Labor values are First Amendment values: Why union comprehensive campaigns are protected speech

Fordham Law Review

Volumn 79, Issue 6, 2011, Pages 2617-2668

  Garden, Charlotte ^a  

^a SEATTLE UNIVERSITY   (United States)

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EID: 79959908645     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (486)

1. BUREAU OF LABOR STATISTICS, UNION MEMBERS SUMMARY (2011), available at http://www.bls.gov/news.release/union2.nr0.htm.
2. See generally Kate Bronfenbrenner, Final Report: The Effects of Plant Closing or Threat of Plant Closing on the Right of Workers To Organize, DIGITALCOMMONS@ILR INT'L PUBLICATIONS (Sept. 30, 1996), http://digitalcommons. ilr.cornell.edu/cgi/viewcontent.cgi?article=1000&context=intl.
3. Cynthia L. Estlund, The Ossification of American Labor Law, 102 COLUM. L. REV. 1527, 1605 & n. 326 (2002).
4. There have been fewer than twenty such suits filed since 1980. James J. Brudney, Collateral Conflict: Employer Claims of RICO Extortion Against Union Comprehensive Campaigns 27 & nn. 131-33 (Dec. 2009), available at http://works.bepress.com/cgi/viewcontent.cgi?article=1001&context= james-brudney. However, the filing of three such suits within the space of a year might suggest that employers are beginning to view civil RICO as a more attractive way of fighting union organizing campaigns.
5. See generally Cintas Corp. v. UNITE HERE, 601 F. Supp. 2d 571 (S. D. N. Y.) (complaint filed March 5, 2008, alleging civil RICO violation and trademark infringement)
6. aff'd, 355 F. App'x 508 (2d Cir. 2009);
7. Wackenhut Corp. v. Serv. Emps. Int'l Union, 593 F. Supp. 2d 1289 (S. D. Fla. 2009) (complaint filed Nov. 1, 2007 in the Southern District of New York, then transferred to the Southern District of Florida under Case no. 9:07-cv-81090, alleging civil RICO violation);
8. Smithfield Foods, Inc. v. United Food & Commercial Workers Int'l Union, 585 F. Supp. 2d 789 (E. D. Va. 2008) (complaint filed Oct. 17, 2007, alleging violations of civil RICO and various North Carolina torts). Similarly, Sodexo recently filed a complaint against the Service Employees International Union and others, bringing civil RICO and tort claims. Complaint at 113-24, Sodexo, Inc. v. Serv. Emps. Int'l Union, No. 1:1 l-cv-276 (E. D. Va. Mar. 17, 2011).
9. See supra note 4.
10. For example, Smithfield alleged that the United Food & Commercial Workers's (UFCW) comprehensive campaign had an illegal goal, whereas Wackenhut and Cintas did not.
11. 585 F. Supp. 2d 789.
12. See generally First Amended Complaint, Smithfield, 585 F. Supp. 2d 789 (No. 3:07CV641)
13. WL 1825139.
14. See infra notes 77-80 and accompanying text.
15. Smithfield, 585 F. Supp. 2d at 805 (alterations omitted) (internal quotation marks omitted)
16. (quoting United States v. Boyd, 231 F. App'x 314, 315-16 (5th Cir. 2007)).
17. 458 U. S. 886 (1982).
18. Id. at 928-29.
19. Id. at 912.
20. E.g., Int'l Longshoremen's Ass'n v. Allied Int'l, Inc., 456 U. S. 212, 225-26 (1982) (holding that secondary boycott launched to protest Soviet invasion of Afghanistan could be enjoined consistent with the First Amendment).
21. In this Article, I will use the words "discourse" and "deliberation" interchangeably.
22. See generally JEAN L. COHEN & ANDREW ARATO, CIVIL SOCIETY AND POLITICAL THEORY (1992).
23. See generally ALEXIS DE TOCQUEVTLLE, DEMOCRACY IN AMERICA (1835).
24. 376 U. S. 254 (1964).
25. BUREAU OF LABOR STATISTICS, UNION MEMBERS SUMMARY (2009), available at http://www.bls.gov/news.release/archives/union2-01282009.htm. Unions represented another 1.7 million non-members.
26. Id.
27. Id.
28. ERIC FONER, THE STORY OF AMERICAN FREEDOM 229 (1998);
29. Daniel B. Cornfield & Bill Fletcher, The U. S. Labor Movement: Toward a Sociology of Labor Revitalization, in SOURCEBOOK OF LABOR MARKETS: EVOLVING STRUCTURES AND PROCESSES 61, 61 (Ivar Berg & Arne L. Kalleberg eds., 2001).
30. Cornfield & Fletcher, supra note 21, at 66 ("[O]ver time, union wages are consistently higher than nonunion wages for all demographic groups.").
31. Much of the literature discussing these campaigns from employers' perspectives uses the term "corporate campaign", whereas unions have come to favor "comprehensive campaign. "
32. Brudney, supra note 4, at 7 & nn. 23-24. This Article uses the term "comprehensive campaign. "
33. Estlund, supra note 3, at 1605;
34. see also Brudney, supra note 4, at 1 ("Coordinated campaign tactics include publicity efforts aimed at attracting media attention and consumer interest; regulatory reviews initiated to focus on a company's possible health, safety, environmental, or zoning violations; and investigations of a company's financial status through use of pension funds or other shareholder resources.").
35. Food Lion, Inc. v. United Food & Commercial Workers Int'l Union, 103 F.3d 1007, 1014n. 9 (D. C. Cir. 1997).
36. James Gray Pope, Labor-Community Coalitions and Boycotts: The Old Labor Law, the New Unionism, and the Living Constitution, 69 TEX. L. REV. 889, 906(1991)
37. (citing C. PERRY, UNION CORPORATE CAMPAIGNS 125 (1987)) (concluding that unions' attempts to put direct economic pressure on employers mostly had "nuisance value", and that "the key to union success lies not in economic or direct pressure, but in union appeals to principle that influence public relations");
38. cf. Brudney, supra note 4, at 1-2 (stating that unions engaging in comprehensive campaigns "have enjoyed some success which in turn has contributed to a modest rise in private sector union density, the first such increase for decades.").
39. For example, Smithfield claimed at least $5, 900, 000 in damages in its complaint against the UFCW. First Amended Complaint, supra note 8, ¶ 1, at 91-92;
40. infra Part IV. B. According to one press release issued by Hunton & Williams, the law firm that represented Smithfield in its civil RICO lawsuit against the UFCW, "the corporate campaign is a coordinated, negative publicity effort intended to place unbearable financial, legal and social pressure on a targeted employer in order to convince that employer to forego its NLRB rights and agree to the union's organizing demands." Press Release, Gregory B. Robertson & Kurt G. Larkin, Hunton & Williams LLP, RICO: A New Tool for Employers Facing Union Corporate Campaigns? (May 2009), available at http://www.hunton. com/files/tbl-s47Details\FileUpload265\2664\RICO-A-New- Tool-5.09.pdf.
41. Brudney, supra note 4, at 10 & n. 38.
42. 18 U. S. C. § 1961 (1) (2006) (defining racketeering activity).
43. Scheidler v. Nat'l Org. for Women, Inc., 537 U. S. 393, 409(2003)
44. (quoting United States v. Nardello, 393 U. S. 286, 290(1969));
45. see James v. United States, 550 U. S. 192, 222 n. 2 (2007) (noting that the Court adopted that definition because the RICO statute leaves extortion undefined). This is the definition of extortion under the Hobbs Act.
46. See 18 U. S. C. § 1951 (b) (2);
47. see also United States v. Enmons, 410 U. S. 396, 397(1973).
48. Jim Hawkins, Papers, Petitions, and Parades: Free Expression's Pivotal Function in the Early Labor Movement, 28 BERKELEY J. EMP. & LAB. L. 63, 68(2007). Before the 1800s, criminal labor prosecutions were relatively rare and convictions even more unusual.
49. See WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT 61 (1991) ("[T]here seem to have been relatively few criminal conspiracy trials of trade unionists until the 1870s.... In the 1870s and 1880s, however, sanctions grew harsher.").
50. E.g., Duplex Printing Press Co. v. Deering, 254 U. S. 443, 466(1921);
51. Loewe v. Lawlor, 208 U. S. 274, 301(1908). In Duplex Printing Press Co. v. Deering, the Court concluded that the Clayton Act's labor exemption did not exempt from antitrust liability a union's threats of secondary boycotts and strikes-or the coerced participation of union members in those activities-aimed at pressuring employers to adopt union wage and hour scales.
52. Duplex Printing Press Co., 254 U. S. at 466. The Court stated that, by expanding the locus of the dispute beyond unionized employers, the union had "depart[ed] from its normal and legitimate objects, "
53. id. at 469, and instead engaged in "a general class war, "
54. id. at 472. Unsurprisingly, the Court theorized that "business... is a property right, entitled to protection against unlawful injury or interference" by labor unions.
55. Id. at 465. However, in dissent, Justice Brandeis argued that the Clayton Act authorized "industrial combatants" to "push their struggle to the limits of the justification of self interest."
