Oral Argument Preview: A Constitutional Challenge to the Picketing-Notice Requirement of the Ohio Public Employee Collective Bargaining Act. Mahoning Education Association of Developmental Disabilities v. State Employment Relations Board, et al.

Update: On October 23, 2013 the Supreme Court of Ohio handed down a merit decision in this case.  Read the analsyis here.

Read the analysis of the oral argument here.

On April 24, 2013, the Supreme Court of Ohio will hear oral argument in the case of Mahoning Education Association of Developmental Disabilities v. State Employment Relations Board, et al., 2012-1378. The issue in this case is whether state law requiring public employees to give ten days’ notice before picketing violates the First Amendment, either facially or as applied to non-strike related picketing. The Court will hear this case in Logan County, as part of the Court’s off-site program.


R.C. 4117.11(B)(8), a provision in Ohio’s Public Employee Collective Bargaining Act, prohibits public employees from picketing, striking or other concerted refusal to work without giving ten days’ written notice to the public employer and the State Employment Relations Board (SERB).  In 2007, while the Mahoning Education Association of Developmental Disabilities (“the union”) was negotiating a new contract with the Mahoning County Board of Developmental Disabilities (MCBDD), the union picketed an MCBDD evening board meeting. The employer filed an unlawful labor practice charge with SERB. SERB concluded that the union violated the statute and had committed an unfair labor practice.

The union appealed to the trial court, challenging the statute’s constitutionality. The trial court found that the statute was constitutional, and affirmed SERB’s decision.

The Seventh District Court of Appeals reversed, finding the statute unconstitutional. The appeals court disagreed with SERB’s position that this was merely a time, place and manner restriction.  It held that because the law applies to public employees and public employee unions only, the law delineates a “disfavored speaker” and is thus a content-based restriction subject to strict scrutiny. The court found that the government did not satisfy its burden under the strict scrutiny standard, because although its interests in preventing work stoppages and disruption of public services were legitimate, there was no disruption of services to the government here because the picketing took place during a board meeting.

Appellants’ Arguments on Appeal

MCBDD and SERB appealed to the Supreme Court of Ohio. MCBDD argues that the statute is not a content-based restriction because it does not actually restrain speech at all. Unlike laws that impose prior restraints, R.C. 4117.11(B)(8) does not require unions to seek permission in order to strike or picket. Because the only remedy available under the statute is an after-the-fact sanction, it could not have a chilling effect on future speech except to remind the union to abide by the ten-day notice rule in the future.  Second, MCBDD argues that the union’s speech was not entitled to First Amendment protection from after-the-fact sanctions, because the speech was not on a matter of public concern.

SERB argues that the ten-day notice rule is a time, place and manner restriction similar to constitutionally permissible statutes that require speakers to apply for permits before speaking in a park using amplified sound. The statute requires only notice, and does not give an employer any leverage in limiting or preventing the speech. The employer’s only remedy is to seek an unfair labor practice charge with SERB, which does not restrict speech at all. As a time, place and manner restriction, the statute is not subject to strict scrutiny; it also does not delineate a “disfavored speaker” because it requires only notice and does not provide a means of discriminating against content or viewpoints. SERB also argues that the notice law meets strict scrutiny because it is crucial to allow public service providers to make accommodations to continually provide those services in the event of a strike and avoid disruptions. Third, the notice rule leaves open alternative means for communication, because unions are still allowed to actually picket under the statute, and there is no restriction on picketing as the preferred means of communicating. Finally, SERB argues that if the notice provision is found unconstitutional as applied to informational picketing, the statute should be read to apply only to strike-related picketing.

The Union’s Arguments on Appeal

The Union argues that the notice provision regulates speech based on subject-matter, because it applies to public employees only, and  applies only to activities related to labor issues. SERB has stated in its opinions that the notice provision applies only to labor speech and not to speech in support of political candidates or general social issues unrelated to labor disputes. Because it is a subject-matter restriction, it must satisfy strict scrutiny. The Union argues that allowing the employer additional time to remedy the dispute and avoid the disruption is not a compelling government interest, because spontaneous expression that invites dispute is an essential function of free speech. Furthermore, other federal and state courts have invalidated similar notice provisions requiring much shorter notice periods on grounds that spontaneous expression is valued.  The Union also argues that the statute is a prior restraint that imposes more than just a mere notice requirement—by requiring ten days’ notice, the statute actually prohibits speech within the ten-day period after notice is given. The statute is also not a valid time, place or manner restriction because it is not subject-matter neutral. Finally, the Union argues that the statute is a legislative act, not the action of the government acting as employer, and thus the line of Supreme Court cases addressing retaliation of a public employer in response to the speech of a public employee does not apply to these facts.

SERB’s Proposed Proposition of Law

R.C. 4117.11(B)(8), in requiring public employees to give ten days’ notice before picketing, does not violate the First Amendment’s free speech guarantee, whether on its face or as applied to non-strike related picketing.

MCBDD’s Proposed Propositions of Law

1.   A statutory notice requirement that does not itself prevent speech is not a content-based restriction on speech.

2.   The government, as employer, has far broader powers to restrict expression that does the government, as sovereign, and a court errs when it fails to consider that difference.

Amici Curiae

The County Commissioners Association of Ohio, the National Public Employer Labor Relations Association, Ohio Public Employer Labor Relations Association, and Ohio Public Transit Association have filed an amicus brief in support of appellants. They argue that the notice provision is crucial to prevent disruption of public services and is not actually a prohibition on picketing.

The Ohio School Boards Association and Ohio Association of School Business Officials have filed an amicus brief in support of appellants. They argue that the notice provision is not a prior restraint and is content neutral. They also argue that spontaneous picketing can negatively affect unwilling audiences like developmentally disabled adults or school children. Furthermore, the statute should not be invalidated in its entirety.

The AFL-CIO has filed an amicus brief in support of the union. It argues that the statute is an impermissible subject-matter restriction because it restricts informational picketing by public employees and their unions where the message relates to a labor dispute.

The Ohio Public Employees Lawyers Association has filed an amicus brief in support of the union. It argues that the notice requirement is a content-based prior restraint subject to strict scrutiny. It also argues that the notice provision is not necessary to serve government interests, because there was no actual disruption of public services here, and because no other states have similar notice requirements for public labor organizations.

Key Precedent

Police Dept. of City of Chicago v. Mosely, 408 U.S. 92 (1972) (statute prohibiting all picketing within 150 feet of a school except for peaceful labor picketing held unconstitutional because it impermissibly distinguished between peaceful labor picketing and other peaceful picketing)

Ward v. Rock Against Racism, 491 U.S. 781  (1989) (upholding municipal noise regulation as a permissible time, place and manner restriction)

Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) (applying intermediate scrutiny to content-neutral restrictions with incidental burden on free speech)

Sorrell v. IMS Health, Inc., 131 S.Ct. 2653 (2011) (statute imposing content and speaker-based burdens on protected expression warrant strict scrutiny).

Student Contributor: Greg Kendall

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