A three-judge panel of the D.C. Circuit issued a bizarre decision today striking down a National Labor Relations Board regulation requiring employers to post a certain notice informing employees of their legal rights. The judges (two Bush-41 nominees and one Bush-43 nominee) twisted a case involving the appropriate role of government in protecting workers into a case about “big government” unconstitutionally forcing businesses to say things they don’t want to say.
One of the best ways to ensure that people don’t exercise their legal rights is to make sure they don’t know what their legal rights are. A number of corporate interests challenged an NLRB rule requiring employers to display a large poster setting forth workers’ rights, such as the right to join a union and the right to not have union meetings monitored by management. Under the rule, failure to display the notice is an unfair labor practice.
Senior Judge Raymond Randolph wrote the opinion for the unanimous court, with Judges Karen LeCraft Henderson and Janice Rogers Brown not just concurring, but concurring “wholeheartedly.” They see this as a case where employers are being compelled by the government to engage in speech where they would rather be silent. An employer might want posters that contain other legal rights and obligations not listed, ones that aren’t so pro-worker and pro-union. But the rule requires that this particular poster be displayed, which the conservative judges turn into a case of compelled speech that they see as indistinguishable from cases where the government forces schoolchildren to say the Pledge of Allegiance or forces drivers to display the political message “Live Free or Die” on their license plates.
This is yet another example of right-wing judges declaring that ordinary economic regulations are in fact constitutional violations, as in the Lochner era when conservative judges turned their policy preferences into constitutional doctrine. This is par for the course for the ideologically lopsided D.C. Circuit, as explained in a recent PFAW Foundation report, America’s Progress at Risk: Restoring Balance to the D.C. Circuit Court of Appeals. And it’s why it is critical to fill all four vacancies on the D.C. Circuit with quality judges who understand the impact of the law and the Constitution on everyday Americans.