56. Id. at 484, 488 (Brandeis, J., dissenting);
57. see also Am. Steel Foundries v. Tri-City Cent. Trades Council, 257 U. S. 184, 204(1921) (concluding that the Clayton Act does not protect coercion or intimidation, from which "the person sought to be influenced has a right to be free and his employer has a right to have him free");
58. FORBATH, supra note 31, at 60 (stating that, "[b]y the early twentieth century, common law and antitrust doctrine condemned... virtually the entire spectrum of peaceful secondary actions").
59. Seth Kupferberg, Political Strikes, Labor Law, and Democratic Rights, 71 VA. L. REV. 685, 713(1985).
60. 254 U. S. 443.
61. Duplex Printing Press Co., 254 U. S. at 474;
62. see also Am. Steel Foundries, 257 U. S. at 212 (characterizing the Duplex Printing Press Co. boycott as an attempt by the union "to use the right of trade of persons having nothing to do with the controversy... to injure the Duplex Company in its interstate trade").
63. 257 U. S. 312 (1921).
64. Id. at 340-41.
65. Id. at 328.
66. FONER, supra note 21, at 123.
67. Kupferberg, supra note 33, at 713;
68. see also United States v. Hutcheson, 312 U. S. 219, 231-33 (1941)
69. (describing how newly-enacted Norris-LaGuardia Act accomplished what Congress first sought to accomplish through the Clayton Act and holding that its antiinjunction provisions precluded criminal liability for picketing and boycott activity).
70. 410 U. S. 396 (1973).
71. Id. at 397.
72. Id.
73. (quoting 18 U. S. C. § 1951 (b) (2) (2006)).
74. Id. at 411.
75. Id. at 400.
76. Pub. L. No. 91-452, Title IX, 84 Stat. 941 (1970)
77. (codified at 18 U. S. C. §§ 1961-1968);
78. see Brudney, supra note 4, at 27 nn. 131-33 (listing cases).
79. See supra note 4.
80. See, e.g., First Amended Complaint, supra note 8, ¶ 43, at 12.
81. 593 F. Supp. 2d 1289 (S. D. Fla. 2009).
82. 601 F. Supp. 2d 571 (S. D. N. Y. 2009).
83. See supra note 6.
84. Tar Heel, North Carolina, CITY-DATA. COM, http://www.city-data.com/city/ Tar-Heel-North-Carolina.html (last visited Apr. 20, 2011);
85. BUREAU OF LABOR STATISTICS, supra note 19 (North Carolina's union membership rate is 3.5%).
86. First Amended Complaint, supra note 8, ¶ 9, at 3;
87. Smithfield Tar Heel Plant Votes for Union, REUTERS (Dec. 12, 2008), http://www.reuters.com/article/idUSN1139559220081212;.
88. Smithfield Packing Co., Inc., 344 N. L. R. B. 1, 1(2004).
89. Id. at 7.
90. Id. at 15-16.
91. Id. Courts may issue a "bargaining order" requiring an employer to recognize a union as the representative of the relevant bargaining unit when the "employer has committed independent unfair labor practices which have made the holding of a fair election unlikely or which have in fact undermined a union's majority and caused an election to be set aside."
92. NLRB v. Gissel Packing Co., 395 U. S. 575, 610(1969).
93. See generally United Food & Commercial Workers Union Local 204 v. NLRB, 447 F.3d 821 (D. C. Cir. 2006).
94. For example, the UFCW ran a "workers center" to help employees living and working in eastern North Carolina with workers' compensation, immigration, and other problems, and to attempt to maintain a union presence and workers' support in the area.
95. Bob Geary, A Fast-Moving Line and a Union Trying To Keep Up, INDEP. WKLY. (Apr. 4, 2007), http://www.indyweek.com/indyweek/a-fast-moving-line-and-a- union-trying-to-keepup/Content?oid=1201323 (describing UFCW's role in running workers center);
96. see also Yonat Shimron & Barbara Barrett, Bill's Death Stings Illegal Immigrants, NEWS & OBSERVER, June 9, 2007, at A12, available at http://www.newsobserer.com/2007/06/09/35478/bills-death-stmgs-illegal- immigrants.html# storylink=misearch.
97. First Amended Complaint, supra note 8, ¶ 39, at 11.
98. The UFCW's comprehensive campaign against Smithfield was similar to other comprehensive campaigns that were the subject of contemporaneous lawsuits.
99. See, e.g., Cintas Corp. v. UNITE HERE, 601 F. Supp. 2d 571, 575 (S. D. N. Y.) (describing campaign, which included claims that the union falsely portrayed company as having engaged in racist, sexist and illegal acts, and targeted company's customers to encourage them to stop doing business with the company)
100. aff'd, 355 F. App'x 508 (2d Cir. 2009);
101. Wackenhut Corp. v. Serv. Emps. Int'l Union, 593 F. Supp. 2d 1289, 1290 (S. D. Fla. 2009) (describing SEIU campaign against Wackenhut, including publishing "false and misleading reports disparaging Wackenhut and some of its national customers", persuading Wackenhut customers to boycott the company, and other activities).
102. E.g., First Amended Complaint, supra note 8, ¶ 74, at 23.
103. Id. ¶ 99, at 29-30.
104. Id. ¶¶ 88-95, at 25-28.
105. Id. ¶¶ 122-24, at 37-38.
106. Id. ¶ 100, at 30.
107. Id. ¶¶ 113-15, at 34-35.
108. Id. ¶¶ 125-27, at 38-40.
109. Id. ¶¶ 131-40, at 41-44.
110. Id. ¶¶ 141-54, at 45-50.
111. Id. ¶¶ 155-58, at 50-51.
112. Id. ¶¶ 159-67, at 51-54.
113. Id. ¶¶ 168-72, 179-80, at 54-56, 58-59.
114. Id. ¶ 2, at 1 ("Defendants conspired to extort Smithfield's 'voluntary' recognition of Defendants UFCW and Local 400 as the exclusive bargaining representatives of hourly employees at Tar Heel-regardless of the degree of actual employee support for such representation-by injuring Smithfield economically until Smithfield either agreed to Defendants' demands or was run out of business.").
115. Int'l Ladies' Garment Workers' Union v. NLRB, 366 U. S. 731, 738-39 (1961) (holding that it is an unfair labor practice to recognize a minority union as the exclusive representative, even if the employer has a good faith belief that the union actually enjoys majority support);
116. see also Kenrich Petrochemicals, Inc., 149 N. L. R. B. 910, 911(1964) (holding that union and employer committed unfair labor practices when the company recognized the union as the majority representative of its employees despite both parties' knowledge that the union did not represent a majority of employees in the appropriate unit).
117. First Amended Complaint, supra note 8, ¶ 238, at 80 (alleging that, some two years after the comprehensive campaign began, the UFCW demanded a "sham 'election, '" among other possibilities).
118. Id. ¶ 240 (alleging that UFCW offered to stop its comprehensive campaign if Smithfield agreed to take legal actions such as "sit[ting] idly by while allowing Defendants to accost the Tar Heel employees to sign cards authorizing [UFCW] to represent them for purposes of collective bargaining");
119. Transcript of Hearing at 58, Smithfield Food, Inc. v. United Food & Commercial Workers Int'l Union, 585 F. Supp. 2d 789 (E. D. Va. 2008) (No. 3:07CV641) (Smithfield attorney stating that "extorting neutrality is just as unlawful as extorting a [sham] election. It's a way they can guarantee they'll win. ").
120. NLRB v. Gissel Packing Co., 395 U. S. 575, 597-98 (1969) (holding card-check election is lawful means of ascertaining whether union has support of majority of employees in bargaining unit);
121. Roger C. Hartley, Non-Legislative Labor Law Reform and Pre-Recognition Labor Neutrality Agreements: The Newest Civil Rights Movement, 22 BERKELEY J. EMP. & LAB. L. 369, 374-77 (2001) (describing pervasive use of neutrality agreements).
122. First Amended Complaint, supra note 8, ¶ 106, at 32.
123. Cintas Corp. v. UNITE HERE, 601 F. Supp. 2d 571, 575 (S. D. N. Y.) (stating that unions sought "card-check/neutrality agreement")
124. aff'd, 355 F. App'x 508 (2d Cir. 2009);
125. Wackenhut Corp. v. Serv. Emps. Int'l Union, 593 F. Supp. 2d 1289, 1296 (S. D. Fla. 2009) (stating that Wackenhut "asserts that SEIU is attempting to 'bend its will' and obtain from it various intangible property rights, including Wackenhut's right to control the form and nature of the union recognition process that applies to its employees; Wackenhut's right to refuse demands for recognition from a 'mixed union' such as SEIU; Wackenhut's right to decline collective bargaining with SEIU; Wackenhut's right to preserve its employees' statutory right to 'free choice', and Wackenhut's right to conduct business with its customers free from interference, harassment and threats of economic doom from SEIU or its agents").
126. Richard Bates, NYT on Smithfield's RICO Suit v. UFCW, WORKPLACE PROF BLOG (Feb. 5, 2008), http://lawprofessors.typepad.com/laborprof-blog/2008/02/nyt- onsmithfie.html (referencing Smithfield lawsuit and noting "the changes to the Board's policies on when filing a frivolous suit might (or might not as the case may be) constitute a ULP");
127. see also Adam Liptak, A Corporate View of Mafia Tactics: Protesting, Lobbying and Citing Upton Sinclair, N. Y. TIMES, Feb. 5, 2008, at A14, available at http://www.nytimes.com/2008/02/05/us/05bar.html (opining that "what [Smithfield's attorney] calls extortion sounds quite a bit like free speech").
