Due to the most recent pronouncements of the United States Supreme Court and the Supreme Court of Ohio, construing laws regulating or prohibiting picketing in residential areas, with specific inquiry as to whether such laws are content-based or content-neutral, I must concur with the majority that R.C.4117.11 (B)(7) is unconstitutional. See Carey v. Brown (1980),447 U.S. 455, 100 S. Ct. 2286, 65 L. Ed. 2d 263, Madsen v. Women'sHealth Ctr., Inc. (1994), 512 U.S. 753, 114 S. Ct. 2516,129 L. Ed. 2d 593; Seven Hills v. Aryan Nations (1996), 76 Ohio St. 3d 304,667 N.E.2d 942.
As to R.C. 4117.11 (B)(8) (the advance-notice provision), I agree with the majority that this section, as applied in this instance to peaceful information dissemination, is not justified as being in this state's interest in protecting the safety of the citizenry, or protecting and preserving public services. The facts show that the call for picketing here was of a peaceful informational nature. There was no call for work stoppage, or other such concerted action, to be taken by those who appeared for such picketing. Accordingly, as to these appellants, the statute is unconstitutionally applied.
However, I am not convinced that R.C. 4117.11 (B)(8) is inherently unconstitutional as written. I conclude that it may well serve the public purpose in some limited instances, and not be an unbridled prior restraint of speech.
R.C. 4117.11 (B)(8) does not permit SERB to deny a permit, or deny free speech. Instead, it merely requires that an employee organization, or public employees, give notice to their employer and to SERB, ten days prior to any "picketing, striking, or otherconcerted refusal to work." (Emphasis added.)
Where there is a planned concerted refusal to work, involving picketing, striking, or other related activity, the ten-day requirement does not constitute an unreasonably long period of time. Such a notice may be essential in order for the state to maintain stable labor relations and ensure the delivery of essential services that are vital to the public welfare. *Page 358
Concluding, I concur that R.C. 4117.11 (B)(7) is unconstitutional. I dissent from the majority's holding that R.C.4117.11 (B)(8) is facially unconstitutional. However, I concur with the majority that such section has been unconstitutionally applied in this instance.