On February 25, 2019, the U.S. Supreme Court declined to review a Fifth Circuit ruling that stifles commercial speech by enforcing an unconstitutional agency rule. The National Labor Relations Act gives employees a constrained statutory right to free speech in the workplace on labor issues. Employers, meanwhile, enjoy a robust constitutional right, under the First Amendment, to free commercial speech. The NLRB regularly favors the employees’ statutory speech right over the employers’ constitutional one. It did so here by declaring that In-N-Out Burger—a popular West Coast burger chain—may not prohibit its employees from adding political buttons to their uniforms. In its brief, WLF argued that the NLRB has turned the First Amendment and the NLRA upside down.