128. United States v. Enmons, 410 U. S. 396, 404(1973). Further, it is not at all clear that employer-plaintiffs can satisfy "generic" extortion's other requirements, including the mandates that any extortion result in obtaining property or that the use of force, fear, or threats be "wrongful."
129. See Cintas Corp, 601 F. Supp. 2d at 577-78 (comprehensive campaign not extortionate because company does not have a right to operate free from criticism);
130. Brudney, supra note 4, § III. A. There are other reasons that civil RICO suits might fail.
131. For example, they may be preempted under San Diego Building Trades Council, Local 2020 v. Garmon, 359 U. S. 236 (1959) (holding that activity that is arguably encompassed within Sections 7 or 8 of the National Labor Relations Act (NLRA) can be regulated only by the NLRB, and that, even if the NLRB declines jurisdiction, the conduct is not redressable in state court unless it was a traditional tort or conduct marked by violence and imminent threats to public order).
132. Smithfield Foods, Inc. v. United Food & Commercial Workers Int'l Union, 585 F. Supp. 2d 789, 800-01 (E. D. Va. 2008);
133. see also Herbert R. Northrup & Charles H. Steen, Union "Corporate Campaigns" as Blackmail: The RICO Battle at Bayou Steel, 22 HARV. J. L. & PUB. POL'Y 771, 813(1998) (arguing that Enmons does not apply to state law).
134. * 6 (S. D. Fla. July 14, 1989) (noting that "[n]umerous courts have effectively limited Enmons to its facts, creating an exception to the Hobbs Act only for what was at issue in that case-violence committed during the course of a lawful strike called for the purpose of inducing an employer's agreement to legitimate collective-bargaining demands" and citing cases).
135. See, e.g., id. (stating that "[i]n other contexts, the Supreme Court has made clear that to constitute 'legitimate labor objectives', the goal defendants were seeking to accomplish must have been 'intimately related to wages, hours and working conditions.'"
136. (quoting Local Union No. 189, Amalgamated Meat Cutters v. Jewel Tea Co., 381 U. S. 676, 689-90 (1965))).
137. Smithfield Foods, United Food and Commercial Workers Reach Settlement, TRIANGLE BUS. J. (Oct. 27, 2008), http://www.bizjournals.com/triangle/stories/ 2008/10/27/daily8.html.
138. Cintas Corp., 601 F. Supp. 2d at 577-78 (dismissing case after concluding that comprehensive campaign was "lawful 'hard-bargaining'" because Cintas would have received some benefit from a card-check/neutrality agreement);
139. Wackenhut Corp. v. Serv. Emps. Int'l Union, 593 F. Supp. 2d 1289, 1296 (S. D. Fla. 2009) (dismissing case after concluding that union had not sought to "obtain" property as required to establish extortion as a RICO predicate).
140. Brudney, supra note 4, at 27 & n. 134 (listing cases and stating that "motions [to dismiss] succeed or fail at roughly comparable levels").
141. Yellow Bus Lines, Inc. v. Drivers Local Union 639, 913 F.2d 948, 955 (D. C. Cir. 1990).
142. Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-Altering Utterances" and the Uncharted Zones, 90 CORNELL L. REV. 1277, 1315(2005);
143. see also Nat'l Org. for Women v. Scheidler, 510 U. S. 249, 264(1994) (Souter, J., concurring) (noting that conduct that might otherwise be the basis for a civil RICO suit might "be fully protected First Amendment activity").
144. See generally Ken I. Kersch, How Conduct Became Speech and Speech Became Conduct: A Political Development Case Study in Labor Law and the Freedom of Speech, 8 U. PA. J. CONST. L. 255 (2006).
145. 310 U. S. 88 (1940).
146. See, e.g., James Gray Pope, Labor and the Constitution: From Abolition to Deindustrialization, 65 TEX. L. REV. 1071, 1073(1987)
147. (arguing that rule established in Fibreboard Paper Prods. Corp. v. NLRB, 379 U. S. 203 (1964), would be an impermissible content-based prior restraint in any other context).
148. See generally Alan Hyde, Exclusion Is Forever: How Keeping Rights To Strike, Picket, and Other Labour Speech, Separate from Constitutional Rights, Has Proven a Bad Deal for American Labour Unions and Constitutional Law 3 (Rutgers Sch. of Law Research Paper Series, Paper No. 057, 2009), available at http://ssrn. com/abstract=1517844 (noting that the Supreme Court has "upheld severe limitations on the content or message of union speech, picketing, and boycotts, limitations that could not constitutionally be applied to the same conduct carried out by groups other than labour groups").
149. Cf. Amalgamated Food Emps. Union Local 590 v. Logan Valley Plaza, Inc., 391 U. S. 308 (1968) (holding that peaceful labor picketing, absent an impermissible purpose or manner, is protected by the First Amendment).
150. Pope, supra note 93, at 1082 (noting that the courts have "declined to develop a unified doctrine of labor liberty" and instead rely on a hodgepodge of doctrines, including those pertaining to commercial rights and speech rights).
151. See supra Part I. B. I.
152. Am. Steel Foundries v. Tri-City Cent. Trades Council, 257 U. S. 184, 205(1921).
153. Senn v. Tile Layers Protective Union, Local No. 5, 301 U. S. 468, 478-80 (1937).
154. Thornhill v. Alabama, 310 U. S. 88, 95(1940).
155. Id. at 103.
156. 312 U. S. 287 (1941).
157. Id. at 294-95.
158. But cf. Am. Fed'n of Labor v. Swing, 312 U. S. 321, 325-26 (1941) (overturning on First Amendment grounds injunction against picketing that had been entirely peaceful).
159. 315 U. S. 769 (1942).
160. Id. at 775 (striking down injunction of peaceful picket in part because there was no other avenue for the picketers to convey their message, but suggesting that states could limit peaceful picketing under other circumstances).
161. Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 504(1949).
162. Id. at 492.
163. Id.
164. Id.
165. Id. at 493.
166. Id.
167. Id. at 495-96.
168. Id. at 498.
169. Id. at 501-02.
170. E.g., Int'l Bhd. of Elec. Workers, Local 501 v. NLRB, 341 U. S. 694, 705(1951) (permitting injunction against secondary picketing because picketing was tantamount to conduct aimed at accomplishing an unlawful end);
171. Bldg. Serv. Emps. Int'l Union, Local 262 v. Gazzam, 339 U. S. 532, 536-37 (1950) (holding that, while picketing is in part an exercise of free speech, it is "more than speech and establishes a locus in quo that has far more potential for inducing action or nonaction than the message the pickets convey");
172. Hughes v. Superior Court, 339 U. S. 460, 464-65, 469(1950) (stating that labor picketing is more than free speech and upholding injunction);
173. Int'l Bhd. of Teamsters Union, Local 309 v. Hanke, 339 U. S. 470, 474, 480-81 (1950) (upholding injunction and reasoning that one ingredient of picketing is communication, but picketing does not receive full First Amendment protection).
174. Int'l Bhd. of Teamsters, Local 695 v. Vogt, 354 U. S. 284, 289(1957)
175. (quoting Bakery & Pastry Drivers Local 802 v. Wohl, 315 U. S. 769, 776(1942)).
176. 339 U. S. 460.
177. Id. at 468 (stating that even though "a State chooses to enjoin picketing to secure submission to a demand for employment proportional to the racial origin of the then customers of a business, it need not forbid the employer to adopt such a quota system of his own free will").
178. Vogt, 354 U. S. at 291 (stating that Giboney was a "decisive reconsideration" of Thornhill).
179. NLRB v. Retail Store Emps. Union, Local 1001, 447 U. S. 607, 619(1980) (Stevens, J., concurring in part and concurring in the result).
180. E.g., NLRB v. Fruit & Vegetable Packers, Local 760, 377 U. S. 58, 82-83 (1964) (Harlan, J., dissenting) ("Because of the very nature of picketing there may be numbers of persons who will refuse to buy at all from a picketed store, either out of economic or social conviction or because they prefer to shop where they need not brave a picket line.").
181. Compare id. at 72-73 (majority opinion) (holding that NLRB lacked statutory authority to regulate picketing at supermarket because the picketing only asked consumers not to purchase a particular type of apple, which was unlikely to cause the supermarket to suffer a decline in sales and, therefore unlikely to force the supermarket to join the union's fight against the apple growers)
182. with Retail Stores Emps. Union, 447 U. S. at 614-16 (holding that NLRB could regulate secondary picketing consistent with the NLRA and the First Amendment because the secondary employer's primary source of income was derived from selling the picketed product).
183. Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U. S. 568, 580(1988) (holding as a matter of constitutional avoidance that NLRA does not prohibit secondary handbilling and stating that picketing is '"qualitatively 'different from other modes of communication, "" in part because picketing was more "effective" than handbilling and other modes of communication
184. (quoting Babbit v. Farm Workers, 442 U. S. 289, 311 n. 17 (1979)
185. (quoting Hughes v. Superior Court, 339 U. S. 460, 465(1950)))).
