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January 18, 2013

Do Special Legislative Protections for Labor Picketing Violate the First Amendment?

Cross-posted from Justia's Verdict.

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.

January 4, 2013

The Constitutional Problems With the Hawaii Law By Which Senator Schatz Was Appointed to Replace the Late Senator Inouye

Cross-posted from Justia's Verdict.

Amid all the drama surrounding the fiscal cliff negotiations of the last few weeks, there was an important, sad, and in some respects troubling development in the U.S. Senate.  Hawaii Democratic Senator Daniel K. Inouye passed away, and Hawaii Democratic Governor Neil Abercrombie appointed Democrat Brian Schatz to replace him.  Schatz was sworn in, and will serve in the Senate until Nov. 2014, when an election will be held to fill the remainder of Inouye’s six-year term, which expires in January 2017.

This development is important because all personnel changes in the Senate are significant, especially in this era in which voting margins in both Houses of Congress can be razor-thin.  (We will perhaps see another change in the Senate’s makeup if Senator John Kerry from Massachusetts leaves the Senate in the coming months to replace Hillary Clinton as Secretary of State.)  The development is sad simply because Senator Inouye, a war hero, was, by all accounts, a hard-working, honorable public servant.  And the development is troubling because the way he was replaced doesn’t seem to have been constitutionally proper.

Under Hawaii law, the Governor is empowered (indeed, directed) by the legislature to fill a U.S. Senate vacancy until an election of the people of the state is held.  So far, so good.  The Seventeenth Amendment of the Constitution provides, in crucial part:

“When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”

This language clearly tells state legislatures to prescribe the procedures for replacement elections and also authorizes (but does not require) state legislatures to empower their Governors to make temporary U.S. Senate appointments so that the vacancies are filled in the meantime.

But here’s the wrinkle:  the Hawaii statute (and those of a very small number of other states) limits the Governor’s choice to one of three names submitted by the political party with which the fallen Senator was affiliated, in this case the Democratic Party.  Hawaii law provides: “the governor shall make a temporary appointment to fill the vacancy by selecting a person from a list of three prospective appointees submitted by the same political party as the prior incumbent.”  The Democratic Party in Hawaii submitted three names, one of which was Schatz’s, from which the Governor was instructed to choose.

From one perspective, it would seem to make sense to limit the Governor to picking someone who is from the same political party from which the fallen Senator came; death or resignation should ordinarily not upset the partisan balance of the Senate and the partisan wishes of the voters who elected the Senators.  Yet there is a very strong case to be made that the Seventeenth Amendment prevents the Hawaii legislature from substantively constraining the Governor’s choices in making a temporary appointment.

The Textual Argument Against the Hawaii Statute

Let us begin with some textual points.  The Seventeenth Amendment’s language differentiates between a state “legislature” and a state “executive” authority, and allows a state legislature not to make or constrain any temporary appointments itself, but rather only to “empower the [state] executive to make [the] appointment.”

In other words, the Amendment, by its terms, creates potential appointment power only in Governors; it does not authorize legislatures to participate in such appointment decisions, beyond simply determining whether the Governors should be allowed to make temporary appointments or not.

This textual argument—that the legislature has no authority to limit the governor’s substantive choices to specific persons or kinds of persons—is reinforced by the last five words of Section 2 of the Seventeenth Amendment: “as the legislature may direct.”  This clause refers to, and confirms, the legislature’s discretion as to the timing and procedures of any special popular election to be held to fill a vacancy.  By contrast, the provisions concerning gubernatorial temporary appointment lack any similar language suggesting legislative discretion with respect to the process, let alone the substance, of such a gubernatorial appointment—which strongly suggests that the legislature does not have broad prescriptive powers here.

If the drafters and ratifiers of the Amendment had expected the state legislature to have a significant role in the Governor’s execution of his appointment power with respect to temporary Senate appointments, the Amendment could very easily have included some phrase like “as the legislature has directed” or “subject to the legislature’s requirements” right after or before the clause referring to the Governor’s statutorily created power to make appointments.  Yet it does not.

It is true that the Amendment does permit state legislatures to simply not authorize gubernatorial temporary Senate appointments altogether.  But the power to decide whether the Governor should be able to appoint is not the same as, and does not subsume, the power to dictate who shall be appointed.

We can see this when we look at the Appointments Clause of the federal Constitution, in Article II.  That Clause gives Congress the power to “vest” appointment of inferior federal officers in the President alone, or in Cabinet members.  But Congress’ power to vest appointment authority in the President or a Cabinet Secretary does not give Congress the power to generate a list of three names from which the President or Secretary can be forced to choose.

Moreover, Congress should have more power in this regard than do state legislatures under the Seventeenth Amendment; Congress, after all, creates federal offices that are to be filled, whereas state legislatures do not create the United States Senate or any other federal institution.

The upshot, then, is that while state legislatures can deny Governors the power to make temporary Senate appointments entirely, once they decide under the Amendment to authorize gubernatorial temporary appointments, they cannot unduly constrain Governors’ exercise of that power.

The Historical/Structural Case Against the Hawaii Approach

Disempowering the legislature and political parties to impose substantive constraints also makes a great deal of historical sense, given that the overall goal of the Seventeenth Amendment was to get state legislatures—and the party cronies who were thought to control state legislators—out of the business of deciding who should serve in the U.S. Senate.  Indeed, if the history of the Seventeenth Amendment reveals anything, it is the distrust and skepticism Progressives had concerning the influence of political parties in the legislative process.  Those who pushed for direct election of U.S. Senators often blamed partisan excess and party machinations for the legislative deadlocks in filling Senate vacancies.  This vision of party secrecy and backroom party deals cut by a few persons, who could not be counted on to represent the public’s interest, was often described in terms of party machines or party “bosses.”  As towering Senate historian George Haynes put it, “[s]ometimes the [S]enatorship was meekly handed over [by the legislature] to a state boss, whose phenomenal skill in the manipulation of legislators was out of all proportion to his hold upon the voters.”

