Office of the Attorney GeneralMarch 17, 2014 (Approx. 9 pages)
Tenn. Op. Atty. Gen. No. 14-31 (Tenn.A.G.),
Office of the Attorney General
State of Tennessee
Opinion No. 14-31
March 17, 2014
Constitutionality of Legislation that would Prohibit Mass Picketing
*1 The Honorable Mike Turner
17 Legislative Plaza
Nashville, Tennessee 37243-0151
1. Does H.B. 1688, 108th Gen. Assem. (2014) (hereinafter “HB1688”),1 present an invalid content-based restriction on speech under the First Amendment to the United States Constitution and/or Article I, § 19, of the Tennessee Constitution?
2. Are any of the provisions of HB1688 contrary to United States or Tennessee Supreme Court jurisprudence regarding the freedom of speech or freedom of assembly?
3. Is HB1688 contrary to any provision of the National Labor Relations Act and therefore invalid under Article VI of the United States Constitution?
3. HB1688 could be preempted by the National Labor Relations Act, at least in part.
1 and 2. Tenn. Code Ann. § 39-17-307(a) currently makes it a criminal offense to obstruct a highway or other public passageway. HB1688 would add new subsections (c) through (i) to the statute. New subsections (c) and (d) provide that “[i]t is no defense to prosecution that an organization or individual engages in mass picketing to further an objective in the context of a labor dispute” and make it an offense to “engage in mass picketing activity in the context of a strike, lockout, or other labor dispute.” H.B. 1688, § 1. New subsection (e) defines the term “mass picketing”; subsection (f) provides that (e) shall not apply to mass picketing at any governmental building; subsection (g) defines “labor dispute”; and subsection (h) allows a business or property owner to seek injunctive relief without showing irreparable harm “[i]f, in a labor dispute, an organization or individual is engaged in mass picketing at a business or private residence.” id. Subsection (i) provides that nothing in the bill should be construed “to alter, modify or amend the protections afforded under the federal labor laws.” id. HB1688, therefore, is clearly directed at mass picketing activities by individuals or organizations in the context of a labor dispute.
The Free Speech Clause of the First Amendment to the United States Constitution provides that “Congress shall make no law ... abridging the freedom of speech.” Similarly, Article I, § 19, of the Tennessee Constitution states in relevant part that “[t]he free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.”2 Peaceable assembly is protected by the First Amendment and “cannot be made a crime.” De Jonge v. Oregon, 299 U.S. 353, 364 (1937).3 But the government may regulate “violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact.” Roberts v. U.S. Jaycees, 468 U.S. 609, 628 (1984).
HB1688 presents a content-based restriction upon speech. It would criminalize “any form of mass picketing activity in the context of a strike, lockout, or other labor dispute” (emphasis added). See Police Dep't of Chicago v. Mosley, 408 U.S.92, 100 (1972) (“The central problem with [the city's] ordinance is that it describes permissible picketing in terms of its subject matter.”). It could be said that HB1688 would prohibit conduct in the labor-dispute context that is already made unlawful by Tenn. Code Ann. § 39-17-307.4 But it cannot be said that that is all that HB1688 would do. See Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 210 (3d Cir. 2001) (“[R]egulations cannot be insulated from First Amendment challenge ... based on the argument that they do no more than prohibit conduct that is already unlawful.”). HB1688 includes labor-dispute-specific proscriptions on conduct that do not apply in non-labor contexts.5 Furthermore, the injunction provision of HB1688 (new subsection (h)) would establish a different standard for business and private-property owners who are the targets of labor-related mass picketing.6
*3 The preamble to HB1688 declares that “the state has a compelling interest in protecting the safety and well-being of the public from violence, threats of violence, intimidation and other disruptive behavior that may be caused by mass picketing.” Protecting the safety and well-being of the public may well be a compelling state interest, see State v. Crain, 972 S.W.2d 13, 16 (Tenn. Crim. App. 1998) (finding that the State has a compelling interest in maintaining the safety of the roads and protecting the public), but it is not at all clear that the risk of such harms in the labor-dispute context is sufficiently compelling so as to justify the bill's content- based restrictions on speech. The preamble asserts that these harms “may” be caused by mass picketing, but “[m]ere speculation of harm does not constitute a compelling state interest.” Consolidated Edison Co. of N.Y., Inc. v. Public Serv. Comm'n of N.Y., 447 U.S. 530, 543 (1980); see also Brown, 131 S.Ct. at 2739 (rejecting state's argument that legislature may make a predictive judgment about a link between a certain activity and a harm as a basis for taking preemptive action on speech). Furthermore, even if the State has a sufficiently compelling public- safety interest in prohibiting mass picketing, the bill's prohibitions on “any form of mass picketing in labor disputes” would not be narrowly tailored to serve that interest. See Mosley, 408 U.S. at 101 (“Some labor picketing is peaceful, some disorderly; the same is true of picketing on other themes.”). In either event, HB1688, targeted as it is at labor-dispute picketing activities, would likely run afoul of the First Amendment. See United Food & Commercial Workers Local 99 v. Bennett, 934 F.Supp.2d 1167, 1193-94 (D. Ariz. 2013) (amendments to Arizona law which singled out labor picketing activities for special sanction and regulation were invalid as viewpoint-discriminatory and simultaneously underinclusive and overinclusive); CF&I Steel, L.P. v. United Steel Workers of Am., 23 P.3d 1197, 1204 (Colo. 2001) (“[t]he regulation's categorical prohibition of picketing arising from labor disputes is not narrowly tailored to advance the state's interest in residential privacy, and therefore it violates the First Amendment”); Davis v. Village of Newburgh Hts., 642 F.Supp. 413 (N.D. Ohio 1986) (municipal ordinance that regulated only labor picketing was content-based and unconstitutional); Pineros Y Campesinos Unidos v. Goldschmidt, 790 F.Supp. 216 (D. Ore. 1990) (statute prohibiting farm workers from picketing a farm during harvest time was content- based and unconstitutional).
