The First Amendment has long had an uneasy relationship with labor law, an area riddled with exceptions to normal protections for expressive conduct.1×1. See, e.g., Catherine L. Fisk, A Progressive Labor Vision of the First Amendment: Past as Prologue, 118 Colum. L. Rev. 2057, 2072–73 (2018). One such exception is the ban on secondary boycotts and the encouragement thereof.2×2. See 29 U.S.C. § 158(b)(4)(i) (2018). In 1951, the Supreme Court held this ban not to violate the First Amendment.3×3. IBEW v. NLRB, 341 U.S. 694, 705 (1951). Last October, in NLRB v. International Ass’n of Bridge, Structural, Ornamental, & Reinforcing Iron Workers, Local 2294×4. 941 F.3d 902 (9th Cir. 2019). (Local 229), the Ninth Circuit used this precedent to enforce a cease-and-desist order against Local 229.5×5. Id. at 903, 906–07. The court erred in concluding that no developments in First Amendment law warranted revisiting the precedent. Such a holding perpetuates an inconsistency in the law, with courts invoking the First Amendment when — but only when — it is to the detriment of unions.
In 2016, McCarthy Building Companies, Inc. (McCarthy), a general contractor, hired two subcontractors, Western Concrete Pumping (WCP) and Commercial Metals Company (CMC), to construct a parking structure.6×6. Id. at 904. Local 229 engaged in a wage dispute with WCP, and another labor organization, also involved in the dispute, set up a picket line.7×7. Id.; Int’l Ass’n of Bridge, Structural, Ornamental, & Reinforcing Iron Workers, Local 229 (Local 229), 365 N.L.R.B. No. 126, at 2 (Aug. 30, 2017). The other organization, Operating Engineers Local 12, was not a party to the case. Local 229, 365 N.L.R.B. No. 126, at 2. The picket line was located such that CMC employees could not get to work without crossing it. Id. at 4. Local 229’s business agent, James Alvernaz, began texting CMC employees a picture with the words “Friends Don’t Let Friends Cross” and a link to a page entitled “Picket Line Etiquette.”8×8. Local 229, 365 N.L.R.B. No. 126, at 3 (capitalization omitted); Picket Line Etiquette, LiUNA! Local 582, https://www.local582.us/picket-line-etiquette [https://perma.cc/N3J8-ELET]. The page’s “first commandment” was “Thou Shall Not Cross the Line.”9×9. Picket Line Etiquette, supra note 8 (capitalization omitted). That same command would appear on flyers Alvernaz distributed over the subsequent days. Local 229, 365 N.L.R.B. No. 126, at 3. Alvernaz moreover encouraged those employees, on the phone and in person, to boycott CMC to pressure it or McCarthy to stop doing business with WCP.10×10. Local 229, 365 N.L.R.B. No. 126, at 3.
CMC filed a charge against Local 229, alleging an unfair labor practice under the National Labor Relations Act11×11. 29 U.S.C. §§ 151–169 (2018). (NLRA).12×12. Local 229, 941 F.3d at 904. Section 8(b)(4)(i)(B) of the NLRA declares it an unfair labor practice to “engage in, or to induce or encourage any individual . . . to engage in, a strike or a refusal in the course of his employment to . . . perform any services,” where a purpose is to pressure “any person to . . . cease doing business with any other person.”13×13. 29 U.S.C. § 158(b)(4)(i). Liability under the NLRA is civil. See id. § 160(b). In other words, it prohibits engaging in or encouraging secondary strikes.14×14. See Local 229, 941 F.3d at 905. Before Administrative Law Judge Cracraft, Local 229 stipulated that Alvernaz’s purpose was to “induce or encourage CMC employees to strike or refuse to perform work for CMC in support” of the wage dispute.15×15. Local 229, 365 N.L.R.B. No. 126, at 4. Judge Cracraft found, accordingly, that Local 229 had engaged in an unfair labor practice.16×16. See id.
