Did the amended version of HB1687 fix the First Amendment problems that the AG flagged in the original anti-corporate-campaign bill?

Subject

Opinion No. 14-45, Constitutionality of Amended Legislation Regarding Bribery, Extortion, and Riot, April 8, 2014

Plain-English summary

Representative G.A. Hardaway asked whether an amended version of HB1687 (108th General Assembly, 2014) would be constitutional. The original bill, addressed in Op. 14-44 the day before, targeted "corporate campaign" activity by labor groups and was vulnerable on two fronts: as a content-based speech restriction under the First Amendment, and as legislation preempted by federal labor law under Article VI of the U.S. Constitution.

The amended bill changed Section 2's extortion definition. Where the original named "a business, a union, or the owners or employees of a business" and "a public or private organization, corporation, union, agency, person or other entity," the amended version used the phrase "any entity." That change broadened the offense beyond a labor-specific focus.

The AG concluded the amendment fixed the content-based speech problem. The original was vulnerable because it singled out a particular kind of speaker (those engaged in corporate-campaign objectives) for special criminal treatment. Strict scrutiny would have applied, and the bill was unlikely to survive it. The amended version, by extending the offense to any entity and any pursued objective, no longer turned on the content or speaker of the speech. The labor-specific list of "something of value" items remained, but the AG read it as a non-exclusive list once the surrounding (a)(3) language was generalized.

The federal-preemption concern survived. The AG explained that because the amended bill kept the labor-specific list of "something of value" items (neutrality agreements, card-check agreements, recognition, other corporate-campaign objectives), it remained vulnerable to preemption under federal labor laws for the reasons set out in Op. 14-44.

The amendment also made parallel changes to Sections 1 (bribery) and 3 (riot). The AG had said in Op. 14-44 that Sections 1 and 3 of the original bill did not raise constitutional concerns; nothing in the amended versions changed that view.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is a "corporate campaign"?

The bill defined a "corporate campaign" as "any organized effort to unlawfully bring pressure on an entity, other than through collective bargaining, or any other activity protected by federal law, for the purpose of influencing a labor relation's goal or objective." That captured tactics like public pressure campaigns, boycotts, and reputational attacks used by unions to extract neutrality agreements or card-check recognition outside the collective-bargaining process.

Why was the original bill a content-based restriction?

The original Section 2 specifically named labor actors and labor objectives. Under U.S. Supreme Court speech doctrine, a criminal law that selects which speakers and which subjects of speech to punish is content-based and must survive strict scrutiny. The AG's view in Op. 14-44 was that the labor-specific framing was that kind of speaker-based, content-based singling-out, and the bill was unlikely to survive strict scrutiny.

How did the amendment cure that?

By substituting "any entity" for the labor-specific list, the prohibited conduct (impairing any entity in the exercise of constitutional or statutory rights to obtain something of value) was generalized. With that generalization, the surviving labor-specific items in the "something of value" definition could be read as illustrative rather than exclusive. The offense no longer turned on who was being prosecuted or what their cause was.

Why is federal preemption still a concern?

Federal labor law (the National Labor Relations Act and related federal regimes) regulates the field of labor-management relations. A state criminal law that, in effect, treats labor-organizing tactics as extortion can intrude into a federally occupied field. Even though Section 2 no longer formally targets unions, the labor-specific items in the "something of value" list (neutrality agreements, card-check agreements, recognition, corporate-campaign objectives) effectively pull labor activity back into the bill's coverage. The AG concluded that preemption analysis from Op. 14-44 still applied.

What were Sections 1 and 3?

Per Op. 14-44, Section 1 amended the state bribery statute, and Section 3 amended the riot statute. The AG concluded in Op. 14-44 that those sections did not raise the kind of First Amendment or federal-preemption concerns Section 2 did, and the amendments to them did not change that view. (This opinion, 14-45, addresses only the changes to Section 2; for the bribery and riot analysis see Op. 14-44.)

Did the amended bill become law?

This opinion addresses constitutionality of a then-pending bill. Anyone researching the outcome should consult the Tennessee General Assembly's legislative history records for the 108th General Assembly.