186. 341 U. S. 694 (1951).
187. Id. at 697.
188. Although it is counterintuitive, there is precedent for the notion that the amount of First Amendment protection to which particular speech is entitled depends on the likely responses of the listeners.
189. E.g., Brandenburg v. Ohio, 395 U. S. 444, 447-48 (1969);
190. cf. Bakery & Pastry Drivers Local 802 v. Wohl, 315 U. S. 769, 775-76 (1942) (Douglas, J., concurring) ("If the opinion in this case means that a State can prohibit picketing when it is effective but may not prohibit it when it is ineffective, then I think we have made a basic departure from [Thornhill]....").
191. E.g., Frisby v. Schultz, 487 U. S. 474, 487-88 (1988) (upholding ban on picketing in front of residences, which was challenged by abortion protestors, after holding that the ban was narrowly tailored to achieve a "substantial and justifiable" interest);
192. NAACP v. Claiborne Hardware Co., 458 U. S. 886, 886, 909(1982) (picketing deployed in support of civil rights boycott was protected by the First Amendment and received maximum First Amendment protection).
193. Carey v. Brown, 447 U. S. 455, 465-66 (1980) (rejecting an Illinois state statute that permitted labor picketing more broadly than other picketing, distinguishing labor picketing from "[pjublic-issue picketing", which was '"an exercise of... basic constitutional rights in their most pristine and classic form'" and of "broader social concern" (alteration in original)
194. (quoting Edwards v. South Carolina, 372 U. S. 229, 235(1963)));
195. see, e.g., Claiborne Hardware Co., 458 U. S. at 913 ("While States have broad power to regulate economic activity, we do not find a comparable right to prohibit peaceful political activity....").
196. Volokh, supra note 90, at 1321-22 (arguing that Giboney is inconsistent with Brandenburg, unless Giboney's holding is narrowed to apply only to labor picketing).
197. Brandenburg, 395 U. S. at 444-45. Brandenburg was decided after both Giboney and Hughes, but courts have nonetheless continued to apply those cases in the labor context.
198. E.g., Smithfield Foods, Inc. v. United Food & Commercial Workers Int'l Union, 585 F. Supp. 2d 789, 803 (E. D. Va. 2008).
199. Brandenburg, 395 U. S. at 447.
200. Id.
201. see also Steven G. Gey, The Nuremberg Files and the First Amendment Value of Threats, 78 TEX. L. REV. 541, 547(2000) ("Under Brandenberg, political speech can be regulated only if the speech incites illegal action, is intended by the speaker to instigate that action, and is uttered in a context in which the illegal action is likely to occur immediately.").
202. Claiborne Hardware Co., 458 U. S. at 928;
203. see also Gey, supra note 130, at 551-52.
204. E.g., Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 438(1911) (holding that courts can enjoin boycotts when "property is irreparably damaged or commerce is illegally restrained").
205. 29 U. S. C. § 158 (b) (4) (ii) (B) (2006).
206. Int'l Longshoremen's Ass'n v. Allied Int'l, Inc., 456 U. S. 212 (1982);
207. see also Duplex Printing Press Co. v. Deering, 254 U. S. 443, 466(1921) (defining secondary boycott as a "combination not merely to refrain from dealing with complainant, or to advise or by peaceful means persuade complainant's customers to refrain ('primary boycott'), but to exercise coercive pressure upon such customers").
208. Int'l Longshoremen's Ass'n, 456 U. S. at 224 (stating that the boycott was aimed at "free[ing] ILA members from the morally repugnant duty of handling Russian goods" to protest the recent invasion).
209. Id. at 226.
210. Id. at 227.
211. Id. at 225-26
212. (quoting Allied Int'l, Inc. v. Int'l Longshoremen's Ass'n, 640 F.2d 1368, 1378 (1st Cir. 1981)).
213. Id. at 227.
214. NAACP v. Claiborne Hardware Co., 458 U. S. 886, 932-34 (1982).
215. Id. at 889.
216. Id. at 903-04.
217. Id. at 923.
218. Id. at 931-34.
219. Id. at 913
220. (quoting Carey v. Brown, 447 U. S. 455, 467(1980)).
221. The Court had previously overturned a prior restraint against coercive leafleting in a non-labor context, stating that: The claim that the expressions were intended to exercise a coercive impact on respondent does not remove them from the reach of the First Amendment. Petitioners plainly intended to influence respondent's conduct by their activities; this is not fundamentally different from the function of a newspaper.... But so long as the means are peaceful, the communication need not meet standards of acceptability.
222. Org. for a Better Austin v. Keefe, 402 U. S. 415, 419(1971). However, Organization for a Better Austin did not address the extent of its application to labor speech.
223. Claiborne Hardware Co., 458 U. S. at 909;
224. see also supra Part II. A.
225. Claiborne Hardware Co., 458 U. S. at 912
226. (quoting NLRB v. Retail Store Emps. Union, Local 1001, 447 U. S. 607, 617-18 (1980) (Blackmun, J., concurring in part and concurring in result)). Though Claiborne Hardware Co. distinguished between economic and political speech in the context of "coercive" speech, it was not the first case in which the Court expressed or implied that political speech was different from, and more important (in First Amendment terms) than, labor speech.
227. E.g., Carey, 447 U. S. at 467;
228. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U. S. 748, 762-63 & n. 17 (1976) (noting that "[t]he interests of the contestants in a labor dispute are primarily economic, but it has long been settled that both the employee and the employer are protected by the First Amendment when they express themselves on the merits of the dispute in order to influence its outcome", and referring to labor speech as "speech of an entirely private and economic character").
229. Likewise, in Milk Wagon Drivers Union of Chicago, Local 753 v. Meadowmoor Dairies, Inc., 312 U. S. 287 (1941), Justice Black stated in dissent that he would have overturned the labor injunction at issue because the speech involved public discussion of conflicting methods of milk distribution, implicitly rejecting-as did the rest of the Court, which upheld the injunction-the notion that discussion of working conditions deserved the same level of First Amendment protection.
230. Id. at 302-03 (Black, J., dissenting).
231. Claiborne Hardware Co., 458 U. S. at 915.
232. Thomhill v. Alabama, 310 U. S. 88, 103(1940).
233. See, e.g., Michael C. Harper, The Consumer's Emerging Right To Boycott: NAACP v. Claiborne Hardware and Its Implications for American Labor Law, 93 YALE L. J. 409, 426-27 (1984).
234. 447 U. S. 607 (1980).
235. Id. at 616. In Retail Store Employees Union, a union picketed several sellers of Safeco insurance policies in order to protest Safeco's actions. Though the union simply asked consumers to cancel their Safeco policies, and not to boycott the sellers entirely, the Court nonetheless held that the union had violated the NLRA because its actions were tantamount to asking consumers to boycott the sellers, who derived nearly all of their business from selling Safeco policies.
236. Id. at 614-15. The Court further rejected the union's First Amendment defense, holding that picketing that "predictably encourages consumers to boycott a secondary business... imposes no impermissible restrictions upon constitutionally protected speech."
237. Id.
238. 493 U. S. 411 (1990).
239. Id. at 414.
240. Id. at 416.
241. Id. at 420-21. There was also some evidence that the District of Columbia-the supposed victim of the antitrust conspiracy-welcomed the boycott, which generated enough public support to make it politically feasible for the District government to raise the compensation rates.
242. Id. at 442 (Brennan, J., concurring in part and dissenting in part).
243. Id. at 426-27 (majority opinion).
244. Id. at 426. The Court also rejected the argument that the lawyers' conduct was entitled to additional First Amendment protection because it facilitated the Sixth Amendment right to competent counsel.
245. Id. at 427 n. 11 ("Claiborne Hardware... does not protect every boycott having a constitutional dimension. ").
246. Id. at 431. Justice Brennan, concurring, suggested that the majority had been "insensitive to the venerable tradition of expressive boycotts."
247. Id. at 437 (Brennan, J., concurring in part and dissenting in part).
248. See, e.g., BE & K Constr. Co. v. NLRB, 536 U. S. 516, 536-37 (2002).
249. 381 U. S. 657 (1965).
250. Id. at 669-70.
251. Id.
252. 461 U. S. 731 (1983).
253. Id. at 748-49;
254. see also infra Part IV. A.
255. Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U. S. 508, 515-16 (1972) (holding that courts could find antitrust violation because filing anti-competitive lawsuits with the alleged goal of limiting competitor's access to administrative and judicial tribunals fell under the "sham" exception). "Sham" lawsuits are both "objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits" and motivated by '"an attempt to interfere directly with the business relationships of a competitor'";
256. they are not entitled to First Amendment protection. BE & K Constr. Co. v. NLRB, 536 U. S. 516, 526(2002)
257. (quoting Prof'l Real Estate Investors, Inc. v. Columbia Pictures Indus, 508 U. S. 49, 60-61 (1993)).
258. 536 U. S. 516.
259. Id. at 524.
260. 508 U. S. 49.
261. BE & K Constr. Co., 536 U. S. at 528-29.
262. Id. at 529. Justice Breyer, concurring, rejected this conclusion, pointing out that antitrust law threatens "treble damages", whereas the NLRB could at most force one side to pay the other's attorneys' fees.
