PORTAGE COUNTY EDUCATORS ASSOCIATION FOR DEVELOPMENTAL DISABILITIES-UNIT B, OEA/NEA, APPELLEE, v. STATE EMPLOYMENT RELATIONS BOARD ET AL., APPELLANTS.
Slip Opinion No. 2022-Ohio-3167
SUPREME COURT OF OHIO
September 13, 2022
2022-Ohio-3167
DONNELLY, J.
Nos. 2021-0190 and 2021-0191—Submitted February 9, 2022
[Until this оpinion appears in the Ohio Official Reports advance sheets, it may be cited as Portage Cty. Educators Assn. for Dev. Disabilities-Unit B, OEA/NEA v. State Emp. Relations Bd., Slip Opinion No. 2022-Ohio-3167.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2022-OHIO-3167
PORTAGE COUNTY EDUCATORS ASSOCIATION FOR DEVELOPMENTAL DISABILITIES-UNIT B, OEA/NEA, APPELLEE, v. STATE EMPLOYMENT RELATIONS BOARD ET AL., APPELLANTS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Portage Cty. Educators Assn. for Dev. Disabilities-Unit B, OEA/NEA v. State Emp. Relations Bd., Slip Opinion No. 2022-Ohio-3167.]
First Amendment—Freedom of speech—Picketing in connection with a labor-relations dispute—
(Nos. 2021-0190 and 2021-0191—Submitted February 9, 2022—Decided September 13, 2022.)
APPEAL from and CERTIFIED by the Court of Appeals for Portage County, No. 2019-P-0055, 2020-Ohio-7004.
{¶ 1} Peaсeful picketing on a public sidewalk or street enjoys a venerated status as a form of expressive activity that is subject to the protections of the First Amendment to the United States Constitution.
FACTS
{¶ 2} Appellant Portage County Board of Developmental Disabilities (“the board“) is a “public employer” under
{¶ 3} On September 15, 2017, when negotiations over a successor collective-bargaining agreement reached an impasse, the association filed a notice of intent to strike, and association members began picketing on or about October 4, 2017. On seven dates in October 2017, association members engaged in labor picketing outside the residences of six board members.
{¶ 4} The board filed seven unfair-labor-practice charges against the association, alleging in each charge that the picketing violated
{¶ 5} The association appealed SERB‘s decision to the Portage County Court of Common Pleas, alleging that
{¶ 6} We acceрted the discretionary appeals and determined that a conflict exists. 162 Ohio St.3d 1443, 2021-Ohio-1398, 166 N.E.3d 1271. We also consolidated the causes for consideration. Id.
LAW AND ANALYSIS
Standard of Review
{¶ 7} Whether a statute is constitutional is a question of law that we review de novo. See Crutchfield Corp. v. Testa, 151 Ohio St.3d 278, 2016-Ohio-7760, 88 N.E.3d 900, ¶ 16. And determining, in particular, whether
The First Amendment
{¶ 8} The First Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, provides in part that “Congress shall make no law * * * abridging the freedom of speech.” See also Reed v. Gilbert, Arizona, 576 U.S. 155, 163, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015). The guiding principle of the First Amendment is that ” ‘government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’ ” McCullen v. Coakley, 573 U.S. 464, 477, 134 S.Ct. 2518, 189 L.Ed.2d 502 (2014), quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972).
{¶ 9} “[A]s a general matter peaceful picketing and leafletting are expressive аctivities involving ‘speech’ protected by the First Amendment.” United States v. Grace, 461 U.S. 171, 176, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983). See also Carey v. Brown, 447 U.S. 455, 460, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) (Illinois statute prohibiting peaceful labor picketing on the public streets and sidewalks in residential neighborhoods held to be an unconstitutional regulation of expressive conduct that fell within the First Amendment preserve).
{¶ 10} Expressive activity that occurs on public sidewalks, streets, and other traditional public forums occupies a ” ‘special position in terms of First Amendment protection’ ” because of the historic role of such forums as sites for assembly, discussions, and debate. McCullen at 476, quoting Grace at 180. See also Perry Edn. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983).
{¶ 11} While the government‘s ability to restrict speech in such locations is ” ‘very limited,’ ” McCullen, 573 U.S. at 477, quoting Grace at 177, the government has “somewhat wider leeway to regulate features of speech unrelated to its content,” id., e.g., with regulations that are content neutral. “[E]ven in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.’ ” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984).
{¶ 12} On the other hand, a regulation that targets speech based on its content is subject to the most exacting scrutiny. See Reed, 576 U.S. at 163; Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988). If a stаtute regulates speech based on its content, it must be narrowly tailored to serve a compelling government interest and it must be the least-restrictive means readily available to serve that interest. United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000); Sable Communications of California, Inc. v. Fed. Communications Comm., 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). “To do otherwise would be to restrict speech without an adequate justification, a course the First Amendment does not permit.” Playboy Entertainment Group at 813.
