National Labor Relations Board v. Retail Store Employees Union Motion for Leave to File and Brief Amicus Curiae

    I n  t h e

§>tqn*me (Enurt nf tty* United States
October T erm, 1979 

No. 79-672

National, L abor Relations B oard,

v.
Petitioner,

R etail Store E mployees U nion, L ocal 1001, 
R etail Clerks International A ssociation, 

AFL-CIO, et al.

ON W R IT  OF CERTIORARI TO TH E  U N ITED STATES COURT 

OF APPEALS FOR T H E  DISTRICT OF COLUM BIA CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE 
AND BRIEF AMICUS CURIAE OF THE NAACP LEGAL 

DEFENSE AND EDUCATIONAL FUND, INC.

Jack Greenberg 
E ric S chnapper 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Amicus Curiae



INDEX

Motion fo r  Leave To F ile  B rie f
Amicus Curiae ................................. v i

Page

Statement o f  Interest  .................................................  1

Summary o f  Argument .....................     6

Argument: Section 8( b ) ( 4 ) ( i i )  o f  the
National Labor Relations Act,
Insofar As It  Forbids Peaceful 
Picketing Advocating Lawful
Conduct, Is Unconstitutional ....................  10

I .  Introduction : The Special Treat­
ment o f Picketing in Carpenters and 
Joiners Union v. R i t t e r 's  Cafe,
315 U.S. 722 (1942),
and I ts  Progeny ............................................  14

I I .  The Conjunction In A Single Act 
o f  Conduct and Speech Confers 
Upon The Government Only The 
Authority to Regulate The Con­
duct Aspect o f  That Act, Not 
the Content Of the Speech .................  21

I I I .  The F irs t  Amendment Precludes
Interference With Advocacy o f ,  or 
Communication o f  Facts Intended 
to Induce, Lawful Conduct .....................  29

IV. The F irs t  Amendment Precludes
Interference With A Particu lar 
Method o f  Advocacy or Communi­
cation  Because That Method Is 
Thought to be Excessively 
E ffe c t iv e  ............................................... 40

Conclusion .................................................................  48

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TABLE OF AUTHORITIES

Cases:

American Federation o f  Labor v . Swing,
312 U.S. 321 (1940) ................................... 15

American Radio A ssociation  v. Mobile
Steamship A ssocia tion , 419 U.S. 214
(1974) ............................................................... 20,22

Babbitt v. Farm Workers, 60 L.Ed. 2d 895
(1979) ............................................................... 13

Bigelow v. V irg in ia , 421 U.S. 809
(1975) ...............................................................  12,37

Buckley v . Valeo, 424 U.S. 1 (1976) . . .  7 ,9 ,27,42

Building Service Employees v . Gazzam,
339 U.S. 531 (1950) ......................................  16

Carlson v. State of C a lifo rn ia , 310
U.S. 106 (1940) ............................................ 14

Carpenters and Joiners Union v.
R it te r 's  Cafe, 315 U.S. 722
(1942) ......................................................... 6 ,7 ,17-24

Claiborne Hardware v. N.A.A.C.P.........................  3,6

Cox v. Louisiana, 579 U.S. 559
(1965) ...............................................................  2 ,3 ,36

Cox v. New Hampshire, 312 U.S. 569
(1941) .............................................................  24,25,28

Page

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Page

Dennis v . United States, 341 U.S. 494
(1951) ............................................................... 15

Edwards v . South Carolina, 375 U.S.
229 (1963) ......................................................  3

Fields v . South Carolina, 375 U.S.
44 (1963) ........................................................  3

F irst  National Bank o f  Boston v.
B e l lo t t i ,  435 U.S. 765 (1978) .........  23 ,27,30,

36,41,43

Food Employees v. Logan Valley Plaza,
391 U.S. 308 (1968) ...................................22,25,26

Giboney v .  Empire Storage and Ice ,
336 U.S. 490 (1949) ................................ 16,17,20

Hague v. C .I .O . ,  307 U.S. 496
(1939) ...............................................................  24

Hughes v. Superior Court, 339 U.S. 460
(1950) ...............................................................  2 ,18,22

44
I.B.E.W. v . N .L.R.B., 341 U.S. 694

(1951) ...............................................................  16

International Brotherhood o f  Teamsters
v. Hanke, 339 U.S. 470 (1950) . .  19,22,28,46

International Brotherhood o f  Teamsters
v. Vogt, 354 U.S. 284 (1957) .................  19-22

Linmark A ssocia tes , Inc. v . W illingboro,
431 U.S. 85 (1977) ............................  8 ,32 ,33 ,

37
Local Union No. 10 v . Graham, 345 U.S.

192 (1953) ..................................................  16,28,35

Local 761 v. N.L.R.B., 366 U.S. 667
(1961) ...............................................................  17

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Page

Milk Wagon Drivers Union v. Meadowmoor
Dairies, 312 U.S. 287 (1940) ..............  15

M ills v . Alabama, 384 U.S. 424
(1966) ............................................................... 42,44

N.A.A-.C.P. v . Button, 371 U.S. 415
(1963) ............................................................... 12

N.L.R.B. v . Fruit and Vegetable Packers,
377 U.S. 58 (1964) ................................ 10,11,12,

13,14,25,
26,28,30

N.L.R.B. v . Servette, 377 U.S. 46
(1964) ...............................................................  11

Pittsburgh Press Co. v . Pittsburgh 
Commission on Human Relations,
413 U.S. 376 (1973).....................................  15

P olice  Department o f  Chicago v. Mosley,
408 U.S. 92 (1972) .....................................  9 ,28,36

Senn v. T ile  Layers P rotective  Union,
301 U.S. 468 (1937) ...................................  14

Shuttlesworth v . Birmingham, 394 U.S.
147 (1969) ..................................................  i i i , 3,24,

25,28
Southern Christian Leadership

Conference v. A.G. C orp ., 241
So. 2d 619 (1970) .......................................  5

Stromberg v. C a liforn ia , 283 U.S.
359 (1940) ......................................................  26

Thornhill v . Alabama, 310 U.S. 88
(1940) ........................................................... 14,17,20

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Page

United States v . O'Brien, 391 U.S.
367 (1968) ......................................................  7,26

V irginia  Pharmacy Board v. V irg in ia  
Consumer Council, 425 U.S. 748 
(!976) ......................................................  8 ,32,33,37

V illage o f  Schaumburg v. Citizens for  
a Better Environment, 48 U.S.L.W.
4162 (1980) ....................................................  13

Statutes

Section 8 ( b ) ( 4 ) ( i ) ,  National Labor
Relations Act ................................................  16

Section 8 ( b ) ( 4 ) ( i i ) ,  National Labor
Relations Act .................................................  passim

Section 97-23-85, Miss. Code Anno.
1972 ...................................................................  5

Other A uthorities

H.S. Commager, Docutments of American
History (7th ed. 1963) ............................  38

S.E. Morrison, Oxford History o f  the
American People (1963) ............................  38

M.B. Schnapper, American Labor: A
P ic to r ia l  Social History (1972) .........  46

-  v -



IN THE

SUPREME COURT OF THE UNITED STATES 

October Term, 1979 

No. 79-672

NATIONAL LABOR RELATIONS BOARD,

P etit ion er ,

v.

RETAIL STORE EMPLOYEES UNION, 
LOCAL 1001, RETAIL CLERKS 
INTERNATIONAL ASSOCIATION, 
AFL-CIO, et a l . .

On Writ o f  C ertiorari to the United 
States Court o f  Appeals fo r  the 
D is tr ic t  o f  Columbia C ircu it

MOTION FOR LEAVE TO FILE BRIEF 
AMICUS CURIAE OF THE NAACP LEGAL 

DEFENSE AND EDUCATIONAL FUND, INC.

The NAACP Lepal Defense and Educational Fund, 

I n c . , hereby moves fo r  leave to f i l e  the attached 
b r ie f  as amicus curiae.

-  vi -



The NAACP Legal Defense and Educational Fund, 
I n c . ,  is  a non -pro fit  corporation incorporated 
under the laws o f  the State o f New York. I t  was 
formed to a ss is t  black persons in securing their  
con stitu tion a l and other rights by prosecuting and 
defending law su its .  I ts  charter declares that 
i t s  purposes in c lu d e  ren d erin g  l e g a l  s e r v i c e s  
gratu itously  to Negroes su ffer in g  in ju s t ic e  by 

reason o f  r a c ia l  d iscrim ination . For many years 
attorneys fo r  the Legal Defense Fund have rep­

resented parties  in l i t ig a t i o n  before th is  Court 
in v o lv in g  dem onstrations and p i c k e t in g .  See, 
e . g . ,  Shuttlesworth v. Birmingham, 394 U.S. 147 
(1969).

