Why Should Anti-Choice and Anti-Gay Groups Have More Right to Boycott and Picket Than Working People?
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But like most successful labor tactics, secondary boycotts came under attack. Congress cracked down on secondary boycotts by unions in the 1947 Taft-Hartley amendments to the National Labor Relations Act.
University of Texas Law professor Jack Getman, in his book Restoring the Power of Unions, writes that “Essentially, there are three types of activity prohibited by Section 8(b)(4): refusals by secondary employees to do their jobs; appeals to secondary employees to refuse to do their jobs; and appeals to customers not to patronize the secondary employer.” Although the Supreme Court narrowed the application of these prohibitions in its Tree Fruits and DeBartolo Corp. cases, Getman writes that “The law dealing with secondary boycotts is highly technical and riddled with confusing doctrinal twists. It is common for unions to violate it inadvertently.”
These restrictions are possible in part because the Supreme Court, in its 1942 Bakery Drivers Local v. Wohl decision, denied picketing by labor unions the same First Amendment protection as other speech. In a widely-cited concurring opinion, Justice William Douglas wrote that such picketing was “more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action…”
So if anti-gay activists were to picket JC Penney for featuring Ellen DeGeneres in its TV ads, it would be protected speech. But if union members were to picket JC Penney for selling boycotted products, it could be illegal.
The secondary picketing restriction can apply even to companies that in reality are primary decision makers. “In Justice for Janitors, we spent our entire life trying to avoid secondary boycott charges,” says Stephen Lerner, the architect of that campaign for the Service Employees International Union (SEIU). The unionization campaign was openly and aggressively opposed by the companies that owned the buildings in which janitors worked, which hired the subcontractors who employed them. Winning union recognition from the subcontractors, says Lerner, would have been impossible without overcoming the building companies’ opposition. But SEIU was legally barred from organizing a “secondary picket” targeting the real decision-makers.
Through creative lawyering, careful language and calculated gambles, unions still put pressure on secondary targets (in Justice for Janitors’ case, that included blocking bridges into Washington, D.C., rather than directly picketing the building owners). But in doing so, they confront risks and restrictions that no other organization’s secondary boycotts face – whether they target Fox’s advertisers from the left or the Komen Foundation from the right.
Reached by phone, Getman says the Supreme Court intensified this contradiction in 2010, when it ruled in defense of a particularly obnoxious group of nonlabor picketers: the members of the Westboro Baptist Church. The Court held that the First Amendment protects these picketers, who draw national attention to their far-right message by holding signs at military funerals with slogans like “God Hates Fags” and "Thank God for Dead Soldiers."
“It simply cannot be the case that we have two constitutional standards,” says Getman, “one for unions that’s very restrictive, one for everyone else that’s very permissive.”
Civil libertarians righly hailed this defense of unpopular picketing. But union members would be right to wonder why their pickets don’t deserve the same constitutional protection—and the same advocacy from progressives.