In 1911, Indiana Senator Beveridge, speaking on behalf of one of the many constitutional proposals of what became the Seventeenth Amendment, voiced this assessment of party influence and distortion:

Political parties . . . elect a legislature, and [the] majority in that legislature is not supposed, nor even permitted, according to the original theory of the Constitution, to select the best man in the State . . . .  It must select a man of the party which elected the legislature . . . .  So it comes to pass that Senators actually have been . . . selected by the “party managers” . . . .  The party boss has become more potent than the legislature, or even the people themselves, in selecting United States Senators in more than one State.

The part of Hawaii law that delegates to party chiefs the task of generating a short list seems to run quite counter to the historical anti-boss spirit of the direct election drive.

Some modern observers see virtues—in a world in which political parties are enduring and sometimes beneficial realities—to empowering party leadership to make replacement decisions, because such schemes may preserve important partisan balances, and because party leaders can ensure that whoever fills a vacancy is a bona fide party member, rather than a nominal one. Yet party leaders are also often much more extreme and partisan than the median party member in a state, and they are certainly more extreme and partisan than the median state voter. Party leaders of one party in a state are thus poor surrogates for the voting public.

Some might also argue that governors today are essentially party bosses, whether we call them that or not.  But this misses the point that governors (unlike Party central committees) are elected—by the very people of the state in whom the Seventeenth Amendment vests ultimate power to select U.S. Senators. And governors—like U.S. Senators, but unlike state legislatures—are elected in statewide contests that cannot be skewed by various kinds of common gerrymandering. Thus, there was, and is still today, a good reason for the Seventeenth Amendment’s textual preference for governors over state party officials and state legislators; governors can lay claim to represent the people of a state better than do unelected party officials or even elected, but malapportioned, legislatures in this context because governors are elected the exact same way in which the Seventeenth Amendment requires Senators to be picked. In short, my proffered reading of the Seventeenth Amendment’s text seeks to harmonize its provisions regarding temporary vacancy (the exceptional circumstance) with its provisions concerning regular popular elections every six years (the ordinary rule).

The Interest in Promptly Filling Senate Vacancies (Which Is Even More Pressing Today) Argues Against Allowing a Legislature to Constrain the Governor’s Choices

The framers of the Seventeenth Amendment wanted to reduce stalemates and other glitches that resulted in long-term Senate vacancies. Indeed, persistent vacancies that injured both the underrepresented states and the Senate’s ability to easily transact business were among the most persistent complaints concerning the broken state legislative selection process replaced by the Seventeenth Amendment. Thus, facilitating prompt Senate replacements was one of the principal objectives of reform.  It is true, of course, that state legislatures ordinarily would not want their states to be underrepresented in the Senate for long, which is why after the Seventeenth Amendment was enacted, almost every state has empowered its governor, on some terms or another, to make temporary appointments even before replacement elections can be promptly held.

But (as explained below) since governors under the terms of the Seventeenth Amendment can’t be forced, rather only empowered, to fill vacancies by temporary appointment, a reading of the Amendment that guarantees gubernatorial discretion in personnel choice is the one most likely to result in the prompt filling of vacancies. By contrast, a reading that allows state legislatures to constrain governors (perhaps to the point that governors might not exercise the powers that are given to them if they don’t like the constraints) could increase the likelihood that vacancies go unfilled during the period before the election is held.

Can Governors Be Forced to Make Senate Appointments?

There is another way in which the Hawaii statute likely impermissibly constrains the Governor, as well.  Not only does the statute purport to limit the Governor to three party-generated choices, but it also purports to require him to make an appointment, by its use of the word “shall.”

But this, too, seems problematic, under a careful reading of Section 2 of the Seventeenth Amendment. That provision says state legislatures “may empower” (emphasis added) governors to make temporary appointments, until the people fill the vacancies by election. “Empower” does not mean “require”; rather, it means “to create the power to do or not do something.”  The Constitution generally distinguishes between powers and duties, and the Seventeenth Amendment’s words seem to speak only to possible gubernatorial powers, not any gubernatorial duties.

Thus, it is not at all clear that governors must exercise temporary appointment authority, even when that authority is validly created by the legislature.

The Senate Should Have Looked Into These Questions Regarding the Schatz Appointment

Some observers may argue that the federal courts, using the so-called “political question” doctrine, would be disinclined to interfere with the Senate’s decision whether or not to seat Mr. Schatz.  And perhaps this is true.  But that doesn’t mean that questions about the propriety of his appointment should have gone unexplored.

The Constitution makes each house, including the Senate, the “Judge of the . . . Qualifications of its own members.” So if a majority of Senators believe that the constitutional flaws in Hawaii’s statute that I have identified are unseverable from the part of the statute that authorizes the Governor to make temporary Senate appointments in the first place, then the Senate could have legitimately concluded that there was no valid “empower[ment]” of the Hawaii Governor under the current scheme, and could have rejected as unqualified (and therefore refused to seat) anybody the Governor appoints, including Mr. Schatz.

Under this—quite plausible—scenario, the vacancy from Hawaii would have remained unfilled until either a popular election had been held, or until the Hawaii legislature passed a new gubernatorial authorization that would be free of the impermissible restraints.

The Senate should have stepped up to its interpretive duties; alas, it does not appear to have done so, and that is unfortunate.  Happily, the Senate passed the fiscal cliff avoidance bill lopsidedly.  But if Senator Schatz’s vote had been crucial to the outcome, then a cloud surrounding his appointment could have ripened into major constitutional problems.