In the case of Portage Cty. Educators Assn. for Dev. Disabilities-Unit B, OEA/NEA v. State Emp. Relations Bd., Slip Opinion No. 2022-Ohio-3167, the Supreme Court of Ohio held that R.C. 4117.11(B)(7) violates the First Amendment. R.C. 4117.11(B)(7) makes it an unfair labor practice for an employee organization or public employees to induce or encourage any individual to picket the residence or place of private employment of any public official or representative of the public employer in connection with a labor relations dispute.
Here, members of an employee organization (“the association”) began picketing outside residences of their public employer (“the board”) after the parties reached an impasse over negotiations on a collective bargaining agreement. The board filed unfair-labor-practice charges against the association, alleging that the picketing violated R.C. 4117.11(B)(7). The association alleged that the statute was an unconstitutional content-based restriction on speech. The Supreme Court of Ohio agreed with the association.
In support of its decision, the Supreme Court of Ohio reasoned that the First Amendment restricts the government from regulating the contents of speech in public forums except where the regulation is narrowly tailored to serve a compelling government interest in the least restrictive means but allows the government to place restrictions on features of speech unrelated to its content, such as on the time, place, and manner of protected speech. The Supreme Court found that R.C. 4117.11(B)(7) regulates expressive activity – picketing – and identifies the subject matter of the expression – labor relations disputes, thereby making it a content-based regulation of speech. The Supreme Court further explains that R.C. 4117.11(B)(7) is not narrowly tailored to the least restrictive means because criminal codes punishing disruptive picketing are sufficient without regulating the content of the picketing, and the interest of keep peace and tranquility in the home and workplace are not compelling enough interests to dictate a speech regulation.
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Authors: Matthew John Markling and the McGown & Markling Team.
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