I am guessing you did not know that the First Amendment was designed to keep workers ignorant of their rights under labor law. Neither did I, but the District of Columbia Court of Appeals in National Association of Manufacturers v. NLRB discovered this heretofore unknown nuance of First Amendment law earlier this month. The Court held that the NLRB could not require employers to post notices calling attention to the rights of workers. According to the court, this was akin to compelling a school child to salute the flag or forcing motorists to carry a slogan on their license plates to which they are ideologically opposed. In the next breath the court noticed that there might be a difference between compelling the disclosure of fact and forcing one to support an ideology. But the court was reassured by the Riley case in which charitable fundraisers could not be compelled to reveal percentages of receipts that went to administration. The court ignored the facts that Riley found those particular disclosure requirement to be unduly burdensome, that Riley also concluded that fundraisers could be required to disclose their professional status, and that Riley stressed the non-commercial character of the solicitations. In the Zauderer case, however, the Supreme Court held that an attorney commercial advertiser could be required to disclose further particulars of fee arrangements than the attorney wished to include in his speech.
The D.C. Court of Appeals brushed over Zauderer by saying the disclosure requirement there was designed to prevent the consumer from being misled. The court spied a difference of constitutional dimension in not being misled and being kept in the dark altogether about the existence of important rights. Who knows what’s next in this corporate Disneyland? Perhaps corporations have a First Amendment right not to warn workers of health hazards and safety concerns. The First Amendment was once a vital tool in a democratic society. Instead, it has become a weapon in the hands of extremists who are bent on turning our democracy into a corpocracy.