Picketing is a form of organized, nonviolent protest marked by marching or standing near a place of employment, government agency, or another protest target. Individuals or groups can picket by carrying signs or distributing literature. Pickets seek to publicize their grievances against the target and, sometimes, to dissuade others from doing business with the target. As a form of ‘‘expressive conduct,’’ picketing involves communication protected under the First Amendment speech, petition, and assembly clauses. Yet, because picketing also involves ‘‘conduct,’’ courts have often permitted governments to regulate picketing somewhat more than other forms of communication.
In contrast to many types of communicative activities, picketing often is designed to pressure the target into changing its behavior by discouraging others from crossing the picket line. For some, picketing raises special First Amendment concerns because, like boycotts, picketing is a form of pressure the courts are reluctant to put on the same plane as less confrontational speech activities like writing letters or books, speaking before an assembled group, or even passing out literature. In addition, picketing can be employed in labor disputes, consumer protests, or political conflicts—distinctions that have proven important.
Since much picketing occurs in public places, there is a close relationship between picketing and the traditional public forum. Under the forum doctrine, streets and parks have ‘‘immemorially been held in trust’’ for the public to assemble and communicate. Traditional public forums are presumptively open for communicative activities, including picketing. This means that the government cannot simply prevent public streets from being used for picketing without compelling justification. Indeed, in Frisby v. Schultz, 487 U.S. 474 (1988), the Supreme Court noted that ‘‘we have traditionally subjected restrictions on public issue picketing to careful scrutiny.’’
In Edwards v. South Carolina, 372 U.S. 229 (1963), for example, nearly two hundred students were arrested and convicted of ‘‘breach of the peace.’’ The students had peacefully picketed on the grounds of the South Carolina State House, protesting discrimination against African Americans. Reversing the convictions, the Supreme Court held that the First Amendment ‘‘does not permit a State to make criminal the peaceful expression of unpopular views.’’ Edwards illustrates two principles: open access to a public forum for the expression of (at that time) controversial views; and a government opposed to those views may not target the speakers for punishment.
In some instances, states or municipalities have attempted to ban picketing in certain places. In Carey v. Brown, 447 U.S. 455 (1980), the Court overturned a statute that banned picketing in residential areas, but that exempted ‘‘the peaceful picketing of a place of employment involved in a labor dispute.’’ The Court held that the statute unconstitutionally favored certain communications over others (in this case, labor speech) and thus fell within the general rule that government may not discriminate for or against certain speech based on the content of the communication. Since Carey addressed the unequal treatment of two communications, however, the ruling might have permitted total bans on picketing in residential areas.
In Frisby, the Court foreclosed such a result while considering an ordinance prohibiting all picketing ‘‘before or about’’ any residence. The ordinance did not exempt any type of picketing, so did not violate the ‘‘nondiscrimination’’ principle of Carey. In order to avoid running up against First Amendment concerns, the Frisby Court interpreted the ordinance narrowly. Since public streets are presumptively open for speech activities under the public forum doctrine, the Court held the ordinance must be interpreted to prohibit only ‘‘targeted’’ picketing, defined as picketing directed at a specific residence. Thus limited, the ordinance was constitutional because it was narrowly tailored to achieve an important governmental interest: protecting residential privacy.
The clear import of the Frisby decision is that pickets have a constitutional right to march in the ‘‘traditional public forum,’’ even including residential areas. Government may restrict ‘‘targeted’’ residential picketing, but may not generally restrict picketing in a residential neighborhood or even picketing that cycles throughout a neighborhood but does not target a particular residence.
Regulating the ‘‘Time, Place, or Manner’’ of Picketing
Although picketing in the public forum may not be completely banned, the Court has allowed regulations of public forum picketing based on time, place, and manner (TPM) of the communication. TPM rules permit the government to accommodate ‘‘conflicting demands on the same place.’’
To be valid, TPM regulations must be content neutral. In addition, such regulations must meet three tests: (1) they must serve important governmental goals; (2) the means chosen must reasonably relate to the ends sought; and (3) the regulations must leave open sufficient other outlets for the communications.
