Free Speech vs. Disturbing the Peace

At what point does the legitimate right to demonstrate cross the line into infringing on the rights of others?

Today’s Supreme Court decision finding that the Westboro Baptish Church funeral protests are free speech, which I reluctantly agree with, brings to mind a related issue I’ve been meaning to post about for a while:  When does the legitimate right to demonstrate become a disturbance of the peace?

A few hundred feet from my office, former employees of the Madison Hotel are on strike. They have been, for more than a month now.

I don’t have management’s side on this one but the charges from labor are pretty damning:

The Madison Hotel is one of those iconic Washington DC spots. Just a few blocks from the White House, it hosts frequent events and conferences, especially for unions, because for decades, the Madison treated its workers well. They always honored their long standing contract with Unite Here local 25, the union that represents 150 workers at the Madison.

But all that changed abruptly when Jamestown Properties purchased the hotel (for a cool $123 million) and brought on property management company Destination Hotels and Resorts.

For the workers, it hasn’t been a smooth transition. The new owners introduced themselves to the workers by forcing them to reapply for their jobs. Many of the workers at the Madison have held these jobs for years and were none too happy with the prospect of being unemployed for no good reason.

While applying for your own job is bad enough, the new owners followed this up by announcing that they would no longer honor the longstanding labor contract the hotel has had with its workers. This contract determines wages, benefits, acceptable treatment and more.

Understandably upset by such changes, the workers at the Madison have gone on strike. They are promising to fight for their contract, and say they’ll stay on strike as long as it takes.

Jorge Fernandez has worked at Palette, the Madison’s popular restaurant, for 7 years. His experience with the new owners exemplifies how tough the transition has been on workers: “We showed up at work last week and the restaurant was closed,” he explained. “They said we could apply for other positions at the hotel but jobs are scarce right now. I have a family, kids in school to support; we had no warning that we’d lose our jobs.”

Assuming that’s all true, it’s no way to treat people. I don’t know anything about the Madison’s books, so, even though it’s a posh hotel that seems to my casual eye to be doing well, they might have no real choice but to cut back on labor costs. But doing it this way is despicable.

Further, unlike most strikes in DC, I gather than the actual employees are doing the striking. The standard practice in these parts is for professional demonstrators–often, amusingly, working for far less than union scale–to do the picketing. (“The Daily Show” did an amusing feature on this a while back; it’s apparently not just a DC phenomenon.)

That’s a very long setup for this: The strikers at the Madison, like the paid strikers in question, are extremely loud.

In the case of the Madison strikers, they’re using bullhorns and other amplification devices. Most of the paid strikers use drums, instead. In both cases, though, the sound reverberates for blocks.

I can’t hear the people during the day, because I’m on the other side of the building. But colleagues can. On the 11th floor, half a block away.

And strikers are ubiquitous in close proximity to my offices. Hardly a month goes by when someone’s not protesting something within earshot.

Now, obviously, they have a right to demonstrate. It’s a time-honored technique of protesters to both draw attention to their cause and drive away business from the firm under target by the mere presence of picketers.

But, surely, there should be limits.

It’s bad enough that unsuspecting hotel guests who booked at the Madison totally unaware of any labor dispute have their stay disturbed, both with noise and the constant harassment as they try to enter and leave. But what about the thousands of people in the area trying to concentrate on their work?

The offices of the Washington Post are directly across the street from the Madison.  Don’t they have a right to do their jobs without having to endure bullhorn-enhanced shouting and drum banging?

Or how about the working stiffs doing valet parking in the garage between the Madison and my offices? It’s bad enough that they have to spend the day in the freezing cold; should they really have to put up with that racket all day, for weeks on end?

Again, while I’m generally not sympathetic to the paid strikers holding up DOES NOT PAY PREVAILING WAGES signs, I think the folks picketing the Madison have a legitimate grievance. But how far should people be allowed to go in inconveniencing others in the name of free expression?

FILED UNDER: Economics and Business, US Politics, , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. george says:

    In practice most people seem to draw the line depending upon whether or not they agree with the protesters.

  2. ponce says:

    Sounds like a standard negative externality question.

