sorrell, the neutrality principle had never been invoked to justify heightened scrutiny in a commercial speech case. Citizens United’s re-affirmation of the neutrality principle in the context of corporate political speech and the Sorrell Court’s prompt extension of that principle to corporate commercial speech indicates a sea change.
But will the ripples of that change reach the shores of labor law? In light of the Supreme Court’s historical anti-union bent, will the Court be willing to consistently apply the neutrality principle and re-evaluate its jurisprudence in the area of union speech? If the answer is no, this would indicate that the Court’s rhetoric denouncing speaker-based restrictions is nothing more than a facade. When the Court deals with speech by labor unions, it will continue to find ways to uphold speaker-based restrictions on the union’s expression by stating that the restrictions must be read so as to avoid Constitutional questions, or by labeling the expression as conduct rather than speech, or by asserting that the expression in question is too effective. But when the Court analyzes a restriction of corporate speech, it will conclude that the facial validity of the restriction simply must be considered, or proclaim that “[t]he Government may not. . . deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration,” or announce that the speech is subject to heightened scrutiny because it is content- and speaker-based. On the other hand, maybe the Court is prepared to harshly scrutinize all identity-based restrictions of speech—even restrictions that target labor unions. Indeed, the current Court has been praised for its “almost aggressive, pervasive and nearly unanimous protection of fairly basic First Amendment Principles” during the 2010 term.
Because further speculation on this point is likely fruitless, this Note will assume that there is at least a possibility that the Court is willing to seriously reconsider its First Amendment jurisprudence in the area of union speech. Given this optimistic assumption, this Note will argue that Citizen United’s basic premise should lead the Court to strike down the restrictions on unions’ use of secondary boycotts that are imposed by section 8(b)(4)(B) of the NLRA. The argument that section 8(b)(4)(B) violates the First Amendment is not a novel one. But it is an argument that needs to be reformulated in light of Citizens United and Sorrell because the Court’s recent, seemingly unconditional embrace of the neutrality principle of the First Amendment provides union advocates with a powerful modern doctrine that makes section 8(b)(4)(B)’s demise a distinct possibility.
This Note argues (1) that Citizen United’s neutrality principle in the context of corporate political speech should lead the Court to strike down the ban on political secondary boycotts and (2) that Sorrell’s use of the neutrality principle in the context of corporate commercial speech should lead the Court to strike down restrictions on economic secondary boycotts or—at the very least—to apply heightened scrutiny to such boycotts. After providing a brief background on the history that led to the adoption of section 8(b)(4)(B), Part I of this Note examines the Supreme Court’s interpretation of 8(b)(4)(B), focusing primarily on how the section has been applied in the context of secondary consumer picketing and political secondary boycotts. Part II discusses Citizens United, Sorrell, and the neutrality principle that is at the core of both decisions. Part III argues that, given the Court’s invocation of the neutrality principle in the context of corporate political and commercial speech, there is no principled justification for upholding section 8(b)(4)(B)’s secondary boycott restrictions.
The Speaker the Court Forgot: Re-Evaluating NLRA Section 8(b)(4)(B)'s Secondary Boycott Restrictions in Light of Citizens United and Sorrell,
90 Wash. U. L. Rev. 237
Available at: https://openscholarship.wustl.edu/law_lawreview/vol90/iss1/5