Judge Cracraft proceeded to deny Local 229’s defenses. The union argued that the provision facially violated the First Amendment under the new rule articulated by Reed v. Town of Gilbert,17×17. 135 S. Ct. 2218 (2015). which expanded the “content-based” designation and thus the applicability of strict scrutiny.18×18. See Local 229, 365 N.L.R.B. No. 126, at 4 & n.22 (citing Reed, 135 S. Ct. at 2227). Judge Cracraft disagreed, holding that IBEW v. NLRB,19×19. 341 U.S. 694 (1951). which had found the predecessor of section 8(b)(4)(i)(B) not to violate the First Amendment, remained good law.20×20. Local 229, 365 N.L.R.B. No. 126, at 5 & n.24 (citing IBEW, 341 U.S. at 705). IBEW also belied the claim that inducement or encouragement under the NLRA required “threat of reprisal or force or promise of benefit.”21×21. Id. at 5 (citing IBEW, 341 U.S. at 701–02). Judge Cracraft also denied Local 229’s Thirteenth Amendment and Religious Freedom Restoration Act (RFRA) claims. Id.
She recommended the National Labor Relations Board (Board) issue a cease-and-desist order and require Local 229 to post a notice in its offices to apprise its members of the prohibition on encouraging secondary strikes of CMC.22×22. Id. at 6–7. The Board adopted her order23×23. Id. at 1. and, in November of 2017, sought enforcement of the order in court.24×24. Application for Enforcement of an Order of the National Labor Relations Board, Local 229, 941 F.3d 902 (9th Cir. 2019) (No. 17-73210).
Writing for the Ninth Circuit panel, Judge Rawlinson25×25. Judge Rawlinson was joined by Judges Schroeder and Lasnik. Judge Lasnik, of the Western District of Washington, was sitting by designation. granted the petition.26×26. Local 229, 941 F.3d at 907. Addressing the First Amendment claim, she noted that in IBEW, “[w]ithout applying strict scrutiny, the Supreme Court concluded that . . . the prohibition [of peaceful picketing to encourage secondary boycotts] ‘carries no unconstitutional abridgment of free speech.’”27×27. Id. at 905 (quoting IBEW v. NLRB, 341 U.S. 694, 705 (1951)). “[T]he words ‘induce or encourage’ are broad enough to include in them every form of influence and persuasion,” she quoted, refuting Local 229’s claim that the holding covered only picketing.28×28. Id. (quoting IBEW, 341 U.S. at 701–02). And “[t]he two circuits to address the First Amendment implications of Section 8(b)(4)(i)(B) in the context of pure speech”29×29. Id. (as opposed to picketing) had held that the “First Amendment is not at all implicated.”30×30. Id. (quoting Warshawsky & Co. v. NLRB, 182 F.3d 948, 952 (D.C. Cir. 1999)); see id. at 905–06. The cases in question were NLRB v. Local Union No. 3, IBEW31×31. 477 F.2d 260 (2d Cir. 1973). and Warshawsky & Co. v. NLRB,32×32. 182 F.3d 948. dated 1973 and 1999. Since these cases were decided, Judge Rawlinson concluded, “no changes to First Amendment jurisprudence” warranted a different analysis.33×33. Local 229, 941 F.3d at 906. Judge Rawlinson cabined Reed narrowly to its facts,34×34. See id. (“Reed involved content-based restrictions in a municipal ordinance regulating signs directed toward the general public.” (citing Reed v. Town of Gilbert, 135 S. Ct. 2218, 2225–26 (2015))). buttressing this reading by citing Agostini v. Felton,35×35. 521 U.S. 203 (1997). in which the Supreme Court cautioned against reading implicit overrulings into its decisions.36×36. Local 229, 941 F.3d at 906 (citing Agostini, 521 U.S. at 237). And Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council37×37. 485 U.S. 568 (1988). provided no relief: that case pertained to a consumer boycott.38×38. See Local 229, 941 F.3d at 906 (citing DeBartolo, 485 U.S. at 581–82). DeBartolo moreover did not address the constitutional issue, but rather resolved the case on statutory interpretation grounds. DeBartolo, 485 U.S. at 588. Accordingly, IBEW was still good and applicable law, and Alvernaz’s pure speech could constitutionally be proscribed.39×39. See Local 229, 941 F.3d at 906.
