TABLE OF CONTENTS INTRODUCTION I. THE CASE II. THE CONTROVERSY III. FIRST AMENDMENT OPPORTUNISM IV. FIRST AMENDMENT EXPANSIONISM A. Speech B. Rules INTRODUCTION
In recent years, many litigants have found the First Amendment to be a useful tool. One could mention pornography actors, tattoo artists, death row inmates, and corporate interests from small photography shops to meat trade associations to cigarette manufacturers to pharmaceutical companies. All have raised First Amendment claims in the last few years, and nearly all of them have met with some level of success.
These claims are examples of what has been called First Amendment opportunism, where litigants raise novel free speech claims that may involve the repackaging of other types of legal arguments. (1) To the extent that many such claims have succeeded in the courts, they are also examples of what I will call First Amendment expansionism, where the First Amendment's territory pushes outward to encompass ever more areas of law. Here, I will consider one recent case that epitomizes both phenomena. What explains them, however, is another matter. Although many forces contribute to both First Amendment opportunism and First Amendment expansionism, the two phenomena may say something about the nature of speech and the nature of rules.
In 2013, the United States Court of Appeals for the District of Columbia decided National Association of Manufacturers v. National Labor Relations Board. (2) In 2011, the National Labor Relations Board (Board) issued the so-called Notice Posting Rule, which required most private sector employers to display within the workplace a poster describing employees' workplace rights under the National Labor Relations Act (NLRA). (3) The poster stated, for example, that employees have the right to organize or join a union, to bargain collectively, to discuss wages and conditions with coworkers or a union, to take action to improve working conditions, and to choose to do none of these things. (4) The poster also identified some rules that the NLRA places on employer conduct and union conduct. (5)
The government rested its justification for the rule on the fact that the Board cannot initiate enforcement of the NLRA on its own, but instead requires a charge first to be filed by a third party, such as an employee, employer, or union. (6) Posting the principle components of the NLRA was justified because "[enforcement of the NLRA ... depend[s] on the existence of outside actors who are not only aware of their rights but also know where they may seek to vindicate them within appropriate timeframes." (7)
The National Association of Manufacturers, a trade group, challenged the Notice Posting Rule, arguing that it violated the First Amendment rights of employers. (8) The District Court held that the Notice Posting Rule did not violate the First Amendment because it "d[id] not compel employers to say anything." (9) Rather, the poster constituted speech on the part of the government. (10)
The D.C. Circuit reversed, holding that the Notice Posting Rule violated the speech rights of employers. (11) The court relied on a line of so-called "compelled speech" cases, beginning with West Virginia State Board of Education u. Barnette, in which the Supreme Court held that requiring public school students to recite the Pledge of Allegiance violated the First Amendment. (12) The court concluded that the Notice Posting Rule could not be distinguished from Barnette. (13), Like the Pledge of Allegiance in Barnette, the employment notice was speech that the employer had to communicate whether it wanted to or not. (14) As in Barnette, "the government selected the message and ordered its citizens to convey that message." (15) Thus, as in Barnette, the requirement had to be struck down. (16)
Let us pause at the D.C. Circuit's assertion that requiring employers to post accurate information about the laws governing the employment relationship cannot be distinguished from requiring schoolchildren to recite the Pledge of Allegiance. Many lawyers, and indeed many laymen, would say these cases are eminently distinguishable. One could point to the fact that the workplace is different from other contexts. Both employers and employees play roles that often have little to do with their personal passions, and the workplace is heavily regulated for health, safety, and other reasons. One could point to the fact that labor relations are also heavily regulated. One could argue that the realm of commerce generally is different from the realm of politics at issue in Barnette. One could note that the Pledge of Allegiance amounts to an affirmation of personal political belief ("I pledge allegiance to the flag of the United States of America" (17) whereas the Notice Posting Rule merely requires the employer to restate facts about the actual law governing the employment relationship. (18) Many people would say that a personal oath and a restatement of the law are quite different forms of communication, and that this makes them more different than their both happening to be made of words makes them the same.
Moreover, although established First Amendment law may not reflect everyone's intuitions on every topic, it offers plenty of support for the view that the Notice Posting Rule and the Pledge of Allegiance are not as one. First Amendment law treats labor relations as essentially a unique realm in which many general free speech principles do not apply. (19) Courts have recognized that the employment context permits many forms of regulation that would receive different analysis in other realms. (20) This includes the fact that employers may have duties to disclose certain information to employees, whether regarding health and safety or other aspects of the work environment. (21) First Amendment law has also treated commercial speech differently from other speech, (22) and has treated laws requiring speech about commerce differently from laws restricting communication about commerce. (23) More generally, First Amendment law has distinguished between compelled speech of the Barnette variety and compelled disclosure of uncontroversial factual statements, which should receive minimal scrutiny. (24)
In fact, in an earlier case, UAW-Labor Employment & Training Corp. v. Chao, the D.C. Circuit denied that employers had a free speech right not to post a different government mandated notice informing employees of certain labor rights. (25) In rejecting the free speech claim, the court said:
[A]n employer's right to silence is sharply constrained in the labor context, and leaves it subject to a variety of burdens to post notices of rights and risks. Thus the dissent understandably offers no argument that employers' silence as to [employee] rights is in fact protected (or even arguably protected). (26) A court could, in short, easily distinguish the Notice Posting Rule from the Pledge of Allegiance. But the D.C. Circuit did not. It is this fact that makes National Association of Manufacturers so indicative of current trends in First Amendment law. This is, to many, an easy case--an easy case in favor of the Notice Posting Rule. If anything, as the D.C. Circuit itself suggested in Chao, the hard part may be forming an understanding of the First Amendment under which the Notice Posting Rule is unconstitutional. And yet the D.C. Circuit concluded that it was.
What makes National Association of Manufacaturers significant is this conclusion. As others have noted, the First Amendment operates as a rule and, like other rules, has a particular scope. (27) Some activities are within the scope of the First Amendment, and others are outside it. (28) Some speech has long been thought to be outside the scope of the First Amendment, such as insider trading, securities fraud, antitrust violations, criminal solicitation, various forms of conspiracies, and other inchoate crimes. (29) In addition, for those activities within the scope of the First Amendment, some receive a high degree of protection, and some receive a lower degree. Since 1976, for example, commercial speech has been within the scope of the First Amendment, (30) but some commercial speech receives "intermediate" protection (31)--lower than that received by, say, political speech--and other commercial speech receives no protection at all. (32)
The legal exercise of distinguishing cases concerns the scope of rules. To say that the Notice Posting Rule can be distinguished from the Pledge of Allegiance is to say that a court could conclude that they do not fall under the same rule. (33) A court could conclude that both fall within the scope of the First Amendment, but that the Pledge falls under a more protective First Amendment rule than the Notice. More drastically, a court could conclude that the Pledge falls within the scope of the First Amendment, while the Notice falls outside of it entirely. This is what it means to say that the cases can be distinguished.
The fact that the D.C. Circuit did none of these things says something about the current state of First Amendment law. As others have observed, litigants are raising First Amendment claims when earlier they never would have done so. (34) Beyond that, courts often entertain these claims, thus implying that they may fall somewhere within the First Amendment's scope. But this case goes further still. Not only was the First Amendment invoked, not only did the court find it relevant, but the court concluded that the employers had raised a successful claim. Nor is that conclusion a fluke. This case did not go to the Supreme Court because the Board decided not to seek certiorari, presumably out of concern that it would lose. (35) Not only was the First Amendment raised, not only was the case within its scope, but the protection given appeared to be of the highest level, on par with that offered in Barnette. Given the opportunities for distinguishing the...