Generally, reasonable efforts to accommodate conflicting demands for use of public spaces are constitutional provided the government does not choose on the basis of the content of the communication. For example, if the Nazi and Christian groups wish to use the bandshell of a public park that is typically open for use by community groups, a municipality could choose between them based on which group asked first (that is, a content neutral reason), but could not choose the Christian group because the official liked Christians or disliked Nazis.
The government may also take limited steps to protect passersby or others in the vicinity from being held ‘‘captive’’ to a picket’s message. Furthermore, the government may prohibit obstruction of the streets, loud noises that seriously interfere with other activities, or disorderly conduct, provided again that it applies such regulations consistently across the board and enforces them neither specifically against pickets (and no one else) nor against certain pickets and not other pickets. In Grayned v. City of Rockford, 408 U.S. 104 (1972), for instance, the Court upheld an ordinance prohibiting making loud noises adjacent to school if the noise threatened to disturb school operations. The regulation was upheld as a neutral TPM regulation and was valid because it applied equally to loud construction and loud demonstrations and was necessary to protect the functioning of the school.
Consider how the Court evaluated a District of Columbia regulation that prohibited the display of any sign within 500 feet of a foreign embassy if the sign tended to cast ‘‘public odium’’ or ‘‘public disrepute’’ upon the foreign government. The ordinance was overturned as content based because only certain messages that triggered that response were banned. The District had argued that the ban functioned like a ‘‘place’’ regulation, but this was rejected. Essentially, if one must read the sign or hear the message in order to know whether a regulation is violated, it is content based and subject to searching judicial review.
In contrast, the Court upheld as a valid place regulation another aspect of the District’s ordinance that prohibited three or more persons from congregating within 500 feet of an embassy. The Court found that the no-congregating rule had been applied only to groups who targeted an embassy that the authorities reasonably believed presented a threat to the peace or physical security of the embassy.
Sometimes the Court’s decisions in this area have been inconsistent. In Cox v. Louisiana, 379 U.S. 559 (1965), a case arising at the height of the civil rights movement, two thousand students gathered near a courthouse jail to protest the prior day’s arrest of 23 black students who had picketed stores that maintained segregated lunch counters. Their leader was convicted of violating a state statute that prohibited any person from picketing or parading near a courthouse ‘‘with the intent of interfering with, obstructing, or impeding the administration of justice.’’ Although the conviction was overturned on other grounds, the Court suggested in dictum that the state had a compelling interest in protecting the administration of justice from the appearance that proceedings had been influenced by the demonstrations.
Cox should not be read as forbidding criticism rendered against judges, or outrage at the judicial process. Indeed, in Bridges, decided a few years earlier, the Supreme Court overturned ‘‘contempt’’ sanctions issued against the head of a union who published his telegram to the secretary of labor threatening to call a strike that would shut down the entire Pacific Coast to shipping if a particular legal ruling against the union were enforced. The Bridges Court determined that before such publications could be punished as an intimidation of courts, the probability that a judge would feel threatened would need to be much greater. As Laurence Tribe has argued, ‘‘if Bridges’s threat to cripple the economy of the entire West Coast did not present danger enough, the lesson of [Bridges] must be that almost nothing said outside the courtroom is punishable as contempt.’’
The Cox Court distinguished Bridges on the ground that Bridges involved ‘‘mere’’ publication, whereas a crowd of two thousand demonstrators picketing outside a courthouse ismore likely to ‘‘threaten the judicial process.’’ The Court’s analysis is problematic, for it is not clear why peaceful picketing would be any more ‘‘threatening’’ to the judicial process than proposing to shut down the economy of the West Coast. Nonetheless, if understood as a limited ‘‘place’’ regulation, the Cox decision might be defensible: picketing ‘‘near’’ a courthouse may increase the risk of intimidation of judges, jurors, or witnesses because of the proximity of the demonstrators to the courthouse and their number. By analogy, the Court has also upheld 100-foot distance limitations upon picketing or distribution of literature near polling stations on election days.
