2016 Ohio 4661
Ohio Ct. App.2016Background
- Union appealed SERB's finding that R.C. 4117.11(B)(7) unfairly induced picketing of a private employer in connection with a labor dispute.
- R.C. 4117.11(B)(7) prohibits inducing or encouraging picketing of a public official's private employer during a labor dispute.
- Picketing occurred September 26, 2007, on a public street outside a school board member's private employer in St. Clairsville, Ohio.
- SERB concluded (B)(7) violated the statute; the agency declined to rule on constitutional validity.
- Trial court upheld SERB, ruling the provision is content-neutral, not a content-based restriction, and narrowly tailored.
- Union argues the statute is unconstitutional content-based speech subjected to strict scrutiny; court affirms rejection of strict scrutiny analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is (B)(7) a content-based speech restriction? | Harrison Hills argues (B)(7) is content-based, targeting labor-related messages. | SERB and school board contend it is content-neutral, a time/place/manner restriction related to labor disputes. | Not content-based; regulation is content-neutral. |
| Does strict scrutiny apply to (B)(7)? | Union asserts strict scrutiny applies due to content-based nature and speech restriction. | Court should apply intermediate scrutiny; no content-based trigger for strict scrutiny. | Strict scrutiny does not apply. |
| Is (B)(7) narrowly tailored to serve significant government interests under intermediate scrutiny? | Union contends interests (privacy, public service, labor peace) are not compelling and not narrowly tailored. | Statute serves meaningful labor-relations regulatory goals and leaves alternative channels open. | Law is narrowly tailored and serves valid interests; upheld. |
Key Cases Cited
- Carpenters & Joiners Union of America v. Ritter's Café, 315 U.S. 722 (1942) (counted as controlling for government power to confine picketing to dispute-related spheres)
- Mosley v. Chicago, 408 U.S. 92 (1972) (content-based residential picketing restrictions struck for not narrowly tailored)
- Carey v. Brown, 447 U.S. 455 (1980) (invalidated residence-picketing restriction restricting labor vs. non-labor messaging)
- Reed v. Town of Gilbert, Arizona, 135 S. Ct. 2218 (2015) (content-based sign regulation; strict scrutiny when message-based)
- Perry Educ. Assn. v. Perry Local Educators Assn., 460 U.S. 37 (1983) (public streets/public forums; framework for content-based vs content-neutral analysis)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (intermediate scrutiny for time/place/manner restrictions in a public forum)
- Retail Store Employees Union v. NLRB, 447 U.S. 607 (1980) (secondary picketing and the balance of labor regulation and First Amendment)
- International Brotherhood of Electrical Workers v. SERB, 341 U.S. 705 (1951) (state power to proscribe secondary picketing in labor disputes)