The Legal D efense Fund b e l i e v e s  that i t s  
experience in l i t ig a t i o n  aris in g  out o f  p icketing 

and demonstrations may be o f  assistance to  the 
Court in th is  case .

- V I 1 -



WHEREFORE, the NAACP Legal Defense and Educa­
t ion a l Fund, I n c . ,  re sp e c t fu l ly  prays that th is  
motion be granted and that the attached b r ie f  be 

f i l e d .

R espectfu lly  submitted,

JACK GREENBERG 
ERIC SCHNAPPER 

Suite 2030 
10 Columbus C ircle  
New York, New York 10019

Attorneys fo r  Amicus Curiae

v m  -



IN THE

SUPREME COURT OF THE UNITED STATES 

October Term, 1979 

No. 79-672

NATIONAL LABOR RELATIONS BOARD,

P etit ion er ,

v.

RETAIL STORE EMPLOYEES UNION, 
LOCAL 1001, RETAIL CLERKS 
INTERNATIONAL ASSOCIATION, 
AFL-CIO, et a l . .

On Writ o f  C ertiorari to the United 
States Court o f  Appeals fo r  the 
D is tr ic t  o f  Columbia C ircu it

BRIEF AMICUS CURIAE OF THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC.

STATEMENT OF INTEREST

This c a s e ,  though im m ediately concerned  
with the F irs t  Amendment rights o f  labor organi­
z a t i o n s ,  has f a r  b roa der  r a m i f i c a t i o n s .  The 
previous d ecis ion s o f  th is Court have drawn no



sharp d i s t i n c t i o n s  between la b o r  p ic k e t in g  to  
induce consumer boycotts and sim ilarly  motivated 
p i c k e t in g  by o th er  o r g a n iz a t io n .  See, e . g . ,  
Hughes v .  S u perior  C ou rt , 339 U .S . 460, 466 
(1950). The p r in c ip les  developed in  labor cases 
have been re l ie d  on in analyzing the F irs t  Amend­
ment r ights  o f  p icketing  to  protest  government 
conduct. Cox v . Louisiana, 579 U.S. 559, 563-4 
(1965).

Picketing, along with larger public demon­
s t r a t i o n s ,  has served  h i s t o r i c a l l y  as a v i t a l  
v eh ic le  f o r  protesting  r a c ia l  d iscrim ination  and 
s o c ia l  in ju s t ic e .  Such public  protests played an 
essen tia l  r o le  in the c i v i l  r ights  movement o f  the 
la s t  decade. Picketing in p articu la r  served to 
focus attention  on employers, public  accommoda­
tions or voting reg istra rs  that engaged in d is ­
criminatory p ra ct ices .  The cumulative e f f e c t  o f  
the p a rticu la r  instances o f  d iscrim ination  thus 
highlighted  increased the n a tion 's  awareness o f  
invidious r a c ia l  p ra c t ice s ,  and spurred the public 
debate which led u ltim ately  to  the adoption o f  the 
c i v i l  r igh ts  acts  o f  1964, 1965 and 1968.

-  2 -



-  3 -

Such picketing and demonstrations were aimed 
at a l t e r in g  d is c r im in a t o r y  p r a c t i c e s  that had 
substantia l o f f i c i a l  and public  support in certa in  
areas o f  the country. State and lo ca l  o f f i c i a l s ,  
c o r r e c t ly  re a liz in g  that these protests threatened 
to  f r u s t r a t e  t h e i r  p o l i c i e s  o f  s e g r e g a t io n ,  
f r e q u e n t ly  sought to prevent p r o t e s t s  whose 
peacefulness and orderlin ess  was beyond dispute, 
but whose g oa ls  they d i s l i k e d .  S ta te  c o u r t  
in junctions and prosecutions o f  protesters re­
su lted , and this Court was required on repeated 
o c c a s io n s  t o  in te rv en e  on b e h a l f  o f  the F ir s t  
Amendment r ig h t s  o f  th ose  opposed to  r a c i a l  
d i s c r im in a t io n .  See, e . g . ,  Sh u ttlesw orth  v .  

Birmingham, 394 U.S. 147 (1969); Cox v . Louisiana, 
379 U.S. 536 (1965); Fields v . South Carolina, 375 
U.S. 44 (1963); Edwards v. South Carolina, 372 
U.S. 229 (1963).

P icketing and other forms o f  public  protest 
remain as v i t a l  too ls  in r e c t i fy in g  r a c ia l  and 

s o c i a l  i n j u s t i c e s .  Today th ose  d e v ic e s  are 
u t i l i z e d  to  c a l l  a ttention  to  a variety  o f  g r iev ­

ances with public  o f f i c i a l s ,  p a r t icu la r ly  claims 
o f unremedied p o l ice  b ru ta lity  and unfa ir  a l lo c a ­
t io n s  o f  government s e r v i c e s .  The a b i l i t y  to



-  4 -

conduct those a c t iv i t i e s  at a s i t e  relevant to  the 
o r ig in  o f  the grievance is c r i t i c a l ;  the public 
and press would o ften  n otice  and heed a group o f  
p ickets at c i t y  h a l l ,  but would rare ly  consider 
the same group in  a vacant l o t  a m ile  away. 
Merchants are at tim es the fo cu s  o f  consumer 
p icketing  re la ted , in ter  a l i a , to the price  or 
quality  o f  goods so ld . A ll  o f  these practices 
are implicated by the con stitu tion a l questions 
presented by th is  case.

This case has p a r t icu la r ly  important ram ifi­
c a t io n s  f o r  a c i v i l  a c t i o n  now pending in  the 
c o u r ts  o f  M i s s i s s i p p i ,  C la ib orn e  Hardware v . 
N.A.A.C.P. That action  arose out o f  a 1966-69 
boycott o f  white merchants by lo c a l  c i v i l  rights  
a c t i v i s t s  who, b e l i e v in g  that the merchants 
exercised  de_ facto  con tro l over c i t y  o f f i c i a l s ,  
p ick e te d  the merchants in the hope th at  they 
would, in  turn, cause those o f f i c i a l s  to end a 
variety  o f  discrim inatory p ra ct ices .  In 1976 a 
state  court judge, s i t t in g  without a jury , branded 
these e f f o r t s  an unlawful secondary b oy cott ,  and 

awarded $1,250,699 in damages against the defen­



d a n ts ,  in c lu d in g  the n a t io n a l  N .A .A .C .P .—̂  I f  
th is  award were su s ta in ed  i f  would, w ithout 
question, destroy the N.A.A.C.P. as an organiza­
t ion . In upholding the co n s t i tu t io n a l ity  o f  this 
award the M ississipp i t r i a l  judge re l ied  upon the 
same ca ses  r e l i e d  upon here by the N .L .R .B . 
Opinion dated August 9, 1976, pp. 55, 60. As a 
resu lt  o f  a boycott connected with a c i v i l  rights 
march in 1966 led by James Meredith, M ississippi 
awarded substantial damages against the Southern 
Christian Leadership Conference, in juring that 
organ iza tion 's  a c t iv i t i e s  on behalf o f  minority 
r ig h ts .  Southern Christian Leadership Conference 
v .  A. G. C o r p o r a t io n , 241 So. 2d 619 (1 9 7 0 ) .

The pending l i t i g a t i o n  against the N.A.A.C.P. 
involves a statute which, as here, forbids the 
advocacy  o f  consumer conduct which i s  i t s e l f  
l e g a l .  S e c t io n  9 7 -2 3 -8 5 ,  M.C.A. 1972. That 
s t a tu te  is  b roa der  than s e c t i o n  8( b ) ( 4 ) ( i i )  
o f  the National Labor Relations Act, in  that i t  
f o r b id s  not on ly  p i c k e t in g  but any advocacy

-  5 -

1/ The NAACP Legal Defense and E du cation a l 
Fund, I n c . ,  is  not part o f  the N.A.A.C.P.



o f  a "secondary" b oy cott .  While there are obvious 
d ifferen ces  between Clairborne Hardware and the 
instant case, any d ecis ion  on the con stitu tion a l 
issues presented by th is  case would be o f  v i ta l  
importance to  the N.A.A.C.P. and a l l  other c i v i l  
rights  organizations.

