Epstein is probably wrong about the Employee Free Choice Act

Richard Epstein, perhaps the most important legal scholar of our time and certainly the most exciting, has come out strongly against the so-called Employee Free Choice Act, which would establish card-check as a procedure by which labor unions could be recognized.

Epstein studies the law, and I am a physicist, so ordinarily when I disagree with him on law it is because he is right and I am wrong. (Likewise were he to disagree on natural science, it's probably because he is wrong and I am right. To his credit, and unlike many in his region of the political spectrum, he's quiet on the matter.) But this time around, I'll stick my neck out and say that he's probably wrong about the First Amendment implications of the EFCA, although he's right about two important categorical questions: is it harmful, and is it unConstitutional?.

In a recent Wall Street Journal guest opinion, Epstein argues that because employers can currently speak out against unionization, the "clandestine" nature of card-check organizing drives removes their guarantee of free speech. That is ostensibly wrong: one doesn't have a First Amendment right to be heard.

This smells much more like a Due Process matter; employers can find themselves without common law right to contract in the blink of an eye if union salts wage a successful card-check campaign. "Due process" is replaced by no process at all save "we decided and you shall comply."

I find myself wondering if this line of argument would carry any weight in court; I don't recall any cases against the NLRA or agency fees on behalf of either employers or workers who'd rather contract independently in which the Fifth Amendment argument was made. If any readers can point me in the right direction, please do!