Public Issue Picketing and Parading.—The early cases held that picketing and parading were forms of expression entitled to some First Amendment protection.1242 Those early cases did not, however, explicate the difference in application of First Amendment principles which the difference between mere expression and speech-plus would entail. Many of these cases concerned disruptions or feared disruptions of the public peace occasioned by the expressive activity and the ramifications of this on otherwise protected activity.1243 A series of other cases concerned the permissible characteristics of permit systems in which parades and meetings were licensed, and more recent cases have expanded the procedural guarantees which must accompany a permissible licensing system.1244 In one case, however, the Court applied the rules developed with regard to labor picketing to uphold an injunction against the picketing of a grocery chain by a black group to compel the chain to adopt a quota-hiring system for blacks. The Supreme Court affirmed the state courts’ ruling that, while no law prevented the chain from hiring blacks on a quota basis, picketing to coerce the adoption of racially discriminatory hiring was contrary to state public policy.1245
1242 Hague v. CIO, 307 U.S. 496 (1939); Cox v. New Hampshire, 312 U.S. 569 (1941); Kunz v. New York, 340 U.S. 290 (1951); Niemotko v. Maryland, 340 U.S. 268 (1951).
1243 Cantwell v. Connecticut, 310 U.S. 296 (1940); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Terminiello v. City of Chicago, 337 U.S. 1 (1949); Feiner v. New York, 340 U.S. 315 (1951).
1244 See, e.g. Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969); National Socialist Party v. Village of Skokie, 432 U.S. 43 (1977); Carroll v. President & Comm'rs of Princess Anne, 393 U.S. 175 (1968).
1245 Hughes v. Superior Court, 339 U.S. 460 (1950). This ruling, allowing content-based restriction, seems inconsistent with NAACP v. Claiborne Hardware, discussed infra under this topic.
A series of civil rights picketing and parading cases led the Court to formulate standards much like those it has established in the labor field, but more protective of expressive activity. The process began with Edwards v. South Carolina,1246 in which the Court reversed a breach of the peace conviction of several blacks for their refusal to disperse as ordered by police. The statute was so vague, the Court concluded, that demonstrators could be convicted simply because their presence “disturbed” people. Describing the demonstration upon the grounds of the legislative building in South Carolina’s capital, Justice Stewart observed that “[t]he circumstances in this case reflect an exercise of these basic [First Amendment] constitutional rights in their most pristine and classic form.”1247 In subsequent cases, the Court observed: “We emphatically reject the notion urged by appellant that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as those amendments afford to those who communicate ideas by pure speech.”1248 “The conduct which is the subject to this statute—picketing and parading— is subject to regulation even though intertwined with expression and association. The examples are many of the application by this Court of the principle that certain forms of conduct mixed with speech may be regulated or prohibited.”1249
The Court must determine, of course, whether the regulation is aimed primarily at conduct, as is the case with time, place, and manner regulations, or whether instead the aim is to regulate content of speech. In a series of decisions, the Court refused to permit restrictions on parades and demonstrations, and reversed convictions imposed for breach of the peace and similar offenses, when, in the Court’s view, disturbance had resulted from opposition to the messages being uttered by demonstrators.1250 More recently, however, the Court upheld a ban on residential picketing in Frisby v. Shultz,1251 finding that the city ordinance was narrowly tailored to serve the “significant” governmental interest in protecting residential privacy. As interpreted, the ordinance banned only picketing that targets a single residence, and it is unclear whether the Court would uphold a broader restriction on residential picketing.1252
1246 372 U.S. 229 (1963).
1247 372 U.S. at 235. See also Fields v. South Carolina, 375 U.S. 44 (1963); Henry v. City of Rock Hill, 376 U.S. 776 (1964).
1248 Cox v. Louisiana, 379 U.S. 536, 555 (1965).
1249 379 U.S. at 563.
1250 Edwards v. South Carolina, 372 U.S. 229 (1963); Cox v. Louisiana, 379 U.S. 536 (1965); Gregory v. City of Chicago, 394 U.S. 111 (1969); Bachellar v. Maryland, 397 U.S. 564 (1970). See also Collin v. Smith, 447 F. Supp. 676 (N.D.Ill.), aff'd, 578 F.2d 1197 (7th Cir.), stay denied, 436 U.S. 953, cert. denied, 439 U.S. 916 (1978).
1251 487 U.S. 474 (1988).
1252 An earlier case involving residential picketing had been resolved on equal protection rather than First Amendment grounds, the ordinance at issue making an exception for labor picketing. Carey v. Brown, 447 U.S. 455 (1980).