SUMMARY OF ARGUMENT

Section 8( b ) ( 4 ) ( i i )  p roh ib its  p ickets from 
a d v o ca t in g ,  or communicating in fo rm a t io n  to  
in d u ce , c e r t a in  types o f  consumer b o y c o t t s  o f  
merchants. Under the National Labor Relations 
A ct ,  however, i t  would be p e r f e c t l y  l e g a l  f o r  
consumers to engage in  such b o y c o t t s ,  o r  f o r  
merchants to give in to them. Regardless o f  the 
p rec ise  types o f  boycotts which cannot be induced 
by p icketing , sect ion  8( b ) ( 4 ) ( i i )  is  unconstitu­
t ion a l on i t s  face because i t  forbids advocacy o f 
lawful conduct.

Notwithstanding e a r l ie r  decis ions to  the con­
t r a r y ,  Carpenters and Joiners Union v . R i t t e r 's  
Cafe, 315 U.S. 722 (1942), and i t s  progeny have

-  6 -

treated p icketin g  in a manner d ra s t ica l ly  d i f -



f e r e n t  than o th er  types o f  speech o r  sp eech -  
conduct combinations. R itter  allows the govern­
ment t o  r e g u la te  the con ten t  o f  the ideas ex ­
pressed by p ickets on a mere showing that such 
regulation  furthers some o f f i c i a l  p o l ic y .  This 
la x  s tan d ard , which has never commanded the 
support o f  more than a bare m a jo r ity  o f  th is  
Court, has been undermined by a number o f  recent 
d ec is ion s , and should be overruled.

R itter  and i t s  progeny assume that, because 
the communicative aspect o f  p icketing  occurs in 
conjunction with conduct, e . g . ,  p a tro l l in g ,  that 
the p icketin g  can be regulated. But other d e c i ­
sions o f  th is  Court make c lea r  that where speech 
and conduct  are so com bined, the governm ent's  
regulatory authority extends only to the conduct 
a sp ect  o f  the a c t ,  not to  i t s  communicative 
f a c e t s .  Buckley v .  V a le o , 424 U .S . 1, 17-19
(1976); United States v . O'Brien, 391 U.S. 367, 
375-77, 381-82 (1968). Thus the conduct aspect o f  
p icketing  confers on the government only authority 
to regulate the number or nois iness o f  p ickets , 
not the substance  o f  what they wish to  sa y .

-  7 -



The purpose o f  sect ion  8( b ) ( 4 ) ( i i )  is  to stop 
or reduce p e r fe c t ly  lawful consumer conduct by 
obstructing presentation o f  information about a 
labor dispute which might lead consumers to  decide 
not to patronize a product or merchant. R itter 
sanctions such government imposed s i len ce  as a 
method o f  a ch ie v in g  a s t a t e  g o a l .  But l a t e r  
decisions o f  th is  Court make c lea r  that th is  is 
not a means a v a i la b le  to  the government under 
the F irs t  Amendment. Linmark A ssocia tes , Inc, 
v .  W i l l in g b o r o , 431 U.S. 85, 96-97 (1 9 7 7 ) ;  
V ir g in ia  Pharmacy Bd. v . V irg in ia  Consumer Coun­
c i l , 425 U.S. 748, 769-70 (1976). I f  the govern­
ment wishes to  stop consumer b oy co tts , or merchant 
conduct based on such b oycotts , i t  must do so by 
d ire c t ly  forbidding such boycotts  or conduct, not 
by s i l e n c i n g  advocacy  o f  b o y c o t t s  and conduct 
which are l e f t  lawful.

Once the government d e c id e s  t o  leave  the 
conduct o f  consumers to  t h e i r  own judgm ents, 
subject to  debate about labor matters in the free 
marketplace o f  ideas, i t  cannot lim it  one p arty 's  
access to that market. Both labor and business 

must be free  to advocate in any peaceful manner



that consumers p a tro n iz e  or b o y c o t t  a f irm . 
Section 8( b ) ( 4 ) ( i i )  in ter fe res  in that competition 
in a discriminatory manner. P o lice  Department o f  
Chicago v. Mosley, 408 U.S. 92 (1972). R estr ic ­
tions on advocacy o f  consumer boycotts are par­

t ic u la r ly  suspect, s ince such boycotts o f British  
goods were by far the most important non-violent 
method by which the c o l o n i s t s  sough t, o f t e n  
su ccess fu lly ,  the repeal o f  B rit ish  statutes to 
which they ob jected , including the Stamp Act, the 
Townshend Acts, and the Into lerable  Acts. A ll  o f  
these boycotts were secondary, s ince the co lon ­
i s t s '  grievance was with the B rit ish  government, 
not with the B ritish  merchants themselves.

C on gress ' d e c i s i o n  to  p r o h ib i t  p ic k e t in g  
while permitting unions to advocate by other means 
consumer boycotts may have been based on the view 
that p icketing  was an excess ive ly  e f fe c t iv e  form 
o f  communication. The F irs t  Amendment, however, 
forbids in te r fe r in g  with the speech o f one party 
in o rd er  to  enchance the r e l a t i v e  v o i c e  o f  
a n oth er . Buckley v .  V a le o , 424 U .S . 1, 48 -50  
(1976).

-  9 -



10 -

ARGUMENT

SECTION 8 ( b ) ( 4 ) ( i i )  OF THE NATIONAL LABOR 
RELATIONS ACT, INSOFAR AS IT FORBIDS PEACEFUL 
PICKETING ADVOCATING LAWFUL CONDUCT, IS 
UNCONSTITUTIONAL

The p a r t ie s  are in disagreem ent as to  two 
questions a r is in g  under sect ion  8( b ) ( 4 ) ( i i )  o f  the 
N ationa l Labor R e la t io n s  A c t :  f i r s t ,  whether 
N.L.R.B. v . Fruit and Vegetable Packers, 377 U.S. 
58 (1 9 6 4 ) ,  c o r r e c t l y  con s tru ed  the s t a t u t e  to  
a l lo w  secondary  p i c k e t in g  aimed s o l e l y  at the 
struck product and, second, i f  so, whether that 
e x c e p t io n  to  the g en era l p r o h ib i t i o n  a g a in st  
p icketing  to  produce a "secondary boy co tt"  applies 
to the fa c ts  o f  th is  case.

There is  no dispute, however, as to  the basic 
thrust o f  sect ion  8( b ) ( 4 ) ( i i ) .  A labor organiza­
t ion  i s  forbidden to engage in peaceful p icketing  
d is c lo s in g  tru th fu lly  that a firm is  s e l l in g  the 
products o f  an employer involved in a labor d is ­
pute i f ,  because  o f  that p i c k e t in g ,  consumers



11

decide not to patronize the firm so long as i t  
deals in  those products. I t  is  a lso c lea r  that 
the National Labor Relations Act in no way pro­
h ib i t s  a consumer from actua lly  withholding h is  or 
her patronage from a firm dealing in such disputed 
products; indeed, a union may urge consumers to  do 
so so long as that advocacy is  not by means o f  
p i c k e t in g .  S e c t io n  8 ( i i ) ; see Tree F r u i t s , 
377 U.S. at 79 (Black J . ,  concurring). Equally 
undisputed is  that a firm may, on i t s  own i n i t i a ­
t ive  or because o f  consumer or employee pressure, 
refuse to  deal in products from a plant involved 
in a labor dispute. N.L.R.B. v . Servette, In c . , 
377 U.S. 46, 50-51 (1964).

S e c t io n  8 ( b ) ( 4 ) ( i i )  thus fo r b id s  union 
a d v oca cy , by means o f  p e a c e fu l  and t r u t h fu l  
p icketin g , o f  actions by consumers, and action  by 
the v en d or , which are them selves " p e r f e c t l y  
le g a l " .  Tree F ru its , supra. We be lieve  that the 
F i r s t  Amendment p r o h ib i t s  the government from 
forbidding the advocacy o f  lawful actions even 
where, as with p icketin g , that advocacy is  con­
jo ined  with conduct. A ccordingly , we urge that 
sect ion  8(b) ( 4 ) ( i i )  i s  unconstitutional regard­



12

less  o f the correctness and meaning o f  the con­
stru ction  o ffered  in Tree F ru its .

