BE&K Constr. Co. v. NLRB, 536 U.S. 516, 15 (2002)

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Opinion of the Court

violates the NLRA even if reasonably based. If it may, the resulting finding of illegality is a burden by itself. In addition to a declaration of illegality and whatever legal consequences flow from that, the finding also poses the threat of reputational harm that is different and additional to any burden posed by other penalties, such as a fee award. Because we can resolve this case by looking only at the finding of illegality, we need not decide whether the Board otherwise has authority to award attorney's fees when a suit is found to violate the NLRA.

Having identified this burden, we must examine the petitioning activity it affects. In Bill Johnson's, we held that the Board may not enjoin reasonably based state court lawsuits in part because of First Amendment concerns. 461 U. S., at 742-743. We implied those concerns are no longer present when a suit ends because "the employer has had its day in court." Id., at 747. By analogy to other areas of First Amendment law, one might assume that any concerns related to the right to petition must be greater when enjoining ongoing litigation than when penalizing completed litigation. After all, the First Amendment historically provides greater protection from prior restraints than after-the-fact penalties, see Alexander v. United States, 509 U. S. 544, 553- 554 (1993), and enjoining a lawsuit could be characterized as a prior restraint, whereas declaring a completed lawsuit unlawful could be characterized as an after-the-fact penalty on petitioning. But this analogy at most suggests that injunctions may raise greater First Amendment concerns, not that after-the-fact penalties raise no concerns. Likewise, the fact that Bill Johnson's allowed certain baseless suits to be enjoined tells little about the propriety of imposing penalties on various classes of nonbaseless suits.

We said in Bill Johnson's that the Board could enjoin baseless retaliatory suits because they fell outside of the First Amendment and thus were analogous to "false statements." 461 U. S., at 743. We concluded that "[j]ust as false state-

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