Abstract: 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 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 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 claims that may involve repackaging of other types of legal arguments. (1) To extent that many such claims have succeeded in courts, they are also examples of what I will call First Amendment expansionism, where 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, two phenomena may say something about nature of and nature of rules. I. THE CASE In 2013, United States Court of Appeals for District of Columbia decided National Association of Manufacturers v. National Labor Relations Board. (2) In 2011, National Labor Relations Board (Board) issued so-called Notice Posting Rule, which required most private sector employers to display within workplace a poster describing employees' workplace rights under National Labor Relations Act (NLRA). (3) The poster stated, for example, that employees have 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 NLRA places on employer conduct and union conduct. (5) The government rested its justification for rule on fact that Board cannot initiate enforcement of 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 principle components of NLRA was justified because [enforcement of NLRA ... depend[s] on 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 Notice Posting Rule, arguing that it violated First Amendment rights of employers. (8) The District Court held that Notice Posting Rule did not violate First Amendment because it d[id] not compel employers to say anything. (9) Rather, poster constituted on part of government. (10) The D.C. Circuit reversed, holding that Notice Posting Rule violated 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 Supreme Court held that requiring public school students to recite Pledge of Allegiance violated First Amendment. (12) The court concluded that Notice Posting Rule could not be distinguished from Barnette. (13), Like Pledge of Allegiance in Barnette, employment notice was that employer had to communicate whether it wanted to or not. (14) As in Barnette, the government selected message and ordered its citizens to convey that message. (15) Thus, as in Barnette, requirement had to be struck down. (16) II. THE CONTROVERSY Let us pause at D.C. Circuit's assertion that requiring employers to post accurate information about laws governing employment relationship cannot be distinguished from requiring schoolchildren to recite Pledge of Allegiance. …
Publication Year: 2015
Publication Date: 2015-03-01
Language: en
Type: article
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