I t  may be p o s s i b l e  to  co n s tru e  s e c t i o n  
8( b ) ( 4 ) ( i i )  so that i t s  proh ib itions do not apply 
to the facts  of th is case, thus avoiding a d e c i ­
sion on the con stitu tion a l issues. But to  do so 
would be to leave in e f f e c t  a statutory proh ib i­
t io n ,  o ften  enforced as here by an in junction  that 
is  a c la s s ic  p r io r  re s tra in t ,  which both forbids 
and deters the communication o f  information and 

ideas. In the area o f  F irs t  Amendment freedoms 
th is  Court customarily relaxes i t s  self-im posed 

r u le s  o f  stan d in g  because  o f  the "danger o f  
t o l e r a t i n g  . . .  the e x is t e n c e  o f  a . . .  s ta tu te  
s u s c e p t i b l e  o f  . . .  im p ro p e r  a p p l i c a t i o n . "  
Bigelow v . V irg in ia , 421 U.S. 809, 816 (1975).
"These freedoms are d e l i c a t e  and v u ln e r a b le ,  
as w e l l  as suprem ely p r e c io u s  in  our s o c i e t y .  
The threat o f  sanctions may deter th e ir  exercise  
alm ost as p o t e n t ly  as the a c tu a l  a p p l i c a t i o n  
o f  sa n ct ion s ."  N.A.A.C.P. v .  Button, 371 U.S. 
415, 433 (1963). In th is  case there is  more than 
merely a danger that s e c t i o n  8( b ) ( 4 ) ( i i )  w i l l



-  13 -

be enforced as we have described ; the N.L.R.B. 
a c t iv e ly  pursues just  such an enforcement p o l ic y ,  
and unions throughout the country are inhibited  
from engaging in p icketing which, in our view, is 
protected  by the F irs t  Amendment. To continue, as 
in Tree F r u i t s , to  a vo id  t h is  c o n s t i t u t i o n a l  
problem by construing the statute to allow the 
p a r t i c u la r  p i c k e t in g  b e fo r e  the Court i s  to  
permit continued v io la t io n s  o f  the con stitu tion  in 
a fa r  larger category o f  cases.

For reasons such as th ese  t h i s  Court in  
V i l la g e  o f  Schaumburg v . C it iz e n s  fo r  a Better 
Environm ent, 48 U.S.L.W. 4162, 4165 (1 9 8 0 ) ,
proceeded to pass on the co n s t i tu t io n a l ity  o f  a 
p r o h ib i t i o n  a g a in s t  a s s e r te d  F i r s t  Amendment 
rights without deciding f i r s t  i f  the p roh ib it ion  
would a c t u a l ly  apply  to  the p arty  seek in g  to  
challenge i t .  See a lso  Babbitt v. Farm Workers, 
60 L.Ed. 2d 895, 908-910 (1979). We b e lieve  the 
Court should do so here as w e ll .

/



-  14 -

I .  INTRODUCTION: THE SPECIAL TREATMENT OF
PICKETING IN CARPENTERS AND JOINERS UNION V. 
RITTER'S CAFE, 315, U.S. 722 ( l9 4 2 ) ,  AND ITS 
PROGENY

The f i r s t  con stitu tion a l d ecis ion s o f  this 
Court dealing with p icketing  treated i t  in the 
same manner as other forms o f  communication. In 
Senn v. T ile  Layers Protective  Union, 301 U.S. 468 
(1937), Justice  Brandeis stated that union members 
might through picketing "make known the facts  o f  a 
labor d ispute, fo r  freedom of speech is  guaranteed 
by the Federal C on st itu t ion ."  301 U.S. at 478. 
Thornhill v . Alabama, 310 U.S. 88 (1940), struck 
down a blanket p roh ib it ion  against p icketing  to 
persuade persons not to do business with a firm. 
I t  c h a r a c t e r i z e d  p i c k e t in g  as a " p r a c t i c a b l e ,  
e f f e c t i v e  means whereby those  in t e r e s t e d  —  
including the employees d ire c t ly  a f fe c ted  —  may 
enlighten the public  on the nature and causes o f  a 
labor d isp u te ."  310 U.S. at 104. A companion 
case, Carlson v . .State o f  C a lifo rn ia , 310 U.S. 106 
(1940), struck down a sim ilar s ta tu te , explaining 
that " [ t ]h e  carrying o f  signs and banners . . .  is  a



-  15 -

natural and appropriate means o f  conveying in fo r ­
mation on matters o f  public  concern ."  310 D.S. at 
112—13. American Federation o f  Labor v. Swing, 
312 U.S. 321 (1 9 4 0 ) ,  c o n s id e r e d  an in ju n c t io n  
against p icketing  by any person who did not work 
fo r  the employer being p icketed ; th is  Court found 
that p roh ib it ion  " incon sistent with the guaranty 
o f  freedom o f  s p e e c h . "  I t  h e ld  th a t ,  even 
absent any actual dispute between the employer and 
the p icketing  employees, " [c]ommunication by such 
employees o f  the fa c ts  o f  a dispute, deemed by 
them to be relevant to th e ir  in te re s ts ,  can [not] 
be barred  because o f  con cern  f o r  the econom ic 
in teres ts  against whom they are seeking to e n l is t
public  op in ion ------" 312 U.S. at 326. See also
Milk Wagon D r ivers  Union v . Meadowmoor D a ir ies , 
312 U.S. 287 , 297 ( 1 9 4 0 ) .

Subsequent decis ion s  established that p ick­
e t s ,  l i k e  o th ers  engaged in the communication 
o f  ideas, could not ord in arily  advocate i l l e g a l  
con d u ct .  Even "pure  speech" i s  g e n e r a l ly  not 
protected when it s  purpose is  to produce unlawful 
a c t iv i t y .  Dennis v. United S tates , 341 U.S. 494  

( 1 9 5 1 ) ;  Pittsburgh Press Co. v . Pittsburgh Coimnis-

V



-  16 -

s io n  on Human R e la t i o n s , 413 U.S. 376 (1 9 7 3 ) .
Probably a majority o f  the decisions in  th is  Court
upholding r e s t r ic t io n s  on p ickets involved such
advocacy  o f  i l l e g a l  co n d u c t .  In I . B. E■W. v .
N.L.R.B. , 341 U.S. 694, 705-6 (1951), the p ickets
sought to  induce an i l l e g a l  s t r i k e ;  thus the
i l l e g a l  conduct there advocated would have been on
the part o f  those respecting  the picket l in e .  In
Giboney v .  Empire Storage and Ice ,  336 U.S. 490,
492-3 (1 9 4 9 ) ,  the p ic k e t s  sought to  f o r c e  the
picketed firm to refuse to s e l l  i c e  to  non-union
peddlers, which re fu sa l would have v io la ted  state
criminal law; there the advocated i l l e g a l i t y  would

2/have been on the part o f  the picketed employer.— 
S e c t io n  8 ( b ) ( 4 ) ( i )  o f  the N ationa l Labor 

Relations Act forb ids  employees o f  one employer 
from engaging in  a s t r ik e  or  o th er  jo b  a c t io n  
to compel th e ir  employer to refuse to deal with 
another em ployer ; i t  would be u n la w fu l,  where

2 /  See a ls o  B u ild in g  S e rv ic e  Employees v .
Gazzam, 339 U.S. 531, 553 (1950) (p ickets  sought 
to  induce  em ployer to  compel h i s  em ployees 
to  jo in  the union, which compulsion would have 
v i o l a t e d  s t a te  la w ) ;  L oca l Union No. 10 v . 
Graham, 345 U .S . 192 (19535 (p i c k e t s  sought
to  induce  em ployer to  f i r e  non-union la b o r ,  
in  v io la t io n  o f  state  r ight-to -w ork  law.)



17 -

a vendor was s e l l i n g  p rodu cts  from a struck  
p la n t ,  f o r  i t s  employees to  go on s t r ik e  f o r  
that reason, or fo r  the employees o f  yet a third  
party to  refuse to make d e l iv e r ie s  to the vendor. 
Thus p icketin g , or  any other form o f  communica­
t ion , aimed at inducing such a s tr ik e  or other job 
a ct ion , could be proh ib ited , since the conduct 
advocated would be i l l e g a l .  Hence in the instant 
case i t  would be con stitu tion a l to  en jo in  p ick­
eting  which su ccess fu lly  urged the employees o f  
the Safeco Group Companies to  go on s tr ik e .  See 
L oca l 761 v .  N .L .R .B . ,  366 U .S . 667 (1 9 6 1 ) .

In sum, neither early  cases such as Thorn- 
h i l l , nor the Giboney l in e  o f  d ec is ion s , treat 
p i c k e t in g  d i f f e r e n t l y  than o th er  methods o f  
com m unication. T h o r n h il l  r e co g n iz e d  that the 
conduct associated  with p icketing  could be re­
s t r i c t e d  i f  i t  in  f a c t  p resen ted  a "danger o f  
destruction  o f  l i f e  or property", 310 U.S. at 105, 
but th is  power did not extend to a regulation  of 
the content o f  the ideas advocated by the p ickets .

