The lower courts clarify some important free speech principles.

The lower courts clarify some important free speech principles.

The lower courts clarify some important free speech principles.

The law, lawyers, and the court.
Aug. 10 2007 1:18 PM

Freer Speech

The lower courts give, as the Supreme Court taketh away.

Liberals surely have reason to be despondent about the last Supreme Court term, especially the court's cavalier squelching of irreverent student expression ("Bong hits 4 Jesus") in public places. Our new First Amendment rule seems to be that in cases involving real speech by real people, the tie goes to the censor, but private corporations spending money to tell us whom to vote for enjoy the first-class speech rights that actual citizens, like high-school students, can only dream of now.  

But even as the Supreme Court conducts broad U-turns on fundamental questions like free speech and racial equality in public schools, many lower courts—including some dominated by Republican appointees—have been acting with vigor to protect the rights of the people.  Two appeals court decisions in the last several weeks reveal that, when citizens stand strong for their rights and smart lawyers mount a principled defense of the freedom of political expression, the rule of law can still pay off in big ways.


Consider first the D.C. Circuit's amazing (and, so far, totally ignored) June 19 decision in Sheet Metal Workers Local 15 v. National Labor Relations Board. The three-judge panel overturned a decision by the National Labor Relations Board that had barred the sheet-metal workers from staging any picketlike protest with a "mock funeral" theme at a Florida hospital that had been using nonunion contractors. Why would union sheet-metal workers want to stage a "mock funeral" protest? We'll get to that. The point is that here, in the United States of America, they were ordered not to do so by the government.

In a country with robust free speech protections for all, it might seem unremarkable for a court to defend the rights of peaceful and dramatic protest on a public sidewalk. But since the 1947 passage of the Taft-Hartley Act, courts have continually shut down protests like this whenever the picketers are union members and their political target is deemed to be "secondary" rather than primary. A "secondary" employer is one—like  the hospital in this case—that does business with the union's main adversary (here, a heating and air-conditioning contractor). 

In the topsy-turvy world of labor law, the courts have thus allowed the government to suppress speech by union members if they address it to what the government considers the wrong target. In any other context, we permit speakers to define their own message and pick their own targets. Conservatives can protest Disney for its gay-friendly policies and pro-choicers can boycott Domino's Pizza for its owner's right-wing politics. Paranoid homophobes can even protest the military funerals of war heroes to make their point  that God is punishing America for tolerating gay people. But in the field of labor, political messages by picketers can be stifled simply because the government thinks they are better addressed to a different audience.

In the sheet metal workers case, union protesters passed out flyers at the hospital warning passers-by about Brandon Hospital's bad patient-care record and arguing that the same for-profit policies had caused it to use cut-rate, nonunion contractors. To illustrate their point, they conducted a mournful "mock funeral" led by the Grim Reaper, complete with plastic sickle and four pallbearers on the public sidewalk in front of the hospital. "They were accompanied," the D.C. Circuit panel noted (not without a sense of humor), "by various somber tunes from a portable audio system, including Siegfried's Funeral March by Wagner, O Fortuna from Carl Orff's Carmina Burana, and the third movement from Chopin's Piano Sonata No. 2."


The National Labor Relations Board issued an order commanding the union to cease and desist, claiming this was illegal "secondary" picketing since the union has no right of free speech except to criticize the specific nonunion contractors. According to the Bush-appointed labor board, the union had no broader right to criticize the hospital for doing business with them. This 60-year-old ban on "secondary boycotts" effectively destroys unions' ability to draw broader economic connections. The National Labor Relations Board won a preliminary injunction against the mock funeral from a federal district court, which was affirmed by the 11th Circuit in Atlanta.

