The Ninth Circuit of the United States Court of Appeals has affirmed a ruling from the National Labor Relations Board (NLRB) that stated that secondary boycotts are not constitutionally protected as free speech. This follows similar rulings from the DC Circuit and Second Circuit, both of which have also refuted arguments saying that said that secondary boycotts should qualify as free speech. This is seen as a blow to labor organizers, who have long tried to argue for the constitutionality of secondary boycotts, with little success.
Secondary boycotts are a kind of protest tactic that have been utilized by labor unions and bear a relation to the more common tactic of a boycott. However, while a boycott involves refusing to purchase, or interfering with the business of a company being protested, a secondary boycott involves using the same tactic against someone one step removed from the company being protested. While boycotts are constitutionally protected as a form of free speech, the courts have been unwilling to extend the same protections to secondary boycotts.
In the case being decided, NLRB v. Int’l Ass’n of Bridge, Structural, Ornamental, & Reinforcing Iron Workers, Local 229, AFL-CIO, the claim of a secondary boycott came about when a labor union (Local 229 of the International Association of Bridge, Structural, Ornamental, and Reinforcing Iron Works) was protesting the labor activities of a subcontractor at a construction site. During the protest, they decided to text, call, and deliver flyers to neutral employees of an unrelated subcontractor to convince them to stop working on the site. That subcontractor sued, resulting in the case at hand. And while Local 229 tried to assert it had a constitutional right to engage in secondary boycotts, the Ninth Circuit disagreed.
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