This Court departed sharply, and in our view 
in c o r r e c t ly ,  from these decisions in  i t s  opinion 
in Carpenters and Joiners Union v . R i t t e r 's  Cafe,



18

315 U.S. 722 (1942). In R itter  the restaurant 
owner had hired a non-union firm to  do construc­
t i o n  at another s i t e ;  a c o n s t r u c t i o n  union 
p ic k e te d  the r e s ta u r a n t ,  p r e c i p i t a t i n g  both  a 
consumer boycott and a str ik e  by the restaurant 
employees. Although, so far as appears from the 
op in ion , neither the conduct o f  the consumers nor 
that o f  the s t r i k i n g  resta u ra n t  em ployees was 
i l l e g a l  under state  law, the Texas court enjoined 
the p i c k e t in g .  This Court narrow ly upheld 
that in junction  on the ground that stopping the 
p icketing furthered a state  p o l ic y ,  whose wisdom 
the Court thought irre leva n t, to  protect  "neu­
t r a ls "  from involvement in labor disputes. 315 
U.S. at 728. Four members o f  the Court dissented 
from this departure from T hornh ill . 315 U.S. at
729 (B la ck ,  J . , d i s s e n t i n g ) ,  7 32 (R eed, J . , 

d is se n t in g ) .
Eight years la te r  Hughes v . Superior Court, 

339 U.S. 460 (1950), extended R itter  to  what was 
unquestionably a dispute with the employer being 
p icketed ; i t  upheld an in junction  against p ick ­
eting  to  induce a store  owner to h ire  blacks in 
p r o p o r t io n  to  the number o f  b la ck s  among i t s



-  19

customers. Such a h ir ing  p ra ct ice  was declared 
by the state  courts to be against state  " p o l i c y . "  
339 U.S. at 446. This Court thought i t  irrelevant 
whether the quota h ir ing  being sought would have 
been le g a l ,  339 U.S. at 466, although there is 
some p o s s ib i l i t y  i t  would have been held unlawful 
by the s t a t e  c o u r t s .  See 339 U.S. at 4 6 3 -4 . 
I n t e r n a t io n a l  Brotherhood o f  Teamsters v . Hanke, 
339 U.S. 470 (1950), a lso  involved a "primary" 
b o y c o t t .  Union members p ick e te d  a f irm  which 
refused to  work union hours; although the firm was 
a partnership with no employees, i t s  longer hours 
o b v io u s ly  a f f e c t e d  the w i l l in g n e s s  o f  o th er  
employers to stay open only during those hours. 
Again the Court narrowly upheld the in junction , 
the p lu ra l i ty  opinion arguing that the in junction  
furthered a state  "p o l icy  in favor o f  se lf-em ploy­
ment." 339 U.S. at 480.

The l in e ,  o f  d e c i s i o n s  commenced by R i t t e r  
u l t im a t e ly  led  to  I n t e r n a t io n a l  Brotherhood 
o f  Teamsters v . Vogt, 354 U.S. 284 (1957). The 
f a c t s  in  Vogt in v o lv e d  an attempt by p ic k e t s  
to induce an employer to fo rce  h is  workers to jo in  
a union, which compulsion apparently would have 
v io la ted  sta te  law. 354 U.S. at 286. Rather than



-  20 -

re ly in g  on Giboney, the Vogt majority proceeded to  
analyze the case as i f  the p ickets had advocated 
lawful conduct. It  c r i t i c i z e d  Thornhill as unduly 
broad, 354 U.S. at 288-9, and characterized R itter  
and s im ilar cases as "reassessments" o f  T hornh ill . 
354 U.S. at 291. Vogt d e c la r e d  th ese  cases 
" e s t a b l i s h  a broad f i e l d  in  which a S ta te ,  in  
e n fo r c in g  some p u b l i c  p o l i c y ,  whether o f  i t s  
criminal or i t s  c i v i l  law, and whether announced 
by i t s  leg is la tu re  or  i t s  courts , could con s t itu ­
t i o n a l l y  e n jo in  p e a c e fu l  p i c k e t in g  aimed at 
preventing e f fe c tu a t io n  o f  that p o l i c y . "  354 U.S. 
at 293. That ru le  was applied , again by a bare 
m ajority o f  the Court, in  American Radio Associa­
t i o n  v .  Mobile Steamship A ssoc ia t ion , 419 U.S. 
215, 229-32 (1 9 7 4 ) ,  t o  upheld an in ju n c t i o n  
against p ickets  o b je c t in g  to  the shipping o f  goods 
on n on -u n ion  f o r e i g n - r e g i s t r y  v e s s e l s .  That 
p icketing  p rec ip ita ted  a s tr ik e  against a l l  ships 
in the port , union and non-union a lik e , and thus 
arguably constitu ted  an unfa ir  labor p ra ct ice  in 
v i o l a t i o n  o f  s e c t i o n  8( b ) ( 4 ) ( i ) ; but the  case 
arose in state  court where the advocated conduct, 
though " a g a in s t  s t a t e  p o l i c y " ,  was ap p a ren tly  
le g a l .



-  21

R itter  and i t s  progeny thus held that peaceful 
and truthfu l p icketin g , advocating lawful conduct, 
may be forbidden by the government i f  that ad­
vocacy may resu lt  in  conduct which, though leg a l,  
i s  " a g a in s t  government p o l i c y . "  This r u le  i s  
an aberration in F irs t  Amendment law; no other 
form o f  speech, or speech-plus-conduct, may be 
forbidden on such a ground. In several o f  the 
cases in which the doctrine has been applied the 
p icketing  could have been prevented on another 
basis .-

Most im p o r ta n t ly ,  s e v e r a l  re ce n t  l in e s  o f  
d e c i s i o n s  in  t h is  Court have undermined the 
rea son in g  on which R i t t e r  and the ca ses  which 
f o l l o w  i t  are based . As we se t  out in  d e t a i l  

below, these recent decis ions cannot be recon ciled  
with the standard set by R itter  and applied as 
recen tly  as American Radio A ssoc ia t ion . We urge, 
accord ing ly , that R itter  be overruled.

I I .  THE CONJUNCTION IN A SINGLE ACT OF CONDUCT 
AND SPEECH CONFERS UPON THE GOVERNMENT ONLY 
THE AUTHORITY TO REGULATE THE CONDUCT ASPECT 
OF THAT ACT, NOT THE CONTENT OF THE SPEECH

Although R i t t e r  i t s e l f  does not e x p la in
why p icketing  is  any d i f fe re n t  than pure speech,



-  22

Hughes,— Hanke,— Vogt— and American Radio Asso-
6/  --------------- — .  ---------------------------------------------------c ia t ion — a l l  emphasize that p icketing  involves

not ju st  the communication o f  ideas, but enta ils
" c o n d u c t ” as w e l l .  The on ly  aspect  o f  the
conduct s p e c i f i c a l ly  referred  to  is  "p a tro l l in g " ,
walk ing back and fo r t h  in  f r o n t  o f  the s i t e
b e in g  p ic k e t e d .  As t h is  Court ex p la in ed  in
another context, "p icketing  involves elements o f
both speech and conduct, i . e . ,  p a tro l l in g ,  and . . .
because o f  th is  intermingling o f  protected  and
unprotected elements, p icketing  can be subjected
to contro ls  that would not be co n s t itu t io n a l ly
perm issible in the case o f  pure speech ."  Food
Employees v . Logan Valley Plaza, 391 U.S. 308,
313 (1968).

The conclusion  which the R itter  progeny draw 
from the presence o f  th is  conduct element i s  that 
the speech-conduct admixture o f  p icketin g  becomes, 
in the words o f  Hanke, "a hybrid". 339 U.S. at

3 / 339 U.S. at 464-5.

4 /  339 U.S. at 474.

5 /  354 U.S. at 289, 290.

6/  419 U.S. at 229.



-  23 -

474. The p r o t e c t i o n s  accord ed  speech are not 
merely reduced by the in c iden ta l impact o f  regula­
t ion  o f  the associated conduct, such as l im its  on 
the number o f  p ickets . Rather, these cases hold 
that the speech aspects o f  p icketing  as such enjoy 
less  p rotection  because they are somehow tainted 
by a ssoc ia t ion  with the conduct. While speech by 
i t s e l f  can be r e s t r i c t e d  on ly  to  p r o t e c t  "a 
subordinating in terest  which is  com pelling", F irst 
N ationa l Bank o f  Boston v .  B e l l o t t i , 435 D.S. 
765, 786 (1978), the ideas communicated by p ick e t ­
ing are sa id  to  be s u b je c t  t o  r e s t r i c t i o n  to  
advance any v a lid  state  p o l ic y .

P icketing , however, i s  not the only form o f  
communication that combines speech with conduct. 

