Monday, March 21, 2011

Garden on Citizens, United and Citizens United: The Future of Labor Speech Rights

Seattle-University-School-of-Law_logo.jpg Charlotte Garden (starting at Seattle next year) has posted on SSRN her forthcoming piece in the William and Mary Law Review: Citizens, United and Citizens United: The Future of Labor Speech Rights.

Here is the abstract:

Within hours of its announcement, the Supreme Court’s decision in Citizens United v. FEC came under attack from progressive groups. Among these groups were some of America’s largest labor unions - even though the decision applies equally to unions and for-profit corporations. The reason is clear: there exist both practical and structural impediments that will prevent unions from benefitting from Citizens United to the same extent as corporations. Therefore, Citizens United stands to unleash a torrent of corporate electioneering that could drown out the countervailing voice of organized labor.

This Article, however, takes a broader view of Citizens United to explore a possible “silver lining” for labor. It posits that, in articulating a wide-ranging vision of associations’ free speech rights, the Court undermined the intellectual basis of a lengthy string of cases limiting the First Amendment protection applicable to labor-related speech in other contexts, including picketing, boycotting, and striking. Additionally, by discounting the First Amendment interests of dissenting shareholders, Citizens United also calls into question the validity of restrictions on unions’ use of lawfully collected dues and fees for political speech and new organizing. Accordingly, this Article concludes that Citizens United has the potential to impact significantly unions’ First Amendment rights outside of the campaign finance arena.

I had the pleasure of hearing Charlotte present this article last September in St. Louis at the Fifth Annual Colloquium on Labor and Employment Law.  Not only does it open up new territory in discussing the potential impact of the Citizen United case as far as unions and campaign spending, it provocatively maintains that Citizens United could have a much more far-reaching and detrimental effects on the First Amendment rights of employees in other contexts. Check it out; it is a great read!

PS

https://lawprofessors.typepad.com/laborprof_blog/2011/03/garden-on-citizens-united-and-citizens-united-the-future-of-labor-speech-rights.html

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Comments

Sounds like wishful thinking, as well as being a little silly ("the Court’s willingness to impose almost any requirement on unions to protect objectors, even if the benefit to the objector is small").

Posted by: James Young | Mar 21, 2011 5:54:34 PM

Actually, I'm intrigued by the interplay of Citizens United and the Beck/Street cases. I think Charlotte is on to something, especially in that regard.

Posted by: Michael Duff | Mar 22, 2011 3:44:01 AM

James, despite your impressive command of adjectives (two in one sentence!) you've unfortunately still failed to make a substantive comment about the article.

Perhaps you should consider striving for quality over quantity in the plethora of comments you post on this blog.

Posted by: Claire Blaney | Mar 22, 2011 4:45:58 AM

Claire, it is highly doubtful that the ideological blinders possessed by most of the readers of this blog would consider my comments to have "quality" in any case, and since the penchant of the far Left for a one-note echo chamber is well-documented (and not entirely present here), it is unsurprising that you would offer your ad hominem attack.

As for making "a substantive comment about the article," I have no illusions about persuading ANYONE who is offended by the notion of the exercise of free speech by those who voluntarily band together to form corporations, but have little regard for those forced to subsidize union political speech, so I'll reserve those for when it really counts, i.e., when Ms. Garden's views are offered against my clients.

Posted by: James Young | Mar 22, 2011 8:36:12 AM

And I have to wonder, Claire, why Ms. Garden's prior affiliation with union-side law firm Bredhoff & Kaiser is scrupulously unmentioned in her biography (unlike, say, Professor Duff, who prominently mentions in his last article his "prior work ... as a blue-collar worker and union organizer in the airline industry, and then ... as a union side lawyer").

Perhaps it's the difference between an academic piece, and an advocacy piece masquerading as a academic piece, if such a difference even exists in the world of labor-law academia.

Posted by: James Young | Mar 22, 2011 8:59:13 AM

James,

Plenty of authors do not list what and who they represented in their articles. I should not matter. I do not prejudge what you write, so why the hubbub.

As for the split - I say if a corporation can spend its money on political advocacy (a band of voluntary investors) why should it be different than a band of voluntary employees (I don't recall hearing that employees were being forced to work for the employer with the union).

Posted by: Per Son | Mar 24, 2011 12:20:42 PM

You are, of course, correct that "Plenty of authors do not list what and who they represented in their articles." I disagree that "I[t] should not matter" because, of course, it frequently does. I prefer the more honest course of full disclosure, which permits --- here, at least --- an insight in to the author's underlying mythology.

As to your second point, "Per Son," you're suggesting that a job is as fungible as a piece of stock?

Interesting that an advocate of monopoly bargaining would make such a suggestion.

Posted by: James Young | Mar 24, 2011 8:18:13 PM

James:

If you wanna play Chicago style I can play the same game. If an employee does not like the union - they can walk. If an investor does not like what the company does - they can walk. The Courts have already equated spending money as speech, so what else do we have left? My voice is equal to a fistfull of dollars.

Posted by: Per Son | Mar 25, 2011 8:04:38 AM

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