In 1982 the Justices confronted a case, that, like Hughes v. Superior Court,1253 involved a “contrary-to-public-policy” restriction on picketing and parading. NAACP v. Claiborne Hardware Co.1254 may join in terms of importance such cases as New York Times Co. v. Sullivan1255 in requiring the States to observe new and enhanced constitutional standards in order to impose liability upon persons for engaging in expressive conduct implicating the First Amendment. The case arose in the context of a protest against racial conditions by black citizens of Claiborne County, Mississippi. Listing demands that included desegregation of public facilities, hiring of black policemen, hiring of more black employees by local stores, and ending of verbal abuse by police, a group of several hundred blacks unanimously voted to boycott the area’s white merchants. The boycott was carried out through speeches and non-violent picketing and solicitation of others to cease doing business with the merchants. Individuals were designated to watch stores and identify blacks patronizing the stores; their names were then announced at meetings and published. Persuasion of others included social pressures and threats of social ostracism. Acts of violence did occur from time to time, directed in the main at blacks who did not observe the boycott.
The state Supreme Court imposed joint and several liability upon leaders and participants in the boycott, and upon the NAACP, for all of the merchants’ lost earnings during a seven-year period on the basis of the common law tort of malicious interference with the merchants’ business, holding that the existence of acts of physical force and violence and the use of force, violence, and threats to achieve the ends of the boycott deprived it of any First Amendment protection.
1253 339 U.S. 460 (1950).
1254 458 U.S. 886 (1982). The decision was unanimous, with Justice Rehnquist concurring in the result and Justice Marshall not participating. The Court’s decision was by Justice Stevens.
1255 376 U.S. 254 (1964).
Reversing, the Court observed that the goals of the boycotters were legal and that most of their means were constitutionally protected; while violence was not protected, its existence alone did not deprive the other activities of First Amendment coverage. Thus, speeches and nonviolent picketing, both to inform the merchants of grievances and to encourage other blacks to join the boycott, were protected activities, and association for those purposes was also protected.1256 That some members of the group might have engaged in violence or might have advocated violence did not result in loss of protection for association, absent a showing that those associating had joined with intent to further the unprotected activities.1257 Nor was protection to be denied because nonparticipants had been urged to join by speech, by picketing, by identification, by threats of social ostracism, and by other expressive acts: “[s]peech does not lose its protected character . . . simply because it may embarrass others or coerce them into action.”1258 The boycott had a disruptive effect upon local economic conditions and resulted in loss of business for the merchants, but these consequences did not justify suppression of the boycott. Government may certainly regulate certain economic activities having an incidental effect upon speech (e.g., labor picketing or business conspiracies to restrain competition),1259 but that power of government does not extend to suppression of picketing and other boycott activities involving, as this case did, speech upon matters of public affairs with the intent of affecting governmental action and motivating private actions to achieve racial equality.1260
1256 NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907-08 (1982).
1257 458 U.S. at 908.
1258 458 U.S. at 910. The Court cited Thomas v. Collins, 323 U.S. 516, 537 (1945), a labor picketing case, and Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971), a public issues picketing case, which had also relied on the labor cases. Compare NLRB v. Retail Store Employees, 447 U.S. 607, 618-19 (1980) (Justice Stevens concurring) (labor picketing that coerces or “signals” others to engage in activity that violates valid labor policy, rather than attempting to engage reason, prohibitable). To the contention that liability could be imposed on “store watchers” and on a group known as “Black Hats” who also patrolled stores and identified black patronizers of the businesses, the Court did not advert to the “signal” theory. “There is nothing unlawful in standing outside a store and recording names. Similarly, there is nothing unlawful in wearing black hats, although such apparel may cause apprehension in others.” 458 U.S. at 925.
1259 See, e.g., FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411 (1990) (upholding application of per se antitrust liability to trial lawyers association’s boycott designed to force higher fees for representation of indigent defendants by court-appointed counsel).
1260 458 U.S. at 912-15. In evaluating the permissibility of government regulation in this context that has an incidental effect on expression, the Court applied the standards of United States v. O'Brien, 391 U.S. 367, 376-77 (1968), which requires that the regulation be within the constitutional power of government, that it further an important or substantial governmental interest, that it be unrelated to the suppression of speech, and that it impose no greater restraint on expression than is essential to achievement of the interest.