Finally, the court rejected Local 229’s statutory defense. Section 8(c) of the NLRA provides that expressing or disseminating “views, argument, or opinion . . . shall not constitute or be evidence of an unfair labor practice” absent “threat of reprisal or force or promise of benefit.”40×40. 29 U.S.C. § 158(c) (2018). But, relying once again on IBEW, the court agreed with the Board that this did “not immunize activities that violate[d] Section 8(b)(4).”41×41. Local 229, 941 F.3d at 906 (citing IBEW v. NLRB, 341 U.S. 694, 704–05 (1951)). The court also rejected Local 229’s RFRA, Thirteenth Amendment, and notice claims. Id. at 907. As such, Judge Rawlinson granted the Board’s petition for enforcement.42×42. Id. at 907.
The court erred in concluding that no developments in First Amendment law warranted revisiting IBEW. IBEW was colored by a now-eroded labor exceptionalism. Case law has since standardized the First Amendment, and the underlying justifications for treating labor as distinct have weakened. Meanwhile, Reed, by defining “content-based”43×43. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2224 (2015). broadly, expanded strict scrutiny. Agostini cannot justify ignoring this development. These changes call for strict scrutiny of section 8(b)(4)(i)(B). And this call is only amplified as speaker-based distinctions have come under increased constitutional fire.
The precedents on which the Ninth Circuit relied reflect a period of labor exceptionalism. Labor activism was key to the development of the First Amendment in the early twentieth century.44×44. See, e.g., Laura Weinrib, The Right to Work and the Right to Strike, 2017 U. Chi. Legal F. 513, 525–28. But starting in the 1940s, the Supreme Court clamped down on labor protest, viewing it as coercive economic conduct as opposed to persuasive political speech.45×45. Catherine L. Fisk, David E. Feller Memorial Labor Law Lecture, Is It Time for a New Free Speech Fight? Thoughts on Whether the First Amendment Is a Friend or Foe of Labor, 39 Berkeley J. Emp. & Lab. L. 253, 258–62 (2018); Fisk, supra note 1, at 2066–71; see also Richard Blum, Labor Picketing, the Right to Protest, and the Neoliberal First Amendment, 42 N.Y.U. Rev. L. & Soc. Change 595, 604 (2019) (noting the Court’s “speech-plus” conception of picketing). This conception proved sticky. In NAACP v. Claiborne Hardware Co.,46×46. 458 U.S. 886 (1982). for instance, even as it safeguarded secondary boycotts and pickets by civil rights protestors, the Court expressly carved out from this protection identical acts by unions.47×47. Id. at 911–12. The boycotts were secondary in that participants boycotted white merchants in order to pressure elected officials to accede to their political demands toward racial equality. See id. at 899–900. “Since the early 1940s,” notes Professor Catherine Fisk, “the First Amendment has not been salient to labor law.”48×48. Fisk, supra note 1, at 2070. The precedents underlying Local 229 were thus informed by a context where First Amendment law was not especially applicable.
But in recent years, the Court has narrowed the gap between labor speech and other kinds of speech. This is part of a broader trend in the Roberts Court’s jurisprudence, namely its attempt to standardize First Amendment law.49×49. See, e.g., Joel M. Gora, Free Speech Matters: The Roberts Court and the First Amendment, 25 J.L. & Pol’y 63, 67, 71 (2016). For a critical view of this development, see Richard L. Hasen, Citizens United and the Illusion of Coherence, 109 Mich. L. Rev. 581, 582–83 (2011). For instance, Citizens United v. FEC,50×50. 558 U.S. 310 (2010). in which the Court struck down restrictions on corporate electoral spending,51×51. Id. at 318–19. was peppered with language suggesting that a primary motivation was increasing consistency throughout the First Amendment.52×52. E.g., id. at 329 (rejecting “intricate case-by-case determinations”); id. at 353 (“This differential treatment cannot be squared with the First Amendment.”); id. at 385 (Roberts, C.J., concurring) (“[C]ontinued adherence to [the precedent overruled] threatens to subvert the ‘principled and intelligible’ development of our First Amendment jurisprudence . . . .” (quoting Vasquez v. Hillery, 474 U.S. 254, 265 (1986))); see also Hasen, supra note 49, at 582–83. In so doing, it threatened to “collapse the distinction between commercial speech . . . and protected political or artistic expression.”53×53. Tamara R. Piety, Brandishing the First Amendment 4 (2012). Janus v. AFSCME, Council 3154×54. 138 S. Ct. 2448 (2018). crystallized this move toward uniformity in the labor realm. There, the Court held that the First Amendment protected the choice not to subsidize labor speech, thereby rejecting subject-matter differentiation.55×55. See id. at 2459–60, 2464, 2484 (“[W]e end the oddity of privileging compelled union support over compelled party support . . . .” Id. at 2484.). That opinion, too, stressed consistency, noting that the decision would “bring a measure of greater coherence to our First Amendment law.”56×56. Id. at 2484. Since it would be peculiar to hold that subsidizing speech is more worthy of protection than is speech itself,57×57. See William Baude & Eugene Volokh, The Supreme Court, 2017 Term — Comment: Compelled Subsidies and the First Amendment, 132 Harv. L. Rev. 171, 190 (2018) (“[C]ompelling us to give money does not appreciably restrict our speech . . . [or] compel us to speak or to believe.”). Janus seems to effectively reject IBEW’s suggestion, and Local Union No. 3’s and Warshawsky’s holdings, that pure labor speech is subject to weaker First Amendment protection than is other pure speech.