    Time for a Pigovian tax?

  3. george says:

    Which is why the bar should be very high for disallowing such speech … its too easy to find reasons to ban that which we hate, or even dislike.

  4. G.A.Phillips says:

    Try having a bunch of crazed communist hippies chanting and banging on drums right outside outside you office door for two weeks. I won’t even bring up the smell.

    Then have them scream bloody murder at you when you come and go to work.

  5. sam says:

    “While applying for your own job is bad enough, the new owners followed this up by announcing that they would no longer honor the longstanding labor contract the hotel has had with its workers. This contract determines wages, benefits, acceptable treatment and more.”

    Can they do that? I would have thought that when Company A purchases Company B, A also incurs B’s contractual obligations. No?

  6. James Joyner says:

    @Sam:

    IANAL. Unlike Virginia, where I live, DC is not an at-will employment “state.” But I haven’t the foggiest what the law is on this.

  7. PD Shaw says:

    @sam, a wild guess from just the linked article:

    The hotel was owned by Company A, who hired Management Company B to operate it. Union contract was with Company B.

    The hotel was bought by Company C, who fired Management Company B and hired Management Company D to operate it.

  8. Steven Plunk says:

    Having them reapply is common. It updates files and puts them in the format used by the new company. If the old owners sold the property because it wasn’t making money then it would make sense to renegotiate contracts as well. They are not striking because of wage cuts but because they fear wage cuts before they have even sat down at the bargaining table. A reasonable person could side with the employees or management.

    There are basic rules regarding crossing the line with free speech versus others rights. Blocking access, touching, bull horns that damage hearing are all obviously too far. As far as disturbing workers I’m sure it’s no worse than a construction job. Cities have noise ordinances and other laws that should provide additional protections.

  9. Bernieyeball says:

    RD: “I’m surprised that members of the military or their families don’t travel to Topeka, Kansas, everytime one of the churches congregation members pass, to protest at funerals the there.”

    I would like to think it is because folks know this would shine more publicity on these deluded citizens. This is not what some of us are looking for.

  10. John Burgess says:

    James: I suspect there’s something more going on here, but perhaps not. There have been picketer as the Madison Hotel since the 1960s! They show up/have cause to picket every few years. It’s always a management thing, but the exact reasons change. Maybe it’s because the owners keep changing.

    A contract would not convey obligations toward a union if the contract explicitly stated so, or if the union’s contract so stated. While I don’t recall exactly, it seems that the union keeps changing, too. I remember more mainstream unions doing the picketing in the past.

  11. TG Chicago says:

    But how far should people be allowed to go in inconveniencing others in the name of free expression?

    Let me see if I understand this correctly: when it comes to the Phelps protests, you say (paraphrasing) “It pains me to say this, but: grieving family? You have to suck it up”.

    But when it comes to your colleagues in your office having to hear some noise on the street, then it becomes a legitimate question?

    I mean, the question I’m quoting is legitimate, but I’d think the Phelps case is the one that really pushes the envelope. The Madison Hotel strikers are surely annoying at times, but I’m quite surprised that anyone would use that as “a step too far” when irrelevant, vile protests at a military funeral are right there.

  12. James Joyner says:

    @TG Chicago

    Restrictions on the content of speech are rarely permissible. Restrictions on time, place, and manner are.

    My solution in cases like Phelps is to restrict their ability to interfere by zoning restrictions. Which are in place and were not violate. The families are angry at the content of the message, not the disturbance caused.

  13. tom p says:

    Again, while I’m generally not sympathetic to the paid strikers holding up DOES NOT PAY PREVAILING WAGES signs

    Wow, a whole lot of “real world” not going on here. James, most of these guys are not doing it for the money (minimum wage at best) They are doing it for their health insurance (something the Repubs think is beside the point). Paid????

    Get real.

  14. tom p says:

    Assuming that’s all true, it’s no way to treat people. I don’t know anything about the Madison’s books, so, even though it’s a posh hotel that seems to my casual eye to be doing well, they might have no real choice but to cut back on labor costs. But doing it this way is despicable.

