In my column this week, I explore an important First Amendment free speech ruling handed down at the end of December by the California Supreme Court. The case, Ralphs Grocery Company v. United Food and Commercial Workers Union Local 8, is significant because: (1) it involves a dispute over some fundamental but complex First Amendment doctrinal principles; (2) it conflicts with a case from the United States Court of Appeals for the District of Columbia Circuit; and (3) (for reasons 1 and 2), it may very well end up in the United States Supreme Court.
At issue in Ralphs was an attempt by a supermarket owner to enlist the aid of a state court to enjoin (that is, judicially order) a labor union to stop picketing on the privately owned sidewalk in front of the consumer entrance to the store. Among the various defenses the union raised were two (similar) California statutes that specifically prohibit state courts from enjoining peaceful labor picketing, but not other kinds of picketing activity. (For simplicity’s sake, I will focus on just one of the two statutes, the so-called Moscone Act.) The grocery store’s reply was that the Moscone Act, because it singles out labor picketing in particular for special protection, discriminates among speech activities on the basis of the “content” or subject-matter of the speech, and therefore is invalid under the First Amendment. Therefore, the Act cannot bar what would otherwise be a well-founded request for injunctive relief. The California Court of Appeal agreed with this argument and found the Moscone Act’s special protection for labor picketing invalid and thus inapplicable.
The Reasoning of the California Supreme Court
But last month, the California Supreme Court reversed, and, by a 6-1 vote, upheld the Moscone Act, and thus the ability of the union to picket outside the Ralphs store. The California Justices in the majority reasoned that the two U.S. Supreme Court cases striking down content-based laws that had protected labor picketing – the two cases on which Ralphs relied – were “distinguishable,” that is, not controlling as to the outcome of the case at hand. In Police Department of Chicago v. Mosley (1972), the U.S. Supreme Court struck down altogether an ordinance that prohibited picketing near schools while the schools were in session, but that exempted from its prohibition peaceful picketing regarding school labor disputes. Then, eight years later, in Carey v. Brown, the Court invalidated an Illinois statute that made it illegal to engage in picketing in residential neighborhoods, but that (like the law in Mosley) contained an exception for labor picketing. In each of these two cases, the U.S. Supreme Court said that the problem with the law was that it singled out one kind of picketing based on its content – labor picketing – and that such content-based discrimination violated the Constitution.
The California Supreme Court, in ruling for the union in the Ralphs case, argued that the situations presented in Mosley and Carey were different from those raised by the Ralphs dispute, in a few important ways.
First, the laws in Mosley and Carey were laws that prohibited speech activity (picketing) with an exception, whereas the Moscone Act doesn’t prohibit any speech activity—it merely prohibits judges from interfering with speech activity.
Second, and relatedly, invalidating the laws at issue in Mosley and Carey had the effect of generating more, rather than less, expressive activity, because invalidating the general prohibitions in picketing in those cases meant that everyone—not just labor unions—could picket. By contrast, if the Moscone Act were to be invalidated, the result would be that no one — neither labor unions nor anyone else—would be free from judicial injunctions that limited their picketing. So striking down the Moscone Act, unlike striking down the laws in Mosley and Carey, would produce no additional speech.
Third, the California Supreme Court said, the picketing at issue in Mosley and Carey was taking place on public property, whereas the picketing at issue in Ralphs was occurring on private property. As the California Supreme Court reasoned: “Because here the walkway in front of the [Ralphs] store is not a First Amendment public forum, the holdings in Mosley and Carey do not apply.”
A Critique of the California Supreme Court’s Analysis
Each of these “distinctions” of the precedents set by Mosley and Carey is open to serious question.
The first two related notions invoked by the California Supreme Court—that the laws in Mosley and Carey were prohibitions on picketing with labor exceptions, rather than affirmative protections of labor picketing, and that, as a result, striking down those laws would lead to more, rather than less, picketing activity—are really a function not of First Amendment analysis (as the California Supreme Court wrongly suggests) but, instead, of how the laws in question were drafted.
Suppose, for example, that the Moscone Act were codified in California’s trespass law provisions: “Courts can enjoin all trespass activities including expressive trespass activities, but may not enjoin labor picketing even when it involves trespass.” That law, like the ones at issue in Mosley and Carey, would take the form of a “general prohibition” (of trespass), with a specific exemption. And striking down that law would lead to more expressive (trespass) activities, but I doubt that the California Supreme Court would (or should) strike it down.
We can see the same basic point if we look at what lawyers call “severability” analysis. (Severability analysis focuses on what a court does when it finds some aspect of a law unconstitutional—does it throw out the whole law, or just the part that is constitutionally problematic?) In Mosley and Carey, the Court threw out the entirety of both laws (and thus freed up everyone to engage in picketing), but it did so only because each plaintiff challenged the law on its face (as opposed to challenging specific applications), and because the legislature did not make clear up front that if the labor exception were unconstitutional, then its preference would be to bar all picketing, even labor picketing. Suppose the Illinois legislature had specifically stated the following in its statute: “If the labor exception is problematic under the First Amendment, courts should simply ignore that exception and enforce the ban on all residential picketing.” The U.S. Supreme Court still would have invalidated the labor exception, and the result would have been to allow less, not more, picketing activity than had existed before the statute was passed.
Indeed, that is exactly what happened in another case decided after Carey v. Brown. In Frisby v. Shultz, (1988), the town of Brookfield, Wisconsin wanted to ban residential picketing except for labor picketing. But they realized that the exception for labor picketing would be problematic under Carey, so they revised their ordinance to ban all residential picketing, including labor picketing. Their willingness to restrict more, rather than less, speech in order to remain content-neutral surely would not be a reason to permit the Town to stick with its first law, which had an exception for labor picketing; even though we know that Brookfield is willing to ban all picketing if need be, we would not let it exempt labor picketing from its ban any more easily than could the State of Illinois in the Carey case.
