While we were all watching football and eating leftovers over the Christmas holiday, the California Supreme Court issued one of the most controversial decisions in years, finding that a union had the right to picket on private property outside of a Ralph’s grocery store. Most labor lawyers, including me, expect this fight to make its way to the U.S. Supreme Court where it stands a good chance of being reversed.
A bit of background. Two California statutes – the Moscone Act and California Labor Code §1138.1 – make it legal for a union to engage in peaceful picketing or patrolling during a labor dispute and prohibit courts from issuing injunctions against them in most cases. In Ralphs Grocery Company v. UFCW, Local 8, a local chapter of the United Food and Commercial Workers (UFCW) engaged in picketing on the private walkway in front of a Ralph’s grocery store in an attempt to organize the workers there. Ralph’s had a union-neutral company policy which prohibited speech activities on its property, but the union picketed nonetheless and, after the police refused to intervene, Ralph’s sought an injunction prohibiting the picketing. Ralph’s maintained that the union was trespassing on its private property and the union contended that its conduct was lawful under the Moscone Act and Section 1138.1.
The ultimate issue is whether the Moscone Act and Section 1138.1 are constitutional under the First Amendment to the U.S. Constitution. Generally speaking, state laws which restrict speech based on the content of the speech (i.e., speech about unionizing) are prohibited. To that end, the U.S. Supreme Court has twice struck down state laws restricting picketing “on a public way” near a school or picketing “before or about the residence or dwelling of any person” as impermissible content-based restrictions.
The twist in this case is that the Moscone Act and Section 1138.1 do not restrict speech. On the contrary, the laws: (1) make it lawful to engage in peaceful picketing during a union campaign; and (2) prohibit an employer from getting an injunction to prohibit such picketing.
The Court of Appeal found that to be a distinction without a difference. It reasoned, “the effect on speech is the same: the laws favors speech related to union disputes over speech related to other matters – it forces Ralph’s to provide a forum for speech based on its content.” Because of that “preferential treatment,” both the Moscone Act and Section 1138.1 were unconstitutional in its view. In other words, labor picketers and no one else have the right to picket on private property.
This was not the first time an appellate court had found these two statutes to violate the First Amendment. In 2001, the U.S. Court of Appeals for the D.C. Circuit (which regularly reviews decisions from the NLRB) found the Moscone Act and Section 1138.1 to be unconstitutional content-based regulations of speech which violate the First Amendment.
The California Supreme Court chose not to follow all of these precedents and found in a 6-1 decision that the Moscone Act and Section 11138.1 were constitutional. It focused almost exclusively on the fact that “neither the Moscone Act nor Section 1138.1 . . . restricts speech.” It was truly perplexing that the California Supreme Court chose not to address the “preferential treatment” alluded to by the Court of Appeal and the D.C. Circuit.
So, what happens now? Ralph’s can seek a writ of certiorari with the U.S. Supreme Court to have the First Amendment issue addressed by that court. Ralph’s has publicly indicated that it intends to seek such review and there is good reason to think that the U.S. Supreme Court will grant review and find these statutes unconstitutional. Although the U.S. Supreme Court is famously split on all sorts of high-profile issues, in recent years the Court’s members have seemed to find more common ground when it comes to issues involving First Amendment issues. And, the California Supreme Court’s dodge of the precise issue here – whether there is any difference between content-based restriction of speech and the preferential treatment of speech based on its content – practically begs for review and reversal by the U.S. Supreme Court.