[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

Portage Cty. Educators Assn. for Dev. Disabilities-Unit B, OEA/NEA v. State Emp. Relations Bd., 

Slip Opinion No. 2022-Ohio-3167.]

NOTICE

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published.

SLIP OPINION NO. 2022-OHIO-3167

PORTAGE COUNTY EDUCATORS ASSOCIATION FOR DEVELOPMENTAL 

DISABILITIES-UNIT B, OEA/NEA, APPELLEE, v. STATE EMPLOYMENT 

RELATIONS BOARD ET AL., APPELLANTS.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as Portage Cty. Educators Assn. for Dev. Disabilities-Unit B, 

OEA/NEA v. State Emp. Relations Bd., Slip Opinion No. 2022-Ohio-3167.]

First Amendment—Freedom of speech—Picketing in connection with a laborrelations dispute—R.C. 4117.11(B)(7)’s prohibition against inducing or 

encouraging any individual in connection with a labor-relations dispute to 

picket the residence or place of private employment of any public official or 

representative of the public employer violates the First Amendment to the 

United States Constitution as a content-based restriction of expressive 

activity—Court of appeals’ judgment affirmed.

(Nos. 2021-0190 and 2021-0191—Submitted February 9, 2022—Decided 

September 13, 2022.)

APPEAL from and CERTIFIED by the Court of Appeals for Portage County,
SUPREME COURT OF OHIO

2

No. 2019-P-0055, 2020-Ohio-7004.

__________________

DONNELLY, J.

{¶ 1} Peaceful picketing on a public sidewalk or street enjoys a venerated 

status as a form of expressive activity that is subject to the protections of the First 

Amendment to the United States Constitution. R.C. 4117.11(B)(7) makes it “an 

unfair labor practice for an employee organization, its agents, or representatives, or 

public employees to * * * [i]nduce or encourage any individual in connection with 

a labor relations dispute to picket the residence or any place of private employment 

of any public official or representative of the public employer.” The issue in this 

case is whether R.C. 4117.11(B)(7) violates the First Amendment. Because we 

conclude that the statute does violate the First Amendment, we hereby affirm the 

judgment of the Eleventh District Court of Appeals and answer the certifiedconflict issue in the negative.

FACTS

{¶ 2} Appellant Portage County Board of Developmental Disabilities (“the 

board”) is a “public employer” under R.C. 4117.01(B). Appellee, Portage County 

Educators Association for Developmental Disabilities–Unit B, OEA/NEA (“the 

association”), is an “employee organization” under R.C. 4117.01(D) that represents 

the board’s service and support administrators.

{¶ 3} On September 15, 2017, when negotiations over a successor 

collective-bargaining agreement reached an impasse, the association filed a notice 

of intent to strike, and association members began picketing on or about October 4, 

2017. On seven dates in October 2017, association members engaged in labor 

picketing outside the residences of six board members. On one occasion, 

association members picketed outside the private business and place of 

employment of one of the board members. On each occasion, the picketing took 
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3

place entirely on public streets or sidewalks. There is no evidence that any labor 

picketing involved obstructive or disruptive behavior.

{¶ 4} The board filed seven unfair-labor-practice charges against the 

association, alleging in each charge that the picketing violated R.C. 4117.11(B)(7). 

On May 3, 2018, appellant State Employment Relations Board (“SERB”) issued an 

opinion finding that the association had violated R.C. 4117.11(B)(7) and ordering 

the association to cease and desist from inducing or encouraging any person in 

connection with a labor-relations dispute to picket the residence or private place of 

employment of any public official or representative of the board.

1

{¶ 5} The association appealed SERB’s decision to the Portage County 

Court of Common Pleas, alleging that R.C. 4117.11(B)(7) was an unconstitutional 

content-based restriction on speech in violation of the First Amendment. Rejecting 

the association’s constitutional challenge, the common pleas court upheld SERB’s 

findings, ruling that R.C. 4117.11(B)(7) was a valid, content-neutral time, place, 

and manner limitation on speech. The Eleventh District reversed the common pleas 

court’s judgment after determining that R.C. 4117.11(B)(7) is an unconstitutional 

content-based restriction on speech. See 2020-Ohio-7004, 166 N.E.3d 63. The 

board and SERB each filed a discretionary appeal from that judgment (Supreme 

Court case No. 2021-0190). Finding its judgment invalidating R.C. 4117.11(B)(7) 

as to private-employment picketing to be in conflict with the judgment of the 

Seventh District Court of Appeals in Harrison Hills Teachers Assn. v. State Emp.

