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
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.
PICKETING, said the U.S. Supreme Court in 1941, is "the workingman's means of communication." The nonviolent competitive tactics of workers in labor disputes with employers have traditionally been limited to the strike, the secondary boycott, and the picket line. To get the employer or other entity being picketed to accede to their demands, picketers seek to impede deliveries and services; to cause employees to refuse to cross the line to work; to muster consumer sympathy to withhold patronage; and to be a "rallyround" symbol for the picketers and other workers. Their objective may be either to get recognition as the bargainers for employees or to gain economic demands.
Picketing has promoted interests other than those of workers, notably in protests against racial discrimination. For instance, African Americans in the first half of the twentieth century launched "Don't Buy Where You Can't Work" pickets against employers who practiced racial discrimination when hiring. But its history is very strongly linked to public policy regulatory of labor-management disputes. Very few states have comprehensive statutes governing labor disputes. At common law, state courts have been divided over the legality of picketing. Most have held it to be an unjustified infliction of economic harm. Some, as in California, in Messner v. Journeymen Barbers (1960), have refused to take sides in these competitive situations. They have reasoned that risks of loss among competitors should not be abated by courts, absent statutory regulation, since hardship does not make less legitimate the objectives of a union seeking organization, or of a nonunion shop resisting it, or of nonunion workers who may either join or resist. A number of courts, without statutory standards, enjoin picketing to forestall economic hardship, even though a decree merely shifts the loss from one competitor (the employer) to another (the union). Federal law is mostly statutory; it regulates picketing in terms of purposes and effects under the National Labor Relations Act of 1935, as amended in 1947 and 1959, and usually preempts state law.
In 1940 the Supreme Court added a constitutional dimension to the existing common law and to statutory law. In Thornhill v. Alabama it declared that picketing is a right of communication under the First and Fourteenth amendments, although regulation is available to curb numbers, threats, obstruction, fraud, misrepresentation, or violence. Still, the Court has had trouble in reconciling the conduct of patrolling with what, rather artificially, it has termed "pure speech"—oral communication, in contrast to overall communicative conduct—and in balancing regulatory policies against the communication values inherent in picketing. Teamsters v. Vogt (1957) seemed to strip constitutional insulation from picketers, leaving them open to sweeping injunctions, excepting only outright prohibition. But Food Employees v. Logan Valley Plaza (1968) cautioned that controls, improper for "pure speech" but proper for picketing because of the intermingling of protected
speech and unprotected conduct, must still be applied to avoid impairment of the speech elements.
The conditions under which picketing is judged legally acceptable change according to the composition of judges, and the political bent of the current presidential administration. The National Labor Relations Board in the 1990s and early twenty-first century ruled rather narrowly on which pickets were acceptable. Pickets are best understood in the broader context of labor history (see cross-references).
Brecher, Jeremy. Strike! Revised and updated ed. Boston: South End Press, 1997.
Gould, William B. Labored Relations: Law, Politics, and the NLRB—a Memoir. Cambridge, Mass.: MIT Press, 2000.
Gross, James A. Broken Promise: The Subversion of U.S. Labor Relations Policy, 1947–1994. Philadelphia: Temple University Press, 1995.
Edgar J.JonesJr./d. b.
The presence at an employer's business of one or more employees and/or other persons who are publicizing a labor dispute, influencing employeesor customers to withhold their work or business, respectively, or showing a union's desire to represent employees; picketing is usually accompanied by patrolling with signs.