First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Supreme Court has suggested that “public-issue picketing” rests “on the highest rung of the hierarchy of First Amendment values,” while labor picketing might be treated somewhat differently.1 Though the public issue cases are “logically relevant” to labor picketing, the cases dealing with application of economic pressures by labor unions are set apart by different “economic and social interests.” 2

It was in a labor case that the Court first held picketing to be entitled to First Amendment protection.3 Striking down a flat prohibition on picketing with intent 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.” 4 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.” 5

The Court soon recognized several caveats to this protection, saying, for example, that peaceful picketing may be enjoined if it is associated with violence and intimidation.6 Although initially the Court continued to find picketing protected in the absence of violence,7 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.8 The apparent culmination of this course of decision was International Brotherhood of Teamsters v. Vogt, in which Justice Felix 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.” 9 Although the Court has not disavowed this broad language, the Vogt exception has apparently not swallowed the entire Thornhill rule.10 The Court has indicated that “a broad ban against peaceful picketing might collide with the guarantees of the First Amendment.” 11

Footnotes

1

Carey v. Brown, 447 U.S. 455, 466–67 (1980).

2

Niemotko v. Maryland, 340 U.S. 268, 276 (1951).

3

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).

4

310 U.S. at 102.

5

Id. at 104. 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.

6

Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287 (1941).

7

Bakery & Pastry Drivers Local v. Wohl, 315 U.S. 769 (1942); Carpenters & Joiners Union v. Ritter’s Cafe, 315 U.S. 722 (1942); Cafeteria Emps. Union v. Angelos, 320 U.S. 293 (1943).

8

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); Int’l 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 Serv. Emp. Int’l 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).

9

Int’l Bhd. of Teamsters v. Vogt, 354 U.S. 284, 293 (1957). See also Am. Radio Ass’n v. Mobile S.S. Ass’n, 419 U.S. 215, 228–32 (1974); NLRB v. Retail Store Emps., 447 U.S. 607 (1980); Int’s Longshoremens’ Ass’n v. Allied Int’l, 456 U.S. 212, 226–27 (1982).

10

The dissenters in Vogt asserted that the Court had “come full circle” from Thornhill. 354 U.S. at 295 (Douglas, J., joined by Warren, C.J., and Black, J.).

11

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).