Such limited restrictions upon picketing targeted at specific ‘‘places’’ find support in Frisby, discussed earlier, as well as in Boos v. Barry, 485 U.S. 313 (1988), upholding the District of Columbia ordinance restricting congregation within 500 feet of an embassy. In contrast, the Court overturned a restriction on carrying signs on the sidewalks outside the Supreme Court building, since the rule did not sufficiently advance the asserted purposes of maintaining order, protecting the building and grounds, or insulating judicial decision-making from undue influence.
Picketing Abortion Clinics
Picketing has also figured in demonstrations outside abortion clinics. In Madsen v. Womens’ Health Center, 512 U.S. 753 (1994), a lower court issued an injunction forbidding protesters from picketing within 36 feet of clinics, blocking entrances, holding aloft images of fetuses, and making loud noises with bullhorns. The lower court also enjoined picketing within 300 feet of clinic employee residences. The injunction had been issued after the lower court heard substantial evidence that the demonstrators had physically blocked entrances and interfered with access to the clinic building and parking lot.
Applying a slightly higher standard of review to the injunction because a potential prior restraint was involved, the Supreme Court found that the 36-foot ‘‘buffer zone’’ to protect access to clinic entrances was a valid ‘‘place’’ regulation. Evidence had shown that the picketers were interfering with entrance to and egress from the clinic. The noise regulation was also upheld because of its impact on patients and the performance of medical procedures. However, other portions of the injunction, such as the prohibition on picketing within 300 feet of residences and the ban on ‘‘images observable’’ from the clinic were overturned as burdening ‘‘more speech than is necessary’’ to serve the government’s interest.
In Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997), the Court considered another injunction that prohibited anti-abortion protestors from demonstrating within 15 feet of an abortion clinic’s entrances and driveways or approaching within 15 feet of vehicles and patients entering or leaving a clinic. The goal of promoting the free flow of traffic on streets and sidewalks and protecting women’s freedom to seek health-related services was substantial enough to warrant the injunction, given evidence that the demonstrators repeatedly obstructed access to the clinics. The Court struck down the ‘‘approach’’ part of the injunction, however, because it ‘‘would restrict the speech of those who simply line the sidewalk or curb in an effort to chant, shout, or hold signs peacefully.’’ In short, as long as the pickets did not interfere with others’ capacity to travel the sidewalk, enter the clinics, or obtain medical services, the pickets could not be prohibited.
More recently, in Hill v. Colorado, 530 U.S. 703, 730 (2000), the Court encountered a ‘‘place’’ regulation affecting medical facilities, this time involving the validity of a statute rather than an injunction. A Colorado statute established special rules involving approaching persons within a 100-foot radius of the entrance to any health care facility. Within that radius, the statute made it unlawful ‘‘knowingly [to] approach’’ within 8 feet of anyone entering or leaving any health care facility, without that person’s consent, ‘‘for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.’’
Abortion protesters contended that the statute was targeted at abortion opponents and argued the statute was therefore invalid as a ‘‘viewpoint’’ discrimination. Rejecting their argument, the Court pointed out that the statute applied to all persons, regardless of viewpoint, and the reach of the statute was not confined to abortion clinics. When evaluated as a ‘‘place’’ regulation, the state’s interests—protecting access to the clinic and privacy of the patients—were sufficiently strong to validate the law as a TPM regulation.
The First Amendment and Labor Picketing
The courts have permitted governments more latitude to regulate picketing in labor disputes than picketing on public issues. Although this distinction is a ‘‘content based’’ distinction, courts have permitted the government to regulate labor pickets more stringently. From the perspective of the judiciary, labor picketing is a tool of economic bargaining. Since the 1930s, the courts have allowed the government substantially greater leeway under the Constitution to regulate economic affairs as opposed to political communications, and this general distinction has carried over to communicative activities by labor unions as well. Picketing by workers objecting to working conditions or pay is regarded as a form of economic conflict subject to greater regulation than what the Court has called ‘‘public issue’’ picketing.