263. Id. at 541 (Breyer, J, concurring). Justice Breyer also pointed out that "the NLRA finds in the need to regulate an employer's antiunion lawsuits much of its historical reason for being. Throughout the 19th century, courts had upheld prosecutions of unions as criminal conspiracies.... And in the process [the courts] had reinterpreted federal statutes that Congress had not intended for use against the organizing activities of labor unions."
264. Id. at 542 (citations omitted). Thus, Justice Breyer concluded that "an employer's antiunion lawsuit occupies a position far closer to the heart of the labor law than does a defendant's anticompetitive lawsuit in respect to antitrust law."
265. Id. at 543.
266. Id. at 532 (majority opinion)
267. (quoting Bill Johnson's Rests., Inc. v. NLRB, 461 U. S. 731, 743(1983)).
268. Id. at 536.
269. Id. at 536-37.
270. Justice Scalia stated in his concurrence that the "implication" was that the Court would, in the future, construe the NLRA "in the same way we have already construed the Sherman Act: to prohibit only lawsuits that are both objectively baseless and subjectively intended to abuse process."
271. Id. at 537 (Scalia, J., concurring). Justice Scalia reasoned that the NLRA, if anything, demanded higher standards to infringe petitioning activity because the NLRA was enforced by an administrative body instead of an Article III court, and it was doubtful that an administrative agency could be given the authority to punish a reasonablybased suit filed in a court.
272. Id. at 537-38.
273. Unlike labor speech, commercial speech can be regulated only when it concerns illegal activity, is misleading, or when it is tailored to directly advance a substantial government interest that could not be served by a more limited restriction.
274. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U. S. 557, 563-64 (1980);
275. see also James G. Pope, The Three-Systems Ladder of First Amendment Values: Two Rungs and a Black Hole, 11 HASTINGS CONST. L. Q. 189, 191(1984) ("On the ladder of First Amendment values, political speech occupies the top rung, commercial speech rests on the rung below, and labor speech is relegated to a 'black hole' beneath the ladder.");
276. cf. Alan Story, Employer Speech, Union Representation Elections, and the First Amendment, 16 BERKELEY J. EMP. & LAB. L. 356, 392 n. 189 (1995) ("Labor speech 'has been routinely treated as commercial speech subject to virtually plenary regulation' since Thomas v. Collins."
277. (quoting Craig Becker, Democracy in the Workplace: Union Representation Elections and Federal Labor Law, 11 MINN. L. REV. 495, 599 n. 496 (1993))).
278. 323 U. S. 516 (1945).
279. Id. at 531.
280. Id. at 556 (Roberts, J., dissenting). Other courts have since taken a similar view.
281. E.g., Local Union No. 189, Amalgamated Meat Cutters v. Jewel Tea Co., 381 U. S. 676, 723(1965) (Goldberg, J., dissenting) (stating that "[t]he very purpose and effect of a labor union is to limit the power of an employer to use competition among workingmen to drive down wage rates and enforce substandard conditions of employment").
282. See, e.g., Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 898(2010) (applying strict scrutiny to restrictions on political speech, even if speaker is a corporation).
283. Cent. Hudson Gas & Elec., 447 U. S. at 561.
284. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U. S. 748, 762(1976) (citations omitted)
285. (quoting Pittsburgh Press Co. v. Human Relations Comm'n, 413 U. S. 376, 385(1973);
286. Roth v. United States, 354 U. S. 476, 484(1957);
287. Chaplinsky v. New Hampshire, 315 U. S. 568, 572(1942)).
288. See supra Fart I. B.3.
289. In distinguishing commercial speech from other types of speech, the Court has focused on both the content of the speech and the motivation of the speaker. This was made most apparent in a pair of cases involving lawyers soliciting clients: In re Primus, 436 U. S. 412 (1978)
290. and Ohralik v. Ohio State Bar Ass'n, 436 U. S. 447 (1978). In the first, Primus approached a prospective client/plaintiff regarding a suit over the coerced sterilization of women who received Medicaid benefits.
291. Primus, 436 U. S. at 415. Though Primus offered her legal services for free, there was some possibility that the American Civil Liberties Union, which sponsored the litigation, would be awarded counsel fees.
292. Id. at 429-30. In the second, Ohralik sought to represent car crash victims for a fee.
293. Ohralik, 436 U. S. at 450-51. Nonetheless, the Court held that Ohralik's solicitation was commercial speech, which could be punished by the bar association in light of the state's interests in protecting consumers and maintaining attorney standards
294. id. at 437-39, while Primus's solicitation was "political expression and association" that could be regulated only narrowly to prevent specific harms.
295. Primus, 436 U. S. at 437-38. Acknowledging the unusual role that speaker motivation was playing, the Court stated that "[n]ormally the purpose or motive of the speaker is not central to First Amendment protection, but it does bear on the distinction between conduct that is 'an associational aspect of 'expression", and other activity subject to plenary regulation by the government."
296. Id. at 438 n. 32
297. (quoting Thomas I. Emerson, Freedom of Association and Freedom of Expression, 74 YALE L. J. 1, 26(1964))). Thus, commercial speech was to be distinguished from political speech based on not only its content, but also its motivation.
298. In DeBartolo, the Court made clear that it did not mean to "suggest that communications by labor unions are never of the commercial speech variety and thereby entitled to a lesser degree of constitutional protection", but that the leaflets at issue were not "typical commercial speech such as advertising the price of a product or arguing its merits."
299. Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U. S. 568, 576(1988). However, the decision did not give any examples of union speech that would be of the commercial variety, and further, the Court did not say what type of speech the leaflets were, if not commercial speech.
300. See, e.g., Aitken v. Commc'ns Workers of Am., 496 F. Supp. 2d 653, 665 (E. D. Va. 2007) ("While union organizing certainly implicates First Amendment associational interests, it is also true that CWA performs economically valuable services for its members in exchange for a fee, namely union dues-an arrangement which has all the characteristics of a commercial transaction. ").
301. NLRB v. Babcock & Wilcox Co., 351 U. S. 105, 113(1956) (noting that "[t]he right of self-organization depends in some measure on the ability of employees to learn the advantages of self-organization from others");
302. see also Thomas v. Collins, 323 U. S. 516, 534(1945) (noting that speech and associational rights were at issue in case concerning restriction on labor organizer's speech).
303. See Marion Crain & Ken Matheny, Labor's Identity Crisis, 89 CALIF. L. REV. 1767, 1785-86 (2001) (describing the AFL's recent attempt to cast the union movement in terms of not only class consciousness but also as a social justice movement).
304. 425 U. S. 748 (1976).
305. Id. at 762-63, 771 n. 24.
306. Mark Brenner, Give Your Union a Dues Checkup, LABOR NOTES (May 27, 2007, 10:54 PM), http://labornotes.org/node/908 (value for 2004; noting that union dues had fallen by 8.4% from 2000-2004).
307. See infra Part IV. B.
308. Steven Shiffrin, The First Amendment and Economic Regulation: Away From a General Theory of the First Amendment, 78 NW. U. L. REV. 1212, 1251-57 (1983) (observing that the Court has been generous about finding First Amendment values and employed an "eclectic" group of tests in various First Amendment contexts).
309. CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 11 (1995).
310. Ernest Gellner defines civil society as 'that set of diverse non-governmental institutions which is strong enough to counterbalance the state and, while not preventing the state from fulfilling its role as keeper of the peace and arbitrator between major interests, can nevertheless prevent it from dominating and atomizing the rest of society[.]... Civil Society can check and oppose the state. It is not supine before it.'
311. Mark Tushnet, The Constitution of Civil Society 75 CHI.-KENT L. REV. 379, 380(2000)
312. (quoting ERNEST GELLNER, CONDITIONS OF LIBERTY: CIVIL SOCIETY AND ITS RIVALS 5, 193(1994)).
313. 274 U. S. 357 (1927).
314. Id. at 365.
315. Pnina Lahav, Holmes and Brandeis: Libertarian and Republican Justifications for Free Speech, 4 J. L. & POL. 451, 460, 466(1988) ("In Brandeis' opinion, the potential goodness of individuals acting collectively was the source of legitimacy for democracy, and the reason he supported it").
316. SUNSTEIN, supra note 195, at xvi.
317. E.g., SUNSTEIN, supra note 195, at 244-52;
318. Martin H. Redish & Abby Marie Mollen, Understanding Post's and Meiklejohn's Mistakes: The Central Role of Adversary Democracy in the Theory of Free Expression, 103 NW. U. L. REV. 1303, 1303-04 (2009) ("[A]mong the most prominent and widely accepted theories of the First Amendment are those that explain the Free Speech Clause as either a catalyst for or a protection of democracy itself. Such 'democratic' theories of the First Amendment posit that speech receives constitutional protection because it is essential to a functioning and legitimate democracy.");
319. see also STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION 37 (2005) (describing "active liberty" as "the need to make room for democratic decision-making");
320. Jason Mazzone, Speech and Reciprocity: A Theory of the First Amendment, 34 CONN. L. REV. 405, 415-16 (2002) (noting growing emphasis on Sunstein's theory of deliberative democracy).
