2020 Ohio 7004
Ohio Ct. App.2020Background
- The Portage County Educators Association (Unit B) struck in Oct–Nov 2017; members picketed on public streets/sidewalks in front of six Board members’ private residences and one member’s private workplace.
- The Portage County Board filed unfair-labor-practice charges; SERB found the Association violated R.C. 4117.11(B)(7) (prohibiting an employee organization from inducing/encouraging picketing of a public official’s residence or place of private employment in connection with a labor dispute).
- The Association challenged § 4117.11(B)(7) as an unconstitutional restriction on speech; the trial court upheld the statute as content-neutral and enforceable.
- On appeal this court assessed whether the statute is content-based (triggering strict scrutiny) or a content-neutral time/place/manner restriction (intermediate scrutiny), comparing it to Mosley, Carey, and related secondary-picketing precedents.
- The court held the statute is content-based (because it penalizes inducement/encouragement only when picketing is “in connection with a labor relations dispute”), rejected the state’s asserted compelling interests, found the statute not narrowly tailored, reversed the trial court, and remanded.
- The opinion notes a split in prior Ohio appellate decisions (Eighth District: United Electrical — unconstitutional; Seventh District: Harrison Hills — constitutional) and includes a concurrence emphasizing speaker-identity (speaker-based) concerns.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether R.C. 4117.11(B)(7) is content-based or content-neutral | Statute prohibits inducement/encouragement only when picketing is "in connection with a labor relations dispute," so it depends on message/content | The statute is a place/time/manner restriction to protect privacy and labor peace, justified without reference to content | Content-based; strict scrutiny applies |
| Whether the statute survives strict scrutiny (compelling interest & narrow tailoring) | No: privacy/labor-peace/public-service interests are not shown compelling and the law is overbroad | The state asserts compelling interests: residential privacy, encouraging public service, preserving labor peace | Government failed to show a compelling interest and the statute is not narrowly tailored; invalid |
| Whether the statute can be upheld as a regulation of secondary picketing (analogous to NLRA limits) | The statute sweeps beyond unlawful coercive secondary boycotts and bans lawful informational picketing | The statute protects neutrals and is analogous to prohibitions on secondary boycotts/coercive pressure | Not analogous here; the statute is broader than NLRA limits and cannot rely on those precedents to avoid strict scrutiny |
| Whether the statute discriminates based on speaker identity | Targets employee organizations/public employees (speaker-based discrimination) | Applies to conduct (inducing/encouraging), not the speaker’s identity | Concurring analysis: statute also penalizes based on speaker identity; that reinforces strict scrutiny analysis |
Key Cases Cited
- Reed v. Town of Gilbert, 576 U.S. 155 (U.S. 2015) (defines content-based regulation and mandates strict scrutiny when law draws distinctions based on message)
- Chicago v. Mosley, 408 U.S. 92 (U.S. 1972) (ordinance permitting labor picketing but banning other picketing held content-based)
- Carey v. Brown, 447 U.S. 455 (U.S. 1980) (residential-picketing statute excepting labor disputes is content-based and invalid under Equal Protection)
- Ward v. Rock Against Racism, 491 U.S. 781 (U.S. 1989) (time/place/manner intermediate-scrutiny test for content-neutral restrictions)
- Boos v. Barry, 485 U.S. 312 (U.S. 1988) (narrow-tailoring analysis and consideration of less-restrictive alternatives)
- Int’l Bhd. of Elec. Workers v. NLRB, 341 U.S. 694 (U.S. 1951) (analysis of prohibiting inducement/encouragement of secondary picketing)
- Retail Store Employees Union v. NLRB, 447 U.S. 607 (U.S. 1980) (§ 8(b)(4) of NLRA limits secondary picketing; statute targets an "isolated evil")
- NLRB v. Fruit & Vegetable Packers & Warehousemen (Tree Fruits), 377 U.S. 58 (U.S. 1964) (secondary picketing may be restricted when coercive or aimed at forcing business cessation)
- Citizens United v. FEC, 558 U.S. 310 (U.S. 2010) (speaker-based restrictions are constitutionally suspect; government may not disfavor speakers)
- Snyder v. Phelps, 562 U.S. 443 (U.S. 2011) (picketing on matters of public concern receives robust First Amendment protection)