WHITE, J., Concurring Opinion

SUPREME COURT OF THE UNITED STATES

424 U.S. 507

Hudgens v. National Labor Relations Board

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MR. JUSTICE WHITE, concurring in the result.

While I concur in the result reached by the Court, I find it unnecessary to inter Food Employees v. Logan Valley Plaza, 391 U.S. 308"]391 U.S. 308 (1968), and therefore do not join the Court's opinion. I agree that "the constitutional guarantee of free expression has no part to play in a case such as this," ante at 521; but 391 U.S. 308 (1968), and therefore do not join the Court's opinion. I agree that "the constitutional guarantee of free expression has no part to play in a case such as this," ante at 521; but Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), did not overrule Logan Valley, either expressly or implicitly, and I would not, somewhat after the fact, say that it did.

One need go no further than Logan Valley itself, for the First Amendment protection established by Logan Valley was expressly limited to the picketing of a specific store for the purpose of conveying information with respect to the operation in the shopping center of that store:

The picketing carried on by petitioners was [p525] directed specifically at patrons of the Weis Market located within the shopping center, and the message sought to be conveyed to the public concerned the manner in which that particular market was being operated. We are, therefore, not called upon to consider whether respondents' property rights could, consistently with the First Amendment, justify a bar on picketing which was not thus directly related in its purpose to the use to which the shopping center property was being put.

391 U.S. at 320 n. 9. On its face, Logan Valley does not cover the facts of this case. The pickets of the Butler Shoe Co. store in the North DeKalb Shopping Center were not purporting to convey information about the "manner in which that particular [store] was being operated." but rather about the operation of a warehouse not located on the center's premises. The picketing was thus not "directly related in its purpose to the use to which the shopping center property was being put."

The First Amendment question in this case was left open in Logan Valley. I dissented in Logan Valley, 391 U.S. p. 337, and I see no reason to extend it further. Without such extension, the First Amendment provides no protection for the picketing here in issue, and the Court need say no more. Lloyd v. Tanner is wholly consistent with this view. There is no need belatedly to overrule Logan Valley, only to follow it as it is.