Last Tuesday, September 13, the Ohio Supreme Court struck down a state statute that prohibited public-sector labor unions and their members from encouraging targeted picketing at the homes of public officials, stating that the law was an unconstitutional content-based restriction on free speech. The decision was unanimous as to the result, but the Justices were divided 4-3 in their reasoning.
The dispute arose five years ago when the Portage County Board of Developmental Disabilities (the “Board”) and the Portage County Educators Association for Developmental Disabilities (the “Association”) reached an impasse during the negotiations of their collective bargaining agreement. Shortly after the Association filed a notice of intent to strike in October 2017, Association members began picketing. While Association members remained on public streets and sidewalks at all times, their picketing took place outside the homes of six Board members and outside of the workplace of one Board member. In response, the Board filed seven unfair-labor-practice charges with the State Employment Relations Board (“SERB”), alleging that the targeted picketing violated R.C. 4117.11(B)(7).
R.C. 4117.11(B)(7) prohibits public sector labor unions and public employees from “[i]nduc[ing] or encourage[ing] any individual in connection with a labor relations dispute to picket the residence or any place of private employment of any public official or representative of the public employer.” In its decision, SERB sided with the Board and ordered the Association to cease and desist from encouraging targeting picketing at Board members’ residences on the basis that R.C. 4117.11(B)(7) prohibited such conduct. The Association appealed, and after several rounds of decisions, the issue came before the Ohio Supreme Court.
As the Appellants, SERB and the Board argued that R.C. 4117.11(B)(7) did not unconstitutionally restrain protected speech, but that it merely placed reasonable “time, place, and manner” restrictions on the speech, which courts have generally allowed when the restrictions do not regulate the content or the subject matter of the expressive activity. The Association maintained that the statute did regulate the content of the protected speech, pointing out that the text of R.C. 4117.11(B)(7) defined content of the expressive activity—i.e., a “labor relations dispute”—and that its restrictions only applied to unions and their members (not to employers). This, the Association argued, made the statute an impermissible “content-based” restriction on protected speech which should fail the “strict scrutiny” review required in such circumstances.
In its decision, the Supreme Court was unanimous that R.C. 4117.11(B)(7) was a content-based restraint on free speech that failed strict scrutiny review. Justice Donnelly authored the majority opinion, which was joined by O’Connor, Steward, and Brunner. Acknowledging that states and municipalities can restrict picketing outside of personal residences, the majority noted that the constitutionality of such restrictions depends on whether they apply to “all speech irrespective of content.” The majority echoed the Association’s argument that the statute’s restrictions explicitly applied to the content of the message (i.e., labor disputes) and to the identity of the messenger (i.e., labor unions and public employees), which placed an unconstitutional content-based restriction on expressive activity. The majority also noted that the statute necessarily required SERB to “examine whether the picketing specifically emanated from one particular side of a labor-relations dispute, rather than simply determining that a general instance of picketing occurred, in order to determine whether an unfair labor practice occurred.” To do that, the majority explained, “SERB must examine the content of the picketing,” leading the four Justices to conclude that “[t]he substance of the picketers’ message was inescapably the basis for SERB’s unfair-labor-practice findings against the [A]ssociation.”
While agreeing that the statute was unconstitutional, Justice Kennedy wrote separately (and was joined by Justices Fischer and DeWine) to note that the statute did not expressly prohibit picketing itself, but that it prohibited “encouraging” or “inducing” others to picket in specific locations. The concurring Justices made this distinction to note that a violation of R.C. 4117.11(B)(7) could still occur “if the [A]ssociation induced or encouraged targeted picketing at a residence or place of private employment, even if the picketing never took place.” This, they said, undermined the majority’s conclusion that “[t]he substance of the picketers’ message was inescapably the basis for SERB’s unfair-labor-practice findings,” noting that the messages on the picket signs “are irrelevant to establishing a violation of R.C. 4117.11(B)(7).” Nonetheless, the concurring Justices agreed with the majority that R.C. 4117.11(B)(7) was a content-based restriction on expressive activity that failed strict scrutiny review.
While the Supreme Court’s decision was limited to R.C. 4117.11(B)(7) and public-sector labor union picketing, this decision could shed light on the broader issue of the constitutionality of ordinances that restrict protests and picketing at the residences of company managers (in the case of private-sector labor disputes) or even at the residences of public officials. The latter became a topic of public conversation in early 2020 when groups of people organized outside the home of then Director of the Ohio Department of Health, Amy Acton, to protest the State’s COVID-19 restrictions. As news of labor tensions rise across the country, and with election season just around the corner (including the hotly contested race for the Ohio Supreme Court Chief Justice seat between Sharon Kennedy (R) and Jennifer Brunner (D)), this issue may be ripe for discussion in the coming months.