The critical issue, however, had been the occurrence of violent acts and the lower court’s conclusion that they deprived otherwise protected conduct of protection. “The First Amendment does not protect violence .... No federal rule of law restricts a State from imposing tort liability for business losses that are caused by violence and by threats of violence. When such conduct occurs in the context of constitutionally protected activity, however, ‘precision of regulation’ is demanded .... Specifically, the presence of activity protected by the First Amendment imposes restraints on the grounds that may give rise to damages liability and on the persons who may be held accountable for those damages.”1261 In other words, the States may impose damages for the consequences of violent conduct, but they may not award compensation for the consequences of nonviolent, protected activity.1262 Thus, the state courts had to compute, upon proof by the merchants, what damages had been the result of violence, and could not include losses suffered as a result of all the other activities comprising the boycott. And only those nonviolent persons who associated with others with an awareness of violence and an intent to further it could similarly be held liable.1263 Since most of the acts of violence had occurred early on, in 1966, there was no way constitutionally that much if any of the later losses of the merchants could be recovered in damages.1264 As to the head of the local NAACP, the Court refused to permit imposition of damages based upon speeches that could be read as advocating violence, inasmuch as any violent acts that occurred were some time after the speeches, and a “clear and present danger” analysis of the speeches would not find them punishable.1265 The award against the NAACP fell with the denial of damages against its local head, and, in any event, the protected right of association required a rule that would immunize the NAACP without a finding that it “authorized—either actually or apparently—or ratified unlawful conduct.”1266
1261 458 U.S. at 916-17.
1262 458 U.S. at 917-18.
1263 458 U.S. at 918-29, relying on a series of labor cases and on the subversive activities association cases, e.g., Scales v. United States, 367 U.S. 203 (1961), and Noto v. United States, 367 U.S. 290 (1961).
1264 458 U.S. at 920-26. The Court distinguished Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287 (1941), in which an injunction had been sustained against both violent and nonviolent activity, not on the basis of special rules governing labor picketing, but because the violence had been “pervasive.” 458 U.S. at 923.
1265 458 U.S. at 926-29. The head’s “emotionally charged rhetoric . . . did not transcend the bounds of protected speech set forth in Brandenburg v. Ohio, 395 U.S. 444 (1969).”
1266 458 U.S. at 931. In ordinary business cases, the rule of liability of an entity for actions of its agents is broader. E.g., American Soc'y of Mech. Eng'rs v. Hydrolevel Corp., 456 U.S. 556 (1982). The different rule in cases of organizations formed to achieve political purposes rather than economic goals appears to require substantial changes in the law of agency with respect to such entities. Note, 96 HARV. L. REV. 171, 174-76 (1982).
Claiborne Hardware is, thus, a seminal decision in the Court’s effort to formulate standards governing state power to regulate or to restrict expressive conduct that comes close to or crosses over the line to encompass some violent activities; it requires great specificity and the drawing of fine discriminations by government so as to reach only that portion of the activity that does involve violence or the threat of violence, and forecloses the kind of “public policy” limit on demonstrations that was approved in Hughes v. Superior Court.1267
More recently, disputes arising from anti-abortion protests outside abortion clinics have occasioned another look at principles distinguishing lawful public demonstrations from proscribable conduct. In Madsen v. Women’s Health Center,1268 the Court refined principles governing issuance of “content-neutral” injunctions that restrict expressive activity.1269 The appropriate test, the Court stated, is “whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant governmental interest.”1270 Regular time, place, and manner analysis (requiring that regulation be narrowly tailored to serve a significant governmental interest) “is not sufficiently rigorous,” the Court explained, “because injunctions create greater risk of censorship and discriminatory application, and because of the established principle that an injunction should be no broader than necessary to achieve its desired goals.”1271 Applying its new test, the Court upheld an injunction prohibiting protesters from congregating, picketing, patrolling, demonstrating, or entering any portion of the public right-of-way within 36 feet of an abortion clinic. Similarly upheld were noise restrictions designed to ensure the health and well-being of clinic patients. Other aspects of the injunction, however, did not pass the test. Inclusion of private property within the 36-foot buffer was not adequately justified, nor was inclusion in the noise restriction of a ban on “images observable” by clinic patients. A ban on physically approaching any person within 300 feet of the clinic unless that person indicated a desire to communicate burdened more speech than necessary. Also, a ban on demonstrating within 300 feet of the residences of clinic staff was not sufficiently justified, the restriction covering a much larger zone than an earlier residential picketing ban that the Court had upheld.1272
1267 “Concerted action is a powerful weapon. History teaches that special dangers are associated with conspiratorial activity. And yet one of the foundations of our society is the right of individuals to combine with other persons in pursuit of a common goal by lawful means.”
“[P]etitioners’ ultimate objectives were unquestionably legitimate. The charge of illegality . . . derives from the means employed by the participants to achieve those goals. The use of speeches, marches, and threats of social ostracism cannot provide the basis for a damages award. But violent conduct is beyond the pale of constitutional protection.”