Marching, demonstrations, meetings, and d o o r - to -  
door canvassing involve conduct. Indeed, v i r ­
tu a lly  a l l  o f  the e f f e c t iv e  methods fo r  the wide­
spread dissemination o f  ideas involve some form o f  
conduct. The d ecis ion s o f  th is  Court regarding



-  24 -

such other speech-conduct combinations establ ish  
const i tu t ion a l  standards c le a r ly  inconsistent  with 
those in R it ter  and i t s  progeny.

The e a r l i e s t  cases dealing with th is  problem 
conerned the l icens ing  o f  parades and demonstra­
t ions .  From Hague v. C .I .O . ,  307 U.S. 496 (1939), 
t o  Shutt lesw orth  v .  Birmingham, 394 U.S. 147 
(1969), th is  Court has drawn a consistent  d i s t in c ­
t ion  as to  the basis on which parade permits could 
be given or withheld. A con s t i tu t ion a l ly  va l id  
statute  must limit  that permit dec is ion  to con­
sidering whether the time, place and manner o f  
the march would disturb the publ ic .  See Hague v . 
C .1 . 0 . , 307 U.S. at 516; Shuttlesworth v. Birming­
ham, 394 U.S. at 154-156; Cox v. New Hampshire, 
312 U.S. 569, 576 (1941). The regulatory power 
stems from the government's "duty and resp on s ib i l ­
i t y  to keep [ i t s ]  s treets  open and avai lab le  for  
movement", Shuttlesworth v. Birmingham, 312 U.S. 
at 152, and extends only so far as that duty and 
resp o n s ib i l i t y  require . Hague warned that this  
d is c re t io n  could not be so exercised  with regard 
to the content o f  the views being expressed in the 
parade as to become an instrument f o r  "suppression 
o f  f ree  expression o f  views" , 307 U.S. at 516, and



-  25 -

Cox ca u t io n e d  that the l i c e n s i n g  must be made 
"without unfair  d iscr im inat ion ."  Cox, 312 U.S. at 

578, and S h u t t le s w o r t h , 394 U.S. at 152, both 
appear to assume that fo r  const i tu t ion a l  purposes 
parades and p i c k e t i n g  are i n d i s t i n g u i s h a b l e .

The s t r o n g  i n d i c a t i o n  in  the parade cases  
that the government can regulate only the conduct 
aspect o f  a conduct-speech combination is  con­
f irmed by d e c i s i o n s  in  o th er  a rea s .  J u s t i c e  
Black, concurring in Tree Fru its , argued that the 
statute  at issue in the instant case was uncon­
s t i tu t io n a l  because i t  undertook to regulate , not 
the conduct o f  the p ickets ,  but the content o f  
the ideas being advanced by them.

The statute  in no way manifests any govern­
ment i n t e r e s t  a g a in s t  p a t r o l l i n g  as such, 
since the only patro l l ing  i t  seeks to make 
unlawful  i s  that  which is  c a r r i e d  on to  
advise the public ,  including consumers, that 
c e r t a i n  p rodu cts  have been produced by an 
employer with whom they have a dispute. A l l  
who do not patro l  to  publ ic ize  this  kind o f  
dispute are, so far as this sect ion  o f  the 
s t a t u t e  i s  con cern ed ,  l e f t  whol ly  f r e e  to  
p atro l .  Thus the sect ion  is  aimed at out­
lawing f r e e  d i s c u s s i o n  o f  one s id e  o f  a 
certa in  kind in a labor dispute and cannot be 
s u s ta in ed  as a p e r m is s ib le  r e g u l a t i o n  o f  
p a t r o l l in g .  377 U.S. at 78-79.

Such r e g u l a t i o n  o f  speech was s u b j e c t  to  the 
usual  s t r in g e n t  c o n s t i t u t i o n a l  standard ,  and



-  26

t h e r e f o r e  i n v a l i d .  377 U.S. at 79. J u s t i c e  
Douglas advanced the same d i s t i n c t i o n  in  Food 
Employees v. Logan Valley Plaza, 391 U.S. at 326. 
"Picketing is  free  speech p lu s , the plus being 
physical a c t iv i t y  that may implicate t r a f f i c  and 
r e l a t e d  m a tters .  Hence the l a t t e r  a s p e c t s  o f  
p icketing may be regulated ."

The f u l l  Court adopted th is  d i s t in c t io n  two 
months a f ter  Food Employees in United States v . 
0 'Brien, 391 U.S. 367 (1968), "[W]hen 'speech' 
and 'n o n - s p e e c h '  elements are combined in the 

same course o f  conduct, a s u f f i c i e n t l y  important 
governmental interest  in regulating the nonspeech 

element can ju s t i f y  the inc idental  l imitations on 
F i r s t  Amendment f r e e d o m s . "  391 U.S. at 376. 
(Emphasis added). While the amount o f  government 
interest  involved was not the stringent "compel­
l i n g  i n t e r e s t "  s tandard ,  the Court emphasized 
that the i n t e r e s t  must be " u n r e la t e d  to  the 
su p p re ss io n  o f  f r e e  e x p r e s s i o n " .  391 U.S. at 
377. 0 ' Brien ex p la in e d  the e a r l i e r  d e c i s i o n  
in Stromberg v. C a l i f o rn ia , 283 U.S. 359 (1931), 
s t r i k i n g  down a s t a t u t e  f o r b i d d i n g  the use o f  
a f la g  to express opposit ion  to the government, 
in l ight  o f  th is  d i s t in c t i o n .  "Since the statute



-  27

there was aimed at suppressing communication i t  

could not be sustained as a regulation of  noncom- 
municative conduct."  391 U.S. at 382. Justice  
B la c k ' s  c o n c u rr in g  o p in io n  in  Tree F ru i ts  was 
c i ted  with apparent approval.  I d . .  In Buckley v . 

Valeo, 424 U.S. 1 (1976), the Court held that, 
even though independent p o l i t i c a l  expenditures 
might in v o lv e  an element o f  cond uct ,  r e g u l a ­
tion o f  such expenditures was nonetheless subject 
to the usual stringent F irst  Amendment standards 
because the government's " in te res t  in regulating 

the alleged 'conduct '  o f  giving or spending money 
'a r ises  in some measure because the communication 

a l l e g e d l y  i n t e g r a l  to  the conduct i s  i t s e l f  
thought to  be h a r m f u l ' . "  424 U.S. at 17. See 
a l s o  F i r s t  National Bank o f  Boston v. B e l l o t t i , 
435 U.S. 765, 786, n.23 (1978).

These cases make c lear  that when speech and 
conduct are combined in  a parade, the display o f  a 
f la g ,  the expenditure o f  funds to influence an 
e le c t i o n ,  or the destruction o f  a draft  card, that 
combination gives to the government no power to 
contro l  the substance o f  the speech involved; only 
regulation o f  the conduct i s  exempt from the usual 
stringent F irst  Amendment standard.



-  28

Picketing is  no d i f f e re n t .  Cox and Shuttles -  
worth treat parades and picketing as in d is t in ­
g u is h a b le .  The m a jo r i t y  o p in io n  in O 'Brien  
r e l i e s  on Justice  Black 's  opinion in a picketing 
case. Pol ice  Department o f  Chicago v. Mosley, 408 
U.S. 92 (1972), expressly held that a l im itat ion  
on the " s u b j e c t  m atter "  o f  p i c k e t i n g  cannot 
be reg a rd ed ,  or  upheld ,  as a " t im e ,  p la c e  and 
manner" regulation. 408 U.S. at 97-99.

The conduct element in p icket ing,  which o ften  
involves only one or two in d iv id ua ls ,—̂ is modest 
by comparison to the thousands o f  demonstrators 
in Shuttlesworth or to other parades and public  
meetings. The most noted form o f  conduct involved 
in picket ing is  p a tro l l in g ,  walking back and forth 
in front o f  a part icu lar  s i t e .  In fact  such move­
ment is  not necessar i ly  regarded by the pickets 
as essentia l  to  their  a c t i v i t y ;  o f ten  the pickets 
p r e f e r  to stand s t i l l ,  and on ly  move because 
d i r e c t e d  to  do so by a p o l i c e  o f f i c e r .  That

7/ See, e . g . ,  International Brotherhood o f  Team­
s t e r s  v . Hanke, 339 U.S. 470, 472 (1950) (one 
p i c k e t ) ;  Local 10 v. Graham, 345 U.S. 192, 199
(1953) (one or two p i c k e t s ) ;  N.L.R.B. v. Fruit 
and V egetab le  P ackers ,  377 U.S- ! 5 8, 6"0 (1964) 
( two or three p i c k e t s ) ; P o l i c e  Department o f  
Chicago v. Mosley, 408 U.S. 9 2 ~, 93 (1972) (one
p i c k e t ).



