CLICK HERE FOR A CONSULTATION
Statutory Preference for Labor-Related Speech Struck Down; Court Rules Moscone Act and Labor Code Preferences Violate Free Speech Clause of the California Constitution
In an important decision, the California Court of Appeal has ruled that statutory preferences for pro-labor speech (picketing, publicizing the existence of a labor dispute, etc.) amount to “content based” regulation of speech, and are presumptively unconstitutional unless supported by a compelling state interest. The statutes in question are the Moscone Act (Cal. Code Civ. Proc., § 527.3) and Labor Code § 1138(a). Combined, they basically prohibit a court from enjoining labor picketing activity or speech arising out of a “labor dispute.” (Section 1138(a) does allow an injunction to issue, but only after an arduous court proceeding, with a trial like hearing complete with live testimony and cross-examination of witnesses.)
The court of appeal concluded that these statutes granted a preference to labor-related speech and that it was improper, under the California Constitution’s free speech clause (Art. I, § 2) to exalt that speech over other types of speech when the distinction was essentially based on content alone.
The case is Ralph’s Grocery Company v. United Food & Commercial Workers Union Local 8. A complete copy is attached.
This is a groundbreaking decision and the grocery chain has petitioned the California Supreme Court for review. We will be watching this case and will update this advisory, should the state’s high court grant review. (A parallel case, Ralph’s Grocery Company v. United Food & Commercial Workers Union, 186 Cal.App.4th 1078 (2010) is already before the state supreme court.)
At Slote & Links we regularly advise employers and employees regarding their rights in the workplace. Feel free to give us a call if you have a problem in this area.