In addition to this express flattening, the underlying justifications for distinguishing labor speech have softened. First, a onetime political/economic distinction has eroded.58×58. See, e.g., Fisk, supra note 1, at 2061–62 (noting the Court’s “determination to erase the First Amendment line between political and economic speech in the labor law realm,” id. at 2062). Labor protest was once deemed economic activity; indeed, this was a key ground for upholding restrictions thereon in the 1940s and ’50s.59×59. See, e.g., Int’l Bhd. of Teamsters, Local 695 v. Vogt, Inc., 354 U.S. 284, 292 (1957); Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502–03 (1949); see also Blum, supra note 45, at 600. But Janus is one of several recent cases to note that many union-negotiated terms are “of great public importance.”60×60. Janus, 138 S. Ct. at 2475; accord Harris v. Quinn, 134 S. Ct. 2618, 2642–43 (2014). This renders labor activity political, rather than merely economic.61×61. See Fisk, supra note 1, at 2062–63; see also Janus, 138 S. Ct. at 2475–76. Second, the coercive nature of labor activity was once, but is no longer, cause for its separate regulation.62×62. E.g., Blum, supra note 45, at 600; Fisk, supra note 1, at 2080–81; Charlotte Garden, Citizens, United and Citizens United: The Future of Labor Speech Rights?, 53 Wm. & Mary L. Rev. 1, 19–20 (2011) (describing the Court’s justifications for treating nonviolent picketing as coercive). For instance, coercion was cited in Claiborne as a reason for carving out labor activity.63×63. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 912 (1982). Yet the coercive potential of picketing has been blunted. Before the demise of compulsory union membership, a worker who crossed a picket line could “los[e] union membership and, consequently, the ability to work,” a threat that no longer exists.64×64. Fisk, supra note 1, at 2081; see id. at 2080–81. These factors had motivated treating labor picketing as less protected;65×65. See, e.g., Bakery & Pastry Drivers Local 802 v. Wohl, 315 U.S. 769, 776–77 (1942) (Douglas, J., concurring); cf. Fisk, supra note 45, at 258–60. their elimination calls for greater uniformity.