{¶ 13} Whether a regulation is content based or content neutral thus dictates the degree of scrutiny to which the regulation will be subjected. See Reed at 163-166; Painesville Bldg. Dept. v. Dworken & Bernstein Co., L.P.A., 89 Ohio St.3d 564, 567, 733 N.E.2d 1152 (2000); Seven Hills v. Aryan Nations, 76 Ohio St.3d 304, 306-307, 667 N.E.2d 942 (1996).
{¶ 14} In this case, the threshold issue is whether
Whether R.C. 4117.11(B)(7) is Content Based or Content Neutral
{¶ 15} According to SERB and the board,
{¶ 16} But “a constitutionally permissible time, place, or manner restriction may not be based upon either the content or subject matter of speech.” Consolidated Edison Co. of New York, Inc. v. Pub. Serv. Comm. of New York, 447 U.S. 530, 536, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980). See also Regan v. Time, Inc., 468 U.S. 641, 648, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984); Heffron v. Internatl. Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 648, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981). The United States Supreme Court has recognized that ” ‘[a] state or municipality may protect individual privacy by enacting reasonable time, place, and manner regulations applicable to all speech irrespective of content.’ ” (Brackets and emphasis added in Carey). Carey, 447 U.S. at 470, quoting Erznoznik v. Jacksonville, 422 U.S. 205, 209, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975). “Governmental action that regulates speech on the basis of its subject matter, however, ’ “slip[s] from the neutrality of time, place, and circumstance into a concern about content.” ’ ” Consolidated Edison at 536, quoting Mosley, 408 U.S. at 99, quoting Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup.Ct.Rev. 1, 29 (1965).
{¶ 17} In Reed, 576 U.S. at 165, the court instructed that the first step in the content-neutrality analysis is to determine whether the law is content neutral on its face. See also id. at 166 (“we have repeatedly considered whether a law is content neutral on its face before turning to the law‘s justification or purpose” [emphasis sic]). And in this case, an examination of
{¶ 18} As to the message,
{¶ 19} Even if
{¶ 20}
When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. See R.A.V. v. St. Paul, 505 U.S. 377, 391, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). Viewpoint discrimination is thus an egregious form of content discrimination.
In this case,
{¶ 21} An examination of
{¶ 22} For their part, SERB and the board rely on Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988), in which the United States Supreme Court upheld an ordinance that banned all picketing “before or about” any residence. Id. at 476-477. Because the ordinance did not make any exception to this prohibition based on the subject matter of the picketing, the ordinance was deemed to be content neutral. In this case, by contrast,
{¶ 23} We therefore agree with the Eleventh District that
Application of Strict Scrutiny to R.C. 4117.11(B)(7)
{¶ 24} As indicated previously, a statute that regulates speech based on its content must be narrowly tailored to serve a compelling government interest and it must be the least-restrictive means readily available to serve that interest. See Playboy Entertainment Group, 529 U.S. at 813. In this case, SERB and the board argue that
{¶ 25} Laudable as those goals may be, we have already determined that preserving residential peace and privacy is a significant but not a compelling government interest. See Seven Hills, 76 Ohio St.3d at 309.
{¶ 26} In United Elec., Radio & Machine Workers of Am. v. State Emp. Relations Bd., 126 Ohio App.3d 345, 353, 710 N.E.2d 358 (8th Dist.1998), the Eighth District Court of Appeals applied strict scrutiny to
{¶ 27} Moreover,
{¶ 28} With regard to
[w]hether
R.C. 4117.11(B)(7) , as applied to ‘any place of private employment of any public official or representative of the public employer,’ is constitutionally valid under the First Amendment as a reasonable time, place, or manner restriction on speech.
162 Ohio St.3d 1443, 2021-Ohio-1398, 166 N.E.3d 1271.
{¶ 29} SERB and the board contend that the prohibition on private-employer picketing regulates the geographical location of speech in a content-neutral manner. As we have already discussed, however,
{¶ 30} SERB also contends that
{¶ 31} First, and contrary to the analogy drawn by the Seventh District in Harrison Hills, picketing at the private employer of a board member or other public official simply does not fit within the secondary-picketing paradigm. Here, the private employer is not a neutral party that has been drawn into the labor-relatiоns dispute only because it does business with the primary employer. Indeed, in this case
{¶ 32} Second, SERB fails to establish how a statute prohibiting the association‘s peaceful and noncoercive labor-dispute picketing on a public sidewalk outside of a board member‘s private place of employment was narrowly tailored to serve any compelling government interest. While the interest in preserving privacy and tranquility at home and at work is important, we see no qualitative distinction between those interests that would cause us to treat either as a compelling government interest. Beyond that, SERB has not demonstrated how the categorical prohibition against such expressive activity under
{¶ 33} We do not question the sanctity of the home as a place of personal refuge or the importance of an employee‘s workplace. Nor are we unsympathetic to the burdens that these board membеrs and other public officials must occasionally endure in the performance of their official duties. But their status as public officials does not insulate them from the robust marketplace of ideas. The First Amendment, which makes that marketplace possible, is to be celebrated, not silenced.