321. E.g., COHEN & ARATO, supra note 16, at vii, viii (noting that "the concept of civil society... has become quite fashionable today" and arguing that civil society is "the primary locus for the potential expansion of democracy").
322. I do not mean to suggest that this is the only theory of the First Amendment under which labor speech should be afforded top-tier protection. However, other theories are beyond the scope of this Article.
323. Cynthia Estlund has called freedom, equality, diversity, and connectedness the "ideal conditions" for democratic deliberation. Cynthia L. Estlund, Working Together: The Workplace, Civil Society, and the Law, 89 GEO. L. J. 1, 58(2000).
324. For example, Jane Mansbridge theorizes that civil society allows for "deliberative enclaves of resistance" or "counterpublics", with a variety of goals: 'understanding themselves better, forging bonds of solidarity, preserving the memories of past injustices, interpreting and reinterpreting the meanings of those injustices, working out alternative conceptions of self, of community, of justice, and of universality, trying to make sense of both the privileges they wield and the oppressions they face, understanding the strategic configurations for and against their desired ends, deciding what alliances to make both emotionally and strategically, deliberating on ends and means, and deciding how to act, idividually and collectively.'
325. Linda C. McClain & James E. Fleming, Some Questions for Civil Society-Revivalists, 75 CHI.-KENT L. REV. 301, 318(2000)
326. (quoting Jane Mansbridge, Using Power/Fighting Power: The Polity, in DEMOCRACY AND DIFFERENCE: CONTESTING THE BOUNDARIES OF THE POLITICAL 46, 58 (Seyla Benhabib ed., 1996)).
327. For example, when a member of an association goes knocking on doors to fundraise, he is probably acting both as a member and as a neighbor. The same is true when a member of an association drags a friend to a meeting.
328. GELLNER, supra note 196, at 193;
329. Roy Godson, Labor's Role in Building Democracy, in PROMOTING DEMOCRACY: OPPORTUNITIES AND ISSUES 119, 123 (Ralph M. Goldman & William A. Douglas eds., 1988) (describing labor's role in undermining the stability of regimes in Eastern Europe and in decolonizing African countries).
330. COHEN & ARATO, supra note 16, at x (noting that "it would be a mistake to see civil society in opposition to the economy and state by definition");
331. Tushnet, supra note 196, at 399.
332. EMILE DURKHEIM, PROFESSIONAL ETHICS AND CIVIC MORALS 3-5 (Cornelia Brookfield trans., 1958).
333. Pope, supra note 93, at 1112.
334. Bob Edwards & Michael W. Foley, Civil Society and Social Capital: A Primer, in BEYOND TOCQUEVILLE: CIVIL SOCIETY AND THE SOCIAL CAPITAL DEBATE IN COMPARATIVE PERSPECTIVE 1, 1 (Bob Edwards, Michael W. Foley & Mario Diani eds., 2000).
335. CYNTHIA ESTLUND, WORKING TOGETHER: HOW WORKPLACE BONDS STRENGTHEN A DIVERSE DEMOCRACY 114 (2003)
336. (quoting ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF AMERICAN COMMUNITY 19 (2001)).
337. Id.
338. see also Edwards & Foley, supra note 211, at 1.
339. ESTLUND, supra note 212, at 107 (describing Putnam's concepts of "bridging" associations, which bring people together from across different social groups, and "bonding" associations, which bring together people from the same social group).
340. See ROBERT N. BELLAH ET AL., HABITS OF THE HEART: INDIVIDUALISM AND COMMITMENT IN AMERICAN LIFE 246-47 (1987) (describing the role of interdependence in creating a real community rather than a "lifestyle enclave").
341. McClain & Fleming, supra note 205, at 318.
342. 299 U. S. 353 (1937).
343. Id. at 364-65
344. (quoting United States v. Cruikshank, 92 U. S. 542, 552(1875)).
345. Thornhill v. Alabama, 310 U. S. 88, 95(1940).
346. Id.
347. Id. at 102
348. (quoting 1 JOURNAL OF THE CONTINENTAL CONGRESS 104, 108(1904)). To be sure, the Thornhill Court also articulated Holmes's theory that freedom of speech was valuable because it facilitated testing ideas in the "market of public opinion. "
349. Id. at 105;
350. see also Gitlow v. New York, 268 U. S. 652, 673(1925) (Holmes, J., dissenting).
351. Thomas C. Kohler, The Overlooked Middle, 69 CHI.-KENT L. REV. 229, 230(1993).
352. McClain & Fleming, supra note 205, at 311-12. Professors Linda McClain and James Fleming suggest that, to believe that "the barest indication of connection with others [would] seem to support or even to relate to citizenship", one would have to view people as "atomistic individuals, unencumbered selves, or lone rights-bearers."
353. Id. at 353.
354. Godson, supra note 207, at 122.
355. Hawkins, supra note 31, at 76-77 (describing labor's use of strikes to change social expectations about working conditions);
356. McClain & Fleming, supra note 205, at 319;.
357. FONER, supra note 21, at 199 (quoting 1937 collective bargaining agreement between the UAW and General Motors, and discussing unions' role in creating belief that the Depression was caused by "underconsumption", and that distributing wealth was important to economic stability).
358. Id. at 59 (stating that, in the 1840s, courts viewed "any decision to labor for another as a voluntary contractual agreement that allowed employers full authority over the workplace", while viewing labor unions as conspiracies);
359. see also FORBATH, supra note 31, at 1 (noting that American unions "never forged a class-based political movement to press for more generous and inclusive protections" for all workers).
360. William E. Forbath, Social and Economic Rights in the American Grain: Reclaiming Constitutional Political Economy, in THE CONSTITUTION IN 2020, at 55, 55 (Jack M. Balkin & Reva B. Siegel eds., 2009).
361. Id. at 60.
362. See, e.g., MLKCLC Labor Day Party, TEAMSTERS LOCAL UNION 174 (Aug. 31, 2009), http://www.teamsters174.org/news-archives/2009-july-august.htm ("The AFL-CIO Union Movement is fighting for a unique American plan for secure, high-quality health care for all that... [m]akes sure everyone gets high-quality health care as good as or better than they have now.").
363. In The Division of Labor in Society, Emile Durkheim identified the differentiation of labor as an important source-perhaps the most important source-of social solidarity in modern society, which he termed "organic solidarity." This was precisely because of work's mandatory qualities: even individuals who did not have a family or participate in other associations would probably have to work and, therefore, to depend on others and be depended on. Thus, Durkheim saw joining a trade union as a moral good in itself.
364. ERNEST WALL WORK, DURKHEIM: MORALITY AND MILIEU 87 (1972). To foster that interdependence, Durkheim advocated organizing society into "occupational groups", which would function as a kind of super-union or trade group.
365. See ESTLUND, supra note 212, at 111.
366. Kohler, supra note 222, at 233-34. Kohler further argues that, "[g]iven the importance of the work-life sphere in contemporary culture, the promotion of employee selforganization could serve as a buffer against the sort of fragmentation of the polity that Tocqueville understood would deform and pervert a democracy."
367. Id. at 243.
368. ESTLUND, supra note 212, at 4.
369. Id. at 131.
370. Although the courts and others have typically thought of this relationship as something like industrial warfare
371. e.g., Kupferberg, supra note 33, at 701-02 & n. 76 (describing Congress's intent in enacting the NLRA as protection of workers' democratic rights and reduction of "industrial warfare"), it can be more benignly characterized as interdependence.
372. Further, with the rise of business unionism, unions and employers are probably more likely than ever to be able to maintain a functional working relationship. In either event, though, well-functioning unions increase employers' dependence on their employees.
373. There are presently twenty-two right-to-work states, which are found mainly in the southeastern and midwestern United States.
374. See Right to Work States, NAT'L RIGHT TO WORK LEGAL DEF. FOUND., INC., http://www.nrtw.org/rtws.htm, for a list of right-to-work laws.
375. See generally Commc'n Workers of Am. v. Beck, 487 U. S. 735 (1988).
376. Labor Management Reporting and Disclosure Act of 1959, Pub. L. No. 86-257, art. I, 73 Stat. 519
377. (codified as amended at 29 U. S. C. § 401 (2006)).
378. See generally Vaca v. Sipes, 386 U. S. 171 (1967). Of course, unions are democratic to varying degrees.
379. See Godson, supra note 207, at 119 (noting that "not all trade unions are democratic").
380. ESTLUND, supra note 212, at 14 (arguing that the hierarchical nature of most workplaces suppresses their ability to create social capital).
381. Like workplaces, labor unions are subject to antidiscrimination laws, including Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-2 (2006)
382. and the Labor Management Reporting and Disclosure Act, 29 U. S. C. § 411 (a).
383. ESTLUND, supra note 212, at 7.
384. JOHN SCHMITT & KRIS WARNER, CTR. FOR ECON. & POLICY RESEARCH, THE CHANGING FACE OF LABOR, 1983-2008 (2009), available at http://www.cepr.net/ documents/publications/changing-face-of-labor-2009-11.pdf;
385. see also BUREAU OF LABOR STATISTICS, supra note 19 (indicating that, whereas men used to belong to unions at much higher rates than women, the "gap between their rates has narrowed considerably since 1983"). Further, labor unions have become more diverse in terms of representing more unskilled and semi-skilled workers than in earlier decades, when unions tended to represent relatively well-off skilled workers.
