Picketing and Boycotts by Labor Unions.

Though “logi-cally 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,”1505 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.1506 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. . . .”1507 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.”1508

The Court soon recognized several caveats. Peaceful picketing may be enjoined if it is associated with violence and intimidation.1509 Although initially the Court continued to find picketing protected in the absence of violence,1510 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.1511 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.”1512 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.”1513 Although the Court has not disavowed this broad language, the Vogt exception has apparently not swallowed the entire Thornhill rule.1514 The Court has indicated that “a broad ban against peaceful picketing might collide with the guarantees of the First Amendment.”1515

Footnotes

1505
Niemotko v. Maryland, 340 U.S. 268, 276 (1951). [Back to text]
1506
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). [Back to text]
1507
310 U.S. at 102. [Back to text]
1508
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. [Back to text]
1509
Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287 (1941). [Back to text]
1510
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). [Back to text]
1511
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). [Back to text]
1512
Bakery & Pastry Drivers Local v. Wohl, 315 U.S. 769, 776–77 (1942) (concurring opinion). [Back to text]
1513
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 Longshoremens’ Ass’n v. Allied International, 456 U.S. 212, 226–27 (1982). [Back to text]
1514
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). [Back to text]
1515
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). [Back to text]