Labor Values are First Amendment Values: Why Union Comprehensive Campaigns are Protected Speech
Fordham Law Review, Vol. 79, p. 2617, 2011
52 Pages Posted: 5 Mar 2010 Last revised: 23 Apr 2011
Date Written: March 2, 2010
Corporate targets of union “comprehensive campaigns” have increasingly responded by filing civil RICO lawsuits alleging that unions’ speech and petitioning activities are extortionate. These lawsuits are the descendants of the Supreme Court’s unexplained treatment of much labor speech as less worthy of protection than other types of speech. Starting from the position that speech that promotes democratic discourse deserves top-tier First Amendment protection, I argue that labor speech - which plays a unique role in civil society - should be on an equal footing with civil rights speech. Thus, even if union advocacy qualifies as legal extortion, the First Amendment should trump civil RICO enforcement, with two limited exceptions: speech that is actually malicious, and speech that imminently threatens to force an employer to choose between breaking the law and suffering significant economic harm or shutting its doors altogether.
Keywords: comprehensive campaigns, labor, First Amendment, free speech, deliberative democracy
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