Labor Law and Free Speech: The Curious Policy of Limited Expression

Abstract

Labor relations is the one area of law in which the policies of the first amendment have been consistently ignored, reduced, and held to be outweighed by other interests. A "policy of limited expression" has been applied to pure speech and symbolic speech, to consumer picketing and employee boycotts, to political action and to the organizational activities of both labor and management.' It has been woodenly applied by the National Labor Relations Board (Board), routinely enforced by the courts of appeals, and given its major impetus by the Supreme Court in a series of opinions notable for their failure to explain, rationalize, distinguish, or articulate useful standards.' The approach taken in labor cases is in marked contrast to the Court's traditional commitment to freedom of expression, to its recent decisions expanding the constitutional protection given to commercial speech, and to its recent landmark decision, NAACP v. Claiborne Hardware Co .,6 finding political boycotts to be constitutionally protected when undertaken for the cause of racial equality.