NAM v. NLRB – More in the ever-expanding First Amendment rights of corporations

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May 31, 2013 by Tamara Piety

One of the latest fronts opened up in the corporate/commercial speech rights and corporate personhood is visible in this decision from the D.C. Circuit. The case is National Association of Manufacturers (NAM), et al. v. the National Labor Relations Board (NLRB). The issue was whether an NLRB rule that would require employers subject to the jurisdiction of the National Labor Relations Act (NLRA) to post a notice where employees could see it, of their rights under that act. NAM, a trade association representing manufacturers, and several other organizations sued objecting to the rule arguing that, among other things, the rule violated employers’ rights under the First Amendment because it compelled employers to carry speech that they did not necessarily agree with.

Strictly speaking the D.C. Circuit held that the rule violated the NLRB’s statutory authority because it made failure to post a the required notice an “unfair labor practice” under the statute authorizing the NLRB to promulgate rules. This means that, in a sense, the court side-stepped the Constitutional issue. However, if you read the opinion it is very clear that the court thought this rule violated employers’ rights against compelled speech.

So now it violates an employer’s right against compelled speech to post a notice about the law. I guess all those signs about employees needing to wash their hands, indicating where the fire exits are, the availability of workers’ comp, nondiscrimination policy and who knows what else, are potentially unconstitutional.

Sounds an awful lot like substantive due process and freedom of contract under the 14th Amendment…or repeal of The New Deal through the First Amendment.

This is the Circuit for which President Obama just nominated three more judges. One can only hope that their views, should they get confirmed, are different than the ones reflected in this opinion. I am not, however, holding my breath.

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