In the case of National Labor Relations Board v. Express Publishing Co., 1940, the Supreme Court ruled in favor of the National Labor Relations Board (NLRB). The Express Publishing Company had refused to bargain with a union that was certified by NLRB as an exclusive representative for its employees, arguing that it did not believe the union represented a majority of its workers. The company also published editorials criticizing labor unions and expressing opposition to collective bargaining. The court held that such refusal constituted unfair labor practices under Section 8(1) and (5) of the National Labor Relations Act because employers are required to negotiate with duly elected representatives regardless their personal beliefs about those representatives' legitimacy or effectiveness. Furthermore, while acknowledging First Amendment rights, it stated these do not protect attempts by employers to interfere with employee's self-organization rights through means like publishing anti-union sentiments.

In the dissenting opinion for the case of National Labor Relations Board v. Express Publishing Co., Justice McReynolds expressed his disagreement with the majority's decision to uphold a ruling by the National Labor Relations Board (NLRB) that found Express Publishing Company guilty of unfair labor practices. He argued that there was no substantial evidence supporting this claim, and thus it should not have been upheld. Furthermore, he contended that even if such evidence existed, it would be irrelevant because in his view, employers should retain their right to free speech under all circumstances - including those involving labor disputes or unionization efforts among employees. This includes expressing opinions against unions without fear of being accused of coercion or interference with employee rights under Section 8(1) of the Wagner Act (National Labor Relations Act). In essence, Justice McReynolds believed that upholding such a ruling from NLRB infringed upon an employer’s First Amendment rights.