    Happy to see you admit that your side are complete slimeballs who deserve nothing more than to be sh*t and p*ssed on (ooooops, I think I crossed a line)

  15. tom p says:

    Again, while I’m generally not sympathetic to the paid strikers holding up DOES NOT PAY PREVAILING WAGES signs, I think the folks picketing the Madison have a legitimate grievance. But how far should people be allowed to go in inconveniencing others in the name of free expression?

    Let me see… their very survival against your inconvenience…. JAMES, what kind of crack are you smoking? You are inconvenienced… Awwwwwwwwwww… too bad………

    James, seriously, you need to readjust your world view. When people who are fighting for their health care have to compete with your noise level tolerance???? Do you really want to hang your hat on that argument?

    James… You are better than that.

  16. James Joyner says:

    @tom p:

    Most of the people banging drums and picketing do that for a living. They’re not protesting that their employer is screwing them over.

    And, sorry, where do people get the right to disturb the peace in order to petition their employers for more money or better healthcare benefits? For that matter, whatever parameters we set would apply to any group with any grievance. Where does it end?

  17. John Burgess says:

    tom p seems never to have gotten the recruitment memo. Unions regularly hire people to walk the picket line at strikes. That how they keep the out-of-work rank-and-file getting checks. It’s the union’s checks, but the money spends the same.

    You want another example? How about Madison, where union workers were bussed in from many different states. All on the union dime, err, actually, the dime of their dues-paying members.

  18. epistorese says:

    On the contract issue, when one company buys out another, the contract characteristically is “at the sufference” of the new owner. If the new owner recognizes union contracts in its current business, it normally must at least negotiate a new contract, but working conditions, salaries, benefits, and other elements of the previous agreements, and even employment at all, are not normally guaranteed unless guaranteed as a condition of the sale.

  19. jpe says:

    tomp: that was an annoying, stupid comment.

    re: strikes: The din would drive me insane. I’d be all over my local rep to pressure police to enforce reasonable limitations on the noise.

  20. Mike says:

    I live across the street from this protest, and the situation is beyond ridiculous. The noise is obscenely loud and continues incessantly for 12 hrs a day. With the windows closed, the sound is loud enough to wake me from a dead sleep (they start at 7am). There are small children in my building who’s sleep schedule is completely disrupted, and parents have resorted to taking their kids to extended family’s homes during the day (to nap, etc).

    This is not a first amendment issue. Instead, the speech is protected by another critical power in our government- Strong lobbying. In 2008, the city council attempted to pass a noise ordinance, and labor unions lobbied members to table the legislation. The first amendment protects content-based speech and expression, but reasonable restrictions on noise level are not constitutional issues. Other cities have passed such restrictions without issue.

  21. Mike says:

    I’m sorry, but I just wanted to emphasize that screaming on a megaphone, while protesters beat plastic bins, loud drums, and clap cymbals for 12-hrs a day, in a neighborhood where people live and work is completely ridiculous. It’s an awful intrusion into the homes and lives of people who have no part in the issue.

    Regardless of who’s at fault in the dispute, such union tactics are simply wrong. I’d also like to believe that tactics such as these are a significant reason why union popularity has declined dramatically in this country. Unions are increasingly seen as solely concerned with their own self-interest, even at the expense of society at large. Particularly, when the group that suffers is powerless and voiceless to stop them.

  22. KARAN PATNEY says:

    WELL

    THE UNION WORKERS ARE DISTURBING THE PEOPLE WHO ARE WORKING AROUND THE MADISON HOTEL, RESORTING TO THESE TACTICS IS VERY CHILDISH. INSTEAD OF HIRING A LAWYER AND DEALING WITH THIS ISSUE INTELLIGENTLY THEY ARE CHOOSING TO ACT IN A NON METHODICAL MANNER. I DONT THINK SO THAT RESORTING TO THESE ACTS WOULD GIVE THEM ANY FRUIT BECAUSE LEGALLY THEY MIGHT KNOW THEY ARE AT A LOSS, HENCE THEY MIGHT BE THINKING THAT BU DOING THIS THEY WILL ACHEIVE THEIR ANIMATED OBJECTIVE.