Background and statutory framework

Op. 14-45 must be read alongside Op. 14-44, which set out the underlying constitutional and preemption analysis. The original HB1687 was driven by a national policy debate in the early 2010s about union pressure tactics outside the collective-bargaining context. State legislatures explored using extortion or coercion statutes to criminalize "corporate campaigns" that pressed employers for neutrality agreements or card-check recognition. Both First Amendment and NLRA-preemption objections were raised against those efforts.

The amended Tennessee version tried to thread a needle: keep the substantive prohibition on impairing entities' rights to obtain "something of value" (which still listed labor-specific items), but generalize the surrounding text so that the offense no longer formally selects labor speakers and labor speech. The AG concluded the generalization succeeded for content-based-restriction purposes but did not solve the preemption problem.

Citations

• Tenn. Code Ann. § 39-14-112(a) (extortion)
• Tenn. Att'y Gen. Op. 14-44 (Apr. 7, 2014) (analysis of unamended HB1687; bribery and riot sections)
• U.S. Const. art. VI (Supremacy Clause; federal preemption)
• U.S. Const. amend. I (First Amendment)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-045.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
April 8, 2014
Opinion No. 14-45
Constitutionality of Amended Legislation Regarding Bribery, Extortion, and Riot

QUESTION

If enacted, would House Bill 1687/Senate Bill 1662 of the 108th General Assembly (2014), as amended (hereinafter "Amended HB1687"), be constitutional under the United States and Tennessee Constitutions?

OPINION

Amended HB1687 can be defended against challenge as a content-based restriction on speech; it could, however, be preempted under federal labor laws.

ANALYSIS

In Tenn. Att'y Gen. Op. 14-44 (Apr. 7, 2014), this Office considered the constitutionality of House Bill 1687/Senate Bill 1662 of the 108th General Assembly (2014), as introduced (hereinafter "HB1687"), and opined that Section 2 of HB1687 was susceptible to challenge as a content-based restriction on speech under the First Amendment to the United States Constitution and that Section 2 could be preempted under Article VI of the United States Constitution. Op. 14-44, at 4, 7. Section 2 of Amended HB1687 differs from Section 2 of HB1687 in the following respect: it would amend Tenn. Code Ann. § 39-14-112(a) to provide that the offense of extortion includes using coercion upon another person with the intent to:

[i]mpair any entity, from the free exercise or enjoyment of any right or privilege secured by the Constitution of Tennessee, the United States Constitution or the laws of the state, in an effort to obtain something of value for any entity.

Amended HB1687, § 2 (new subdivision (a)(3)) (emphases added). Amended HB1687 thus uses the words "any entity" where HB1687 had used the words "a business, a union, or the owners or employees of a business" and the words "a public or private organization, corporation, union, agency, person or other entity." See Op. 14-44, at 2. The definitions for the terms "something of value" and "corporate campaign," however, remain the same under Amended HB1687.

Amended HB1687 can be defended against challenge as a content-based restriction on speech. It was HB1687's labor-specific, speaker-based proscription that led this Office to conclude that it could be seen as a content-based restriction and thus be subjected to strict scrutiny, which it was not likely to withstand. Op. 14-44, at 4-5. Although Amended HB1687 retains the original bill's preamble and its labor-specific list of items included in the definition of "something of value," the deletion of labor-specific language from new subdivision (a)(3) now allows this list to be interpreted as a non-exclusive list. Cf. Op. 14-44, at 4 & n.6. In other words, the pursuit by coercion of other valuable objectives of an entity could now amount to extortion under this bill. Because Amended HB1687 would not single out the pursuit of corporate-campaign objectives for special treatment under the extortion statute, it would not likely be seen as restricting speech on the basis of its content.

Section 2 of Amended HB1687, however, could still be preempted under federal labor laws, for all of the reasons discussed in Op. 14-44 and because it retains the labor-specific list of items included in the definition of "something of value." See Op. 14-44, at 7 & n.7.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

JEFFREY D. ZENTNER
Assistant Attorney General

Requested by:
The Honorable G.A. Hardaway
State Representative
37 Legislative Plaza
Nashville, Tennessee 37243