Free Speech

Government Persuasion vs. Government Coercion: The Employer Speech Analogy

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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.

NEXT: SCOTUS Restores Rule 33.1 For Printed Copies of Briefs

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  1. “Your honor, that shopkeeper just gave me money because he was feeling charitable. It was a voluntary act. The fact that I happen to work for the Mafia would never have crossed his mind. I would never break his kneecaps, I love him like a brother!”

    1. This important but small. The Biden admin is flagging Facebook posts for removal. YouTube removed 1000s vid on the lab origin of COVID, despite the zero finding of COVID in 80000 animal samples. Are ongoing gov investigation of Facebook coercive or persuasive. How does one measure coercion? What quantity violates the First Amendment?

      If Democrat and social media policy kowtows to the Chinese Commie Party, for enrichment from access to their market, is that more than a constitutional tort and actionable treason?

      This is less trivial than the blogpost. However, it still lawyer bullshit. The social media platforms must be seized in civil forfeiture for the billions of federal crimes. That sweeps away all lawyer nitpicking, wondering and worthless bullshit.

      1. Threats to alter or abolish section 230, or break them up, which could total hundreds of billions of dollars in stock losses across the companies, or even just one of these trillion dollar ones, is the biggest “shame it might get broken” threats.

        Except it was explicit. There was a whole discussion unit during the Democratic debates about how to hurt the companies if they don’t comply with what those on stage thought they should censor.

        1. I think the history of government mandate breakups suggest stock losses are overstated and the breakup may even create value.

    2. Haha. Absolutely. The social media companies will do the censoring willingly, with only a directional nod from the government.

  2. Are you thinking the sheriff’s letter was an unlawful speech restraint when this body of employer law is applied? Or have you not gotten that far in your analysis yet?

  3. If Facebook and Twitter become arms of the DNC, then it will be up to conservatives to come up with an alternative, like they did with Fox News. Social media is, after all, the fifth estate.

    1. Correct, Republicans need Orwellian propaganda organs to spread #fakenews in order to win elections. So Republicans still watch Fox News and listen to Hannity even though both helped the Bush administration lie us into an asinine war.

      1. Judith Miller worked for Fox News?

        1. Chemical and biological weapons are a joke! Guess what WMD works?? Nuclear bombs. Does America possess chemical weapons or nuclear weapon?? Asking for a friend. 😉

          1. A bunch of dead Iranians, Iraqis, Syrians, and their surviving friends and relatives would disagree with you that chemical weapons are a joke.

      2. Both sides lie. We saw some of the most savage lying during the election. After dead totals, they presented on a black background 32 million, then 40 million unemployeed, the kind of truth only a lawyer loves, right before they are heaved into the lowest levels of hell.

        I asked someone about this and they said if Hillary had been president the situation would be wrapping up and people going back to work already. This was in late summer.

        So your point is understood, but your blinders are the size of those lily pads people float on.

  4. the employer, his economically dependent employee

    Well, the employer also depends economically on his employee(s); if it weren’t so then strikes wouldn’t have any effect on employers.

  5. The proposal seems reasonable to me. A few thoughts:

    1) I like the basic idea of the persuasion/coercion spectrum. It reminds me of the 2nd circuit Penthouse case you cited in a recent post, about a congressperson who attempted to persuade 7/11’s parent company to take magazines off its shelves. I looked for some cases like this that made it to SCOTUS but did not find any, though I am no expert here.

    2) Agree that there can’t be a sharp line. Consider a simple two-person example: a parent gets a kid to eat their vegetables, using all the standard tactics. Where is the line between persuasion and coercion? Just as the government’s motives, desires and assumptions will vary depending on the circumstances, so too will those of the private entity. A standard framework for analysis serves this situation better than a bright line rule, IMO.

    3) You alluded to this, but the labor analogy starts to break down upon close scrutiny since the relationships differ. I don’t think this kills the idea.

    4) I wonder what sorts of tests you might devise to discern persuasion from coercion. A pattern of previous behavior? There was a line from the 2nd circuit Penthouse case that caught my attention:

    “The court determined that Playboy had shown that it was likely to prevail on the merits in establishing that the Commission’s actions amounted to an informal scheme of government censorship constituting a prior administrative restraint.”

    I haven’t had time to look into how they determine what amounts to an informal scheme of censorship. Footnote 8 in Bantam Books v Sullivan seems like a potential treasure trove on this front:

    “Threats of prosecution or of license revocation, or listings or notifications of supposedly obscene or objectionable publications or motion pictures, on the part of chiefs of police or prosecutors, have been enjoined in a number of cases” [they then cite over a dozen cases, I stopped counting] “None of the foregoing cases presents the precise factual situation at bar, and we intimate no view one way or the other as to their correctness.”

