Working In These Times
Why Should Anti-Choice and Anti-Gay Groups Have More Right to Boycott and Picket Than Unions?
The Komen controversy showed the brilliance of 'secondary boycotts'—and the injustice of punishing unions for using the same tactics
When news broke that the Susan G. Komen Foundation would cease funding Planned Parenthood, the backlash was fast, furious, and gratifying. Within days, Komen apologized and promised that Planned Parenthood could receive future funds. But some commentators were angry at Komen for all the wrong reasons: for “politicizing” women’s health, for failing to distinguish vanilla health services from the abortion "controversy," or for dragging an avowedly apolitical organization into the muck of politics.
Contrary to those critics’ claims, women’s health is political, as the past weeks’ contraception conflicts have reminded us. As Amy Schiller wrote in The Nation, one of the virtues of the Komen controversy was the way it brought those politics—and Komen’s contradictions—to the surface. As Barbara Ehrenreich has written, Komen’s role in America’s breast cancer discourse has gotten worse as the culture around it has gotten better: When breast cancer was shrouded by silence, open, unapologetic conversation was a feminist feat. Now Komen hurts that conversation, contributing to a culture of cute and optimistic cancer that silences many women while letting corporations brand themselves conscientious on the cheap.
All of this is political. Progressives should be defending women’s right to choose, rather than Komen’s right not to. And anger at the Right's attempted Komen coup should focus on the ends it sought—the denial of women’s autonomy—not the means it employed: attacking an opponent by squeezing its funders. Applied toward just ends, that tactic—what in labor law is called a secondary boycott—is a virtuous one. But while anti-choice activists have the right to use it without restriction, unions don’t.
Secondary boycotts are among the tactics that fueled labor’s rise before being banned or restricted under law. As occasional Working In These Times contributor Joe Burns recounts in his book Reviving the Strike, it was once common for a strike at a brewery to include an appeal to solidarity throughout the supply chain: not just brewery workers putting down their tools, but workers and allies withdrawing their labor and their support from any bar that sold the struck brewery’s goods. Just as anti-choicers try to choke off Planned Parenthood by making it radioactive to donors, so workers would choke off the brewery—not just disrupting their boss’ ability to make the beer, but denying it any opportunities to sell it.
Though it may have ultimately backfired, anti-choicers' temporary Komen victory demonstrated why secondary boycotts work: Secondary targets make for soft targets. Where the brewery owner himself is loathe to grant a victory to his own striking workers, the bar owner faced with angry picketers demanding she stop carrying "scab beer" is more likely to take the path of least resistance.
Similarly, right-wing pressure is far less likely to get Planned Parenthood to drop abortion than to get Komen to drop Planned Parenthood. The Coalition of Immokalee Workers, which operates outside of the protections and restriction of labor law, maintains its leverage over tomato growers (as I reported) by targeting the major chains that buy their products. Color of Change helped end Glenn Beck’s Fox News show by petitioning not Fox itself, but its advertisers. And some of the protests that targeted this month’s proudly right-wing Conservative Political Action Conference (CPAC) might have been better directed at its avowedly nonreactionary sponsors, like Google and AOL.
Secondary boycotts also help build a culture of solidarity in the labor movement, offering a prime opportunity for workers to act together as a class rather than just within a craft or a workplace. And making companies and consumers accountable for their economic decisions is a step towards building a more democratic economy. A pro-privilege politics often lurks in those spaces declared the loudest to be apolitical. That’s true when abortion rights are declared too political to taint a cancer organization, and it’s true when a company declares that doing business with a boycotted company doesn’t amount to taking sides.
But like most successful labor tactics, secondary boycotts came under attack. Congress cracked down on secondary boycotts by unions in the 1947 Taft-Hartley amendments to the National Labor Relations Act.
University of Texas Law professor Jack Getman, in his book Restoring the Power of Unions, writes that “Essentially, there are three types of activity prohibited by Section 8(b)(4): refusals by secondary employees to do their jobs; appeals to secondary employees to refuse to do their jobs; and appeals to customers not to patronize the secondary employer.” Although the Supreme Court narrowed the application of these prohibitions in its Tree Fruits and DeBartolo Corp. cases, Getman writes that “The law dealing with secondary boycotts is highly technical and riddled with confusing doctrinal twists. It is common for unions to violate it inadvertently.”
These restrictions are possible in part because the Supreme Court, in its 1942 Bakery Drivers Local v. Wohl decision, denied picketing by labor unions the same First Amendment protection as other speech. In a widely-cited concurring opinion, Justice William Douglas wrote that such picketing was “more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action…”
So if anti-gay activists were to picket JC Penny for featuring Ellen DeGeneres in its TV ads, it would be protected speech. But if union members were to picket JC Penny for selling boycotted products, it could be illegal.
The secondary picketing restriction can apply even to companies that in reality are primary decision makers. “In Justice for Janitors, we spent our entire life trying to avoid secondary boycott charges,” says Stephen Lerner, the architect of that campaign for the Service Employees International Union (SEIU). The unionization campaign was openly and aggressively opposed by the companies that owned the buildings in which janitors worked, which hired the subcontractors who employed them. Winning union recognition from the subcontractors, says Lerner, would have been impossible without overcoming the building companies’ opposition. But SEIU was legally barred from organizing a “secondary picket” targeting the real decision-makers.
Through creative lawyering, careful language and calculated gambles, unions still put pressure on secondary targets (in Justice for Janitors’ case, that included blocking bridges into Washington, D.C., rather than directly picketing the building owners). But in doing so, they confront risks and restrictions that no other organization’s secondary boycotts face – whether they target Fox’s advertisers from the left or the Komen Foundation from the right.
Reached by phone, Getman says the Supreme Court intensified this contradiction in 2010, when it ruled in defense of a particularly obnoxious group of nonlabor picketers: the members of the Westboro Baptist Church. The Court held that the First Amendment protects these picketers, who draw national attention to their far-right message by holding signs at military funerals with slogans like “God Hates Fags” and "Thank God for Dead Soldiers."
“It simply cannot be the case that we have two constitutional standards,” says Getman, “one for unions that’s very restrictive, one for everyone else that’s very permissive.”
Civil libertarians righly hailed this defense of unpopular picketing. But union members would be right to wonder why their pickets don’t deserve the same constitutional protection—and the same advocacy from progressives.