FREEDOM OF EXPRESSION AND PUBLIC PROPERTY
AUGUST 13, 2009
BMGT 281 SUMMER
Our constitution gives us the right under the First Amendment to the Freedom of Speech. This seems like a fairly straight forward right, but what many don’t know is that the Constitution only guarantees our right to freedom of speech against abridgement by government, federal or state. (Hudgens v. National Labor Relations Board, 424 U.S. 507 Lexis).
In most situations freedom of speech is protected, but when you have another acting authority with their own rules of protection, things can become convoluted and a bit complicated. In the case of Hudgens v. National Labor Relations Board one such issue arose out of picketing union members who were told to leave private property while picketing. A labor dispute ensued and the case had to be decided by the Supreme Court over whether the National Labor Relations Board code of conduct should be followed, whether the First Amendment Right to Free Speech should solely be considered or if a combination of the two should be used in deciding the case. (Hudgens).
The issue of what standard should be applied and how it should be applied with regards to private property and union members picketing has been decided in many different ways. Opinions apply to both a First Amendment violation finding and a finding that the First Amendment doesn’t apply at all. These cases have set precedents and are continuing to evolve the laws with regards to Labor law. They are important issues that effect businesses, employer, and employees both in the past and continue to evolve for the future. Many cases are being relied upon when labor and union employer employee disputes have arisen and will only change with the evolving way that union membership affects the workplace. Hudgens v. National Labor Relations Board, 424 U.S. 507
Striking warehouse employees, who were members of a union, picketed their employer’s retail store that was located in a privately owned shopping center. The owner of the shopping center told the picketing union members to vacate the premises or they would be arrested for trespassing. The union filed suit with the National Labor Relations Board citing unfair labor practices and interference with the employee’s rights because they were union members under the National Labor Relations Act. A judgment was originally found in favor of the National Labor Relations Board but was subsequently over turned and remanded by the United States Supreme Court to the United States Court of Appeals. Issue:
Should a First Amendment Standard be applied alone or should the National Labor Relations Board Code be applied alone or should a combination of both be applied when settling the dispute between the union and employers who have their businesses on private property. Holding/Ruling:
The First Amendment does not apply in this case.
Even though the shopping center had public spaces such as a public parking lot, and was open to the public, the court found that the center was owned and operated as a private space. The First Amendment does not apply with regards to the case because the shopping center was private property. The National Labor Relations Act prevailed in this case because in that act there is a provision that precludes the members of a union from picketing on private property unless there is no other means by which the picketer’s message can get out to the public. In this case there were other avenues, other public spaces that the picketers could utilizes and therefore the court found that the shopping center owner had the right to request that they not picket on his property. Not all of the Justices agreed with one another and not all of them agreed with the fact that previous rulings should be overturned. The key to the decision in this case was the size of the parking lot which is considered public property. The lot was large enough that the court found that it could be considered an alternative means of communicating with the customers and the public. The court found that the National Labor Relations Board was just that a board which was set up specifically to resolve conflicts between union members and employers. In this there is little room for the First Amendment. The Supreme Court Justices make a point to point out that the law is “less than clear” when it comes to decisions like this and that is why there were Justices that dissented or just flat out refused to take part in the decision. The court remanded the case to the lower court so that the lower court could consider the facts and evidence with regards to the Labor Relations Act only and not to apply the First Amendment Freedom of Speech standard.
Background of the case can be found on the National Labor Relations Act website where it states the facts and background of this case to be: “When striking members of respondent union picketed in front of their employer's leased store located in petitioner's shopping center, the shopping center's general manager threatened them with arrest for criminal trespass if they did not depart, and they left. The union then filed unfair labor practice charges against petitioner, alleging that the threat constituted interference with rights protected by § 7 of the National Labor Relations Act (NLRA). The National Labor Relations Board (NLRB), concluding that the NLRA had been violated, issued a cease-and-desist order against petitioner, and the Court of Appeals enforced the order. Petitioner and respondent union contend that the respective rights and liabilities of the parties are to be decided under the criteria of the NLRA alone, whereas the NLRB contends that such rights and liabilities must be measured under a First Amendment standard. Held:
1. Under the present state of the law the constitutional guarantee of free expression has no part to play in a case such as this, and the pickets here did not have a First Amendment right to enter the shopping center for the purpose of advertising their strike against their employer. Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131. Pp. 512-521.
2. The rights and liabilities of the parties are dependent exclusively upon the NLRA, under which it is the NLRB's task, subject to judicial review, to resolve conflicts between § 7 rights and private property rights and to seek accommodation of such rights "with as little destruction of one as is consistent with the maintenance of the other," NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112, 76 S.Ct. 679, 684, 100 L.Ed. 975. Hence, the case is remanded so that the NLRB may reconsider the case under the NLRA's statutory criteria alone. Pp. 521-523”. (National Labor Relations Act from Lexis).