But the D.C. Circuit rejected its sister circuit's reasoning and reversed the NLRB. The decision is a landmark First Amendment victory for labor. All three federal judges who threw out the anti-union injunction were Republican appointees, and the author of the opinion was Judge Douglas Ginsburg, once nominated to the high court by President Ronald Reagan. They all agreed the union's combination of "street theater and handbilling" was clearly protected by our First Amendment. For the first time in this context, a court invoked the abortion protest cases, Madsen v. Women's Health Center and Hill v. Colorado, finding that union protesters must have the same right to protest near hospitals as anti-abortion picketers enjoy. The opinion now exerts enormous pressure against the legislative double standard—in place since 1947—that said anyone, except for union members, can picket anyone else in America. 

Then, last week, the 9th Circuit Court of Appeals in California introduced the same First Amendment clarity to political cyberspace in another important decision, Porter v. Bowen. The case had much of its genesis in an article I wrote for Slate on Oct. 25, 2000, introducing the idea of Internet "vote-trading" to avert the catastrophe of a George W. Bush election a few weeks later. My suggestion was that Ralph Nader's supporters in swing states (like Ohio, Wisconsin, and Florida) should go online and communicate their intention to vote for Democratic nominee Al Gore in return for the agreement of Gore supporters trapped in hard-core red states (like Texas, Louisiana, Utah, and Alaska) to vote for Nader. This multipartisan interstate political coalition would allow Gore to hit 270 in the electoral college while not harming Nader's effort to reach 5 percent in the nationwide vote to qualify for federal financing. "If just 100,000 Gore supporters and 100,000 Nader supporters in the key states registered and kept their words," I wrote, "both a Gore victory and federal funding for the Greens could be accomplished."  

Overnight, the Internet vote-swapping movement swept the Internet , as thousands of people joined up on flourishing Web sites, including, created by William J. Cody. But just as quickly, a group of Republican secretaries of state and attorneys general struck back hard.


On Oct. 30, 2000, California's ambitious Secretary of State Bill Jones sent Cody a threat letter. "This letter is to formally notify you that 'Voteswap2000' is engaged in criminal activity in the State of California," he wrote, claiming Cody was brokering the illegal sale and purchase of votes, a felony carrying "a maximum penalty of three years in state prison in California for each violation." Given that thousands of trades had already taken place, Cody was facing thousands of year in jail. He took his site down, and similar official threat letters, from Oregon to Minnesota to New York, quickly followed suit, squelching many Web sites and a vibrant online movement with already tens of thousands of participants. This story, too, is part of the as-yet unwritten history of the stolen presidential election of 2000.

Although this official bullying a week before the presidential election achieved its transparent electoral purposes, the gutsy and Web-savvy Generation X champions of political coalition in 2000—Alan Porter, Patrick Kerr, Steven Lewis, and William Cody—chose to fight for their rights. The ACLU of Southern California and the National Voting Rights Institute brought a case alleging that California's threats against them violated the First Amendment, specifically the freedoms of political expression and association. Surely Americans have a right not only to talk to one another about how they will vote but to form strategic political alliances across state lines to advance their views. Seven years later (better late than never), the 9th Circuit agreed this week that this "kind of communication is clearly protected by the First Amendment."

The court found that "the websites' vote-swapping mechanisms and the communication and vote swaps that they enabled … amounted to efforts by politically engaged people to support their preferred candidates and to avoid election results that they feared would contravene the preferences of a majority of voters in closely contested states. Whether or not one agrees with these voters' tactics, such efforts, when conducted honestly and without money changing hands, are at the heart of the liberty safeguarded by the First Amendment."

Political freedom has a history of its own. The union activists and their lawyers (Michael Anderson and Arlus Stephens) and vote-trading pioneers and their lawyers (Peter Eliasberg, Mark Rosenbaum, Lisa Danetz ,and Brenda Wright) who stood up for political freedom in these cases now take their rightful place in this history. While America watches the Supreme Court eat away at freedom's progress from the last century, we can experience a small satisfaction that there are federal judges out there who are still doing justice—even  when a majority of the judges we call "Justice" are not.