-  29

one or two people walk back and forth on a path a 
few yards long seems hardly more "conduct" than i f  
they stood s t i l l .  A lecturer  pacing back and 
forth the same distance would not ord inari ly  be 
described, on that account, as engaging in "speech 
p l u s " ;  indeed ,  c e r t a i n  c l a s s i c a l  Greek p h i l ­
osophers are known as the Peripatetics  because 
i t  was the pract ice  o f  A r is to t le  to walk through 
the Lyceum as he discoursed with h is  pupils .  I f  
the union members in th is  case had "p a tro l led "  in 
front o f  the Safeco a f f i l i a t e s  carrying handbil ls ,  
an in j u n c t i o n  based on the content  o f  those 
l e a f l e t s  would be treated as a prior restraint  on 
free speech. The applicable  legal  standard is no 
d i f fe rent  because here they carried signs instead.

I l l  THE FIRST AMENDMENT PRECLUDES INTERFERENCE 
WITH ADVOCACY OF, OR COMMUNICATION OF FACTS 
INTENDED TO INDUCE, LAWFUL CONDUCT

The r e s t r i c t i o n  contained in sect ion  8 (b ) (4 )  
( i i )  is  unquestionably aimed at the substance o f  
the views being advanced by union p ickets .  For 
the reasons set forth in part I I ,  the const i tu ­
t ional  standards applicable  to such a r e s t r i c t i o n  
are the same as those which would apply i f  the law 
forbad  h a n d b i l l s ,  parades ,  speeches  or  books 
advocating the same sort  o f  boycott ,  or describing



30

the same underlying labor d ispute.—
The l e g i s la t iv e  h is tory  o f  sect ion 8 (b ) (4 )  

( i i )  leaves no doubt that Congress intended that 
s e c t i o n ,  at the l e a s t ,  to  sharply  reduce the 
number and e f fe c t iv en ess  o f  consumer boycotts .  
Whether the public  interest  in even eliminating 

these boycotts  would const i tu te  "a subordinating 
interest  which is  compelling", F irst  National Bank 
o f  Boston v. B e l l o t t i , 435 U.S. at 786, may well  
be doubted; had Congress thought the matter of 
such great importance i t  would have f l a t l y  pro­
h i b i t e d  consumer b o y c o t t s ,  as i t  had e a r l i e r  
forbidden secondary employee act ion ,  rather than 
merely p a r t i a l l y  o b s t r u c t i n g  advocacy  o f  such 
conduct. The Court need not, however, resolve  
that question,  fo r  several decis ions o f  th is  Court 

make i t  c lear  that, regardless  o f  the importance 
o f  the goal involved, Congress chose an imper­

missib le  means by which to achieve i t .
(1 )  The conduct  sought by union p i c k e t s  

subject  to  sect ion  8 ( b ) ( 4 ) ( i i )  is  i t s e l f  ent ire ly

8/  The House v e r s i o n  o f  s e c t i o n  8( b ) ( 4 ) ( i i )  
contained just  such a sweeping proh ib it ion  against 
communication. See Tree F r u i t s ,  377 U.S. at 
66-69.



31

la w fu l .  A consumer may com p le te ly  r e fu s e  to 
patronize a Safeco a f f i l i a t e  because o f  the labor 
dispute at Safeco, and an a f f i l i a t e ,  because of 
such a b o y c o t t ,  or  o th e r w is e ,  cou ld  l e g a l l y  
transfer i t s  business from Safeco to another firm. 
The National Labor Relations Act neither forbids 
these act ions nor places any obstacle  whatever in 
the way of  a consumer or vendor that decides to 
take them. What the Act s eek s ,  r a t h e r ,  i s  to  
prevent a union from providing a consumer with the 
in fo r m a t io n  or arguments which might lead to  
such a boycott .  Congress, apparently be l iev ing  
that many consumers would engage in a boycott i f  
they knew that a union wanted them to do so, or 
perhaps merely upon learning that a vendor was 
s e l l i n g  products  from a s t ru ck  p la n t ,  forbad  
unions from providing that information to con­
sumers in the manner which Congress, employers, 
and unions a like recognize as the most d i re c t ,  
e f f e c t i v e  and inexpensive method o f  communication 
— picket ing .

This Court has r e p e a t e d ly  he ld  that the 
government ca n n ot ,  c o n s i s t e n t  with the F i r s t  
Amendment, seek to  prevent o th erw ise  lawful  
conduct by suppressing the information on which



-  32 -

that conduct depends. In Virginia  Pharmacy Board 
v. Virginia  Consumer Counci l, 425 U.S. 748 (1976), 
Virginia  sought to  prevent consumers from choosing 
among pharmacists on the basis o f  the ir  charges by 
forbidding the advertis ing of  those fees . This 
Court h e ld  t h a t ,  whi le  the s t a t e  cou ld  l i m i t  
competition in other ways,

i t  may not do so by keeping  the p u b l i c  in  
ignorance of  the en t ire ly  lawful terms that 
competing pharmacists  are o f f e r i n g .  In 
th is  sense, the ju s t i f i c a t i o n s  Virginia  has 
o f f e r e d  f o r  su p p ress in g  the f low o f  p r e ­
s cr ip t ion  drug pr ice  information, far from 
persuading us that the flow is  not protected 
by the F irs t  Amendment, have re in forced  our 
view that i t  i s .  425 U.S. at 770.

In Linmark Associates ,  Inc, v. W il l ingboro , 431 
U.S. 85 (1977), town o f f i c i a l s  sought to reduce 
panic s e l l in g  o f  homes by forbidding the posting 
o f  " f o r  s a l e "  s igns  in  f r o n t  o f  houses ,  thus 
preventing homeowners from knowing how many houses 
in  t h e i r  ne ighborhood  were on the market. In 
invalidating  that ordinance this  Court reasoned 
that, however laudable the township's goal might 
be , " th e  F i r s t  Amendment d i s a b le d  [ i t ]  from 
achieving i t s  goal by r e s t r i c t i n g  the free flow o f  
i n f o r m a t i o n . "  431 U.S. at 95. Here, as in 
Linmark and Virginia  Pharmacy, the suppression of



33

in fo r m a t ion  i s  not com p le te ;  wh i le  the most 
e f f e c t i v e  and t rad it ion a l  manner o f  communication 
has been forbidden, other more cumbersome methods 
remain. But Linmark and Virginia  Pharmacy con­
demned regulating conduct by suppressing informa­
t ion ,  however partia l  or imperfect that suppres­
sion might be.

(2 )  Here, un l ike  Linmark and V i r g in ia  
Pharmacy Board, the suppression is  intended to tip 
in favor o f  one side a public  debate regarding 
a lternative  courses o f  act ion.

In those cases the suppressed information was 
o f  importance to the potentia l  s e l l e r  and buyer 
resp ect iv e ly ,  but bore l i t t l e  i f  at a l l  on any 
contest  o f  ideas between adverse parties .  Here, 
however, the primary e f f e c t  o f  whether a consumer 
boycotts  a vendor i s  not on the consumer, who can 
presumably buy similar goods or services  e l s e ­
where, but on the union which f a v o r s ,  and the 
vendor and s tru ck  employer which op pose ,  that 
b o y c o t t .  In the c o n t e s t  f o r  the support  o f  
consumers, the employer w i l l  defend i t s  conduct in 
the labor dispute, and the vendor w i l l  urge that 
i t  not be penalized for  merely s e l l in g  a product 
from the disputed employer. The union in turn



-  34 -

w i l l  argue the m erits  o f  i t s  p o s i t i o n  in the 
primary dispute, and the importance o f  consumer 

support to  bring about the successful  conclusion 
o f  the s t r i k e  or o th er  j ob  a c t i o n .  But in  a 

s o c i e t y  where some consumers w i l l  o r d i n a r i l y  
support a boycott urged by a union, and where few 

consumers w i l l  know about labor disputes at o ften 
distant plants, or about the presence o f  merchan­
dise from such plants on a merchant's shelves, 
merely in form ing  the consumer that the union 
advocates a boycott and why is  l ik e ly  to be of 
c r i t i c a l  importance. "When we prohib it  consumer 
picketing we compel the public ,  through ignorance 
o f  the s i tuat ion ,  to  side with the employer rather 
than the union.  We prevent the consumer from 
making h i s  own c h o i c e . "  105 Cong. Rec. 16397 
( d a i l y  e d . ,  Sept .  3, 1959) ,  (remarks o f  Sen.
Morse).

