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Note: A Mock Funeral for a First Amendment Double Standard: Containing Coercion in Secondary Labor Boycotts

By Dan Ganin. Full text here.

The secondary boycott provision of the National Labor Relations Act prohibits labor unions from using coercive tactics to induce “neutral” parties to sever economic ties with others. Although the judiciary has failed to clearly delineate the concept of coercion, secondary labor picketing has been deemed categorically coercive and subject to interdiction without constitutional concern. In stark contrast, public-issue picketing has received full First Amendment protection as a prized instance of political expression.

A recent D.C. Circuit Court decision implicitly acknowledged the indefensibility of according labor protests less constitutional protection than other public protests. Taking these latent insights as a focal point, this Note argues that the constitutional asymmetry between labor and political speech, particularly with regard to picketing, amounts to impermissible content-based regulation. To avoid the specter of unconstitutional restriction, this Note proposes a new methodology for interpreting the ban on secondary coercion to ensure that it comports with general First Amendment precepts and precedent. This Note advocates a reasonable person standard, limited by a principle of formal equality between labor and political protests, for determining whether labor picketing is truly coercive and, thus, subject to valid prohibition. Under this formulation, certain forms of secondary labor picketing should be considered legitimate exercises of First Amendment rights.