  23. Jenny says:

    Since when does owner changing mean you are guaranteed to keep your job? If people are allowed to “re-apply” for their jobs and they don’t meet the requirements for the job….then what were they doing in that job in the first place? If businesses are to stay in business, the employee base must be acceptable. I’ve watched people lose their jobs more than once because their company was bought out by another, or there was a merger, etc. This is how it works, people. Stop beating your drums and using the speakerphones and apply for a job.

    incidentally, if all those picketers at the Madison really worked there, why did they leave for an hour last week to picket another place? A blessed quiet hour, I might add.

  24. h says:

    I am in complete support of the rights of the workers and the union…but I LIVE a couple of blocks away and am constantly woken early or disturbed through the day by the screaming an d banging…its been months and im losing patience WHEN will it stop??

  25. Totoro says:

    I walk by these clowns on my way to work, and you can hear them for three blocks. I haven’t personally been inconvenienced enough yet to lodge a complaint, but those who live/work nearby should simply call the police and ask the prosecutor to press charges for disturbing the peace. The protesters are agents of the union, so charges can be filed against the union itself — in addition to the individual protesters with bullhorns, etc. If they continue to make a racket the next day, call the police again. A local business could also file a civil complaint (e.g., for nuisance). You are allowed to protest, but you aren’t allowed to render the whole area uninhabitable and block entrance-ways to public buildings.

    DC Code § 22-1307. Unlawful assembly; profane and indecent language.

    It shall not be lawful . . . to congregate and assemble in any street, avenue, alley, road, or highway, or in or around any public building or inclosure, or any park or reservation, or at the entrance of any private building or inclosure, and engage in loud and boisterous talking or other disorderly conduct, or to insult or make rude or obscene gestures or comments or observations on persons passing by, or in their hearing, or to crowd, obstruct, or incommode, the free use of any such street, avenue, alley, road, highway, or any of the foot pavements thereof, or the free entrance into any public or private building or inclosure; it shall not be lawful for any person or persons to curse, swear, or make use of any profane language or indecent or obscene words, or engage in any disorderly conduct in any street, avenue, alley, road, highway, public park or inclosure, public building, church, or assembly room, or in any other public place, or in any place wherefrom the same may be heard in any street, avenue, alley, road, highway, public park or inclosure, or other building, or in any premises other than those where the offense was committed, under a penalty of not more than $250 or imprisonment for not more than 90 days, or both for each and every such offense.

  26. Totoro says:

    I should also say — before calling the police, I’d resort to calling the union office first and tell them to pipe down. If they keep up with the racket, then call the police. I’d focus on going after the union itself since the protesters are just tools of the union.

    The disturbing the peace statute covers “persons” — which is a legal term of art that includes organizations such as unions. The union can be held liable both civilly and criminally for the acts of the protesters here.

  27. Mike says:

    Just to follow up on this, I’m the commenter who lives almost across the street from the protests, and has been woken up every morning for over 6 weeks now. I have repeatedly called the police, and have been informed that the protesters are not violating any laws. Unlike other major cities, there is no noise ordinance covering such protests in DC. And for some reason, this does not qualify as disturbing the peace. At times, there has been patrol cars out front as the union protests.

    Further, I have repeatedly emailed my councilman, who has done nothing (Jack Evans). This isn’t surprising because CM Evans led the fight to kill a 2008 Noise Amendment that would have limited these protests. The union led the lobbying efforts to strike the bill.

    So I’ve contacted the police, I’ve contacted local government. Nobody will do anything on this.

  28. SES says:

    I find the behavior of these protesters completely childish! Let’s kick and scream because we aren’t getting what we want!

    Mike – I feel so bad for you! I am in an office nearby and can barely tolerate the 8 hours a day of listening to this and leaving with a migraine some days. I don’t think I could handle it 12 hours a day on the weekends! The past 7 weeks have been pure hell! A line needs to be drawn somewhere, as this is just disruptive to the entire neighborhood! I too, have contacted the local governement and have not heard anything back from them.

    While I hate to see anyone loose their jobs, the time they have spent protesting could have been used to find new jobs!