Update: On October 23, 2013 the Supreme Court of Ohio handed down a merit decision in this case. Read the analsyis here.
On April 24, 2013, the Supreme Court heard 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.
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), union members picketed an MCBDD evening board meeting to express their dissatisfaction with the progress of contract negotiations. 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). The Union did not give the required statutory notice. The MCBDD 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 constitutionality of the statute’s ten-day notice provision. The trial court upheld the constitutionality of the provision, and affirmed SERB’s decision. The Seventh District Court of Appeals reversed, finding the ten-day notice provision of the statute unconstitutional. SERB and MCBDD both appealed to the Supreme Court.
Read the oral argument preview of the case here.
At Oral Argument
Both sides agreed that the picketing involved in this case was informational picketing, not strike-related picketing.
A deputy solicitor general argued on behalf of SERB. He argued that the statutory notice provision should be upheld because it is merely a notice law and does not restrict speech at all in routine cases. In those rare cases in which it does apply some limits, it is merely a mild time, place and manner restriction, and is justified by the need to ensure access to vital public services. He also suggested that arguably the statute does not apply at all to informational picketing, although he conceded that SERB has always found that it does, as has the National Labor Relations Board on the analogous federal side. The statutory provision is not a regulation of speech; only a regulation of conduct. The statute in no way bans picketing; it just requires a heads-up—which can be necessary for security reasons, to warn suppliers, or to warn citizens who may not want to cross a picket line. Compliance with the requirement is simple and easy.
The Court should not lose sight of the fact that it is dealing with a very fragile population in this case—children and adults with developmental disabilities. The population that is served is used to seeing things done in a regular way, and it would be difficult for this population to make other kinds of arrangements. MCBDD’s counsel also insisted this picketing did not involve matters of general public concern, but only of local economic interests. The statute should be upheld both on its face and as applied.
The Union’s Argument
The Court could resolve this case without deciding whether access to government services is a compelling governmental interest, because the statute simply is not narrowly tailored to meet that end. The statute could be found unconstitutional for a variety of reasons. It is a speaker-based and a subject-based regulation. It is a prior restraint. And even if it is only a time, place or manner regulation, it is not narrowly tailored to serve a significant governmental interest.
SERB applies this notice requirement only to labor-related informational picketing. And SERB has said public employees can picket about non-labor dispute issues without complying with the notice requirement.
The test here is not how burdensome it is to comply with the statutory provision. The test is whether the statute is chilling speech, or restraining spontaneous expression, which it is. Furthermore, there are no adequate alternative means of communication. Picketing is a special kind of speech. It is designed to attract attention, to exert influence, and to spread a message in a particular way.
With the exception of one narrow part of the analogous federal statute, Ohio is the only state that requires notice before informational picketing. If the Court does strike down the statutory provision at issue here, it will not affect the notice-before-strikes provision.
What Was on Their Minds
Do We Really Need This?
What is the purpose of having a ten-day notice requirement for an informational picket, asked Justice O’Donnell? And if that notice had been given in this case, what difference would it have made? The Board still conducted its meeting, he noted. But why didn’t the Union give the ten day’s notice? (no reason given in the record.)
What is so difficult about complying with the statute, asked Justice Lanzinger? Was the Union taking issue with any written notice whatsoever? (yes, it was)
If twenty parents decided to picket the Board, could they just show up and do so, without notice, asked Chief Justice O’Connor? (yes indeed, said the Union lawyer; that wouldn’t impact SERB)
Isn’t one of the purposes of the ten day requirement to allow for the resolution of a dispute that might have given rise to the picketing? Isn’t one of purposes of the Act to resolve labor disputes peacefully? Is that one of the interests that the Court should consider, asked Justice French?
Chilling Speech and Narrow Tailoring
Even if the government’s interest is compelling in this case, why is this law narrowly tailored to meet those interests, asked Justice French? While she acknowledged that services shouldn’t be disrupted, nor the people who use them negatively impacted, why does it take ten days to prepare for that, she asked? Why not a week? Or 48 hours?
Since it is speech that is being chilled, why not 24 hours, added Justice O’Neill? If I’m told to hold that thought for ten days, isn’t that chilling speech? And isn’t a union picket always going to be content based?
Justice Lanzinger asked if the statutory provision were content neutral or content based, noting that would affect the Court’s level of scrutiny. (Content neutral, said the SG. Content based, said the Union lawyer). Why did the Union say this was content based? The statute does not ban informational picketing. Is there any type if informational picketing that falls outside the statute? Any case law that so holds?
Time, Place, and Manner Restriction
Was SERB saying there is no time restriction here, asked Chief Justice O’Connor? (yes, it was). But wasn’t there a time restriction because of the date restriction? Such a regulation may have been “mild” (SERB’s word) when enacted, but is it still?
The Third Way
Justices O’Donnell and Pfeifer both asked the Deputy SG to elaborate on his “middle ground” that the statute does not apply to informational picketing. (Justice Pfeifer described this as SERB losing, but not losing.) Justice O’Donnell asked if there was any case that has held that. And the Chief asked if that meant no notice would then be required for an informational picket (correct, said the SG)
A Fragile Population
Justice Pfeifer really got into it with MCBDD’s lawyer, who insisted the restrictions were necessary to protect the fragile population served here. “A board meeting is a board meeting—I think that is a very weak argument you are making,” Pfeifer said. And when the lawyer insisted that the speech involved was not of public concern, Pfeifer was clearly annoyed. “It’s of no public concern how you compensate your staff of these fragile clients,” he asked? And the Chief chimed in, asking whether the use of public dollars made this a matter of public concern? (no case has so held, he replied, sticking to his guns)
Justice O’Neill asked if MCBDD was arguing that the ten day rule gave the Board the opportunity to prepare the recipients of the message? (yes, so those affected could make other arrangements to be somewhere else.)
But even if the Court were to agree that this is a fragile population that needs to be protected, said Justice French, is ten days narrow tailoring?
Justice Pfeifer asked if the Board had time set aside for teachers and staff to stand up and air their concerns, noting that more than a few boards make it difficult for the public to come and participate.
Elsewhere in the Country
Are there other states that have notice requirements at all, even with a different time frame, asked Justice French? Isn’t notice required under federal law for picketing a health care facility? (answer: yes, but the constitutionality of that provision has never been tested.)
How it Looks from the Bleachers
To Professor Bettman
This looks like a win for the Union. It looks like a majority is going to strike down the ten-day notice requirement for informational picketing, most likely because it isn’t narrowly tailored enough to meet a compelling governmental interest. While the lack of narrow tailoring seemed to find the most traction, a number of the justices (especially Justice Pfeifer) didn’t seem persuaded that there even was a compelling governmental interest here, either. Justice Lanzinger seemed the most sympathetic to the appellants.
While the Court could adopt SERB’s proposed “third way” and hold that the notice provision simply does not apply to informational picketing, that seems like a statutory construction stretch.
To Student Contributor Greg Kendall
Some justices were skeptical of the need for a full 10-days notice period and seem to believe that such a long period of time means the statute is not narrowly tailored. Justice Pfeifer raised an interesting issue regarding whether the 10-days notice requirement provides the board with the opportunity to move the meeting date and time to avoid the picket. The justices appear to be uncertain as to how to deal with the fact that the case deals with a sensitive captive audience, and also seem to be accepting of the argument that the 10-days notice period is more time than necessary to promote the statute’s objectives.