This year at the Supreme Court, organized labor lost a major case: five Justices decided that home healthcare workers—one of the fastest growing groups of unionized workers—were not “full-fledged” public employees. These “quasi-public” employees can no longer work under the standard “fair share” model of union representation; under that model, all employees are required to pay a “fair share” for union representation, and the union has a corresponding duty to represent (and benefit) all of the workers, whether they themselves voted for the union or not. Following the Court’s decision in Harris v. Quinn, this enormous group of workers is being shifted to a “right to work” model. The union retains its duty of representing every worker in the bargaining unit; however, no worker has to pay her “fair share” for that representation, regardless of how much they benefit.
The onerous rules laid out in Harris mean that labor unions face a rocky road ahead. However, workers and unions may have also won an important victory in a case that on its face had nothing to do with them. In McCullen v. Coakley, the Roberts Court once again expanded its vision of the First Amendment, striking down a Massachusetts law that protected women seeking abortions by requiring buffer zones around the clinic where protesters could not stand, usually for the purpose of “counseling” and intimidating women.
The rights of anti-abortion activists may seem worlds apart from the rights of workers, but the McCullen decision signaled another expansion of First Amendment rights that could benefit workers. Most people would likely be surprised to learn that if they wished to engage in a strike, picket, or boycott in their capacity as a worker, the law places severe restrictions on their conduct. For example, many public workers can face injunctions, fines, or even criminal charges for striking their employer. Private sector workers face similar penalties for certain types of pickets or boycotts against their employer or companies that do business with their employer. In 1984, labor law scholar James Gray Pope described the odd exclusion of labor from general First Amendment jurisprudence: “On the ladder of First Amendment values,” Pope explained, “political speech occupies the top rung, commercial speech rests on the rung below, and labor speech is relegated to a ‘black hole’ beneath the ladder.” The Roberts Court has done much to raise commercial speech out of its second-class status, but workers’ labor speech rights still remain in Pope’s “black hole.”
To see an example of the strange restrictions on workers’ First Amendment rights, one need look no further than the recent organizing efforts against Wal-Mart. After the United Food and Commercial Workers (UFCW) affiliate OUR Walmart staged coordinated demonstrations in the weeks before Black Friday, Wal-Mart brought a suit against the UFCW  alleging that it had violated a provision of labor law that prohibits workers from picketing for more than 30 days if their goal is to form a union. Facing the real possibility of an injunction, followed by significant penalties, the union disavowed any intent to organize the workers and pledged not to engage in any picketing for 60 days.
However, if a pro Wal-Mart group were to stand alongside the union and encouraged customers to shop at Wal-Mart, or an anti-union group stood alongside the workers and encouraged the company to avoid unionization, or a human rights activist stood alongside the workers and carried the same message of poor treatment of workers, none of these would be forbidden from picketing for more than 30 days. Why? Because the First Amendment clearly protects their freedom of speech and assembly in delivering their message.
The restrictions on workers extend far beyond picketing. In the public sector, many states prohibit public employees from striking altogether, with some of these states having monetary or criminal sanctions for striking employees. Though striking may not immediately seem like speech that would be protected by the First Amendment, withholding one’s labor is at least as expressive as spending money, and the Court has equated the latter with speech. Furthermore, the National Labor Relations Act (NLRA), under which most private sector workers work, has been amended and interpreted in ways that restrict workers more than it protects them. Many of these restrictions stem from a section added by the Taft-Hartley Act in 1947 that has been interpreted by courts to tightly restrict workers’ rights to strike, picket, and boycott. Perhaps most important among these are the restrictions on workers striking “secondary” employers, that is, striking against not your own employer but a company that does business with the employer.
