Ohio Supreme Court strikes down law prohibiting picketing of officials’ homes as unconstitutional

In a unanimous ruling last week, the Court overruled a state law provision of the Public Employees Collective Bargaining Act that makes it an unfair labor practice to induce or encourage any individual in connection with a labor-relations dispute to picket the residence or place of private employment of any public official or representative of the public employer.

In 2017, when the Portage County Board of Developmental Disabilities and the Portage County Educators Association reached an impasse over a successor collective bargaining agreement, association members began picketing outside the residences of six board members. On seven dates in October 2017, association members engaged in labor picketing outside the residences, taking place entirely on public streets or sidewalks. The Board filed seven unfair labor practice charges, alleging the picketing violated R.C. 4117.11(B)(7). The State Employment Relations Board (SERB) issued an opinion finding the association had violated the law and ordered them to cease and desist from picketing. The association appealed to the Portage County Common Pleas Court, alleging the law was an unconstitutional content-based restriction on speech in violation of the First Amendment. The trial court rejected the argument.

The Eleventh District Court of Appeals reversed the trial court’s decision, finding the statute to be an unconstitutional content-based restriction on speech. The Supreme Court agreed. In a lead opinion written by Justice Donnelly, the Court reasoned that the law regulated expressive activity based on the content of the message and the identity of the messenger, and singling out labor picketing for specialized treatment is a content-based regulation of the expressive activity. “Only an employee or an employee association and its affiliates – and not any other parties in a labor-relations dispute-can be found to have committed an unfair labor practice for the viewpoint that they advocate.”

Nor was the content-based restriction narrowly tailored to serve a compelling government interest. While preserving residential peace and privacy is significant, the Court found it was not a compelling government interest and “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.”