Relations Bd., 2016-Ohio-4661, 56 N.E.3d 986 (7th Dist.), the Eleventh District 

certified a conflict to this court (Supreme Court case No. 2021-0191).

1. As an administrative agency, SERB does not have jurisdiction to determine the constitutionality 

of R.C. 4117.11(B)(7). See State ex rel. Columbus S. Power Co. v. Sheward, 63 Ohio St.3d 78, 81, 

585 N.E.2d 380 (1992).
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4

{¶ 6} We accepted the discretionary appeals and determined that a conflict 

exists. 162 Ohio St.3d 1443, 2021-Ohio-1398, 166 N.E.3d 1271. We also 

consolidated the causes for consideration. Id.

LAW AND ANALYSIS

Standard of Review

{¶ 7} Whether a statute is constitutional is a question of law that we review 

de novo. See Crutchfield Corp. v. Testa, 151 Ohio St.3d 278, 2016-Ohio-7760, 88 

N.E.3d 900, ¶ 16. And determining, in particular, whether R.C. 4117.11(B)(7) is 

constitutional requires that we review the basic foundation of First Amendment 

law.

The First Amendment

{¶ 8} The First Amendment to the United States Constitution, made 

applicable to the states by the Fourteenth Amendment, provides in part that 

“Congress shall make no law * * * abridging the freedom of speech.” See also 

Reed v. Gilbert, Arizona, 576 U.S. 155, 163, 135 S.Ct. 2218, 192 L.Ed.2d 236 

(2015). The guiding principle of the First Amendment is that “ ‘government has 

no power to restrict expression because of its message, its ideas, its subject matter, 

or its content.’ ” McCullen v. Coakley, 573 U.S. 464, 477, 134 S.Ct. 2518, 189 

L.Ed.2d 502 (2014), quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 

92 S.Ct. 2286, 33 L.Ed.2d 212 (1972).

{¶ 9} “[A]s a general matter peaceful picketing and leafletting are 

expressive activities involving ‘speech’ protected by the First Amendment.” 

United States v. Grace, 461 U.S. 171, 176, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983). 

See also Carey v. Brown, 447 U.S. 455, 460, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) 

(Illinois statute prohibiting peaceful labor picketing on the public streets and 

sidewalks in residential neighborhoods held to be an unconstitutional regulation of

expressive conduct that fell within the First Amendment preserve).
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5

{¶ 10} Expressive activity that occurs on public sidewalks, streets, and 

other traditional public forums occupies a “ ‘special position in terms of First 

Amendment protection’ ” because of the historic role of such forums as sites for 

assembly, discussions, and debate. McCullen at 476, quoting Grace at 180. See 

also Perry Edn. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45, 103 S.Ct.

948, 74 L.Ed.2d 794 (1983).

{¶ 11} While the government’s ability to restrict speech in such locations is 

“ ‘very limited,’ ” McCullen, 573 U.S. at 477, 134 S.Ct. 2518, 189 L.Ed.2d 502,

quoting Grace at 177, the government has “somewhat wider leeway to regulate 

features of speech unrelated to its content,” id., e.g., with regulations that are 

content neutral. “[E]ven in a public forum the government may impose reasonable 

restrictions on the time, place, or manner of protected speech, provided the 

restrictions ‘are justified without reference to the content of the regulated speech, 

that they are narrowly tailored to serve a significant governmental interest, and that 

they leave open ample alternative channels for communication of the 

information.’ ” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 

105 L.Ed. 2d 661 (1989), quoting Clark v. Community for Creative Non-Violence, 

468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed. 2d 221 (1984).

{¶ 12} On the other hand, a regulation that targets speech based on its 

content is subject to the most exacting scrutiny. See Reed, 576 U.S. at 163, 135 

S.Ct. 2218, 192 L.Ed.2d 236; Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 99 

L.Ed.2d 333 (1988). If a statute regulates speech based on its content, it must be 

narrowly tailored to serve a compelling government interest and it must be the leastrestrictive means readily available to serve that interest. United States v. Playboy 

Entertainment Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 

(2000); Sable Communications of California, Inc. v. Fed. Communications Comm., 

492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). “To do otherwise would 
SUPREME COURT OF OHIO

6

be to restrict speech without an adequate justification, a course the First 

Amendment does not permit.” Playboy Entertainment Group at 813.

{¶ 13} Whether a regulation is content based or content neutral thus dictates 

the degree of scrutiny to which the regulation will be subjected. See Reed at 163-

166; Painesville Bldg. Dept. v. Dworken & Bernstein Co., L.P.A., 89 Ohio St.3d 

564, 567, 733 N.E.2d 1152 (2000); Seven Hills v. Aryan Nations, 76 Ohio St.3d 

304, 306-307, 667 N.E.2d 942 (1996).

