Happy (belated) Constitution Day! This is my first post for Notice and Comment, and I am grateful to the Yale Journal on Regulation and my fellow authors of the D.C. Circuit Review – Reviewed for the opportunity.  Appropriately, the Constitution plays a role in both decisions issued by the D.C. Circuit on Constitution Day.   

Cadillac of Naperville, Inc. v. NLRB involves a challenge to the Board’s determinations that an employer committed several unfair labor practices in connection with an August 2017 strike at a car dealership. The NLRB itself sought a remand of one of its rulings—that the employer unlawfully discharged an employee for union activity—so that it could reconsider the ruling in light of intervening changes in the standard under which it analyzes mixed-motive discharges. The panel (consisting of Judges Millett, Pillard, and Katsas) granted the requested remand and otherwise affirmed the NLRB’s ruling in a per curiam opinion.

Judge Katsas dissented in part because he believed one incident involved conduct protected by the First Amendment. The National Labor Relations Act prohibits employers from making “coercive statements that threaten retaliation against employees” for protected union activity.  Employers may, however, express “views, argument, or opinion” that contain “no threat of reprisal or force.”  This safe harbor is no mere matter of congressional grace: it “ ‘protects speech by both unions and employers’ and thus ‘implements the First Amendment.’ ” The majority and dissent disagreed about whether the statement by the owner of the employer to one employee that “things would not be the same” if the employees went on strike was a threat or protected speech.

Applying the “highly deferential” standard of review applicable to NLRB decisions, the majority concluded that substantial evidence supported the NLRB’s ruling that the statement, in context, was a threat:

After all, the content and context of [the owner’s] comment must be read in light of ‘the economic dependence of the employees on their employers’—especially when, as here, labor negotiations are underway.  Those circumstances made [the employee] attuned to the ‘intended implications of the [employer] that might be more readily dismissed by a more disinterested ear.’ Keep in mind that ‘the line between prediction and threat is a thin one,’ especially in the midst of difficult labor negotiations, ‘and in the field of labor relations that line is to be determined by context and the expertise of the Board.’  

Judge Katsas disagreed:

Deference cannot salvage the Board’s decision. It is ‘firmly established’ that the First Amendment, which section 8(c) implements, protects an ‘employer’s free speech right to communicate his views to his employees.’  Appellate courts must ‘make an independent examination of the whole record’ in determining the scope of free speech protections.  Moreover, statutes must be interpreted to avoid serious constitutional questions—a rule often applied to determine the interplay between the NLRA and the First Amendment.  So if it were a close question whether ‘things would not be the same’ was an unlawful threat despite its vagueness, ambiguity, and anodyne tone, I would resolve the question in favor of speech rather than against it.

The D.C. Circuit’s other opinion was not an administrative law decision, but it also required the Court to decide how much deference was due—this time, to a jury—when potentially constitutionally protected conduct was at issue. In United States v. Hillie, Judge Wilkins (joined by Judge Rogers) reversed Charles Hillie’s conviction on seven child-pornography-related counts on sufficiency of the evidence grounds (while affirming his conviction on other abuse-related counts).  Judge Henderson dissented in relevant part.

The disagreement between the majority and the dissent did not come down to the degree of deference due, but instead to the definition of “lascivious exhibition” in the child pornography statute. Their exchange raises an interesting question about how statutory constructions founded on constitutional avoidance should inform constructions of similar language in later cases in which the same constitutional concerns do not present themselves. While the government may regulate obscene material depicting adults, its enjoys considerably more latitude under the First Amendment to regulate material depicting children.  In Miller v. California, 413 U.S. 15, 25 (1973), an obscenity case, the Supreme Court relied on the canon of constitutional avoidance to construe the word “lewd” to refer to the “hard core” of pornography. In a later case, involving child pornography, the Court recognized that the word “lascivious” is a synonym of the word “lewd,” which it had upheld against a vagueness challenge in Miller.  Does that mean that the word “lascivious” in federal statutes bears the meaning ascribed to “lewd” in Miller?

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