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.