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.
logically 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, 1 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. 2 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. . . . 3 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. 4
The Court soon recognized several caveats. Peaceful picketing may be enjoined if it is associated with violence and intimidation. 5 Although initially the Court continued to find picketing protected in the absence of violence, 6 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. 7 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. 8 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. 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