The First Amendment has long had an uneasy relationship with labor law, an area riddled with exceptions to normal protections for expressive conduct.1 One such exception is the ban on secondary boycotts and the encouragement thereof.2 In 1951, the Supreme Court held this ban not to violate the First Amendment.3 Last October, in NLRB v. International Ass’n of Bridge, Structural, Ornamental, & Reinforcing Iron Workers, Local 2294 (Local 229), the Ninth Circuit used this precedent to enforce a cease-and-desist order against Local 229.5 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 Local 229 engaged in a wage dispute with WCP, and another labor organization, also involved in the dispute, set up a picket line.7 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 The page’s “first commandment” was “Thou Shall Not Cross the Line.”9 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
CMC filed a charge against Local 229, alleging an unfair labor practice under the National Labor Relations Act11 (NLRA).12 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 In other words, it prohibits engaging in or encouraging secondary strikes.14 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 Judge Cracraft found, accordingly, that Local 229 had engaged in an unfair labor practice.16
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 which expanded the “content-based” designation and thus the applicability of strict scrutiny.18 Judge Cracraft disagreed, holding that IBEW v. NLRB,19 which had found the predecessor of section 8(b)(4)(i)(B) not to violate the First Amendment, remained good law.20 IBEW also belied the claim that inducement or encouragement under the NLRA required “threat of reprisal or force or promise of benefit.”21
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 The Board adopted her order23 and, in November of 2017, sought enforcement of the order in court.24
Writing for the Ninth Circuit panel, Judge Rawlinson25 granted the petition.26 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 “[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 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 (as opposed to picketing) had held that the “First Amendment is not at all implicated.”30 The cases in question were NLRB v. Local Union No. 3, IBEW31 and Warshawsky & Co. v. NLRB,32 dated 1973 and 1999. Since these cases were decided, Judge Rawlinson concluded, “no changes to First Amendment jurisprudence” warranted a different analysis.33 Judge Rawlinson cabined Reed narrowly to its facts,34 buttressing this reading by citing Agostini v. Felton,35 in which the Supreme Court cautioned against reading implicit overrulings into its decisions.36 And Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council37 provided no relief: that case pertained to a consumer boycott.38 Accordingly, IBEW was still good and applicable law, and Alvernaz’s pure speech could constitutionally be proscribed.39
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 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 As such, Judge Rawlinson granted the Board’s petition for enforcement.42
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 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 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 This conception proved sticky. In NAACP v. Claiborne Hardware Co.,46 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 “Since the early 1940s,” notes Professor Catherine Fisk, “the First Amendment has not been salient to labor law.”48 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 For instance, Citizens United v. FEC,50 in which the Court struck down restrictions on corporate electoral spending,51 was peppered with language suggesting that a primary motivation was increasing consistency throughout the First Amendment.52 In so doing, it threatened to “collapse the distinction between commercial speech . . . and protected political or artistic expression.”53 Janus v. AFSCME, Council 3154 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 That opinion, too, stressed consistency, noting that the decision would “bring a measure of greater coherence to our First Amendment law.”56 Since it would be peculiar to hold that subsidizing speech is more worthy of protection than is speech itself,57 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 Labor protest was once deemed economic activity; indeed, this was a key ground for upholding restrictions thereon in the 1940s and ’50s.59 But Janus is one of several recent cases to note that many union-negotiated terms are “of great public importance.”60 This renders labor activity political, rather than merely economic.61 Second, the coercive nature of labor activity was once, but is no longer, cause for its separate regulation.62 For instance, coercion was cited in Claiborne as a reason for carving out labor activity.63 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 These factors had motivated treating labor picketing as less protected;65 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 “[R]egulation of speech is content based if a law applies . . . because of the topic discussed or the idea or message expressed.”67 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 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 leaving the door ajar for regulation (including labor regulation) to draw content distinctions for content-neutral reasons.70 Reed thus constituted a major shift, with already far-reaching implications.71 It was the starting point, in National Institute of Family & Life Advocates v. Becerra72 (NIFLA), for the Supreme Court’s refusal to categorically exempt “professional speech” from strict scrutiny;73 and in Victory Processing, LLC v. Fox74 for the Ninth Circuit’s application of strict scrutiny to a facially content-based robocall statute.75 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
Local 229 papered over this change by citing Agostini to justify a narrow reading of Reed.77 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 Specifically, the Court had “construed facially content-based laws as content-neutral because of the purposes that justified them.”79 In any case, IBEW is not quite on point: it permitted restrictions on picketing used to encourage secondary boycotts.80 Only circuit courts extended IBEW to pure speech.81 As such, Agostini’s admonition against overruling directly applicable Supreme Court precedent82 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 As applied, section 8(b)(4)(i)(B) regulated Alvernaz’s texts, phone calls, and conversations84: in other words, his pure labor speech. It is facially content based: it prohibits union members from discussing a “particular subject matter”85 — “the propriety of engaging in a strike”86 — and distinguishes based on a particular “function or purpose,”87 encouraging a secondary strike.88 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 Historically, such distinctions were not a standalone ground for strict scrutiny.90 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 It is unclear whether this holding implies that speaker-based distinctions constitute a discrete form of discrimination92 or rather inform a finding of content-based discrimination.93 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 Section 8(b)(4)(i)(B), since it applies only to unions, may run afoul of this hostility also.95
“The Court,” Fisk notes, “cannot have it both ways.”96 It has sought to standardize First Amendment law, and has overruled its own precedents to do so.97 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 It cannot be the case that an “absolutist vision of the First Amendment”99 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).