“The taint of violence colored the conduct of some of the petitioners. They, of course, may be held liable for the consequences of their violent deeds. The burden of demonstrating that it colored the entire collective effort, however, is not satisfied by evidence that violence occurred or even that violence contributed to the success of the boycott. [The burden can be met only] by findings that adequately disclose the evidentiary basis for concluding that specific parties agreed to use unlawful means, that carefully identify the impact of such unlawful conduct, and that recognizes the importance of avoiding the imposition of punishment for constitutionally protected activity.... A court must be wary of a claim that the true color of a forest is better revealed by reptiles hidden in the weeds than by the foliage of countless freestanding trees.” 458 U.S. at 933-34.
1268 512 U.S. 753 (1994).
1269 The Court rejected the argument that the injunction was necessarily content-based or viewpoint-based because it applied only to anti-abortion protesters. “An injunction by its very nature applies only to a particular group (or individuals).... It does so, however, because of the group’s past actions in the context of a specific dispute.” There had been no similarly disruptive demonstrations by pro-abortion factions at the abortion clinic. 512 U.S. at 762.
In Schenck v. Pro-Choice Network of Western New York,1273 the Court applied Madsen to another injunction that placed restrictions on demonstrating outside an abortion clinic. The Court upheld the portion of the injunction that banned “demonstrating within fifteen feet from either side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways and driveway entrances of such facilities” what the Court called “fixed buffer zones.”1274 It struck down a prohibition against demonstrating “within fifteen feet of any person or vehicles seeking access to or leaving such facilities” what it called “floating buffer zones.”1275
The Court cited “public safety and order”1276 in upholding the fixed buffer zones, but it found that the floating buffer zones “burden more speech than is necessary to serve the relevant governmental interests”1277 because they make it “quite difficult for a protester who wishes to engage in peaceful expressive activity to know how to remain in compliance with the injunction.”1278 The Court also upheld a “provision, specifying that once sidewalk counselors who had entered the buffer zones were required to ‘cease and desist’ their counseling, they had to retreat 15 feet from the people they had been counseling and had to remain outside the boundaries of the buffer zones.”1279
1270 512 U.S. at 765.
1271 512 U.S. at 765.
1272 Referring to Frisby v. Schultz, 487 U.S. 474 (1988).
1273 519 U.S. 357 (1997).
1274 519 U.S. at 366 n.3.
1275 519 U.S. at 366 n.3.
1276 519 U.S. at 376.
1277 519 U.S. at 377.
1278 519 U.S. at 378.
1279 519 U.S. at 367.
In Hill v. Colorado,1280 the Court upheld a Colorado statute that makes it unlawful, within 100 feet of the entrance to any health care facility, to “knowingly approach” within eight feet of another person, without that person’s consent, “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.”1281 This decision is notable because it upheld a statute, and not, as in Madsen and Schenck, merely an injunction directed to particular parties. The Court found the statute to be a content-neutral time, place, and manner regulation of speech that “reflects an acceptable balance between the constitutionally protected rights of law-abiding speakers and the interests of unwilling listeners....”1282 The restrictions are content-neutral because they regulate only the places where some speech may occur, and because they apply equally to all demonstrators, regardless of viewpoint. Although the restrictions do not apply to all speech, the “kind of cursory examination” that might be required to distinguish casual conversation from protest, education, or counseling is not “problematic.”1283 The law is narrowly tailored to achieve the state’s interests. The eight-foot restriction does not significantly impair the ability to convey messages by signs, and ordinarily allows speakers to come within a normal conversational distance of their targets. Because the statute allows the speaker to remain in one place, persons who wish to hand out leaflets may position themselves beside entrances near the path of oncoming pedestrians, and consequently are not deprived of the opportunity to get the attention of persons entering a clinic.
Different types of issues were presented by Hurley v. Irish-American Gay Group,1284 in which the Court held that a state’s public accommodations law could not be applied to compel private organizers of a St. Patrick’s Day parade to accept in the parade a unit that would proclaim a message that the organizers did not wish to promote. Each participating unit affects the message conveyed by the parade organizers, the Court observed, and application of the public accommodations law to the content of the organizers’ message contravened the “fundamental rule . . . that a speaker has the autonomy to choose the content of his own message.”1285
1280 530 U.S. 703 (2000).
1281 530 U.S. at 707.
1282 530 U.S. at 714.
1283 530 U.S. at 722.
1284 515 U.S. 557 (1995).
1285 515 U.S. at 573.
Last modified: June 9, 2014