In National Labor Relations Board v. Virginia Electric and Power, 314 U.S. 469 (1941), the Supreme Court examined the degree to which the government can ascertain illegal activity on the basis of words, issued in a company bulletin and in speeches, which would otherwise be protected by the First Amendment. The National Labor Relations Board (NLRB) had decided, partly on the basis of statements by Virginia Power and Electric, that the company was illegally attempting to coerce its employees to join an inside labor group rather than an outside union. The Supreme Court did not think the evidence at hand was sufficient to support that conclusion.

Writing for a unanimous court, Justice Francis W. Murphy decided that “conduct, though evidenced in part by speech, may amount . . . to coercion within the meaning of the Act.” In cases where “language merges into a course of conduct,” the NLRB had “a right to look at what the Company has said, as well as what it has done.” Because the Court could not tell from the record whether the NLRB had judged the utterances by themselves or in light of their background, it remanded the case for further consideration by the NLRB.

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