{¶ 14} In this case, the threshold issue is whether R.C. 4117.11(B)(7) is 

content based or content neutral. SERB and the board insist that R.C. 

4117.11(B)(7) is a content-neutral regulation that only incidentally burdens speech 

by regulating the time, place, and manner of the speech. Conversely, the 

association maintains that R.C. 4117.11(B)(7) is a content-based regulation of 

expressive activity. We begin our analysis by addressing that threshold issue.

Whether R.C. 4117.11(B)(7) is Content Based or Content Neutral

{¶ 15} According to SERB and the board, R.C. 4117.11(B)(7) is content

neutral because it does not prohibit speech or prevent anyone from communicating 

any particular message. They further contend that the statute does not create a 

speech-free buffer zone around public officials’ residences or places of private 

employment, because all forms of communication other than targeted picketing are 

permissible. In their view, R.C. 4117.11(B)(7) is a permissible time, place, and 

manner restriction that is operative during a narrow period of time (picketing in 

connection with a labor-relations dispute), at a particular place (public officials’ 

residences and places of private employment), for a particular manner of expression 

(“targeted picketing”).

{¶ 16} But “a constitutionally permissible time, place, or manner restriction 

may not be based upon either the content or subject matter of speech.” 

Consolidated Edison Co. of New York, Inc. v. Pub. Serv. Comm. of New York, 447 

U.S. 530, 536, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980). See also Regan v. Time, 
January Term, 2022

7

Inc., 468 U.S. 641, 648, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984); Heffron v. 

Internatl. Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 648, 101 S.Ct. 2559, 

69 L.Ed.2d 298 (1981). The United States Supreme Court has recognized that “ ‘[a] 

state or municipality may protect individual privacy by enacting reasonable time, 

place, and manner regulations applicable to all speech irrespective of content.’ ” 

(Brackets and emphasis added in Carey). Carey, 447 U.S. at 470, 100 S.Ct. 2286, 

65 L.Ed.2d 263, quoting Erznoznik v. Jacksonville, 422 U.S. 205, 209, 95 S.Ct. 

2268, 45 L.Ed.2d 125 (1975). “Governmental action that regulates speech on the 

basis of its subject matter, however, “ ‘ “slip[s] from the neutrality of time, place, 

and circumstance into a concern about content.” ’ ” Consolidated Edison at 536, 

quoting Mosley, 408 U.S. at 99, 92 S.Ct. 2286, 33 L.Ed.2d 212, quoting Kalven, 

The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup.Ct.Rev. 1, 29

(1965).

{¶ 17} In Reed, 576 U.S. at 165, 135 S.Ct. 2218, 192 L.Ed.2d 236, the court 

instructed that the first step in the content-neutrality analysis is to determine 

whether the law is content neutral on its face. See also id. at 166 (“we have 

repeatedly considered whether a law is content neutral on its face before turning to

the law’s justification or purpose” [emphasis sic]). And in this case, an examination 

of R.C. 4117.11(B)(7) reveals that on its face the law is not content neutral, but 

rather, it regulates expressive activity based on the content of the message and the

identity of the messenger.

{¶ 18} As to the message, R.C. 4117.11(B)(7) regulates expressive 

activity—picketing—that is induced or encouraged by certain parties “in 

connection with a labor relations dispute.” That language indisputably identifies 

the subject matter of the expression. Indeed, United States Supreme Court 

decisions confirm that a speech regulation that distinguishes labor picketing (or the 

inducement or encouragement thereof) from other picketing is a regulation of 

expression based on its subject matter. See, e.g., Carey at 460-462; Mosley at 95 
SUPREME COURT OF OHIO

8

(ordinance that exempted peaceful labor picketing from a general prohibition 

against picketing next to a school deemed an unconstitutional restriction on 

expression “in terms of its subject matter”); Grayned v. Rockford, 408 U.S. 104, 

107, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (same). Regardless of whether a statute 

accords preferential treatment or disfavored treatment to expressive activity related 

to labor picketing, singling out labor picketing for specialized treatment is a 

content-based regulation of the expressive activity.