{¶ 34}
CONCLUSION
{¶ 35} We hold that
Judgment affirmed.
O‘CONNOR, C.J., and STEWART and BRUNNER, JJ., concur.
KENNEDY, J., concurs in judgment only, with an opinion joined by FISCHER and DEWINE, JJ.
KENNEDY, J., concurring in judgment only.
{¶ 36} Because
{¶ 38} Consequently, I concur in the majority‘s judgment to affirm the decision of the court of appeals, but not its reasoning.
Facts and Procedural History
{¶ 39} Appellee, Portage County Educators Association for Developmental Disabilities (“the association“), is a labor organization representing public employees who work for appellant Portage County Board of Developmental Disabilities (“the board“). After negotiations over a new collective-bargaining agreement reached an impasse, the association gave appellant State Employment Relations Board (“SERB“) notice of its decision to picket and strike. On seven occasions in October 2017, association members picketed in front of a different board member‘s home. On another occasion, association members picketed at the place of private employment of one of the board members. The board charged the association with unfair labor practices, and the association stipulated that it had encouragеd and induced the targeted picketing of public officials. SERB found that the association had violated
Law and Analysis
{¶ 40} Under the United States Constitution, the “government * * * ‘has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’ ” Reed v. Gilbert, Arizona, 576 U.S. 155, 163, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015), quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). “Content-bаsed laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Id.
{¶ 41} In addition to laws that on their face regulate speech based on its content, the United States Supreme Court has recognized “a separate and additional category of laws that, though facially content neutral, will be considered content-based regulations of speech: laws that cannot be ‘justified without reference to the content of the regulated speech,’ or that were adopted by the government ‘because of
{¶ 42} At issue here is
{¶ 43} The majority‘s analysis focuses primarily on picketing. However,
{¶ 44} In fact, this case was decided on stipulations, none of which describe the messages that were on any picketer‘s sign or the words that any picketer said. In those stipulations, the association simply admitted that it had induced and encouraged its members to picket outside the public officials’ homes and places of private employment. And the reason that the messages on the picketers’ signs do not appear anywhere in the record is that they are irrelevant to establishing a violation of
{¶ 45} The majority‘s analysis, then, is unpersuasive. The question remains, however, whether
{¶ 46} “Public-issue picketing, ‘an exercise of * * * basic constitutional rights in their most pristine and classic form,’ has always rested on the highest rung of the hierarchy of First Amendment values.” (Ellipsis sic.) Carey v. Brown, 447 U.S. 455, 466-467, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980), quoting Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963). Although
{¶ 47}
{¶ 48} Inducement and encouragement are speech and expressive conduct. See United States v. Hernandez-Calvillo, 39 F.4th 1297, 2022 U.S. App. LEXIS 19284, *10 (10th Cir.2022). And
{¶ 49} “Content-based laws * * * are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Reed, 576 U.S. at 163. SERB maintains that the state has a compelling interest in protecting the privacy rights of public officials, encouraging citizens to serve in public offices, and preserving labor peace. But as the majority recognizes, we have rejected the proposition that these types of government interests are sufficiently compelling to survive strict scrutiny. See Seven Hills v. Aryan Nations, 76 Ohio St.3d 304, 309, 667 N.E.2d 942 (1996); see also Carey, 447 U.S. at 470; Thornhill v. Alabama, 310 U.S. 88, 105, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). And
Conclusion
{¶ 50} For these reasons,
FISCHER and DEWINE, JJ., concur in the foregoing opinion.
Ronald J. Habowski, for appellant Portage County Board of Developmental Disabilities.
Organ Law, L.L.P., Erik J. Clark, and Connor A. Organ, Special Counsel to Attorney General Dave Yost, for appellant State Employment Relations Board.
Green, Haines, Sgambati Co., L.P.A., Charles W. Oldfield, Richard T. Bush, Stanley J. Okusewsky, and Ira J. Mirkin, for appellee.
Haynes, Kessler, Myers, and Postalakis, Inc., Stephen P. Postalakis, and David S. Kessler, urging reversal for amicus curiae, Ohio Association of County Boards Serving People with Developmental Disabilities.