Even as the First Amendment has become more enmeshed with labor law, it has also since the 1990s become generally stronger. Reed expanded the “content-based” designation, mandating strict scrutiny in a broader swath of cases.66×66. See Genevieve Lakier, Reed v. Town of Gilbert, Arizona, and the Rise of the Anticlassificatory First Amendment, 2016 Sup. Ct. Rev. 233, 235. “[R]egulation of speech is content based if a law applies . . . because of the topic discussed or the idea or message expressed.”67×67. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015). Reed designated as content-based not only laws with a discriminatory purpose, but also those that can be “justified by reference to a content-neutral purpose” but that are facially nonneutral.68×68. Lakier, supra note 66, at 235 (citing Reed, 135 S. Ct. at 2227). Under a previous line of reasoning, facially content-based laws had been upheld if they could nevertheless be “justified without reference to the content of the speech they regulated,”69×69. Id. at 247; see id. at 246–47, 247 n.61 (describing the test and collecting cases). leaving the door ajar for regulation (including labor regulation) to draw content distinctions for content-neutral reasons.70×70. See id. at 265–67, 265 n.139, 266 n.142. Reed thus constituted a major shift, with already far-reaching implications.71×71. Id. at 235. But see, e.g., Dan V. Kozlowski & Derigan Silver, Measuring Reed’s Reach: Content Discrimination in the U.S. Circuit Courts of Appeals After Reed v. Town of Gilbert, 24 Comm. L. & Pol’y 191, 193 (2019) (“[C]ircuit courts have largely read [Reed] narrowly.”). It was the starting point, in National Institute of Family & Life Advocates v. Becerra72×72. 138 S. Ct. 2361 (2018). (NIFLA), for the Supreme Court’s refusal to categorically exempt “professional speech” from strict scrutiny;73×73. Id. at 2371–72. and in Victory Processing, LLC v. Fox74×74. 937 F.3d 1218 (9th Cir. 2019). for the Ninth Circuit’s application of strict scrutiny to a facially content-based robocall statute.75×75. Id. at 1226 (citing Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227–28 (2015)); see also Lakier, supra note 66, at 235 & n.11 (citing Sarver v. Chartier, 813 F.3d 891, 905–06 (9th Cir. 2016), for an example of a law that might previously have been upheld). Neither opinion paused to consider whether Reed’s holding was relevant to evaluating the challenged regulation. Instead, each treated Reed as the presumptive rule for all content-based restrictions on speech.76×76. See NIFLA, 138 S. Ct. at 2371; Victory Processing, 937 F.3d at 1226.
Local 229 papered over this change by citing Agostini to justify a narrow reading of Reed.77×77. See Local 229, 941 F.3d at 906. But this reliance is misplaced. Agostini is a poor fit for Reed, a case that implicitly overruled “multiple decisions in which the Court did what the Reed majority said it had never done.”78×78. Lakier, supra note 66, at 235. Specifically, the Court had “construed facially content-based laws as content-neutral because of the purposes that justified them.”79×79. Id. at 252. In any case, IBEW is not quite on point: it permitted restrictions on picketing used to encourage secondary boycotts.80×80. IBEW v. NLRB, 341 U.S. 694, 696, 705 (1951). Only circuit courts extended IBEW to pure speech.81×81. Warshawsky & Co. v. NLRB, 182 F.3d 948, 952 (D.C. Cir. 1999); NLRB v. Local Union No. 3, IBEW, 477 F.2d 260, 266 (2d Cir. 1973). Moreover, these cases mistakenly use IBEW’s statutory interpretation language to support constitutionality. Warshawsky, 182 F.3d at 952 (“[T]he words induce or encourage are broad enough to include in them every form of influence and persuasion.” (quoting IBEW, 341 U.S. at 701–02)); Local Union No. 3, 477 F.2d at 266. In United States v. Sineneng-Smith, No. 19-67 (U.S. May 7, 2020), similar language was at issue, see id. at 1. While the Supreme Court refused to decide the case on the merits, see id. at 3, the government acknowledged that the statute “could not be applied to the full extent of its literal language,” Gabriel Chin, Opinion Analysis: Lawyers Should Lawyer, Judges Should Judge — The Court Remands Sineneng-Smith, SCOTUSblog (May 7, 2020, 4:24 PM), https://www.scotusblog.com/2020/05/opinion-analysis-lawyers-should-lawyer-judges-should-judge-the-court-remands-sineneng-smith [https://perma.cc/L42W-WRE3], rendering such an expansive reading particularly dubious. As such, Agostini’s admonition against overruling directly applicable Supreme Court precedent82×82. Agostini v. Felton, 521 U.S. 203, 237 (1997). is not implicated.
Together, these cases effect a “change to First Amendment jurisprudence” that, contrary to Local 229’s assertions, “warrant[s] divergence” from IBEW.83×83. Local 229, 941 F.3d at 906; see id. (insisting the opposite). As applied, section 8(b)(4)(i)(B) regulated Alvernaz’s texts, phone calls, and conversations84×84. Local 229, 365 N.L.R.B. No. 126, at 3–4 (Aug. 30, 2017). : in other words, his pure labor speech. It is facially content based: it prohibits union members from discussing a “particular subject matter”85×85. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015). — “the propriety of engaging in a strike”86×86. Respondent’s Opening Brief at 23, Local 229, 941 F.3d 902 (No. 17-73210). — and distinguishes based on a particular “function or purpose,”87×87. Reed, 135 S. Ct. at 2227. encouraging a secondary strike.88×88. Respondent’s Opening Brief, supra note 86, at 23. Tellingly, the Board did not attempt to rebut this contention, see Brief for the National Labor Relations Board at 21–40, Local 229, 941 F.3d 902 (No. 17-73210), and given its finding that Reed did not apply, the court did not undertake this analysis, see Local 229, 941 F.3d at 906. Section 8(b)(4)(i)(B) is therefore content-based regulation of pure speech, and, like all content-based regulation of pure speech, should be subjected to strict scrutiny.