One of the cases that set a precedent and that the courts relied on in order to decide this case was Lloyd Corp. v Tanner. In this case although it did not have to do with unions, it set the precedent for picketing or relaying public messages on private property. In this case members of the public wanted to distribute handbills on the property. The property had a strict no soliciting, no handing out handbills policy. The court found in this case that the mall violated the public’s First Amendment rights because even though the mall was privately owned it was open to and catered to the public therefore the first amendment rights prevailed. (Lloyd v Tanner from Lexis)
The courts in the Lloyd case when making their decision relied on a case that was formerly decided named Food Employees v Logan Plaza. This case very similar to the other cases and it also deals with union workers and picketing. In the case it specifically states that “Respondent Weis Markets owns and operates a supermarket in a large shopping center complex owned by respondent Logan Valley Plaza. In front of Weis' building is a covered porch and a parcel pickup zone. Members of petitioner union picketed Weis' store, confining the picketing almost entirely to the parcel pickup zone and the portion of the parking area adjacent thereto. The picketing was peaceful with some sporadic and infrequent congestion of the parcel pickup area. A Pennsylvania Court of Common Pleas enjoined "picketing and trespassing upon . . . the [Weis] storeroom, porch and parcel pick-up area . . . [and] the [Logan] parking area," thus preventing picketing inside the shopping center. That court held the injunction justified in order to protect respondents' property rights and because the picketing was unlawfully aimed at coercing Weis to compel its employees to join a union. The Pennsylvania Supreme Court affirmed the issuance of the injunction on the sole ground that petitioners' conduct constituted a trespass on respondents' property. Held:
1. Peaceful picketing carried on in a location open generally to the public is, absent other factors involving the purpose or the manner of the picketing, protected by the First Amendment. Pp. 313-315. 2. Although there may be regulation of the manner in which handbilling, or picketing, is carried out, that does not mean that either can be barred under all circumstances on publicly owned property simply by recourse to traditional concepts of property law concerning the incidents of ownership of real property. Pp. 315-316. 3. Since the shopping center serves as the community business block "and is freely accessible and open to the people in the area and those passing through," Marsh v. Alabama, 326 U.S. 501, 508 , the State may not delegate the power, through the use of trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner [391 U.S. 308, 309] and for a purpose generally consonant with the use to which the property is actually put. Pp. 316-325.” (Food Employees v Logan Plaza from Lexis).
Another case which all the other cases had referenced and is important is the Marsh V Alabama case. This case deals with not only the first amendment but it also deals with freedom of religion and the criminal court. It relates to the other cases in that it deals with private property and the laws that govern whether it could be considered public space.
The decision in the case of Hudgens v National Labor Relations Board has a current implication on business in that it establishes what can be considered public space even if the property is owned privately. Most people go around thinking that they are protected by certain rights and that may not be the case. This case effects the business world in that it gives a clearer definition as to what determines public space and private space and what can be done in those spaces.
The implications and impact that this case has on the future is not really clear. As the laws keep changing and the laws are also being redefined and rewritten and re-interpreted. In the article “The Cringing and The Craven: Freedom of Expression in, around and beyond the Workplace” the author Bruce Barry expressed his concern that the future of unions is at stake and the ways that the laws are being decided and interpreted are not showing signs that unions are being supported anymore. This case is significant in that it overturned a case that set precedence for the law on unions and picketing. Although this case did not match the Logan case exactly when it came to factually the mere fact that the Supreme Court overturned that case based on the facts of this case is monumental.
It is important to note that even the Supreme Court was split on its decision when making a ruling on this case. This to me shows that there is a definite discord between the laws of old such as our First Amendment rights and the laws of new such as the ones that are made and upheld by the National Labor Board and the National Labor Act. Even the National Labor Act was revised in part by the Taft-Hartley act.
The fact that unions and employers have had battles over many issues has been a war for ages. Many employers don’t even support unions anymore. In the article “How American Workers Lost the Right to Strike” the author James Pope tells us that “nearly half of the American workers are not supported when it comes to becoming a union member. The unions were once set up as a protection for workers but now as many employers do not support them.
Another issue that has arisen is the designation of what is public property and what is private property. The courts have overturned and re-written the standard of what constitutes private and public property many times that there is still no clear law that determines what definition sets a precedence.
In terms of freedom of expression. Many believe that freedom of expression is protected under all terms, which it is not. According to the NLRB “It is of course a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state.” (NLRB from Lexis).
With so much controversy with regards to what constitutes a private property and how it can be owned privately but the use of the property makes it public, makes it very hard for the courts to make a clear ruling when it comes to picketing and unions. The National Labor Relations Board was set up to help resolve disputes between union members and non union members when it came to employment disputes. But even the Labor Relations Board has come under fire because of decisions it has made. Our First Amendment Rights are still preserved even if they do not take precedence when it comes to deciding certain cases. The National Labor Relations Act has been revised several times as laws have been re-written and interpreted. As our society moves towards a more non-union work society, the Act will probably be updated and revised again as labor practices change and as courts clarify different meanings of laws and how they apply to the workforce.
1. Amalgamated Food Employees Union v . Logan Valley Plaza 391 U.S. 308 (1968) from Lexis.com
2. Hudgens v. National Labor Relations Board 424 U.S. 507 (1976) from Lexis.com
3. Hardin, Patrick The Developing Labor Law: the Board the Courts and the National Labor Relations Act from academic search primer
4. The First Amendment http://caselaw.lp.findlaw.com/data/constitution/amendment01/
5. Barry, Bruce The Cringing and the Craven: Freedom of Expression in, around, and beyond the Workplace. Business Ethics Quarterly, Forthcoming, from ssrn.com
6. Pope, James How American Workers Lost the Right to Strike from academic search prime