Importantly, none of what I have said thus far denies that judicial skepticism of content-based laws may very well—in the big picture—lead legislatures to pass fewer speech-restrictive laws, because legislatures can no longer provide content-based exemptions to politically powerful groups who would, absent the exemptions, block the laws from being enacted. Without the device of content-based exemptions, legislatures will (as occurred in Mosley and Carey) often decide not to restrict anyone’s speech. But that doesn’t mean that courts should be skeptical of content-based laws only when they suspect that such a political dynamic is afoot. (Indeed, as noted above, in Frisby, the legislature decided that if it couldn’t exempt labor picketing from its ban on residential picketing, it would then simply ban all residential picketing without exception.) Judicial doctrine is built around bright-line rules that courts must apply generally, because they make sense in the main. And so courts can and should generally be dubious about nearly all content-based regulations of speech.
Perhaps an example will help drive these points home. Suppose California passed a law that said: “California courts, notwithstanding any other powers they enjoy, may not enjoin abortion-related picketing.” That law, like the Moscone Act, would not take the form of a general prohibition on picketing, but rather only of a specific protection of some picketing. And striking down that law would result in less, not more, picketing activity. And yet could anyone doubt that that law would be considered a problematic content-based favoritism of abortion-protest speech? Clearly, such a law would be struck down, even (I expect) by the California Supreme Court.
This hypothetical also undermines the California Supreme Court’s suggestion that Mosley and Carey were distinguishable because the picketing in those cases took place on public property. In my hypothetical, the abortion picketing being specially protected is occurring on private property, and yet the skepticism of content-based favoritism would still doom the law. More generally, it is not clear why the doctrine regarding content-based laws should be more lenient when the laws regulate speech on private property, and the California Supreme Court offers no explanation of why the public-fora settings in Mosley and Carey should be understood as crucial to the results in those cases.
A Better Defense of the Result in the Ralphs Case
Notwithstanding the difficulties with parts of its analysis, the California Supreme Court did, I think, reach the right result in Ralphs. Why is the Moscone Act permissible under the First Amendment notwithstanding that it singles out labor picketing in particular? My answer is that the regulation of labor activity in laws like the Moscone Act is not best understood as regulation of speech at all, but rather as part of a comprehensive legislative scheme regulating the economic system of labor-employment relations. In other words, protections for labor picketing are just one small part of a complicated system of regulating the economic relationship between unions and employers—a system that is best characterized as a regulation of economic activity that has incidental effects on certain speech activities. The text of the Moscone Act itself conveys this character, making clear that the limit on judicial injunctions is imposed “in order to promote the rights of workers to engage in concerted activities for the purpose of collective bargaining. . . .”
The First Amendment often allows incidental regulation of speech as part of a larger regulation of what is properly deemed economic activity. The regulation of persons who work in the professions (a subject of a recent column Alan Brownstein and I wrote) is one example. A government law telling lawyers (if they want to remain licensed) that they can’t recommend that their clients violate the law can, from one angle, be seen as regulating their speech on the basis of its content (indeed, viewpoint). Yet it is not a speech regulation that troubles us. Another example of incidental effects on speech as part of a larger regulation of economic activity is the Rumsfeld v. FAIR ruling allowing the federal government to require law schools to provide access for military employers (also the subject of a column I co-wrote with Alan Brownstein). While, in general, people are free not to be forced to allow the government to speak on their property, when the government speech at issue is part of an effort to hire employees, and where the property at issue is a space dedicated to interviewing employers, the First Amendment concerns are lessened. And there are many other examples of regulations of commercial activity having permissible, incidental effects on expression (including cases permitting the government to require companies to pay into funds that will be used for generic advertising of the industry’s products.)
The crux of the matter is that the Moscone Act (like its counterparts in federal law) does treat labor picketing and other organizing activity specially, but only as a part of a larger system of regulation in which labor unions and employers are both heavily regulated, with an eye to producing a fair system of economic allocation; it is not a governmental effort to interfere with the “marketplace of ideas” by favoring some subjects or viewpoints and disfavoring others (the traditional reason why content- and viewpoint-based laws are problematic) so much as a regulation of the marketplace of labor. Importantly, neither the law at issue in Mosley nor the law at issue in Carey was part of a comprehensive system of labor-relations regulation, and thus neither law could partake of this defense. Instead, these laws were best seen as a kind of favoritism for labor unions, or as a necessary appeasement to labor unions to get the laws enacted in the first place. Both such scenarios, however, are problematic under First Amendment principles.
To be fair, I should say that the California Supreme Court did mention (without fully developing) this larger labor-relations-regulation framework and the federal labor law counterpart. And one Justice (Goodwin Liu, joined by Justice Werdegar) wrote a nuanced concurrence in which he made an argument very similar to the one I make in the preceding three paragraphs. But even Justices Liu and Werdegar joined onto the majority opinion, the primary thrust of which was to distinguish Mosley and Carey in the unpersuasive and formalistic ways that I discussed above.
In any event, the California Supreme Court did acknowledge that the U.S. Court of Appeals for the D.C. Circuit, in a case decided nine years ago, Waremart Foods v. N.L.R.B. (2004), seemed to come out the other way, and to call into question the Moscone Act because it was impermissibly content-based. Such a split between what is clearly the most important State Supreme Court and what is (arguably) the most important federal court of appeals may very well be of interest to the U.S. Supreme Court in the coming months and years.