In view of the distinction between ‘‘labor’’ and ‘‘public issue’’ picketing, it is ironic that the first Supreme Court case protecting picketing arose in a labor context. In Thornhill v. Alabama, 310 U.S. 88 (1940), a labor picket was convicted for violating a municipal ordinance that banned loitering or picketing for the purpose of influencing others not to patronize a place of business, or to attempt to injure a business. The Court overturned the conviction:
Every expression of opinion on matters that are important has the potentiality of inducing action in the interests of one rather than another group in society. But 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.
In subsequent cases, however, the Court has not been as solicitous of labor picketing. In several cases, for example, the Court has confronted issues of ‘‘secondary’’ boycotts and pickets. A primary boycott is directed at the place of employment. Secondary boycotts, in contrast, focus on the companies doing business with the primary company, seeking to pressure the secondary company to cease doing business with the primary one. Many secondary boycotts violate a statute known as the National Labor Relations Act. Because picketing is a means by which the public and other laborers are alerted to the secondary boycott, the Court has allowed the government to restrict even peaceful picketing directed at the secondary employer. The basis of the Court’s ruling is that the legislature may prohibit picketing directed towards an unlawful end—drawing the secondary employer into the labor dispute.
JOHN T. NOCKLEBY
References and Further Reading
- Baker, C. Edwin, Unreasoned Reasonableness: Mandatory Parade Permits and Time, Place, and Manner Regulations, Northwestern University Law Review 78 (1984): 937.
- Estlund, Cynthia, What Do Workers Want? Employee Interests, Public Interests, and Freedom of Expression Under the National Labor Relations Act, University of Pennsylvania Law Review 140 (1992): 921.
- O’Neill, Kevin Francis, Disentangling the Law of Public Protest, Loyola Law Review 45 (1999): 411.
- Pope, James, The Three-Systems Ladder of First Amendment Values: Two Rungs and a Black Hole, Hastings Constitutional Law Quarterly 11 (1984): 189.
- Tribe, Laurence H. American Constitutional Law, 2nd ed. Mineola, NY: Foundation Press, 1988.
Cases and Statutes Cited
- Boos v. Barry, 485 U.S. 313 (1988)
- Burson v. Freeman, 504 U.S. 191 (1992)
- Carey v. Brown, 447 U.S. 455 (1980)
- Cox v. Louisiana, 379 U.S. 559 (1965)
- Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568 (1988)
- Edwards v. South Carolina, 372 U.S. 229 (1963)
- Frisby v. Shultz, 487 U.S. 474 (1988)
- Grayned v. City of Rockford, 408 U.S. 104 (1972)
- Hill v. Colorado, 530 U.S. 703, 730 (2000)
- Madsen v. Womens’ Health Center, 512 U.S. 753 (1994)
- NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982)
- Perry v. xxx, 460 U.S., at 45 Police Department of Chicago v. Mosley, 408 U.S. 92 (1972)
- Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997)
- Schneider v. State, 308 U.S. 147, 163 (1939)
- Thornhill v. Alabama, 310 U.S. 88 (1940)
- United States v. Grace, 461 U.S. 171 (1983)
- Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989)
- National Labor Relations Act, } 8(b)(4) of the NLRA, 29 U.S.C. } 158(b)(4) (1988)
See also Abortion Protest Cases; Anti-Abortion Protest and Freedom of Speech; Captive Audiences and Free Speech; Civil Rights Laws and Freedom of Speech; Clear and Present Danger Test; Content-Based Regulation of Speech; Content-Neutral Regulation of Speech; Cox v. Louisiana, 379 U.S. 536 (1965); Demonstrations and Sit-Ins; Edwards v. South Carolina, 372 U.S. 229 (1963); Freedom of Access to Clinic Entrances (FACE) Act, 108 Stat. 694 (1994); Frisby v. Schultz, 487 U.S. 474 (1988); Hague v. C.I.O., 307 U.S. 496 (1939); Hate Speech; Heckler’s Veto Problem in Free Speech; Madsen v. Women’s Health Center, 512 U.S. 753 (1994); Marches and Demonstrations; Public/ Nonpublic Forum Distinction; Public Forum Doctrines; Speech and Its Relation to Violence; Speech versus Conduct Distinction; Symbolic Speech; Time, Place, and Manner Rule; Traditional Public Forums; Tribe, Laurence H.