PICKETING

Picketing typically consists of one or more persons patrolling or stationed at a particular site, carrying or wearing large signs with a clearly visible message addressed to individuals or groups approaching the site. Some form of confrontation between the pickets and their intended addressees appears an essential ingredient of picketing. Congress and the National Labor Relations Board have distinguished between picketing and handbilling, however, and merely passing out leaflets without carrying a placard does not usually constitute picketing. What stamps picketing as different from more conventional forms of communication, for constitutional and other legal purposes, ordinarily seems to be the combination of a sign big enough to be seen easily and a confrontation between picketer and viewer.

Constitutional determinations concerning picketing have usually involved labor unions that are advertising a dispute with employers and appealing to the public or fellow employees for support. The assistance sought might be a refusal by customers to patronize the picketed business or a refusal by workers to perform services or make deliveries there. In addition, picketing has often been a weapon of civil rights demonstrators, political and religious activists, environmentalists, and other interest groups.

The leading Supreme Court decision upholding picketing as an exercise of freedom of speech protected by the first amendment is thornhill v. alabama (1940). In striking down a state antipicketing statute, Justice frank murphy declared that an abridgment of the right to publicize through picketing or similar activity "can be justified only where the clear danger of substantive evils arises under circumstances affording no opportunity to test the merits of ideas by competition for acceptance in the market of public opinion." Despite this sweeping language, the actual holding in Thornhill was narrow. The Alabama courts were prepared to apply a criminal statute to prohibit a single individual from patrolling peacefully in front of an employer's establishment carrying a sign stating truthfully that the employer did not employ union labor.

followingThornhill two principal themes have dominated the Supreme Court's analysis of the constitutional status of picketing. One is the "unlawful objectives" test and the other is the concept of picketing as "speech plus." Under the first approach, as illustrated by giboney v. empire storage & ice co. (1949), even peaceful picketing may be proscribed if its "sole, unlawful immediate objective" is the violation of a valid public policy or statutory mandate. Picketing is treated like any other type of communication, oral or written, which may also be forbidden if it produces a clear and present danger of, or a direct incitement to, substantive evils that government is entitled to prevent. A message delivered by pickets, however, might constitute a clearer and more present danger than the same message in a newspaper advertisement, for picketing physically confronts the addressee at the very moment of decision.

A conceptual weakness of the "unlawful objectives" test is that it can sustain almost any restriction on picketing by too loose a characterization of the pickets' purpose as illegal. In Teamsters Local 695 v. Vogt, Inc. (1957), a 5–3 Supreme Court upheld a state court injunction against peaceful organizational picketing on the ground that its purpose was to coerce the employer to force its employees to join the union. Even so, in Amalgamated Food Employees Union v. Logan Valley Plaza (1968) Justice thurgood marshall could sum up the prior doctrine by declaring that the cases in which picketing bans had been approved "involved picketing that was found either to have been directed at an illegal end … or to have been directed to coercing a decision by an employer which, although in itself legal, could validly be required by the State to be left to the employer's free choice."

Picketing as "speech plus" refers to two elements that arguably distinguish it from pure speech. First, it involves physical activity, usually the patrolling of a particular location. It is therefore subject to trespass laws, and to other laws governing the time, place, and manner of expression, such as laws limiting sound levels, regulating parades, or forbidding the obstruction of public ways. Furthermore, picketing enmeshed with violence or threats of violence may be enjoined or prosecuted as assault and battery. Second, picketing may serve as a "signal" for action, especially by organized groups like labor unions, without regard to the ideas being disseminated. Some scholars have challenged the "pure speech/speech plus" dichotomy, contending that all speech, oral or written, has certain physical attributes, and can evoke stock responses from a preconditioned audience.

A further strand of Supreme Court free speech analysis is the notion that government may not engage in "content control." Thus, in police department of chicago v. mosley (1972) the Court invalidated a city ordinance that forbade all picketing next to any school while it was in session, but exempted "peaceful picketing of any school involved in a labor dispute." That constituted "an impermissible distinction between labor and other peaceful picketing." The "no content control" doctrine obviously must be qualified by the "unlawful objectives" test.

In 1980 the Supreme Court extended the "unlawful objectives" test so far as to strip it of any practical limitations. A 6–3 majority held in NLRB v. Retail Employees Local 1001 (Safeco) that picketing asking customers not to buy a nonunion product being distributed by a second party was an unlawful boycott of the distributor. Six Justices considered the prohibition justified constitutionally by Congress's purpose of blocking the "coercing" or "embroiling" of neutrals in another party's labor dispute. In Safeco, for the first time ever, the Supreme Court clearly sustained a ban on peaceful and orderly picketing addressed to, and calling for seemingly lawful responses by, individual consumers acting on their own.

Safeco might be explained on the basis that labor picketing is only "economic speech," like commercial advertising, and thus subject to lesser constitutional safeguards than political or ideological speech. Although such a distinction would contradict both established precedent and the traditional recognition of picketing as the working person's standard means of communication, at least it would preserve full-fledged free speech protections for picketing to promote political and ideological causes.

Theodore J. St. Antoine
(1986)

Bibliography

Cox, Archibald 1951 Strikes, Picketing and the Constitution. Vanderbilt Law Review 4:574–602.

Gregory, Charles O. and Katz, Harold A. (1946) 1979 Labor and the Law. New York: Norton.

Jones, Edgar A., Jr. 1956 Free Speech: Pickets on the Grass, Alas!—Amidst Confusion, a Consistent Principle. Southern California Law Review 29:137–181.