By Thomas A. Berry and Christopher Barnewolt
The government cannot force Americans to speak (or otherwise convey) messages with which they disagree. Such “compelled speech” violates the freedom of speech protected by the First Amendment. Yet the National Labor Relations Board (NLRB) disagrees. Citing the National Labor Relations Act (NLRA), the NLRB believes that the government can force employers to allow controversial political speech in the workplace—regardless of whether the speech harms business or violates the beliefs of employers.
Home Depot’s employees are easily identified by their bright orange aprons, which are a key part of Home Depot’s brand. Home Depot permits its employees to engage in limited personalization of their aprons, such as by adding pictures of family members. But to maintain an apolitical environment that is welcoming to all and focused on home improvement, Home Depot does not permit political messages to be displayed on its aprons.
In August 2020, a Home Depot employee wrote “BLM” (for “Black Lives Matter”) on the employee’s Home Depot apron and wore the slogan while interacting with customers. Upon being informed of Home Depot’s policy against displaying political slogans (which was also enforced against other messages such as “Blue Lives Matter” and “Make America Great Again”), the employee refused to remove the message. The employee later resigned, and the NLRB brought enforcement proceedings against Home Depot, alleging unfair labor practices.
The NLRA protects employees’ rights to organize “for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” The NLRB’s administrative law judge, after considering the case, concluded that the message “BLM” was not related to organizing for improving workplace conditions and thus found in favor of Home Depot.
But the NLRB overruled that decision. Reasoning that the phrase “BLM” could be interpreted as protesting alleged incidents of racial discrimination at the workplace, the NLRB found that the slogan was protected speech under the NLRA. The Board ordered Home Depot to rehire the employee and to cease interfering with the employee’s “Black Lives Matter” speech in the workplace.
Now Home Depot has appealed the NLRB’s order to the Eighth Circuit Court of Appeals, and Cato has filed an amicus brief supporting Home Depot. In our brief, we make three key points explaining why enforcing the NLRB’s order would violate Home Depot’s First Amendment rights.
First, we emphasize that the freedom of speech protected by the First Amendment includes the right to be free from government‐compelled speech. The government cannot force individuals or businesses to convey the speech of others, whether that speech is provided by the government or a third party. The Supreme Court has reaffirmed this principle in many contexts, from parades to newspapers and from license plates to the Pledge of Allegiance.
Second, we point out that Americans do not give up their First Amendment rights to be free from compelled speech when they choose to engage in business, hire employees, or take advantage of the corporate form.
Finally, we discuss how it is essential for businesses to be able to regulate speech in the workplace. We point out how the NLRB’s theory would empower the government to force businesses to allow a nearly endless array of controversial and divisive political speech in the workplace during working hours. The NLRA does not require such a result, and the First Amendment forbids it.
The Eighth Circuit should follow Supreme Court precedent and vacate the NLRB’s decision.
