When people talk about “weaponizing” the First Amendment, they’re almost always talking about corporate-backed litigation. They almost never mention how weaponization cuts both ways, especially in the hands of well-funded unions. But that’s just what is happening in North Carolina right now. A lawsuit filed by the Farm Labor Organizing Committee threatens to use the First Amendment to stop lawmakers from tamping down on coercive union tactics. The lawsuit has already convinced a federal magistrate judge and a district court to tie lawmakers’ hands. And if that success continues on appeal, it could open the floodgates for union-sponsored lawsuits.


The case arose out of the Committee’s long-running effort to unionize North Carolina’s farms. The Committee is a multi-state union dedicated to organizing farmworkers. It has collective-bargaining agreements with several large farms and agricultural associations. But it didn’t get those agreements in the traditional way. It didn’t win elections or organize picket lines. Instead, it filed a series of lawsuits. Its usual practice was to claim that a farm had underpaid the workers under state and federal wage-and-hour laws. It would then settle the claim short of trial. And as part of the settlement, it would demand that the farm voluntarily recognize it as the workers’ representative. It would also demand that the farm automatically deduct dues from the workers’ paychecks and pay the Committee directly.


Because farmworkers fall outside the National Labor Relations Act’s coverage, the Committee’s activities were subject to state law. And in North Carolina, state legislators did not like what they saw. They thought the Committee was using litigation to coerce farms into “voluntary” recognition agreements—agreements that served no one’s interest but the Committee’s. So they decided to do something about it. In 2017, they passed the Farm Act, a package of agricultural-sector reforms. One of those reforms was to make unenforceable any settlement provision requiring a farm to voluntarily recognize a union:


Any provision that directly or indirectly conditions the purchase of agricultural products, the terms of an agreement for the purchase of agricultural products, or the terms of an agreement not to sue or to settle litigation upon an agricultural producer’s status as a union or nonunion employer or entry into or refusal to enter an agreement with a labor union or labor organization is invalid and unenforceable as against public policy in restraint of trade or commerce in the State of North Carolina.


The new law jeopardized the Committee’s organizing strategy. So to no one’s surprise, the Committee sued the state, arguing that the Act violated the First Amendment. But more surprisingly, a district court agreed. The court reasoned that by filing lawsuits, the Committee was engaging in a form of expression. The Act overtly restricted that expression. And because it restricted more expression than necessary to serve the state’s interests, it was unenforceable.


There were two errors embedded in that analysis: one statutory, one constitutional. We should start with the statutory error. The court determined that the statute was overbroad because it barred all settlements between a union and a farm. That interpretation was, however, absurd. The statute said nothing about barring settlements. It simply made unenforceable certain settlement provisions. It applied only when a provision conditioned a settlement on a farm’s union status or union recognition. And if a provision included such a condition, the provision was unenforceable, not the entire settlement. The rest of the settlement remained intact.


The court’s statutory error led it the constitutional error. Citing cases from the civil-rights movement, it reasoned that litigation can qualify as expressive activity. And by forbidding unions from settling lawsuits, the Act prevented them from engaging in that activity. That meant the Act had to survive strict scrutiny. That is, it had to be narrowly tailored to serve a compelling state interest. The state’s only justification for the Act was preventing unions from coercing farms into recognition agreements. But because the Act barred all settlement agreements, it was too broad for that purpose. So it failed strict scrutiny.


The court failed to recognize, however, that not all litigation is equally expressive. Litigation is obviously expressive when it aims to change government policy. But it is less obviously so when it aims to collect economic damages or debts. In its analysis, the court relied on cases falling into the first category. For example, it cited NAACP v. Button, where Virginia tried to interfere with the NAACP’s ability to file public-interest lawsuits. Those lawsuits sought to force the state to extend equal treatment to Black citizens. The Supreme Court had no trouble recognizing that kind of lawsuit as expressive. By contrast, the Committee’s lawsuits were less obviously political. The underlying claims were based on unpaid wages. The Committee was not trying to force changes in public policy or law; it was trying only to recover money already owed under existing law. Its litigation was therefore different in kind from the NAACP’s, which could be more accurately described as court-oriented public advocacy.


Beyond that distinction, the court also failed to recognize that not all limits on settlements equally affect speech. After all, a settlement is nothing more than a contract to end litigation. And states already limit contracts in many ways, including in ways that prevent restraints on trade. For example, most states refuse to enforce overbroad noncompete or nonsolicition provisions. Those provisions often appear in employment contracts. But they would be equally enforceable if they appeared in a settlement. There’s nothing magic about litigation that can transform an illegal contract provision into protected speech.


And that kind of restriction isn’t limited to state law. Federal law also bans certain contracts restraining free trade. The Sherman Act, for example, forbids businesses from entering agreements to limit competition. And that’s true even when the businesses engage in expressive activity. In one classic example, the Supreme Court held that the Associated Press could not agree with its members to limit the sale of their news coverage only to other members. It did not matter that the members were paradigmatic examples of expressive organizations; they, like everyone else, had to respect the regulation of free markets.


In fact, even federal labor law limits restrictive agreements in some ways. The NLRA forbids an employer from agreeing to recognize a union until the union has support from a majority of the affected employees. If the employer agrees to recognize the union without a majority, it commits an unfair labor practice. And that point leads us to one of the decision’s great ironies. Had the farmworkers been covered by federal law, the exact kind of agreement barred by North Carolina’s law—an agreement to recognize a union without a majority—would have been illegal anyway.


Naturally, the state immediately appealed the district court’s decision. The case is now pending before the Fourth Circuit. One would hope that the appeals court will have no trouble picking out these errors and reversing the judgment below. But if the court lets the decision stand, unions like the Committee will be free to declare open season on non-union employers. Coercive litigation will have been recognized as constitutionally protected. And no employer, not even those covered by the NLRA, will be safe.

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