By Dan Trevas – Court News Ohio
A state law that prohibits encouraging “targeted picketing” of public officials at their homes or private workplaces in connection with a labor dispute is unconstitutional, the Supreme Court of Ohio ruled today.
While divided 4-3 in its reasoning, the Supreme Court unanimously concluded that the law, which declares that the organization of picketing at private residences and businesses is an unfair labor practice, violates the First Amendment right of free speech. The decision affirmed an Eleventh District Court of Appeals decision, which found members of the Portage County Educators Association for Developmental Disabilities had a right to organize picketing at the homes and businesses of Portage County Board of Developmental Disabilities members during a 2017 labor dispute.
Writing for the Court majority, Justice Michael P. Donnelly noted that only those connected to an employee union, but no other party in a labor dispute, can be found to have committed an unfair labor practice for expressing the viewpoint that the union advocates. “The regulation unmistakably restricts the particular views of particular speakers” and is unconstitutional, he stated.
Chief Justice Maureen O’Connor and Justices Melody Stewart and Jennifer Brunner joined Justice Donnelly’s opinion.
In a concurring opinion, Justice Sharon L. Kennedy explained that “limitations on inducing or encouraging others to picket in a public forum on an issue of public concern strike at the heart of free-speech protections.” Although she faulted the majority for focusing on the messages on the picketers’ signs when the statute prohibits an individual from encouraging and inducing another to picket, she agreed that the law infringed on the right to free speech.
Picketing is a form of expression, and “prohibiting speech that encourages or induces picketing necessarily chills the right to picket itself,” Justice Kennedy wrote. Because the law allows the government to pick and choose which messages may be expressed, it violates the First Amendment, she concluded.
Justices Patrick F. Fischer and R. Patrick DeWine joined Justice Kennedy’s opinion.
Contract Impasse Leads to Picketing
The Portage County Educators Association for Developmental Disabilities represents service and support personnel serving the county’s Board of Developmental Disabilities. In September 2017, the board and the association reached an impasse on a collective bargaining agreement, and the association filed a notice of intent to strike. Association members began picketing about three weeks later.
On seven dates in October 2017, association members picketed outside the residences of six board members, and the private workplace of one board member. All the picketing took place on public streets and sidewalks, and there were no reports of obstructive or disruptive behavior.
The board filed seven charges of unfair labor practices with the State Employment Relations Board (SERB), claiming the union was violating R.C. 4117.11(B)(7), which makes it an unfair labor practice if an “employee organization, its agents, or representatives, or public employees” induce or encourage any individual “in connection with a labor dispute” to picket a residence or private employment place of any public official or representative of a public employer.
SERB found the association violated the law and issued a cease-and-desist order to prevent further picketing at board members’ homes or workplaces. The association filed an administrative appeal with the Portage County Common Pleas Court, arguing that R.C. 4117.11(B)(7) was a “content-based restriction” on speech that violated the union’s First Amendment rights.
The trial court upheld SERB’s decision, and the union appealed to the Eleventh District. The Eleventh District reversed the trial court’s decision, finding the law unconstitutional. Both SERB and the county board appealed the judgment to the Supreme Court, which agreed to hear the case.
The Eleventh District also noted the portion of its decision invalidating the picketing at a private workplace was in conflict with a Seventh District Court of Appeals decision. The Court agreed to consider the conflict and consolidated the matter with the SERB and board appeals.
Supreme Court Analyzed Picketing Restrictions
Citing the U.S. Supreme Court’s 1983 United States v. Grace decision, Justice Donnelly noted that peaceful picketing and leafletting are “expressive activities involving ‘speech’ protected by the First Amendment.” He noted that expressive activity that occurs on public sidewalks and streets receives protection because of the historic role sidewalks and streets serve as sites for assembly, discussion, and debate.
The majority opinion explained the First Amendment gives the government limited rights to restrict speech, and government regulation is given more leeway for speech that is unrelated to the content of what is being expressed. Such regulations are considered “content neutral.”
Courts have generally upheld content neutral regulations on the time, place, and manner of speech if the regulations are narrowly tailored to serve a significant government interest, the opinion explained. Regulations that target the content of the speech are subject to a higher standard, known as “strict scrutiny,” where the government must prove the regulation is narrowly tailored to serve a compelling government interest and is the least restrictive means to meet that interest, the Court explained.
Court Considered Law’s Impact on Speech
SERB maintained the law is a content neutral regulation that places a minor burden on the association’s speech by regulating the time, place, and manner of speech. SERB maintained that the law does not prohibit speech or prevent anyone from communicating any message, and that it does not place a “speech-free buffer zone” around the homes or workplaces of public officials. SERB argued the law prohibits only the targeted picketing of homes and businesses during a labor dispute, and does not violate constitutional rights because it allows all other forms of communication.
The Court stated for a law to be a permissible restriction it cannot be based on either the content or subject matter of the speech. One way to determine whether the law is content neutral is if “enforcement authorities” had to examine the message content to determine whether a violation occurred. In this case, SERB would have to determine if one particular side of a labor dispute, the association, engaged in the picketing, the Court wrote.
“To do that, SERB must examine the content of the picketing. The substance of the picketer’s message was inescapably the basis for SERB’s unfair labor practice findings against the association,” the opinion stated.
Because the law regulates the content of the speech, the Court wrote the state must prove it was narrowly tailored to serve a compelling government interest. SERB argued the state has a compelling interest in protecting privacy rights of public officials, which encourages citizens to run for or serve in public office, and in preserving labor peace.
The opinion noted that prior appeals court decisions have found protecting the tranquility and privacy of residential neighborhoods is not a compelling government interest nor is encouraging citizens to serve as public officials. The Eleventh District rejected SERB’s preserving labor peace argument as “too vague” to constitute a compelling interest.
The Court also noted there were other means to protect those interests, such as local and state criminal laws that prevent disruptive conduct in residential areas.
“We do not question the sanctity of the home as a place of personal refuge or the importance of an employee’s workplace. Nor are we unsympathetic to the burdens that these board members and other public officials must occasionally endure in the performance of their official duties. But their status as public officials does not insulate them from the robust marketplace of ideas,” the Court concluded.
Law Singles Out Some Speech Based on Message, Concurrence Maintained
Justice Kennedy wrote that the law’s focus is not on the actual picketing, but instead prevents the inducement or encouragement of picketing at a public official’s home or private place of employment. However, inducement and encouragement are speech and expressive conduct that triggers First Amendment protections, the concurrence noted.
R.C. 4117.11(B)(7) is a content-based law because it singles out some speech for special treatment based on the message, the concurrence explained. Speech that encourages targeted picketing in connection with a labor dispute is prohibited, but speech discouraging the same picketing is allowed, the opinion stated.
The concurrence pointed out that if an employee union encourages targeted picketing at a public officials’ home in connection with a school board dispute, or a disagreement on tax policy, or any other reason that does not impact a labor-relations dispute, it is also permitted under the law.“With this statute, the government is picking and choosing which messages may be expressed and which messages may not be. That, it cannot do,” Justice Kennedy wrote.
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