Almost lost amid the high-profile Supreme Court decisions on guns and Gitmo was an important ruling that re-emphasizes that businesses have free speech rights that states are not free to abridge on behalf of a pro-union, pro-trial-lawyer agenda.
Significantly, the decision was not a 5-4 cliffhanger in which the court hewed to strictly ideological divisions, but instead was a 7-2 ruling written by liberal Justice John Paul Stevens, joined by fellow liberal David Souter. They were joined by the five more conservative members of the court.
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In short, no critic could call the decision in Chamber of Commerce v. Brown a sop to corporate interests rather than what it really is — a testament to free speech and fair play.
The state of California had passed a law prohibiting use of state funds by an employer to “assist, promote, or deter union organizing.” Fine so far. But then the law made so many exceptions and additions that it had the effect of discouraging not just conduct, but any speech that raised questions about almost any union tactic, while effectively encouraging speech that played into a union’s hands.
And the law effectively made it impossible for any business that received state money in any form to exercise its free speech rights, even if it went to great lengths to try to segregate its government funds from money it spends on labor relations.
Finally, as a bonus especially for plaintiffs attorneys, the law encouraged enforcement lawsuits not just by the California attorney general but by outside lawyers as well, with express provisions for punitive sanctions for noncompliance — so that, as Stevens noted, “a trivial violation of the statute could give rise to substantial liability.”
On its face, the law raised First Amendment concerns because, as Stevens wrote (citing an earlier case for precedent), ” ‘for all practical purposes’ the spending restriction was ‘tantamount to regulation’ ” of speech. But in the 1947 Taft-Hartley Act, Congress had made its desire to protect speech rights in labor relations even more clear: “The expressing of any views, argument, or opinion … shall not be evidence of unfair labor practice … if such express contains no threat of reprisal.”
The Supreme Court rightly ruled that this clear congressional language pre-empts any state attempt to restrict such free expression. Result: Union officials, employers and nonunion employees now can operate on a level playing field in workplace discussions about issues like whether to unionize. That’s exactly as it should be in America.