386. WILLIAM FORM, SEGMENTED LABOR, FRACTURED POLITICS: LABOR POLITICS IN AMERICAN LIFE 40-41 (1995).
387. ESTLUND, supra note 212, at 129. It may be that, in some unions, participation will be limited to a few committed members, so the potential integrative benefits of physically coming together at the union hall will be minimal. However, data showing that union members are more politically active than the general public suggests that union membership is still valuable to deliberative democracy. Presumably, which aspects of union membership-coming together to debate workplace condition and take collective action, being part of an organization that participates actively in politics, having to think about the welfare of other workers while negotiating contracts or processing grievances, or something else-influence democratic citizenship and participation will vary among unions and members.
388. Id. at 107
389. (citing PUTNAM, supra note 212, at 22).
390. See supra note 243 and accompanying text.
391. ESTLUND, supra note 212, at 130.
392. Tushnet, supra note 196, at 399.
393. Hawkins, supra note 31, at 74 (stating that "processions and festivals enlivened the unionists' efforts, proclaiming to all their public identity and social ideals with banners like the New York GTU's standard of Archimedes lifting a mountain with a lever").
394. E.g., Godson, supra note 207, at 125.
395. Christopher Grant, Unions in a Fragmented Society, 77 CHI.-KENT L. REV. 849, 850(2002).
396. The ANES Guide to Public Opinion and Electoral Behavior, AM. NAT'L ELECTION STUD., http://www.electionstudies.org/nesguide/gd-index.htm (last visited Apr. 20, 2011). It is unclear whether there is a causal relationship between union membership and political activism, and if there is one, which way it runs. On one hand, it may be that, given the improved wages and benefits that come with unionization, employees have more resources and time to devote to politics. On the other, it may be that the most politically aware employees are also the most likely to perceive benefits of unionization, to be aware of the protected status of labor organizing in the workplace, or to have the energy and motivation to organize a union. Or, there may be a third factor that accounts for both phenomena. Carole Pateman points to the sense of "political efficacy" or "political competence" as strongly correlative to political participation, and those traits may also make unionization more likely.
397. CAROLE PATEMAN, PARTICIPATION AND DEMOCRATIC THEORY 46 (1976).
398. Godson, supra note 207, at 125.
399. Cf. ESTLUND, supra note 212, at 130 (noting that "some employees are required to listen and submit to others who hire them and could fire them, and who control their advancement and conditions of employment" as a limit on workplace civil society);
400. id. at 135 (noting that while collective bargaining "looks like a very pale version of democracy and nothing like a republic", it nonetheless "represent[s] the rule of law, the institution of due process, and the opportunity for a real collective voice" in the workplace).
401. BUREAU OF LABOR STATISTICS, supra note 19 (showing that, among full-time workers, union members earned a median of $886 per week, compared to $691 for nonmembers).
402. However, organizing speech is not the only labor speech that has the potential to enhance democratic deliberation. The need to bargain collectively will also bring union members together to deliberate: For example, during bargaining, union members are likely to discuss the merits and fairness of particular offers and counter-offers, and to vote on whether or not to approve a contract. Bargaining speech, including picketing and secondary activity, also has the potential to make workers feel empowered to, collectively, stand up to management. The results of successful bargaining-increased wages and job security-may leave workers with more time and money to participate in their unions, in other associations, in their communities more generally, and in the political process. Finally, bargaining speech may ultimately influence the outcomes of future organizing efforts, creating a virtuous cycle: if a union has a long track record of bargaining that improves wages and working conditions, it is more likely that the union will be able to attract new members within a workplace (in a right-to-work state) or organize new workplaces. Thus, it is not the case that only organizing speech, and not union speech more generally, promotes deliberative democracy.
403. For example, Smithfield ran a series of commercials in which workers touted their good working conditions and radio interviews with Smithfield spokesperson and "celebrity chef Paula Deen.
404. See AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT 4 (1996) (stating that "[a] deliberative perspective sometimes justifies bargaining, negotiation, force, and even violence"). This is true particularly if comprehensive campaigns inconvenience, but do not realistically threaten, the companies at which they are aimed.
405. See supra notes 24-28 and accompanying text.
406. See supra text accompanying notes 140, 144-45.
407. Norman T. Deutsch, Professor Nimmer Meets Professor Schauer (and Others): An Analysis of "Definitional Balancing" as a Methodology for Determining the "Visible Boundaries of the First Amendment", 39 AKRON L. REV. 483, 485(2006) (observing that the Court has conducted balancing in speech cases where First Amendment values were implicated on both sides of the equation).
408. Though the Court has not endorsed this distinction-and rejected it in BE & K Construction Co. v. NLRB-it seems to view restrictions on labor speech when criminal penalties or hefty fines are at issue with greater skepticism than when faced with an injunction.
409. Cf. BE & K Constr. Co. v. NLRB, 536 U. S. 516, 541-42 (2002) (Breyer, J, concurring) (arguing that, because antitrust penalties and litigation costs are greater than those associated with NLRB enforcement proceedings, the First Amendment analysis need not be identical).
410. Shiffrin, supra note 194, at 1215
411. (quoting Kenneth Karst, The First Amendment and Harry Kalven: An Appreciative Comment on the Advantages of Thinking Small, 13 UCLA L. REV. 1, 18(1965)).
412. 77 N. L. R. B. 124 (1948).
413. Id. at 127;
414. see also Shawn J. Larsen-Bright, Note, Free Speech and the NLRB's Laboratory Conditions Doctrine, 77 N. Y. U. L. REV. 204, 215(2002).
415. Larsen-Bright, supra note 264, at 215;
416. see also NLRB v. Gissel Packing Co., 395 U. S. 575, 612(1969) (concluding that NLRB may order employer to bargain with union if employer has "succeeded in undermining a union's strength and destroying the laboratory conditions necessary for a fair election").
417. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U. S. 748, 778 n. 3 (1976) (Stewart, J., concurring) (noting that the Court permitted more speech restrictions in the context of labor elections than political elections to promote "antiseptic conditions", based on employees' competing First Amendment associational interests and dependence on their employers).
418. For example, during organizing campaigns, employers may not threaten to close the plant in retaliation if the employees vote the union in (though employers may state that the plant may close if the workers unionize, provided the statement is not motivated by antiunion animus), nor may they promise to improve working conditions or compensation if employees reject unionization.
419. See Julius German, Labor Law and Free Speech: The Curious Policy of Limited Expression, 43 MD. L. REV. 4, 5-9 (1984).
420. Further, the NLRA is not universally speech-restrictive. In some contexts, the NLRA takes an expansive view of unions' and employers' speech rights. For example, the Court has repeatedly recognized that tempers run high during labor disputes, causing both sides to make extreme statements.
421. Linn v. United Plant Guard Workers of Am., Local 114, 383 U. S. 53, 64(1966). At times, the Court has even suggested that permitting such speech could prevent violence by providing a way for labor combatants to blow off steam.
422. Milk Wagon Drivers Union of Chi., Local 753 v. Meadowmoor Dairies, Inc., 312 U. S. 287, 296(1941). Thus, the NLRA preempts defamation suits that do not meet the New York Times Co. v. Sullivan actual malice standard because of the risk that state-law defamation liability could "dampen the ardor of labor debate and truncate the free discussion envisioned by the Act [and]... might be used as weapons of economic coercion. "
423. Linn, 383 U. S. at 64.
424. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U. S. 137, 152 n. 6 (2002) (stating that the "[Labor] Board is precluded from imposing punitive remedies");
425. Republic Steel Corp. v. NLRB, 311 U. S. 7, 10(1940) (describing purposes of NLRA as remedial, not punitive);
426. see also Estlund, supra note 3, at 1537. The NLRB's position is that it has the authority to order attorneys' fees.
427. Micah Berul, To Bargain or Not To Bargain Should Not Be The Question: Deterring Section 8 (A) (5) Violations in First-Time Bargaining Situations Through a Liberalized Standard for the Award of Litigation and Negotiation Costs, 18 LAB. LAW. 27, 39-40 (2002).
428. However, the U. S. Courts of Appeals for the Third and D. C. Circuits have called this position into doubt. Quick v. NLRB, 245 F.3d 231, 255 (3d Cir. 2001);
429. Unbelievable, Inc. v. NLRB, 118 F.3d 795, 805-06 (D. C. Cir. 1997).
430. 314 U. S. 469 (1941).
431. See generally id.
432. Id. at 477.
433. See Kate E. Andrias, A Robust Public Debate: Realizing Free Speech in Workplace Representation Elections, 112 YALE L. J. 2415, 2459-60 (2003) (arguing that the NLRB should be required to regulate employer speech to facilitate employees' exercises of their associational rights).
434. Likewise, the result in Building Service Employees International Union, Local 262 v. Gazzam, 339 U. S. 532 (1950), was correct from the perspective of promoting legitimate civil society. In that case, the Court upheld an injunction against a union that sought to coerce an employer to coerce his employees to join the union.
