Saturday, March 6, 2010

Garden on Union Campaigns as Constitutionally Protected Speech

1st Charlotte Garden (Georgetown) has just posted on SSRN her article Labor Values are First Amendment Values: Why Union Comprehensive Campaigns are Protected Speech.  Charlotte presented this article at the Seton Hall Labor and Employment Scholars Forum in January.  Here's the abstract of this timely article:

Corporate targets of union “comprehensive campaigns” have increasingly responded by filing civil RICO lawsuits alleging that unions’ speech and petitioning activities are extortionate. These lawsuits are the descendants of the Supreme Court’s unexplained and inconsistent treatment of much labor speech as less worthy of protection than civil rights or commercial speech. Starting from the position that speech that promotes democratic discourse deserves top-tier First Amendment protection, I argue that labor speech - which plays a unique role in civil society - should be on an equal footing with civil rights speech. Thus, even if union advocacy is somehow extortionate, the First Amendment should trump civil RICO enforcement, with two limited exceptions: speech that is actually malicious; and speech that threatens imminently to force an employer to choose between breaking the law and suffering significant economic harm or shutting its doors altogether.


Labor Law, Scholarship | Permalink

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Perhaps arguments regarding union free speech would be more persuasive if union advocates had ANY regard for the free-speech rights of employers. Or even better, of individual employees who have no interest in being forced to support union speech with forced dues.

Posted by: James Young | Mar 7, 2010 1:50:45 PM

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