Robust Public Debate: Realizing Free Speech in Workplace Representation Elections

The First Amendment stands as a guarantor of political freedom and as the “guardian of our democracy.” It seeks to expand the vitality of public discourse in order to enable Americans to become aware of the issues before them and to pursue their ends fully and freely. As the Supreme Court wrote in the canonical case of New York Times Co. v . Sullivan, the First Amendment’s function is to create the “uninhibited, robust and wide-open” public debate necessary for the exercise of self-governance. The Amendment plays a prominent role in the regulation of workplace representation elections, the process by which unorganized workers decide whether or not to unionize. Since the 1940s, and particularly since the passage of the Taft-Hartley Act in 1947, Congress and the courts have used the First Amendment to protect the right of employers to campaign against unionization. Holding that employers may say nearly anything in order to persuade their employees to vote “no” in a union election, the Supreme Court has permitted the National Labor Relations Board to proscribe employer speech only when it contains threats of reprisal or coercive promises. In so ruling, the Court has sought to balance employers’ right of free speech, as well as their common-law property and managerial rights, with workers’ right to unionize. Yet whether deeming speech to be prohibited or protected, the Court has framed the issue with the First Amendment weighing only on the side of employers. For the most part, existing academic work on union elections has implicitly accepted this approach, viewing employers’ rights of speech, property, and management as clashing with workers’ statutory right to organize, without invoking any countervailing First Amendment right on behalf of workers