{¶ 19} Even if R.C. 4117.11(B)(7) did not, on its face, draw content-based

distinctions, it would still be content based “if it required ‘enforcement authorities’

to ‘examine the content of the message that is conveyed to determine whether’ a 

violation has occurred.” McCullen, 573 U.S. at 479, 134 S.Ct. 2518, 189 L.Ed.2d 

502, quoting Fed. Communications Comm. v. League of Women Voters of 

California, 468 U.S. 364, 383, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984). In this case, 

SERB—an enforcement authority—must necessarily examine whether the 

picketing specifically emanated from one particular side of a labor-relations 

dispute, rather than simply determining that a general instance of picketing 

occurred, in order to determine whether an unfair labor practice occurred. To do 

that, SERB must examine the content of the picketing. The substance of the 

picketers’ message was inescapably the basis for SERB’s unfair-labor-practice 

findings against the association.

{¶ 20} R.C. 4117.11(B)(7) additionally regulates expressive activity based 

on the identity of the messenger. More specifically, it forbids “an employee 

organization, its agents, or representatives, or public employees” from inducing or 

encouraging anyone to picket a public official’s residence or place of private 

employment in connection with a labor-relations dispute. Id. In Rosenberger v. 

Rector and Visitors of the Univ. of Virginia, 515 U.S. 819, 829, 115 S.Ct. 2510, 

132 L.Ed.2d 700 (1995), the United States Supreme Court stated:
January Term, 2022

9

When the government targets not subject matter, but particular 

views taken by speakers on a subject, the violation of the First 

Amendment is all the more blatant. See R.A.V. v. St. Paul, 505 U.S. 

377, 391, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). Viewpoint 

discrimination is thus an egregious form of content discrimination.

In this case, R.C. 4117.11(B)(7) suppresses expressive activity that is induced or 

encouraged by the association and its agents or representatives or by public 

employees. Only an employee or an employee association and its affiliates—and 

not any other parties involved in a labor-relations dispute—can be found to have 

committed an unfair labor practice under R.C. 4117.11(B)(7) for expressing the 

viewpoint that they advocate. The regulation unmistakably restricts the particular 

views of particular speakers.

{¶ 21} An examination of R.C. 4117.11(B)(7) on its face thus fails to 

substantiate the contentions of SERB and the board that the statute can be “justified 

without reference to the content of the regulated speech,” Ward, 491 U.S. at 791, 

109 S.Ct. 2746, 105 L.Ed.2d 661. To the contrary, its regulation of expressive 

activity involving picketing is predicated on the content of the speech. And because 

constitutionally permissible time, place, and manner regulations cannot be based 

on the content (or subject matter) of speech, the attempt by SERB and the board to 

defend R.C. 4117.11(B)(7) as a reasonable time, place, and manner regulation is 

unavailing.

{¶ 22} For their part, SERB and the board rely on Frisby v. Schultz, 487 

U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988), in which the United States 

Supreme Court upheld an ordinance that banned all picketing “before or about” any 

residence. Id. at 476-477. Because the ordinance did not make any exception to 

this prohibition based on the subject matter of the picketing, the ordinance was 

deemed to be content neutral. In this case, by contrast, R.C. 4117.11(B)(7) 
SUPREME COURT OF OHIO

10

prohibits only the inducement or encouragement of certain residential and privateemployer picketing that promotes certain viewpoints related to a particular kind of 

dispute. Because the statute at issue here regulates expressive activity related to 

picketing on the basis of content, Frisby is fundamentally distinguishable from this 

case.

{¶ 23} We therefore agree with the Eleventh District that R.C. 

4117.11(B)(7) is a content-based regulation of speech. Having so concluded, we 

must now review the statute’s specific restrictions regarding residential picketing 

and private-employer picketing to ascertain whether the statute survives strict 

scrutiny.

Application of Strict Scrutiny to R.C. 4117.11(B)(7)

{¶ 24} As indicated previously, a statute that regulates speech based on its 

content must be narrowly tailored to serve a compelling government interest and it 

must be the least-restrictive means readily available to serve that interest. See 

Playboy Entertainment Group, 529 U.S. at 813, 120 S.Ct. 1878, 146 L.Ed.2d 865. 

In this case, SERB and the board argue that R.C. 4117.11(B)(7)’s prohibition aimed 

at residential picketing survives strict scrutiny because it serves the compelling state 

interest of protecting the privacy rights of public officials, thereby encouraging

citizens to run for or serve in public office and preserving labor peace in Ohio.

{¶ 25} Laudable as those goals may be, we have already determined that 

preserving residential peace and privacy is a significant but not a compelling 

government interest. See Seven Hills, 76 Ohio St.3d at 309, 667 N.E.2d 942.

{¶ 26} In United Elec., Radio & Machine Workers of Am. v. State Emp.

