The Supreme Court in Bill Johnson’s Restaurants, Inc. v. National Labor Relations Board, 461 U.S. 731 (1983) vacated and remanded a decision by the NLRB that had halted the prosecution of a state court libel suit. The NLRB could not make such a decision unless it found that the suit lacked a reasonable basis in fact or law. The decision implicated the First Amendment right of petition and issues involving freedom of the press and libel.

NLRB halted allegedly retaliatory suit

In this case, an employer had initiated the suit against an ex-employee for libel and harassment after she and other workers had picketed his restaurant in Phoenix. The NLRB believed the suit was retaliatory.

Court said NLRB could not halt suits unless they lacked reasonable basis

Justice Byron R. White wrote the Court’s unanimous decision. Acknowledging that a lawsuit could be “a powerful instrument of coercion or retaliation” that might have a “chilling effect . . . upon an employee’s willingness to engage in protected activity,” White also pointed to “weighty countervailing considerations” that cautioned against enjoining such suits. The ruling in California Motor Transport Co. v. Trucking Unlimited (1972) had recognized that “the right of access to the courts is an aspect of the First Amendment right to petition the government for redress of grievances.”

He further cited state interests in “providing a civil remedy for conduct touching interests ‘deeply rooted in local feeling and responsibility.’ Because of the First Amendment interest he concluded: “The filing and prosecution of a wellfounded lawsuit may not be enjoined as an unfair labor practice, even if it would not have been commenced but for the plantiff’s desire to retaliate against the defendant for exercising rights protected by the [National Labor Relations] Act.” “Sham litigation” was no more protected by the First Amendment than “false statements,” but “[w]hen a suit presents genuine factual issues, the state plaintiff’s First Amendment interest in petitioning the state court for redress of his grievance, his interest in having the factual dispute resolved by a jury, and the State’s interest in protecting the health and welfare of its citizens, lead us to construe the Act as not permitting the Board to usurp the traditional factfinding function of the state-court jury or judge.”

If a court eventually found the suit a sham, White said, then “the Board may order the employer to reimburse the employees whom he wrongfully sued for their attorney’s fees and other expenses.” Thus “although it is an unfair labor practice to prosecute an unmeritorious lawsuit for a retaliatory purpose, the offense is not enjoinable unless the suit lacks a reasonable basis.”

In his concurring opinion, Justice William J. Brennan Jr. further explored the federal dimension of the case. He noted that the right to file cases such as this one in state courts would not always mean that state, rather than national, law would be applied in such cases.

The Court relied heavily on this precedent in BE and K Construction Co. v. National Labor Relations Board (2002).

John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.

Send Feedback on this article