Government Persuasion vs. Government Coercion: The Employer Speech Analogy

Here's a highly tentative idea that I wanted to flag: As the post on "When Government Urges Private Entities to Restrict Others' Speech" (and the caselaw it cites) reflects, government speech can often be subtly coercive because of the government's background power over the public. As the Seventh Circuit mentioned in Backpage.com, LLC v. Dart, in finding that a sheriff's letter to Mastercard and Visa demanding that they stop doing business with Backpage because of its sex-related advertisements:

Imagine a letter that was similar to Sheriff Dart's but more temperate (no "demand," no "compels," no "sever [all] ties") and sent to a credit card company by a person who was not a law-enforcement officer. The letter would be more likely to be discarded or filed away than to be acted on. For there is evidence that the credit card companies had received such complaints from private citizens, yet it was Dart's letter that spurred them to take immediate action to cut off Backpage. For that was a letter from a government official containing legal threats and demands for quick action and insisting that an employee of the recipient be designated to answer phone calls or respond to other communications from the sheriff.

Indeed, even if letter from a private citizen contained demands, a large company would likely have felt less pressure than from a letter that comes from a government official who has enforcement power, and the ear of colleagues who have still more enforcement power. A business that gets even a "request" from a sheriff or a prosecutor or the President may "pick up intended implications … that might be more readily dismissed" if the requester lacked power over the business.

That last quote, as it happens, isn't from a government speech case; it's from an employer speech case, NLRB v. Gissel Packing Co. (1969), in which the Court reaffirmed that

1. employers have the First Amendment right to speak to their employees about the possible costs of unionization,
2. employers don't have the First Amendment right to threaten employees with reprisals for unionizing, and
3. in drawing the line between (1) and (2), the employer's power to fire employees needs to be taken into account.

Here is the broader quote:

[A]n employer's free speech right to communicate his views to his employees is firmly established and cannot be infringed by a union or the Board. Thus, § 8(c) [of the NLRA] merely implements the First Amendment by requiring that the expression of "any views, argument, or opinion" shall not be "evidence of an unfair labor practice," so long as such expression contains "no threat of reprisal or force or promise of benefit" in violation of § 8(a)(1). Section 8(a)(1), in turn, prohibits interference, restraint or coercion of employees in the exercise of their right to self-organization.

Any assessment of the precise scope of employer expression, of course, must be made in the context of its labor relations setting. Thus, an employer's rights cannot outweigh the equal rights of the employees to associate freely, as those rights are … protected by § 8(a)(1) and the proviso to § 8(c).

And any balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear. Stating these obvious principles is but another way of recognizing that what is basically at stake is the establishment of a nonpermanent, limited relationship between the employer, his economically dependent employee and his union agent, not the election of legislators or the enactment of legislation whereby that relationship is ultimately defined and where the independent voter may be freer to listen more objectively and employers as a class freer to talk.

As best I can tell, the courts have taken seriously all three elements on the list I gave above. Post-Gissel do recognize the right of employers (and unions) to speak. They do recognize the right of employees to be free of coercion by employers and unions when it comes to unionization votes. And they do take into account employers' (and unions') power over employees in deciding whether a statement is unduly coercive. See, e.g., Roper Corp. v. NLRB, 712 F.2d 306, 311 (7th Cir. 1983); In re Perry, 859 F.2d 1043 (1st Cir. 1988); NLRB v. Douglas Div., 570 F.2d 742, 747 (8th Cir. 1978); Sheet Metal Workers Int'l Ass'n v. Burlington N.R.R. Co., 736 F.2d 1250, 1253 (8th Cir. 1984); Dow Chem. Co. v. NLRB, 660 F.2d 637, 644-45 (5th Cir. Unit A Nov. 1981); NLRB v. Proler Int'l Corp., 635 F.2d 351, 355-56 (5th Cir. Unit A Jan. 1981); Florida Steel Corp. v. NLRB, 587 F.2d 735, 750-53 (5th Cir. 1979); J.P. Stevens & Co. v. NLRB, 449 F.2d 595, 597 (4th Cir. 1971). (I put this list together in 1991, and haven't updated it since, but my sense is that more recent cases take the same approach.)

So my tentative proposal: Perhaps in drawing the line between permissible urging by government officials and forbidden implicit threats, the labor speech caselaw might be helpful. To be sure, that caselaw doesn't provide a sharp line, but I'm not sure that there can be such a sharp line; and at least it offers a useful and substantial body of precedent  to which courts and lawyers can turn.

But, again, this is just a tentative thought; I'd love to hear what others say about it.