Relations Bd., 126 Ohio App.3d 345, 353, 710 N.E.2d 358 (8th Dist.1998), the 

Eighth District Court of Appeals applied strict scrutiny to R.C. 4117.11(B)(7) and 

held that the state’s interest in protecting the tranquility and privacy of a residential 

neighborhood was not a compelling government interest. The appeals court 

similarly concluded that encouraging citizens to serve as officials of public 
January Term, 2022

11

employers was not a compelling government interest. The court further rejected 

the interest in preserving labor peace as “too vague” to represent a compelling 

government interest. Id. We agree with those determinations.

{¶ 27} Moreover, R.C. 4117.11(B)(7) is not narrowly tailored to the point 

that no less-restrictive means was available to serve the stated interests. Local 

ordinances and state criminal codes exist to preserve law and order in the event of 

disruptive conduct that disturbs residential privacy and are justified without 

reference to the content of the expression. Nor has there been any showing that 

banning residential and private-employer labor picketing is the only way to 

encourage citizens to serve as officials of public employers or to preserve the peace 

during labor disputes in Ohio. The medicine thus prescribed by R.C. 4117.11(B)(7) 

is not narrowly tailored to the proclaimed illness and indeed far exceeds the 

interests that it purports to serve.

{¶ 28} With regard to R.C. 4117.11(B)(7)’s prohibition of employeeorganization picketing directed at any place of private employment of any public 

official or representative of the public employer in connection with a labor-relations 

dispute, SERB argued below that the statute permissibly prohibits “secondary 

picketing,” i.e., labor picketing at a neutral party that is not directly involved in the 

labor dispute. The Eleventh District rejected SERB’s argument and, finding its 

judgment on secondary picketing to be in conflict with that of the Seventh District’s

decision in Harrison Hills Teachers Assn., 2016-Ohio-4661, 58 N.E.3d 986, 

certified the conflict in Supreme Court case No. 2021-0191. After determining that 

a conflict exists, we directed the parties to address

[w]hether R.C. 4117.11(B)(7), as applied to ‘any place of private 

employment of any public official or representative of the public 

employer,’ is constitutionally valid under the First Amendment as a 

reasonable time, place, or manner restriction on speech.
SUPREME COURT OF OHIO

12

162 Ohio St.3d 1443, 2021-Ohio-1398, 166 N.E.3d 1271.

{¶ 29} SERB and the board contend that the prohibition on privateemployer picketing regulates the geographical location of speech in a contentneutral manner. As we have already discussed, however, R.C. 4117.11(B)(7) is not 

a content-neutral regulation of the time, place, and manner of speech, but rather is 

a content-based regulation of expressive activity that would have to be narrowly 

tailored to serve a compelling government interest in order to survive strict scrutiny.

{¶ 30} SERB also contends that R.C. 4117.11(B)(7) lawfully prohibits 

secondary picketing. In Harrison Hills, the Seventh District deemed the privateemployer-picketing prohibition in R.C. 4117.11(B)(7) to be “more akin” to the 

secondary picketing proscribed by Section 8(b)(4)(ii)(B) of the National Labor 

Relations Act, 29 U.S.C. Section 158(b)(4)(ii)(B), than to the picketing addressed 

by the United States Supreme Court in Mosley and Carey. Harrison Hills at ¶ 34. 

Under Section 8(b)(4)(ii)(B), it is an unfair labor practice for a labor organization 

or its agents to threaten, coerce, or restrain a neutral party engaged in commerce or 

an industry affecting commerce if an objective is to force or require the neutral 

party to cease doing business with the primary party to the labor dispute. In Natl. 

Labor Relations Bd. v. Retail Store Emps. Union, Local 1001, 447 U.S. 607, 100 

S.Ct. 2372, 65 L.Ed.2d 377 (1980), the United States Supreme Court held that 

Section 8(b)(4)(ii)(B) does not prohibit all secondary picketing, provided that the 

picketing causes only incidental injury to the neutral party, but that it does forbid 

secondary picketing that can reasonably be expected to threaten a neutral party with 

ruin or substantial loss. Secondary picketing that violates Section 8(b)(4)(ii)(B) is 

not protected activity under the First Amendment. See Internatl. Longshoremen’s 

Assn., AFL-CIO v. Allied Internatl., Inc., 456 U.S. 212, 102 S.Ct. 1656, 72 L.Ed.2d 

21 (1982). Here, we find SERB’s argument analogizing the association members’
January Term, 2022

13

private-employer picketing to secondary picketing unpersuasive for several 

reasons.