    LL

    1. Final thought: you might also look to the “government as employer” caselaw. Janus v AFSCME comes to mind, since it involved the government compelling the speech of its employees (in that case paying of dues to a public union). I’m re-reading that one now to see if there are any pertinent citations.

  6. I dunno. The examples of government persuasion here sound way less coercive than plea bargains and most consent searches, which we know are completely voluntary, so…

  7. What do you call a unit of persuasion? What do you call a unit of coercion? How many units violate the First Amendment and justify litigation? New words and measurements are needed.

    I suggest the pezzuza as a unit. How many pezzuzas will it take to get you to take your top off? How many pezzuzas will it take to betray your country to the Chinese Commie Party?

    1. About a house’s worth got a top CIA guy to betray his country to the Soviet Commie Party.

  8. We seem to be running up against many of these fine lines. Earlier tonight, someone proposed a related hypothetical:

    Both the CDC and the WHO have declared that circumcision reduces the spread of HIV. Given that the University of Nebraska wishes to do its part to reduce the spread of HIV, it has decided to use the general police power of the State of Nebraska to require each entering student be circumcised. When announcing the policy, the University’s Rector declared “We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon students for a lesser sacrifice, even if not felt to be such by those concerned.”

    Is the hypothetical Cornhusker policy acceptable? Would it be acceptable if prevention-by-injection (aka vaccination), rather than prevention-by-circumcision, was being required? What medical procedures do and do not cross the fine line?

    1. “to require each entering student be circumcised.”

      That can’t possibly be legal and I will explain why: female circumcision provides no utility in preventing AIDS so it can’t be required, male circumcision can’t be required because of sex discrimination requiring males to be circumcized but not females.

      However I concede courts when considering that many females do have penises, and thus circumcision of women would reduce the spread of AIDS requiring circumcision of both males and females would be sex neutral. And of course the unfounded claim some women make that women can’tt have penises would not be taken seriously in court.

      I’m just hoping that global warming blows over before universities require forced sterilization as a public health matter.

      1. I don’t claim to be an expert, but I think, precisely because of the anatomical differences between males and females, female “circumcision” is not the same operation as male “circumcision.”

        It’s just that the same word is used for two different types of hacking about, down in the between the leg region.

        1. In fact, activists against the female version generally do not use that term at all, because it might cause people to confuse it with the benign male version. They call it FGM – female genital mutilation.

          (Of course, wacky activists against the male version call that one genital mutilation, too.)

          1. Yeah, but that was his hypothetical, obviously it would have worked better if he said students with penises (can’t say male and female for that distinction any more, especially on campus), you’d have a point.

            It wasn’t my hypothetical, so I just answered his hypothetical with all the seriousness it deserved.

            1. It came close to being banned in San Francisco.

    2. Given that the University of Nebraska wishes to do its part to reduce the spread of HIV, it has decided to use the general police power of the State of Nebraska to require each entering student be circumcised.

      I’m not sure why you’re viewing it through the lens of the police power. Seems to me that this is through contract, not the police power.

  9. I’m not sure persuasion/coercion is the full extent of the spectrum. What about inducement ?

    What if the government says “if you don’t publish that scurrilous piece attacking the President’s Iran policies, there could be an Ambassador’s slot for the Chairman. Not sayin’ will be, but could be.”

    Or actual payment. “If you don’t publish – there’s $100,000 in it for you.”

    There are all sorts of rewards the government could hint at, or actually offer, which, being rewards, aren’t coercion.

    1. I thought the government couldn’t use its powers to construct other powers it did not have.

      That’s why massive taxation followed by dangling orders for states to get it back was such a cool invention to work around this.

      Oops, time is short. I have to leave this thread and go to the, sadly, now daily thread of government attempting to work around the First Amendment.

  10. Looks like Twitter just suspended a sitting Congresswoman for “misinformation” which looks a lot like opinion.

    I wonder if it coordinated with the federal government first?

    1. “Do it or your section 230 might get broken.”

      “Mr. CEO of trillion dollar company. You were summoned to answer Congress’ questions. Now tell us why you are not censoring harrassment?”

    2. ” Looks like Twitter just suspended a sitting Congresswoman for “misinformation” which looks a lot like opinion. ”

      If you are referring to Marjorie Taylor Greene, and can not understand why a legitimate organization would choose not to associate with Marjorie Taylor Greene, and believe government should compel Twitter to associate with (and assist) Marjorie Taylor Greene, you seem destined to a lifetime of bitter, disaffected, inconsequential, deplorable alienation, anger, and failure.

      I hope you improve and avoid that fate.

  11. We all know what happened here. It is not secret. The city leaned on the venue until it cancelled. Probably said it would withhold police protection and let antifa terrorists do their thing along with a myriad of other threats. These tactics are nothing new among the left.

  12. The Massachusetts state ethics commission has had to deal with this issue — I’m not saying always well — but they have had to deal with it.

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