*4 Under the theory of Garmon preemption, states are prohibited from regulating activities that are “protected by § 7 of the NLRA, or constitute an unfair labor practice under § 8.” Bldg. & Const. Trades Council of Metro. Dist. v. Associated Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218, 224 (1993); see Sears, Roebuck & Co. v. San Diego Cnty. Dist. Council of Carpenters, 436 U.S. 180, 190 (1978) (determining whether preemption is justified “under either the arguably protected or the arguably prohibited branch of the Garmon doctrine”). Regard for the federal system, though, requires courts “not to find withdrawal from the States of power to regulate where the activity regulated was a merely peripheral concern of the Labor Management Relations Act” or where the conduct touches on interests “deeply rooted in local feeling and responsibility.” Garmon, 359 U.S. at 243-44. See Sears Roebuck, 436 U.S. at 207 (holding that state court not deprived of jurisdiction over trespass action). Thus, states may regulate “mass picketing[[,] obstructive picketing, or picketing that threatens or results in violence.” id. at 220 (Brennan, J., dissenting) (citing cases).
Nevertheless, parts of HB1688 could be preempted. Section 7 of the NLRA gives employees the right to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. This protection includes peaceful picketing activities. See Int'l Longshoremen's Local 1416, AFL-CIO v. Ariadne Shipping Co., 397 U.S. 195, 200-01 (1970). Some of HB1688's proscriptions arguably extend into this sphere and would thus be preempted to that extent by the NLRA. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 729 (1966) (agreeing that the permissible scope of state remedies does not include consequences from peaceful picketing and other union activity); see also Garmon, 359 U.S. at 247 (states may regulate “conduct marked by violence and imminent threats to the public order”). For example, one engaged in peaceful picketing activities under § 7 could conceivably prevent the pursuit of lawful work “by means of disturbance or nuisance” under the bill's new subsection (e)(2). The bill's provision in subsection (i) that it “shall not be interpreted to alter, modify or amend the protections afforded under the federal labor laws” would not save the state law from preemption in such an instance. See United Food & Commercial Workers Local 99, 934 F. Supp. 2d at 1193 (invalidating under § 7 of the NLRA an Arizona legislative enactment prohibiting picketing for purpose of inducing an employer or self-employed person to join or contribute to a labor organization); see also Bldg. & Const. Trades Council, 507 U.S. at 225 (holding that Garmon preemption extends to activities arguably protected or prohibited by the NLRA).7
On February 26, 2014, the House Consumer and Human Resources Subcommittee recommended HB1688 for passage as amended (drafting code number 012464) (copy attached). This opinion addresses that amended version of the bill.
For example, HB1688 would prohibit obstructing with a person's body ingress and egress of a place of employment (under new subsection (e)(1)(A)), while Tenn. Code Ann. § 39-17-307(a) already prohibits obstructing by a person's acts any place used for the passage of persons.
For example, HB1688 would prohibit picketing a private residence so as to interfere with the resident's right to quiet enjoyment and would make such offense a Class B, rather than a Class C, misdemeanor (under new subsection (e)(4)). See United Food & Commercial Workers Local 99 v. Bennett, 934 F.Supp.2d 1167, 1196 (D. Ariz. 2013) (invalidating legislative enactment that mandated greater penalties for defamation of an employer, even though defamation was already actionable under Arizona law). New subsection (e)(4) goes on to say that the prohibition on picketing a private residence would not apply “to the extent that the same is protected under the United States Constitution and the Constitution of Tennessee,” but this serves only to beg the constitutional question.
As was the case in Mosley, 408 U.S. 92, because the bill would treat labor-dispute picketing differently, the First Amendment inquiry is intertwined with an equal-protection concern. See id. at 95; see also Carey v. Brown, 447 U.S. 455, 461-62 (1980) (invalidating on equal-protection grounds a statute distinguishing between labor and non-labor picketing).
The NLRA does not apply when the employer is a state or any political subdivision thereof. 29 U S C § 152(2). Nor does it apply to agricultural laborers, domestic servants, employees of immediate family members, independent contractors, supervisors, or railroad laborers. 29 U.S.C. § 152(3). Thus, HB1688 would not be preempted as to these specific employers and employees.