{¶ 31} First, and contrary to the analogy drawn by the Seventh District in 

Harrison Hills, picketing at the private employer of a board member or other public 

official simply does not fit within the secondary-picketing paradigm. Here, the 

private employer is not a neutral party that has been drawn into the labor-relations 

dispute only because it does business with the primary employer. Indeed, in this 

case there is no indication that the private employer that was picketed by the 

association members had any business relations whatsoever with the board outside 

of the fact that one of the board members is both the owner and employee of the 

private employer. There is no indication that the private employer was threatened, 

coerced, or restrained from engaging in business with the board. Nor is there any 

evidence that that was the association’s objective in picketing the private employer. 

Assuming further that the private employer engaged in commerce or an industry 

affecting commerce, any expressive activity that caused incidental injury to the 

private employer’s business would not be prohibited by Section 8(b)(4)(ii)(B) and 

thus would remain protected by the First Amendment. The analogy to secondary 

picketing is thus inapposite.

{¶ 32} Second, SERB fails to establish how a statute prohibiting the 

association’s peaceful and noncoercive labor-dispute picketing on a public 

sidewalk outside of a board member’s private place of employment was narrowly 

tailored to serve any compelling government interest. While the interest in 

preserving privacy and tranquility at home and at work is important, we see no 

qualitative distinction between those interests that would cause us to treat either as 

a compelling government interest. Beyond that, SERB has not demonstrated how 

the categorical prohibition against such expressive activity under R.C. 

4117.11(B)(7) is narrowly tailored to serve that interest in the least-restrictive way 

available. R.C. 4117.11(B)(7) thus cannot survive the strict scrutiny applicable to 
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14

content-based regulations of expressive activity that is protected by the First 

Amendment.

{¶ 33} We do not question the sanctity of the home as a place of personal 

refuge or the importance of an employee’s workplace. Nor are we unsympathetic 

to the burdens that these board members and other public officials must 

occasionally endure in the performance of their official duties. But their status as 

public officials does not insulate them from the robust marketplace of ideas. The 

First Amendment, which makes that marketplace possible, is to be celebrated, not 

silenced.

{¶ 34} R.C. 4117.11(B)(7) silences that right for certain speakers on certain 

subjects. While SERB and the board benignly characterize R.C. 4117.11(B)(7) as 

a prohibition on “targeted picketing,” we cannot help but see this law as a form of 

expressive-activity suppression that is irreconcilable with the protections 

guaranteed by the First Amendment.

CONCLUSION

{¶ 35} We hold that R.C. 4117.11(B)(7) is unconstitutional in violation of 

the First Amendment. We further answer the certified-conflict issue in the 

negative. The judgment of the Eleventh District Court of Appeals is affirmed.

Judgment affirmed.

O’CONNOR, C.J., and STEWART and BRUNNER, JJ., concur.

KENNEDY, J., concurs in judgment only, with an opinion joined by FISCHER

and DEWINE, JJ.

_________________

KENNEDY, J., concurring in judgment only.

{¶ 36} Because R.C. 4117.11(B)(7)’s prohibition on inducing or 

encouraging any person to picket the home or place of private employment of a 

public official in connection with a labor-relations dispute—i.e., “targeted 

picketing”—is not narrowly tailored to serve a compelling state interest, I agree 
January Term, 2022

15

with the majority that the statute violates the First Amendment to the United States 

Constitution.

{¶ 37} The Eleventh District Court of Appeals analyzed R.C. 4117.11(B)(7) 

as a content-based regulation of speech that differentiates between the messages 

that appear on picketers’ signs. However, a violation of the statute requires acts of 

inducement or encouragement, and it does not depend on anyone engaging in 

targeted picketing. Nonetheless, limitations on inducing or encouraging others to 

picket in a public forum on an issue of public concern strike at the heart of freespeech protections. And R.C. 4117.11(B)(7) on its face is a content-based 

regulation of speech because it prohibits an employee organization, its agents or 

representatives, and public employees from inducing or encouraging others to 

picket a public official’s home or place of private employment while allowing them 

to encourage targeted picketing that is unrelated to a labor-relations dispute and to 

discourage targeted picketing in all circumstances. The statute therefore singles 

out some speech for protection while prohibiting other speech based on the content 

of the message.

{¶ 38} Consequently, I concur in the majority’s judgment to affirm the 

decision of the court of appeals, but not its reasoning.

