Cook County Record

Tuesday, July 16, 2019

Union asserts Constitution allows it to 'shame' Ameristar patrons amid labor dispute with E. Chicago casino

By D.M. Herra | Jan 29, 2018

A union representing about 200 casino employees filed a motion for summary judgment in a lawsuit brought against it by the East Chicago casino and some patrons, arguing that behavior the plaintiffs deemed harassing is constitutionally protected free speech.

The suit was filed in 2016 by the Ameristar casino and a handful of patrons against Unite Here Local 1. Unite Here began a boycott against the casino a year earlier as part of a labor dispute. Originally, the boycott consisted of such standard union practices as demonstrations near the casino’s entrance, posting messages at local businesses and passing out handbills in the casino’s parking facility. In 2016, the union began contacting regular customers, as well as their families, friends and neighbors, urging them to join the boycott. The contact took the form of phone calls to home, business and cell phones as well as distributing leaflets at customers’ homes, in their neighborhoods and at their places of business.

In their suit, the plaintiffs said the union’s tactics were no longer about trying to get people to join its boycott but had become about embarrassing customers by depicting them to their friends and neighbors as big gamblers.

“Local 1 did not have a relationship with the customers, and most of the customers cut off discussion before it began. Local 1 thought that people who knew the customers might be able to convince the customers where Local 1 had failed,” the union said in a brief supporting its motion for summary judgment. “More often than not Local 1 asked people to speak to the customer about supporting the boycott.”

While denying that it had any motive to embarrass customers, the union admitted that “persuasive speech and embarrassing speech are not mutually exclusive.”

“The Supreme Court has described shaming speech as persuasive and constitutionally protected, even if it is coercive,” the union wrote.

In moving for summary judgment, the union claims that most of the specific allegations made in the lawsuit are false. It denies calling patrons late at night or distributing leaflets to customers inside a patron’s restaurant at dinner time. The union said it did distribute leaflets on the sidewalk outside the restaurant and left when told to by police, but states that the restaurant owner, who does not own the property, had no legal right to request the union’s removal. The union also denies telling employees of an Ameristar patron that they would not get raises because their boss was “a big gambler.”

The union did urge people outside businesses owned by two of the patrons to boycott those businesses because the owners were Ameristar customers but holds that conduct is protected speech, according to the brief. It also sent mail to customers of one patron’s restaurant advising them of a government food service establishment inspection and to members of the medical community detailing how another patron’s dental license had been revoked.

“Unions are not limited to spreading negative publicity about the labor dispute itself,” the brief states. “This principle applies when unions criticize a neutral business.”

The union cites the well-publicized 2011 lawsuit against the Westboro Baptist Church by the family of a gay service member killed in the line of duty after the church’s members picketed the soldier’s funeral with offensive signs and posters. Despite the obvious hurt the conduct caused the family, the Supreme Court ruled that it was protected by the First Amendment.

“If the First Amendment protects from liability those who use a private funeral to convey vulgar and hostile views about the deceased … it must also protect Local 1’s efforts to garner community support for workers who have lost their health insurance by exposing the customers as boycott violators,” the union wrote.

The brief was filed by Kristin L. Martin of the firm of McCracken, Stemerman & Holsberry, LLP.

Ameristar is represented by Schiff Hardin of Chicago.

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Organizations in this Story

Ameristar Casino Hotel East Chicago Schiff Hardin LLP U.S. District Court for the Northern District of Illinois Unite Here Local 1