Farmworkers, excluded from coverage under the NLRA, have had notable successes using secondary strikes. When farmworkers have a dispute with growers—as they did with the Delano grape growers in the late 1960s—they not only strike against these growers, they also encourage boycotts of stores that carry the product. When there was talk of extending NLRA protection to farmworkers in 1969, Cesar Chavez told a Senate Subcommittee that the farmworkers would only accept such legal protections if they were exempt from the onerous restrictions of the Taft-Hartley and Landrum-Griffin amendments. “We want to be recognized, yes,” Chavez stated , “but not with a glowing epitaph on our tombstone.”
Secondary boycotts and strikes could be among the most effective tools for labor to use, were they legal, says Joseph Cohen, the General Counsel of the United Electrical, Radio and Machine Workers of America (UE). “The Secondary [boycott] would be more powerful today than at any time in history because the nature of the workforce has changed,” he said. With the rise of “permatemps” who are hired by staffing agencies but work at many of the nation’s largest companies—such as Walmart, Macy’s Nike, Frito-Lay, and others—employees are often disconnected from their primary employer . Cohen explained, “When Taft Hartley was passed, workers had disputes directly with their bosses and could put pressure directly on them. Now, too often, your dispute is not with your boss, but with your boss’s master.”
The Supreme Court’s recent McCullen decision expands First Amendment rights for protesters, but the grounds of the expansion may also apply to workers. In a unanimous decision, the Court in McCullen held that laws that stifled the message of anti-abortion advocates violated the First Amendment rights of the speakers. (The Court also found that the law was content neutral—that is, it didn’t prohibit just one viewpoint, but banned on all individuals from providing “counseling.” Had the Court found that the law was targeted at only prohibited anti-abortion advocates, it would have subjected it to an even higher level of scrutiny.) In essence, the Court upheld these individuals’ rights to picket an abortion clinic. However, if there had been workers alongside the anti-abortion advocates complaining about the use of a low-paying staffing agency at the clinic, or seeking union recognition, for example, they would still face significant legal sanctions.
But the labor movement should seize upon this post-McCullen moment to challenge the decades-long restrictions on workers’ free speech rights—rights that are protected for everybody else. In his concurring decision in McCullen, Justice Scalia complained that “there is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.” “I disagree with that statement,” Seattle University Law Professor Charlotte Garden says, “but I do think there is an ‘entirely separate, abridged edition of the First Amendment’ applicable to speech by labor unions.”
Using the First Amendment, the Roberts Court has held that corporations can spend unlimited amounts of money in federal elections and that a state law limiting pharmaceutical companies’ sale of doctors’ drug prescription data was equivalent to state censorship of corporate speech. Taken together, Professor Garden described these cases a “reject[ion of] the idea that speech can be limited because the speaker has an economic goal.” The Court went even further this term in equating money with speech when it struck down aggregate limits in federal campaign donations.
The Roberts Court also used the First Amendment to strike down laws restricting the picketing of military funerals with signs such as “God hates fags.” On the last day of this Supreme Court’s term, it issued two decisions on First Amendment principles. In Hobby Lobby, which was based on the Religious Freedom Restoration Act (RFRA) rather than the First Amendment, but followed a First Amendment analysis, the Court held that it violated RFRA to require closely held corporations to comply with the Affordable Care Act contraception coverage mandate. And in Harris v. Quinn, the Court held that the First Amendment did not permit a fair share provision for home healthcare workers where nonmembers of the union who are represented by the union would have to pay an agency fee for the benefits they receive.
The Court has so expanded the notion of speech that it is getting much harder to maintain the fiction that strikes, labor pickets, and boycotts are not as expressive as money or anti-abortion pickets. “The Court will not be able to distinguish cases like Citizens United [from challenges to restrictions on labor] in any principled way,” says James Pope. “And if Scalia or Alito and their clever law clerks come up with some formalistic distinction, then their views can be exposed for what they are.” But Pope cautions: “It only makes sense for labor to do this if they’re going to do it in concert with an education and political program. Because then, if it goes to the courts and the unions end up losing, you have something to grab on to. The issue will then be on full view.”