Earlier this month, the Ohio Supreme Court ruled that the First Amendment protects the right of unions to picket the homes and places of private employment of public and elected officials during labor disputes. Portage Cty. Educators Assn. for Dev. Disabilities-Unit B, OEA/NEA v. State Emp. Relations Bd., Slip Opinion No. 2022-Ohio-3167. “R.C. 4117.11(B)(7)’s prohibition against inducing or encouraging any individual in connection with a labor-relations dispute to picket the residence or place of private employment of any public official or representative of the public employer violates the First Amendment to the United States Constitution as a content-based restriction of expressive activity.”
According to the Court’s opinion, after “negotiations over a
successor collective-bargaining agreement reached an impasse,” the union “members
began picketing on or about October 4, 2017. On seven dates” union members also
picketed “outside the residences” of some of the agency’s board members. Once, the
union members “picketed outside the private business and place of employment of
one of the board members . . . . entirely on public streets or sidewalks. There
is no evidence that any labor picketing involved obstructive or disruptive
behavior.” The employer filed unfair
labor practice charges with SERB, which agreed that the union had violated Ohio
Revised Code 4117.11(B)(7) and ordered the union to cease picketing private
residences and businesses. The union
appealed to the common pleas court, which ruled in favor of the employer. The
Court of Appeals reversed and the Supreme Court affirmed.
Peaceful picketing on a public sidewalk or street enjoys a venerated status as a form of expressive activity that is subject to the protections of the First Amendment to the United States Constitution. R.C. 4117.11(B)(7) makes it “an unfair labor practice for an employee organization, its agents, or representatives, or public employees to * * * [i]nduce or encourage any individual in connection with a labor relations dispute to picket the residence or any place of private employment of any public official or representative of the public employer.” The issue in this case is whether R.C. 4117.11(B)(7) violates the First Amendment. . . . we conclude that the statute does violate the First Amendment . . .
As the Court explained, peaceful picketing on public
sidewalks enjoys considerable First Amendment protection as public forums. Nonetheless, the government can regulate such
speech – i.e., time and volume -- if the regulations are content neutral.
“[E]ven in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.’ ” . . . .
On the other hand, a regulation that targets speech based on its content is subject to the most exacting scrutiny. . . . . If a statute regulates speech based on its content, it must be narrowly tailored to serve a compelling government interest and it must be the least restrictive means readily available to serve that interest. . . . .
Whether a regulation is content based or content neutral thus dictates the degree of scrutiny to which the regulation will be subjected . . . .
The Court rejected the employer’s argument because the restriction cannot “be based upon
either the content or subject matter of speech. . . . . “Governmental action
that regulates speech on the basis of its subject matter, however, “ ‘ “slip[s]
from the neutrality of time, place, and circumstance into a concern about
content.” ’ ””
According to SERB and the board, R.C. 4117.11(B)(7) is content neutral because it does not prohibit speech or prevent anyone from communicating any particular message. They further contend that the statute does not create a speech-free buffer zone around public officials’ residences or places of private employment, because all forms of communication other than targeted picketing are permissible. In their view, R.C. 4117.11(B)(7) is a permissible time, place, and manner restriction that is operative during a narrow period of time (picketing in connection with a labor-relations dispute), at a particular place (public officials’ residences and places of private employment), for a particular manner of expression (“targeted picketing”).
Justice Donnelly’s opinion observed that ““[g]overnmental
action that regulates speech on the basis of its subject matter, however, “ ‘
“slip[s] from the neutrality of time, place, and circumstance into a concern
about content.” ’ ” While the Supreme Court has upheld restrictions
on “all” picketing “before or about” a residence, that ordinance was not
limited to certain types of picketing based on the subject matter of the
picketing, and, thus, was content neutral.
R.C. 4117.11(B)(7) additionally regulates expressive activity based on the identity of the messenger. More specifically, it forbids “an employee organization, its agents, or representatives, or public employees” from inducing or encouraging anyone to picket a public official’s residence or place of private employment in connection with a labor-relations dispute.
Because the statute was not content neutral, it is subject
to strict scrutiny under the First Amendment and must serve a compelling
government interest. The statute’s goal of “protecting the privacy rights of
public officials, thereby encouraging citizens to run for or serve in public
office and preserving labor peace in Ohio” while laudable, was found to not be
compelling enough to save the statute. As
the Justice Donnelly observed, “preserving residential peace and privacy is a
significant but not a compelling government interest.”
Moreover, R.C. 4117.11(B)(7) is not narrowly tailored to the point that no less-restrictive means was available to serve the stated interests. Local ordinances and state criminal codes exist to preserve law and order in the event of disruptive conduct that disturbs residential privacy and are justified without reference to the content of the expression. Nor has there been any showing that banning residential and private-employer labor picketing is the only way to encourage citizens to serve as officials of public employers or to preserve the peace during labor disputes in Ohio. The medicine thus prescribed by R.C. 4117.11(B)(7) is not narrowly tailored to the proclaimed illness and indeed far exceeds the interests that it purports to serve
Justice Donnelly also mysteriously rejected the
argument that the statute lawfully prohibited secondary picketing against a
private sector employer which is not involved in the labor dispute.
picketing at the private employer of a board member or other public official simply does not fit within the secondary-picketing paradigm. Here, the private employer is not a neutral party that has been drawn into the labor-relations dispute only because it does business with the primary employer. Indeed, in this case there is no indication that the private employer that was picketed by the association members had any business relations whatsoever with the board outside of the fact that one of the board members is both the owner and employee of the private employer. There is no indication that the private employer was threatened, coerced, or restrained from engaging in business with the board. Nor is there any evidence that that was the association’s objective in picketing the private employer. Assuming further that the private employer engaged in commerce or an industry affecting commerce, any expressive activity that caused incidental injury to the private employer’s business would not be prohibited by Section 8(b)(4)(ii)(B) and thus would remain protected by the First Amendment.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