In addition to clamping down on content-based distinctions, the Court has also shown increasing hostility to speaker-based distinctions.89×89. See Michael Kagan, Speaker Discrimination: The Next Frontier of Free Speech, 42 Fla. St. U. L. Rev. 765, 766 (2015). Historically, such distinctions were not a standalone ground for strict scrutiny.90×90. See id. at 771–72; see also Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 645 (1994) (“So long as they are not a subtle means of exercising a content preference, speaker distinctions . . . are not presumed invalid under the First Amendment.”). But Citizens United suggested a different inclination. There, the Court held that a speaker’s corporate identity could not justify weaker First Amendment protection for its political speech.91×91. See Citizens United v. FEC, 558 U.S. 310, 365 (2010). It is unclear whether this holding implies that speaker-based distinctions constitute a discrete form of discrimination92×92. See, e.g., id. at 340 (“Quite apart from the purpose or effect of regulating content, moreover, the Government may commit a constitutional wrong when by law it identifies certain preferred speakers.”); United Food & Commercial Workers Local 99 v. Brewer, 817 F. Supp. 2d 1118, 1126 (D. Ariz. 2011) (concluding that a law that imposed speech burdens only on certain unions was subject to strict scrutiny); Kagan, supra note 89, at 782. or rather inform a finding of content-based discrimination.93×93. See, e.g., Reed v. Town of Gilbert, 135 S. Ct. 2218, 2230 (2015) (“[L]aws favoring some speakers over others demand strict scrutiny when the legislature’s speaker preference reflects a content preference.” (quoting Turner, 512 U.S. at 658)); Thomas v. Bright, 937 F.3d 721, 729 (6th Cir. 2019) (“[A] law regulating speech is facially content-based if it . . . ‘distinguish[es] among different speakers’ . . . .” (alteration in original) (quoting Citizens United, 558 U.S. at 340)); Carey v. Wolnitzek, 614 F.3d 189, 200 (6th Cir. 2010) (subsuming speaker-based distinctions within content-based distinctions). But in either case, it begs a parallel in the labor context, such that unions cannot be prevented from saying that which a civilian could freely advocate.94×94. See, e.g., Garden, supra note 62, at 27. Section 8(b)(4)(i)(B), since it applies only to unions, may run afoul of this hostility also.95×95. See Respondent’s Opening Brief, supra note 86, at 20.
“The Court,” Fisk notes, “cannot have it both ways.”96×96. Fisk, supra note 1, at 2063. It has sought to standardize First Amendment law, and has overruled its own precedents to do so.97×97. E.g., Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2460 (2018) (overruling Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977)); Citizens United, 558 U.S. at 365 (overruling Austin v. Mich. State Chamber of Commerce, 494 U.S. 652 (1990)). Janus concretizes that aim in the labor context. In other contexts, the First Amendment requires strict scrutiny of laws that differentiate based on content. Section 8(b)(4)(i)(B) does so differentiate. As such, it would be remarkably inconsistent to exempt it from strict scrutiny. It would amount to holding that “all speech by and about unions is political except when union supporters gather in a public forum to urge workers and consumers to boycott.”98×98. Fisk, supra note 1, at 2063. It cannot be the case that an “absolutist vision of the First Amendment”99×99. Hasen, supra note 49, at 582; see Genevieve Lakier, The Invention of Low-Value Speech, 128 Harv. L. Rev. 2166, 2169 (2015). is warranted only when, as in Janus, it threatens union activity. For consistency, the protection of the First Amendment must encompass not only Janus and compelled union support, but also Local 229 and section 8(b)(4)(i)(B).