Supreme Court Affirms Free Speech for Employers

Published September 1, 2008

Employers across the nation now have confirmation of their constitutional right to free speech as the U.S. Supreme Court has struck down a California law that hampered employers’ ability to speak out about union organizing efforts in the workplace.

The 7-2 decision in Chamber of Commerce v. Brown, issued in June, overturned a Ninth Circuit Court of Appeals ruling.

On behalf of affected California employers, the U.S. Chamber of Commerce filed suit in 2002, contending federal law preempts California from regulating speech about union activities.

At issue was whether Assembly Bill 1889, passed in 2000, could prohibit employers who receive more than $10,000 in state grant funds each year from using that money to “assist, promote, or deter union organizing.” The measure silenced employers from participating in unionization debates, while allowing employees and union organizers unfettered speech.

The National Labor Relations Act (NLRA) affords workers the right to organize and bargain collectively and prohibits employers from interfering with or coercing employees in the exercise of those rights. Because Congress explicitly regulates some activities under NLRA, the Court has historically presumed legislative silence on other activities implies congressional intent not to regulate those activities. Such is the case with advocacy for and against union organizing, the Court determined.

Intent to Allow Ideas

Justice John Paul Stevens, writing for the majority, explained that even though NLRA contains no express provisions regarding states’ abilities to regulate labor relations, the Court has previously denied states’ authority to do so.

Because NLRA regulates coercive speech related to union activities, the absence of any regulation for non-coercive speech shows clear congressional intent to allow an open marketplace for ideas between and among workers, employers, management, and the union, the Court found.

Congress, therefore, has struck “a balance of protection, prohibition, and laissez faire in respect to union organization, collective bargaining, and labor disputes,” Stevens said, quoting a previous decision as precedent.

States do not have the authority to frustrate the intent of Congress, the Court noted. Thus the California law was incorrect because it regulated within “a zone protected and reserved for market freedom.”

The decision strengthens the rights of workers and employers to conduct open debate for or against union representation without fear of retaliation, as Congress intended, analysts say.

Some Restrictions Already OK

Justices Stephen Breyer and Ruth Bader Ginsburg dissented, claiming AB 1889 would not “weaken or undercut any such congressional policy because Congress itself has enacted three statutes that … do precisely the same thing.” Federal law uses language nearly identical to the California language to restrict recipients of federal funds under HeadStart, the Workforce Investment Act, and the National Community Service Act.

But the similarities in language between the state and federal statutes did not sway the majority. Congress has an interest in creating nationwide uniformity in the marketplace. If a state is allowed to fashion its own language–even if the verbiage is similar to federal wording–the state has improperly preempted the role of Congress, the Court ruled.

States’ Rights Curtailed

While the ruling is a victory for employer free speech, some observers saw it as another strike against states’ rights. Wall Street Journal reporters Jess Bravin and Kris Maher described it as “another blow to state autonomy” because federal law trumped a state regulation.

Unions expressed hope that state laws could be modified to address the concerns stated in the majority opinion. Since the Court struck down a state law on the basis of federal preemption, unions in the meantime will focus on passing the Employee Free Choice Act.

That proposed federal law, one of organized labor’s highest priorities, would allow private-sector workers to unionize without the need for secret ballot elections. It has already passed the U.S. House but is stalled in the Senate.

Don Brunell, president of the Association of Washington Business, believes the Court’s decision “has clearly put an end” to recent efforts in Washington state to pass regulations on employer speech that are even broader in scope than the California law.

“In striking down the California employer gag rule,” Brunell said, “the U.S. Supreme Court’s message is clear: Employees have a right to receive information opposing unionization.”

Scott Dilley ([email protected]) is labor policy analyst and Sonya Jones ([email protected]) is director of the Labor Policy Center, both at the Evergreen Freedom Foundation in Olympia, Washington.