435. Id. at 540-41. A labor union that is formed through coercion not only infringes the employees' associational rights, but it is unlikely to encourage further participation in union affairs. Since the benefits to deliberative democracy come mainly from members' robust participation in an association's affairs, few are likely to accrue in this situation.
436. See supra notes 165-67.
437. See supra notes 168-76 and accompanying text.
438. Bill Johnson's Rests., Inc. v. NLRB, 461 U. S. 731, 734(1983).
439. Id.
440. Id. at 735-36.
441. Id. at 747.
442. Id. In BE & K, the Court stated that this language was dicta, and rejected it. BE & K Constr. Co. v. NLRB, 536 U. S. 516, 527-28 (2002).
443. Notably, one of the reasons that unions give for running comprehensive campaigns is that the NLRB process has failed to protect workers and create conditions under which workers can form a union free of intimidation and mistreatment. One study suggested that "almost one-in-five union organizers or activists can expect to be fired as a result of their activities in a union election campaign. "
444. JOHN SCHMITT & BEN ZIPPERER, CTR. FOR ECON. & POUCY RESEARCH, DROPPING THE AX: ILLEGAL FIRINGS DURING UNION ELECTION CAMPAIGNS 1 (2007), available at http://www.cepr.net/documents/publications/unions-2007-01.pdf.
445. See, e.g., James M. Owens et al., "Now You Have It, Now You Don't": The NLRB 's Fickle Affair with the Weingarten Right and the Need for Congress To End the Controversy, 11 J. INDIVIDUAL EMP. RTS. 155, 156(2004) (noting the "flip-flopping of the NLRB's decisions regarding the applicability of the Weingarten right to the nonunion workplace");
446. Steven Porzio, NLRB Chairman Addresses Labor Law Reform at American Bar Association Meeting, UNIONS AND LAB. L. REFORM BLOG (Nov. 11, 2009), http://www.efcablog.com/2009/11/articles/craig-becker-nlrb/nlrb-chairman- addresses-laborlaw-reform-at-american-bar-association-meeting/ (noting that NLRB "Chairman Liebman argued that Congressional inaction has fostered 'deep divisions' and 'controversy' in labor law and has 'facilitated' the NLRB's 'flip-flopping' and 'policy oscillation. '").
447. Pope, supra note 93, at 1076 (arguing that the "black hole" of labor law "is traceable to the commodity theory of labor dominant during the Lochner era").
448. See, e.g., NLRB v. Retail Store Emps. Union, Local 1001, 447 U. S. 607, 617-18 (1980) (Blackmun, J., concurring) (agreeing to uphold NLRB's finding that a union engaged in an illegal secondary boycott "only because I am reluctant to hold unconstitutional Congress' striking of the delicate balance between union freedom of expression and the ability of neutral employers, employees, and consumers to remain free from coerced participation in industrial strife"). Alternatively, if it is correct that "judges don't like labor unions", a steady erosion of labor rights could occur.
449. See generally George Schatzki, It 's Simple: Judges Don't Like Labor Unions, 30 CONN. L. REV. 1365 (1998).
450. Tushnet, supra note 196, at 397.
451. The NLRA itself discusses the importance of labor unions to achieving industrial peace and a just society.
452. See 29 U. S. C. § 151 (2006) ("The inequality of bargaining power between employees who do not possess full freedom of association of actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association substantially burdens and affects the flow of commerce....").
453. 18 U. S. C. § 1964 (c) (2006) (civil remedies include treble damages and attorneys' fees).
454. First Amended Complaint, supra note 8, ¶¶ 1-4, at 91-92.
455. FORM LM-2 LABOR ORGANIZATION ANNUAL REPORT: UNITED FOOD & COMMERCIAL WORKERS (Mar. 26, 2009), available at http://erds.dol-esa.gov/query/getOrgQry.do (search for file number 000-056; then follow "Food & Commercial Wkrs National Headquarters" hyperlink; then follow "2008 Report" hyperlink) (listing net assets of $159, 521, 604).
456. According to the UFCW's LM-2s, the union paid Bredhoff & Kaiser PLLC, the firm that represented UFCW and the individual defendants in Smithfield, $5, 579, 684 in 2008, the year in which the Smithfield lawsuit was filed.
457. Id. In the two previous years, UFCW paid Bredhoff only $99, 500 and $23, 722, respectively.
458. See FORM LM-2 LABOR ORGANIZATION ANNUAL REPORT: UNITED FOOD & COMMERCIAL WORKERS (Mar. 28, 2008), available at http://erds.dol-esa.gov/query/ getOrgQry.do (search for file number 000-056; then follow "Food & Commercial Wkrs National Headquarters" hyperlink; then follow "2007 Report" hyperlink);
459. FORM LM-2 LABOR ORGANIZATION ANNUAL REPORT: UNITED FOOD & COMMERCIAL WORKERS (Mar. 22, 2007), available at http://erds.dolesa.gov/query/getOrgQry.do (search for file number 000-056; then follow "Food & Commercial Wkrs National Headquarters" hyperlink; then follow "2006 Report" hyperlink). These numbers only include fees attributed to "representational activities."
460. See, e.g., N. Y. Times Co. v. Sullivan, 376 U. S. 254, 277-78 (1964) (discussing the potential for a lawsuit to chill protected speech);
461. Eugene Volokh, Crime-Facilitating Speech, 57 STAN. L. REV. 1095, 1192(2005) (noting that "[s]peakers who are genuinely not intending to facilitate crime might nonetheless be deterred by the reasonable fear that a jury will find the contrary").
462. BE & K Constr. Co. v. NLRB, 536 U. S. 516, 532(2002).
463. By this, I do not mean union speech that educates workers about the value of unions, which will often contribute to workers' abilities to exercise their associational rights by counterbalancing employers' one-sided, anti-union statements. Rather, I refer to overtly coercive or threatening speech, such as "sign this card or else."
464. See San Diego Bldg. Trades Council, Local 2020 v. Garmon, 359 U. S. 236, 244-45 (1959) (holding that NLRB has sole jurisdiction over activity that constitutes unfair labor practices, even if the NLRB declines jurisdiction over that activity).
465. See supra Part III.
466. 376 U. S. at 285-87 (holding that the New York Times was not liable for defamation when it published an NAACP-sponsored advertisement because it neither knew nor recklessly disregarded whether the published advertisement was false). Applying this standard to labor speech in non-NLRB proceedings will also have the advantage of extending the same standard to union speech in all contexts, as the Sullivan standard already applies under the NLRA, though as a matter of statutory interpretation rather than the First Amendment.
467. See Linn v. United Plant Guard Workers of Am., Local 114, 383 U. S. 53, 65(1966).
468. Sullivan, 376 U. S. at 279-80.
469. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 761(1985) (declining to apply Sullivan standard to speech on matters of private concern, holding that "[i]n light of the reduced constitutional value of speech involving no matters of public concern, we hold that the state interest adequately supports awards of presumed and punitive damages-even absent a showing of 'actual malice'").
470. This standard would be consistent with the Norris-LaGuardia Act, which provides that [n]o officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.
471. U. S. C. § 106 (2006).
472. Volokh, supra note 292, at 1192 (listing instances in which the Court has rejected First Amendment tests that turn on the motives of the speaker).
473. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U. S. 748, 756-57 & n. 15 (1976) (holding that speech about drug prices had First Amendment value, in part because of listeners' First Amendment rights to receive the information).
474. This issue also arises in the context of assessing damages. If a court eventually finds a civil RICO violation, it would then have to separate damages attributable to the illegal speech from damages attributable to protected speech. If a court applied Claiborne Hardware to social movements other than labor unions, this inquiry could be extremely difficult.
475. Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 498(1949);
476. see also Bldg. Serv. Emps. Int'l Union, Local 262 v. Gazzam, 339 U. S. 532, 533, 541(1950) (upholding injunction forbidding union from attempting to compel employer to coerce his employees).
477. See supra notes 127-30 and accompanying text.
478. See supra notes 110-12 and accompanying text.
479. Giboney, 336 U. S. at 492-95 (describing picketing that informed the public that Empire sold ice to nonunion peddlers).
480. See Cox v. Louisiana, 379 U. S. 559, 563-64 (1965) (stating that Giboney applied the general principle that "[a] man may be punished for encouraging the commission of a crime" in the context of a labor dispute).
481. Commentators have stressed the importance of the imminence requirement in protecting speech, given that intent and likelihood of success are somewhat subjective.
482. See Volokh, supra note 292, at 1193 (stating that "the main barrier to liability under the Brandenburg test has generally been the imminence prong").
483. Giboney, 336 U. S. at 503.
484. One reason that comprehensive campaigns do not pose the same threat as the conduct in Giboney is that, in Giboney, the union could enforce its call for a secondary boycott by subjecting union truck drivers to "fine or suspension" for crossing the picket line to deliver the company's product.
485. Id. at 493. By contrast, comprehensive campaigns appeal to the public at large, over which unions have little influence beyond their powers of persuasion.
486. A further desirable aspect of a labor law regime in which NLRB proceedings, but not civil lawsuits, are available to employers being targeted by union comprehensive campaigns is that, absent the additional incentive of forcing unions to incur significant attorneys' fees and the settlement value of a civil suit, employers will be less likely to attempt to interfere with union speech that poses little threat to the employers' interests.