Facts and Procedural History

{¶ 39} Appellee, Portage County Educators Association for Developmental 

Disabilities (“the association”), is a labor organization representing public 

employees who work for appellant Portage County Board of Developmental 

Disabilities (“the board”). After negotiations over a new collective-bargaining 

agreement reached an impasse, the association gave appellant State Employment 

Relations Board (“SERB”) notice of its decision to picket and strike. On seven 

occasions in October 2017, association members picketed in front of a different 

board member’s home. On another occasion, association members picketed at the 

place of private employment of one of the board members. The board charged the 
SUPREME COURT OF OHIO

16

association with unfair labor practices, and the association stipulated that it had 

encouraged and induced the targeted picketing of public officials. SERB found that 

the association had violated R.C. 4117.11(B)(7), and it ordered the association to 

cease and desist inducing and encouraging any person to picket at board members’ 

homes and places of private employment. In an administrative appeal, the common 

pleas court upheld SERB’s order, but the Eleventh District reversed, concluding 

that R.C. 4117.11(B)(7) violated the First Amendment as a content-based 

regulation of speech that did not survive strict scrutiny.

Law and Analysis

{¶ 40} Under the United States Constitution, the “government * * * ‘has no 

power to restrict expression because of its message, its ideas, its subject matter, or 

its content.’ ” Reed v. Gilbert, Arizona, 576 U.S. 155, 163, 135 S.Ct. 2218, 192 

L.Ed.2d 236 (2015), quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 

92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). “Content-based laws—those that target 

speech based on its communicative content—are presumptively unconstitutional 

and may be justified only if the government proves that they are narrowly tailored 

to serve compelling state interests.” Id.

{¶ 41} In addition to laws that on their face regulate speech based on its 

content, the United States Supreme Court has recognized “a separate and additional 

category of laws that, though facially content neutral, will be considered contentbased regulations of speech: laws that cannot be ‘ “justified without reference to 

the content of the regulated speech,’ ” or that were adopted by the government 

‘because of disagreement with the message [the speech] conveys.’ ” (Brackets 

added in Reed.) Id. at 164, quoting Ward v. Rock Against Racism, 491 U.S. 781, 

791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), quoting Clark v. Community for 

Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984).

{¶ 42} At issue here is R.C. 4117.11(B)(7), which provides that “it is an 

unfair labor practice for an employee organization, its agents, or representatives, or 
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public employees to * * * [i]nduce or encourage any individual in connection with 

a labor relations dispute to picket the residence or any place of private employment 

of any public official or representative of the public employer[.]”

{¶ 43} The majority’s analysis focuses primarily on picketing. However, 

R.C. 4117.11(B)(7) does not directly regulate “labor picketing,” targeted picketing, 

or any other type of picketing. Instead, the statute prohibits inducing or

encouraging others to picket a place—a residence or place of private employment. 

So, although the majority claims with confidence that “[t]he substance of the 

picketers’ message was inescapably the basis for SERB’s unfair-labor-practice 

findings against the association,” majority opinion at ¶ 19, it does not support that 

claim with any record evidence showing that SERB considered—much less 

penalized—the content of any picketer’s speech.

{¶ 44} In fact, this case was decided on stipulations, none of which describe 

the messages that were on any picketer’s sign or the words that any picketer said. 

In those stipulations, the association simply admitted that it had induced and 

encouraged its members to picket outside the public officials’ homes and places of 

private employment. And the reason that the messages on the picketers’ signs do 

not appear anywhere in the record is that they are irrelevant to establishing a 

violation of R.C. 4117.11(B)(7). A violation occurs if the association induced or 

encouraged targeted picketing at a residence or place of private employment, even 

if the picketing never took place.

{¶ 45} The majority’s analysis, then, is unpersuasive. The question 

remains, however, whether R.C. 4117.11(B)(7) infringes on free-speech rights 

enshrined in the First Amendment.

{¶ 46} “Public-issue picketing, ‘an exercise of * * * basic constitutional 

rights in their most pristine and classic form,’ has always rested on the highest rung 

of the hierarchy of First Amendment values.” (Ellipsis sic.) Carey v. Brown, 447 

U.S. 455, 466-467, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980), quoting Edwards v. 
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South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963). Although 

R.C. 4117.11(B)(7) does not ban picketing itself, imposing limitations on inducing 

or encouraging others to engage in constitutionally protected speech—e.g., 

picketing directed at public officials addressing a matter of public concern in a 

public forum—strikes at the heart of the First Amendment, just as a direct ban on 

picketing would. See Snyder v. Phelps, 562 U.S. 443, 450-452, 131 S.Ct. 1207, 

179 L.Ed.2d 172 (2011); Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 

13 L.Ed.2d 125 (1964) (“For speech concerning public affairs is more than selfexpression; it is the essence of self-government”). Picketing is a form of 

expression, and prohibiting speech that encourages or induces picketing necessarily 

chills the right to picket itself. As the Fourth Circuit Court of Appeals has noted, 

“mere encouragement is quintessential protected advocacy.” United States v. 

