Last month, I posted that a District Court Judge in South Carolina found the NLRB's new poster requirement to be unlawful, but did not ban the NLRB from requiring that it be posted. A I also posted that the DC Circuit Court of Appeals entered an injunction prohibiting the NLRB from requiring the use of the poster. On May 7, 2013, the DC Circuit Court of Appeals issued an opinion finding that the poster requirement is illegal. In a 38 page opinion, the Court wrote that:
Of course we are not faced with a regulation forbidding employers from disseminating information someone else has created. Instead, the Board’s rule requires employers to disseminate such information, upon pain of being held to have committed an unfair labor practice. But that difference hardly ends the matter. The right to disseminate another’s speech necessarily includes the right to decide not to disseminate it. First Amendment law acknowledges this apparent truth: all speech inherently involves choices of what to say and what to leave unsaid." Pac. Gas & Electric Co. v. Pub. Utils. Comm’n, "475 U.S. 1, 11 (1986) (plurality opinion).
Chief Justice Roberts, writing for a unanimous Court, put it this way in Rumsfeld v. Forum for Academic & Institutional Rights, Inc.: "Some of [the] Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say." 547 U.S. 47, 61 (2006). As examples, the Chief Justice cited West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), and Wooley v. Maynard, 430 U.S. 705 (1977).
In Barnette the Court held that "[t]o sustain the compulsory flag salute" and pledge of allegiance in public schools would be to conclude "that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind." 319 U.S. at 634.
Wooley held much the same: the First Amendment freedom of speech "includes both the right to speak freely and the right to refrain from speaking at all." 430 U.S. at 714. New Hampshire therefore could not coerce its citizens to display the State motto "Live Free or Die" on their automobile license plates, although presumably citizens could display it voluntarily. As the Supreme Court put it inUnited States v. United Foods, Inc.: "Just as the First Amendment may prevent governmentfrom prohibiting speech, the Amendment may prevent the government from compelling individuals to express certain views . . .." 533 U.S., 405, 410 (2001); see also Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 568 (2005) (Thomas, J., concurring); R.J. Reynolds Tobacco Co. v. Food & Drug Admin., 696 F.3d 1205, 1211 (D.C. Cir. 2012).
The Court concluded that:
We therefore conclude that the Board’s rule violates § 8(c)because it makes an employer’s failure to post the Board’s notice an unfair labor practice, and because it treats such a failure as evidence of anti-union animus in cases involving, for example, unlawfully motivated firings or refusals to hire—in other words, because it treats such a failure as evidence of an unfair labor practice.F.3d 628, 637–39 & n.7 (5th Cir. 2003).
Pending an appeal, it is my opinion that the poster, as previously required by the NLRB, does not have to be posted at this time.