2022 Ohio 3167
Ohio2022Background
- R.C. 4117.11(B)(7) makes it an unfair-labor-practice for an employee organization, its agents/representatives, or public employees to "induce or encourage" picketing of a public official’s residence or place of private employment in connection with a labor-relations dispute.
- Portage County Educators Assn. (the union) picketed, on public sidewalks, outside six board members’ homes and once at a board member’s private place of employment during a 2017 labor dispute; picketing was peaceful and non-disruptive; the union stipulated it induced/encouraged the picketing.
- The Portage County Board charged the union under R.C. 4117.11(B)(7); SERB found a violation and ordered cease-and-desist.
- The trial court upheld SERB; the Eleventh District Court of Appeals reversed, holding the statute content-based and unconstitutional; that decision conflicted with a Seventh District ruling and was certified to the Ohio Supreme Court.
- The Ohio Supreme Court affirmed the Eleventh District: R.C. 4117.11(B)(7) is a content-based restriction on speech that fails strict scrutiny and therefore violates the First Amendment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether R.C. 4117.11(B)(7) is content-based or content-neutral | Statute restricts inducing/encouraging picketing tied to labor disputes; thus it targets subject matter and speaker identity — content-based | Statute is a time/place/manner rule banning only a particular manner ("targeted picketing") at certain locations during labor disputes — content-neutral | Content-based on its face and in application (targets speech about labor disputes and particular speakers) |
| If content-based, whether it survives strict scrutiny (compelling interest/narrow tailoring) | Interests (privacy/residential tranquility, encouraging public service, labor peace) are not sufficiently compelling or the statute is not narrowly tailored | State argues protecting privacy and labor peace justify the ban and that less speech-protective analogies (e.g., secondary-picketing doctrine) apply | Statute fails strict scrutiny: interests not compelling or statute is not narrowly tailored/least-restrictive means |
| Whether the prohibition as applied to private-employer picketing is a permissible regulation analogous to NLRA secondary-picketing restrictions | (Union) Private-employer picketing here is not secondary picketing and the statute still targets content/speakers | (State/SERB) The ban reasonably forbids secondary picketing and is thus permissible | Private-employer prohibition is not analogously justified by secondary-picketing doctrine and fails strict scrutiny |
Key Cases Cited
- Reed v. Gilbert, Arizona, 576 U.S. 155 (content-based restrictions require strict scrutiny)
- McCullen v. Coakley, 573 U.S. 464 (forum-based speech protections; content-neutrality analysis)
- Carey v. Brown, 447 U.S. 455 (invalidating content-based residential picketing restriction)
- Police Dept. of Chicago v. Mosley, 408 U.S. 92 (subject-matter discrimination in picketing law unconstitutional)
- Frisby v. Schultz, 487 U.S. 474 (upholding total residential picketing ban as content-neutral regulation)
- Ward v. Rock Against Racism, 491 U.S. 781 (time, place, manner test for content-neutral restrictions)
- Clark v. Community for Creative Non-Violence, 468 U.S. 288 (distinguishing content-neutral regulations justified without reference to speech content)
- Rosenberger v. Rector & Visitors Univ. of Va., 515 U.S. 819 (viewpoint discrimination principles)
- Natl. Labor Relations Bd. v. Retail Store Emps. Union, Local 1001, 447 U.S. 607 (limits on secondary picketing under NLRA)
- International Longshoremen’s Assn. v. Allied Internatl., Inc., 456 U.S. 212 (secondary picketing and First Amendment protection)
- Seven Hills v. Aryan Nations, 76 Ohio St.3d 304 (Ohio: residential-privacy interest not compelling for strict scrutiny)