Miselis, 972 F.3d 518, 536 (4th Cir.2020).

{¶ 47} R.C. 4117.11(B)(7) makes it an unfair labor practice for a public 

employee or his or her representative to induce or encourage others to picket a 

public official’s home or place of private employment in connection with a labor 

dispute. The word “induce” means “to move and lead (as by persuasion or 

influence)” and to “bring about by influence or stimulation,” Webster’s Third New 

International Dictionary 1154 (1993), and “inducement” means “[t]he act or 

process of enticing or persuading another person to take a certain course of action.” 

Black’s Law Dictionary 926 (11th Ed.2019). The term “encourage” means to 

“inspire with courage, spirit, or hope,” “to attempt to persuade,” “to spur on,” and 

“to give help or patronage to.” Webster’s at 747; see also Black’s at 667 

(“encourage” means “[t]o instigate; to incite to action; to embolden; to help”).

{¶ 48} Inducement and encouragement are speech and expressive conduct. 

See United States v. Hernandez-Calvillo, ___ F.4th ___, ___, 2022 U.S. App. 

LEXIS 19284, *10 (10th Cir.2022). And R.C. 4117.11(B)(7) is a content-based 

law on its face because it singles out some speech for special treatment based on its 
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message. Under that statute, speech that induces or encourages others to engage in 

targeted picketing in connection with a labor dispute is prohibited; however, speech 

that is aimed at inducing and encouraging others to engage in targeted picketing is 

allowed if it does not touch on a labor dispute. That is, under R.C. 4117.11(B)(7), 

an employee organization, its agents or representatives, and public employees can 

encourage others to picket a public official’s home or place of private employment 

in connection with a school-board dispute, a disagreement on tax policy, or for any 

other reason that does not impact a labor-relations dispute. Speech that discourages 

others from engaging in targeted picketing is permitted in all circumstances. With 

this statute, then, the government is picking and choosing which messages may be 

expressed and which messages may not be. That, it cannot do.

{¶ 49} “Content-based laws * * * are presumptively unconstitutional and 

may be justified only if the government proves that they are narrowly tailored to 

serve compelling state interests.” Reed, 576 U.S. at 163, 135 S.Ct. 2218, 192 

L.Ed.2d 236. SERB maintains that the state has a compelling interest in protecting 

the privacy rights of public officials, encouraging citizens to serve in public offices, 

and preserving labor peace. But as the majority recognizes, we have rejected the 

proposition that these types of government interests are sufficiently compelling to 

survive strict scrutiny. See Seven Hills v. Aryan Nations, 76 Ohio St.3d 304, 309, 

667 N.E.2d 942 (1996); see also Carey, 447 U.S. at 470, 100 S.Ct. 2286, 65 L.Ed.2d 

263; Thornhill v. Alabama, 310 U.S. 88, 105, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). 

And R.C. 4117.11(B)(7) is not narrowly tailored to serve these interests, because 

the statute prohibits inducing or encouraging targeted picketing in only a few 

circumstances. Inducing or encouraging targeted picketing is not prohibited at all 

when there is no connection to a labor dispute. Claims that the statute is aimed at 

preserving the sanctity of the home, encouraging citizens to serve in public offices, 

and preserving the peace therefore ring hollow.
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Conclusion

{¶ 50} For these reasons, R.C. 4117.11(B)(7)’s prohibition on inducing or 

encouraging targeted picketing in connection with a labor-relations dispute is a 

content-based restriction of speech that is not narrowly tailored to serve a 

compelling state interest. Because I agree that the statute violates the First 

Amendment to the United States Constitution, I concur in the majority’s decision 

to affirm the judgment of the Eleventh District Court of Appeals, but not its 

reasoning.

FISCHER and DEWINE, JJ., concur in the foregoing opinion.

_________________

Ronald J. Habowski, for appellant Portage County Board of Developmental 

Disabilities.

Organ Law, L.L.P., Erik J. Clark, and Connor A. Organ, Special Counsel to 

Attorney General Dave Yost, for appellant State Employment Relations Board.

Green, Haines, Sgambati Co., L.P.A., Charles W. Oldfield, Richard T. 

Bush, Stanley J. Okusewsky, and Ira J. Mirkin, for appellee.

Haynes, Kessler, Myers, and Postalakis, Inc., Stephen P. Postalakis, and 

David S. Kessler, urging reversal for amicus curiae, Ohio Association of County 

Boards Serving People with Developmental Disabilities.

_________________