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Court continues trend of protecting business free speech

By Tony Mauro
First Amendment Center legal correspondent

WASHINGTON — In recent years, the Supreme Court has shown as much interest in protecting the free-speech rights of corporations as it has in the protecting the expression of individuals, if not more.

That trend continued yesterday when the Court decided Chamber of Commerce v. Brown, an endorsement of business free speech as an important element of the free marketplace.

By a 7-2 vote, the Court ruled that federal labor law prevents California from restricting the ability of employers to speak out against union organizing.

The state law, according to the Court, violated “Congress’ express protection of free debate” concerning unionization, and congressional desire to avoid regulation within “a zone protected and reserved for market freedom.”

Justice John Paul Stevens, writing for the majority, said, “The explicit direction from Congress to leave noncoercive speech unregulated makes this case easier.”

The California law, similar to statutes on the books or under debate in 20 other states, said that any employer receiving state funds through grants or contracts cannot use those funds — even when commingled with other money — to “assist, promote or deter union organizing.” The law also established what the Court said was a “formidable enforcement scheme” that required employers to maintain records that would establish whether state funds they received were used for purposes related to union organizing.

Businesses and right-to-work advocates viewed the law as a union-driven tactic to enlist states in undercutting the aims of the federal National Labor Relations Act, which protects companies’ right to speak out on unionization, so long as it not coercive. The U.S. Chamber of Commerce took the state to court, winning at the district court level, but the 9th U.S. Circuit Court of Appeals reversed, ruling that the state law was not preempted by federal law. The Supreme Court, as it often does, reversed the 9th Circuit decision.

“The law was nothing more than an underhanded attempt by union officials to use public funds to corral California workers into their forced dues-paying ranks, and the high court was correct to find that the law is pre-empted by federal labor law,” said Stefan Gleason, vice president of the National Right to Work Legal Defense Foundation, which advocates measures that prevent employees in unionized workplaces from being coerced to join unions.

Steven Law, chief legal officer and general counsel for the U.S. Chamber of Commerce, applauded the decision as well. “Today the Supreme Court declared that it’s unlawful under the National Labor Relations Act for a state to muzzle employers’ speech rights.”

Yesterday’s decision also fits into a trend this term in which the Court is adopting the preemption doctrine — under which federal law trumps state law in the same area — at the behest of corporations that prefer to live under one set of federal rules rather than the differing regulations of 50 states.

Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, dissented in the case, asserting that the California law did not amount to a regulation that was pre-empted by federal law.

Breyer said the California law does not prevent employers from speaking out on union organizing. “It simply says to those employers, do not do so on our dime.”


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