Defending the Free Speech Rights of Employers Against the Administrative State

The Goldwater Institute filed a friend of the court brief yesterday in the Fifth Circuit Court of Appeals to defend the rights of employers to express their opinions. That right should be protected by the First Amendment, but the court ruled that employers had no “standing” to sue, because the federal government—which issued an administrative “guidance” document blocking them from expressing their views about unionization—hasn’t yet threatened to prosecute them. The problem is, the mere risk of prosecution is enough to scare most businesses into keeping silent, and if people lack standing to challenge prohibitions on free speech until they’re literally threatened with punishment, the government can censor them with impunity.

The case is just the latest example of the dangers to freedom represented by the Administrative State—the slew of government bureaucracies that make most of the rules that govern our daily lives. Not only do these agencies write legally binding regulations, despite the fact that they’re not elected, but they also issue a variety of commands that aren’t officially regulations, but which nevertheless carry the threat of punishment. These documents, sometimes called “sub-regulatory” documents or “regulatory dark matter,” consist of “guidances” or memos intended to guide bureaucracies in doing their jobs. That’s a problem, because regulations are at least limited by certain procedural rules that prevent agencies from doing whatever they like—but even a single bureaucrat can issue a guidance memo that has basically the same effect as a formal regulation.

Any the chilling effect is the same either way. In this case, an official at the National Labor Relations Board issued a memo threatening to punish employers who want to talk to employees about the costs and benefits of organizing a union. The Board claimed that doing so is an “unfair labor practice” punishable under federal law. But the employers think they have a constitutional right to express their views—so, represented by our friends at the Texas Public Policy Foundation, they sued, only to be told by federal judges that they had no grounds for a lawsuit because they had not yet been actually subjected to prosecution for violating the law regulation memo.

In our brief, we argue that this gets the whole theory of “chill” backwards. A person can’t be required to prove that he wants to speak before he can protect his free speech rights, because that would prevent people from speaking, in fear of prosecution—when the whole point of free speech is that the government shouldn’t threaten people that way. Worse, the employers in this case want to speak in order to prevent something. Yet the court’s ruling says they have to wait for that thing to happen before they can prove their constitutional right to speak—whereupon it’ll be too late.

You can learn more about our work challenging the Administrative State here.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.