Picketing
Picketing is a form of protest where individuals gather, often with signs, to publicly express their support for or opposition to specific issues. Historically, it has been closely tied to labor disputes, serving as a method for workers to voice grievances during strikes or labor negotiations. In the United States, the legal framework surrounding picketing is shaped by the First Amendment, which protects free speech, although the Supreme Court has upheld various laws that restrict picketing in certain contexts. Notably, labor picketing may face stricter regulations compared to picketing related to broader social issues.
The Supreme Court has recognized the right to peaceful picketing, affirming that it can serve as an essential tool for social change, as seen in landmark cases related to civil rights and anti-abortion protests. While picketers are entitled to express their views, government entities can impose reasonable restrictions regarding the time, place, and manner of such protests. This balance aims to protect both the rights of the protesters and the rights of those potentially affected by their actions, reflecting a complex interplay of free expression and community order. Overall, picketing remains a significant method for individuals and groups to advocate for their causes, navigating the legal nuances that govern this form of protest.
Picketing
- DEFINITION: A form of protest involving people bearing placards who seek to inform hearers of their position in a dispute or to discourage hearers from patronizing particular businesses or institutions.
- SIGNIFICANCE: Picketing is frequently subjected to government restriction.
Historically, picketing has been most closely associated with protests involving labor disputes. Picketing has also been used to communicate positions involving a variety of public issues. In the United States, the Supreme Court has upheld a wide variety of laws restricting picketing, but it has nevertheless recognized that this form of protest is entitled to some degree of First Amendment protection. Generally, the Supreme Court has allowed more substantial restrictions of labor picketing than picketing concerning public issues.
Labor Picketing
During the nineteenth century and the early years of the twentieth century, most Anglo-American judges considered labor picketing illegal. Since the common law prohibited combinations of merchants that created a monopoly in a particular area of trade, judges reasoned that combinations of workers were similarly contrary to the law. Eventually, however, organized labor gained legal recognition under New Deal legislation proposed by President Franklin D. Roosevelt, and the Supreme Court soon followed this recognition by determining in Thornhill v. Alabama (1940) that states could not simply outlaw all forms of peaceful labor picketing.
The Supreme Court recognized that labor picketing might find some shelter under the First Amendment’s mantle, but it continued to permit a number of restrictions on this form of protest. For example, the Court ruled that workers who were engaged in an illegal strike could be prevented from picketing outside their employers’ premises with the intent of persuading other workers to join their illegal strike. Moreover, the Court held that workers could be prevented from engaging in certain secondary boycotts. In a secondary boycott, workers picket outside businesses which use products or engage in transactions with a business against which the workers have a more immediate grievance, such as the workers’ employer. Generally, federal labor laws require workers to picket only businesses with which they have a direct dispute, and the Supreme Court has held that these laws do not violate the First Amendment.
Picketing as Social Protest
Outside the context of labor demonstrations, picketing has received a more cordial welcome within the law of the First Amendment. For example, in National Association for the Advancement of Colored People v. Claiborne Hardware Co. (1982), the Supreme Court upheld the right of Black Mississippians to boycott and picket the premises of White merchants, even though the picketing produced occasional incidents of violence. The Court noted that the purpose of the picketing was to alter a social, political, and economic environment that had infringed upon Black people's civil rights and found that the First Amendment safeguarded the expression of this purpose. Similarly, in Boos v. Barry (1988), the Court struck down a District of Columbia ordinance that barred picketing within five hundred feet of a foreign embassy with signs that brought the foreign power into disrepute. The Supreme Court, however, has for some time recognized the power of government to enact reasonable restrictions on the time, place, and manner of delivering speech in public places, and it has allowed government bodies to enact these kinds of restrictions with respect to picketing.
Anti-abortion Picketing
Some examples of successful and unsuccessful attempts to restrict picketing involve protests of abortion clinics. In 1988, the Supreme Court upheld a ban on the “focused picketing” of a private residence. In Frisby v. Schultz (1988), groups of anti-abortion protesters, sometimes numbering as many as forty, picketed several times over a few weeks at the residence of a doctor who performed abortions. The Milwaukee suburb where the events occurred responded to the picketing by enacting an ordinance prohibiting protesters from picketing a particular residence. The Supreme Court ultimately held that this restriction on picketing served a legitimate purpose and that the picketers had other means of communicating their protests besides harassing the doctor at his residence.
In another case involving anti-abortion protesters, the Supreme Court considered a number of restrictions on an anti-abortion protest, upholding some of the restrictions but invalidating others. Madsen v. Women’s Health Center, Inc. (1994) involved a state court injunction against protesters at a Florida abortion clinic. A state court judge had enjoined the protesters on a variety of points. The judge had barred protest within a thirty-six-foot buffer zone around the clinic entrance and driveway—a zone which included not only public streets but portions of private property adjacent to the clinic. The injunction imposed noise restrictions immediately around the clinic and barred the display of images that might be seen from the clinic. In addition, the judge ordered the protesters to refrain from approaching any person seeking the clinic’s services within three hundred feet of the clinic unless the person approached indicated a desire to communicate with a protester. Finally, the judge’s injunction prohibited the use of sound amplification equipment within three hundred feet of the homes of the clinic’s staff and barred pickets and demonstrations within that zone. The Supreme Court, in reviewing these restrictions, ruled that the buffer zone as applied to the public streets was a reasonable means of keeping access to the clinic open, but that as applied to private property it violated without adequate justification the protesters’ right to speak. The Court also upheld the noise restrictions around the clinic as reasonable in the light of the clinic’s surgical activities and also upheld the restrictions on the use of sound equipment in residential areas. The Court, however, struck down the ban on images observable from the clinic, noting that patients disturbed by the contents of particular signs could easily pull the curtains on the clinic’s windows. Moreover, the Court held that the no-approach zone and the prohibition against picketing or demonstrating within three hundred feet of the residences of clinic staff were simply too broad in their restriction of protected speech. In all, the Madsen decision illustrates the substantial degree to which government may impose limits on picketing to prevent picketers from unreasonably harassing the objects of their political or social displeasure. The case also reveals, however, that picketing continues to enjoy substantial First Amendment protection and may not be unduly restricted by government.
Bibliography
Blanchard, Dallas A. The Anti-Abortion Movement and the Rise of the Religious Right: From Polite to Fiery Protest. Twayne, 1994.
Carter, Barbara. Pickets, Parents, and Power: The Story Behind the New York City Teachers’ Strike. Citation Press, 1971.
Gora, Joel M., et al. editors. The Right to Protest: The Basic ACLU Guide to Free Expression. Southern Illinois University Press, 1991.
Kahn, Peggy. Picketing: Industrial Disputes, Tactics, and the Law. London: Routledge & Kegan Paul, 1983.
Ralph, Chris.The Picket and the Law. Fabian Society, 1977.
“Right to Strike and Picket.” National Labor Relations Board, www.nlrb.gov/about-nlrb/rights-we-protect/the-law/employees/right-to-strike-and-picket. Accessed 8 Jan. 2025.
Tacon, Susan A. Tort Liability in a Collective Bargaining Regime. Butterworths, 1980.