Picketing and Boycotts by Labor Unions.—Though “logically relevant” to what might be called “public issue” picketing, the cases dealing with application of economic pressures by labor unions are set apart by different “economic and social interests,”1231 and consequently are dealt with separately here.
It was in a labor case that the Court first held picketing to be entitled to First Amendment protection.1232 Striking down a flat prohibition on picketing to influence or induce someone to do something, the Court said: “In the circumstances of our times the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution ....”1233 The Court further reasoned that “the group in power at any moment may not impose penal sanctions on peaceful and truthful discussion of matters of public interest merely on a showing that others may thereby be persuaded to take action inconsistent with its interests. Abridgment of the liberty of such discussion 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.”1234
1231 Niemotko v. Maryland, 340 U.S. 268, 276 (1951) (Justice Frankfurter concurring).
1232 Thornhill v. Alabama, 310 U.S. 88 (1940). Picketing as an aspect of communication was recognized in Senn v. Tile Layers Union, 301 U.S. 468 (1937).
The Court soon recognized several caveats. Peaceful picketing may be enjoined if it is associated with violence and intimidation.1235 Although initially the Court continued to find picketing protected in the absence of violence,1236 it soon decided a series of cases recognizing a potentially far-reaching exception: injunctions against peaceful picketing in the course of a labor controversy may be enjoined when such picketing is counter to valid state policies in a domain open to state regulation.1237 These cases proceeded upon a distinction drawn by Justice Douglas. “Picketing by an organized group is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated. Hence those aspects of picketing make it the subject of restrictive regulations.”1238 The apparent culmination of this course of decision was the Vogt case, in which Justice Frankfurter broadly rationalized all the cases and derived the rule that “a State, in enforcing some public policy, whether of its criminal or its civil law, and whether announced by its legislature or its courts, could constitutionally enjoin peaceful picketing aimed at preventing effectuation of that policy.”1239 While the Court has not disavowed this broad language, the Vogt exception has apparently not swallowed the entire Thorn-hill rule.1240 The Court has indicated that “a broad ban against peaceful picketing might collide with the guarantees of the First Amendment.”1241
1233 310 U.S. at 102.
1234 310 U.S. at 104-05. See also Carlson v. California, 310 U.S. 106 (1940). In AFL v. Swing, 312 U.S. 321 (1941), the Court held unconstitutional an injunction against peaceful picketing based on a State’s common-law policy against picketing in the absence of an immediate dispute between employer and employee.
1235 Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287 (1941).
1236 Bakery & Pastry Drivers Local v. Wohl, 315 U.S. 769 (1942); Carpenters & Joiners Union v. Ritter’s Cafe, 315 U.S. 722 (1942); Cafeteria Employees Union v. Angelos, 320 U.S. 293 (1943).
1237 Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) (upholding on basis of state policy forbidding agreements in restraint of trade an injunction against picketing to persuade business owner not to deal with non-union peddlers); International Bhd. of Teamsters v. Hanke, 339 U.S. 470 (1950) (upholding injunction against union picketing protesting non-union proprietor’s failure to maintain union shop card and observe union’s limitation on weekend business hours); Building Service Emp. Intern. Union v. Gazzam, 339 U.S. 532 (1950) (injunction against picketing to persuade innkeeper to sign contract that would force employees to join union in violation of state policy that employees’ choice not be coerced); Local 10, United Ass'n of Journeymen Plumbers v. Graham, 345 U.S. 192 (1953) (injunction against picketing in conflict with state’s Right to Work Statute).
1238 Bakery & Pastry Drivers Local v. Wohl, 315 U.S. 769, 776-77 (1942) (concurring opinion).
1239 International Bhd. of Teamsters v. Vogt, 354 U.S. 284, 293 (1957). See also American Radio Ass'n v. Mobile Steamship Ass'n, 419 U.S. 215, 228-32 (1974); NLRB v. Retail Store Employees, 447 U.S. 607 (1980); International Longshore-mens’ Ass'n v. Allied International, 456 U.S. 212, 226-27 (1982).
1240 The dissenters in Vogt asserted that the Court had “come full circle” from Thornhill. 354 U.S. at 295 (Justice Douglas, joined by Chief Justice Warren and Justice Black).
1241 NLRB v. Fruit & Vegetable Packers, 377 U.S. 58, 63 (1964) (requiring - and finding absent in NLRA - “clearest indication” that Congress intended to prohibit all consumer picketing at secondary establishments). See also Youngdahl v. Rainfair, 355 U.S. 131, 139 (1957) (indicating that where violence is scattered through time and much of it was unconnected with the picketing, the State should proceed against the violence rather than the picketing).
Last modified: June 9, 2014