The proh ib it ion  of  speech involved here is 
thus far from neutral.  The employer and vendor 
are en t ire ly  free to engage in any s o l i c i t a t i o n  
they please to ent ice  consumers to shop at the 
vendor 's  store or buy the struck product, while 
sect ion  8( b ) ( 4 ) ( i i )  forbids the union to use i t s  
most e f f e c t i v e  means o f  communication, p icketing,  
to reveal to consumers that the union wants them



-  35 -

to  e x e r c i s e  t h e i r  l e g a l  r i g h t  to  b o y c o t t  the 
vendor. Indeed, i t  is  only a labor organization 
that is forbidden to picket for  such a secondary 
boycott ;  i f ,  fo r  example, the vendor refused to 
handle the struck product, the employer could send 
agents to picket the vendor, urging consumers to 
boycott  the vendor because of  that act ion .  Even 
i f  the statute  forbad the use o f  pickets by a l l  
part ies ,  that would not render i t  equitable . A 
labor law cannot be described as fa i r  because i t  
forbids union members and high corporate o f f i c i a l s  
a l ike  to walk picket l in es ,  leaving both free to 
publ ic ize  the ir  views through f u l l  page advert ise ­
ments in the New York Times or commercials  on 
network t e l e v i s i o n .  Such l a v i s h l y  expensive  
methods may be within the reach o f  large corpora­
t i o n s ,  but " [ p ] i c k e t i n g  i s  . . .  the working 
man's method of  giving p u b l i c i ty  to the facts  of 
industr ia l  l i f e . "  Local Union No. 10 v. Graham, 
345 U.S. 192, 202 (1953) (Douglas, J. , concur­
r in g ) .

Congress, by refusing to prohibit  consumer 
p ar t ic ipat ion  in secondary boycotts ,  has chosen to 
leave the consumer's dec is ion  whether to boycott  a 
vendor d e a l in g  in stuck  products  t o  the f r e e  
marketplace of  ideas;  having so chosen, Congress



-  36

cannot con s t i tu t ion a l ly  r e s t r i c t  the access o f  
one contestant to  that market. In Pol ice  Depart­
ment o f  Chicago v. Mosley, 408 U.S. 92 (1972), 
this  Court struck down an ordinance which permit­
ted labor unions, but not others, to  picket  near 
open school buildings.

[U]nder the Equal Protect ion Clause, not to 
mention the F irst  Amendment i t s e l f ,  govern­
ment may not grant  the use o f  a forum to  
people whose views i t  finds acceptable, but 
deny use to  those  w ish ing  t o  express  l e s s  
favored  o r  more c o n t r o v e r s i a l  v iew s .  . . .  
There is  an "equality  o f  status in the f i e ld  
o f  i d e a s , "  and government must a f f o r d  a l l  
p o in t s  o f  view on equal  o p p o r t u n i t y  to  be 
heard. 408 U.S. at 96.

These c o n s i d e r a t i o n s  apply â  f o r t i o r i  where 
the r e s t r i c t i o n  forb ids ,  not a l l  d iscussion o f  a 
part icu lar  top ic ,  but only advocacy by one side of  
a p a r t i c u l a r  p o in t  o f  v iew .  See a ls o  Cox v . 
Louisiana, 379 U.S. 536, 581 (1965) (Black, J. , 
concurr ing ) .

(3 )  Suppress ion  o f  speech i s  p erm it ted ,  
i f  at a l l ,  only in the presence o f  a compelling 
public  in teres t ,  F irst  National Bank o f  Boston v . 
B e l l o t t i ,  435 U.S. at 786, because there, faced 
with a c o n f l i c t  between speech and a p u b l i c  
p o l icy  o f  extraordinary importance, the government 
may be permitted to prefer  the l a t te r .  But that



-  37

j u s t i f i c a t i o n  requires a demonstration that the 
speech and p o l i cy  are in c o n f l i c t ,  a demonstration 
which cannot be made where the government has not 
sought to  u t i l i z e  methods short o f  censorship to 
ach ieve  i t s  g o a l s .  Thus in  V i r g in ia  Pharmacy 
Board, 425 U.S. at 770, and in Linmark, 431 U.S. 
at 97, this  Court emphasized that the government 
had not sought to achieve i t s  goals by regulating 
conduct rather than by suppressing information. 
As a general matter, whatever the public p o l i c ie s  
involved, an enactment suppressing advocacy of  
lawful conduct must f a l l  because a less const i tu ­
t ion a l ly  o f fens ive  means, regulating the conduct 
i t s e l f ,  has not been u t i l i z e d .

(4 )  There are ,  o f  c o u r s e ,  s i t u a t i o n s  in  
which the const i tu t ion  i t s e l f  protects  particular  
c o n d u c t ;  in such a case the government cannot 
circumvent that protect ion  by forbidding advocacy 
o f  the c o n s t i t u t i o n a l l y  p r o t e c t e d  b e h a v io r .  
See Bigelow v. V irg in ia , 421 U.S. 809, 822-826 
(1975). Such considerations may well be present 
here. In the decade leading to the Revolution the 
primary method u t i l i z e d  by the c o l o n i s t s  to  
advance t h e i r  i n t e r e s t s  was what we would now 
d e s c r ib e  as a secondary  b o y c o t t .  Aggrieved



38

success ively  by the Stamp Act, the Townshend Acts,
and the Intolerable  Acts,  the co lon is ts  jo ined in
increasingly  e f f e c t i v e  agreements to refuse to
purchase Brit ish  goods unti l  the measures were

repealed. In 1774, fo r  example, the Continental
Congress adopted a reso lut ion  agreeing to refuse,
u n t i l  the I n t o l e r a b l e  Acts  wre r e s c in d e d ,  to
"import into  Brit ish  America, from Great Britain
or I r e la n d ,  any goods ,  wares, or merchandize

9/
whatever".— The Brit ish  government, which had 
enacted the disputed measures, was not the vendor 
o f  these goods, and did not su f fe r  d i re c t ly  from 
the boycott .  But the co lo n is t s  reasoned that the 
Brit ish  merchants who would be damaged would in 
turn use the ir  considerable influence to  obtain 
repeal of  the ob ject ionab le  l e g i s la t i o n .  That is  
prec ise ly  what in fact  occurred.— ^

The patr iots  who led the nation through these 
painful ,  but at times success fu l ,  boycotts ,  were in

9/ H.S. Commager, Documents o f  American History, 
p. 85 (7th Ed., 1963).

10/ S.E. Morrison, Oxford History o f  American 
People, pp. 197-200, 208 (1963). Petit ions from 
London merchants urging repeal o f  these measures 
are set out in H.S. Commager, Documents o f  Ameri­
can History, pp. 59-60, 87-88 (7th Ed.,  1963).



-  39

many cases the same men who framed and brought 
about the adoption o f  the Constitution and the 
B i l l  o f  Rights. It seems unlikely  that they would 
have authorized the Congress to s tr ip  Americans 
o f  what had been one o f  the most important p o l i t i ­
ca l  too ls  of  the era leading to the Revolution. 
A consum er 's  p r i v i l e g e  to  w ithh o ld  h is  or her 
patronage f o r  p o l i t i c a l  or  s o c i a l  rea son s ,  
such as sup p ort in g  trade  un ions ,  may w e l l  be 
numbered among the rights reserved to the people 
by the Ninth and Tenth Amendments. At the very 
least ,  advocacy o f  such boycotts ,  in which v i r ­
tually  every co lon ia l  leader engaged at some point 
between 1765 and 1775, must be viewed as enjoying 
a p a r t i c u l a r l y  high l e v e l  o f  c o n s t i t u t i o n a l  
protect ion .

(5) I f ,  as we urge, the government cannot 
forb id  advocacy o f  lawful conduct, the d is t in c t ion  
between such speech and advocacy  o f  unlawful 
conduct w i l l  not always be c l e a r .  Although, for 
example, union p i c k e t s  may urge a secondary 
consumer b o y c o t t  o f  a vendor ,  they may not 
urge an unlawful job act ion  against that vendor by 
h i s  or  o th er  employees. Where the p i c k e t s '  
s igns , whatever the ir  content, provokes such a job



-  40 -

action, the Board could con st i tu t ion a l ly  require 
the union to take whatever steps were necessary to 
halt  that impact, including removing the pickets 
i f  necessary.  In this  case,  however, the pick­
et ing in fact produced neither a work stoppage 
a t ,  nor i n t e r f e r e n c e  with d e l i v e r i e s  t o ,  the 
Safeco a f f i l i a t e s .  App. 10-20. In other s itua ­
tions a single communication may unavoidably bring 
about both lega l  and i l l e g a l  conduct; thus while 
the s a le  o f  c i g a r e t t e s  to minors i s  g e n e r a l ly  
unlawful, there i s  no e f f e c t i v e  manner by which 
c igaret te  advertis ing could be framed to encourage 
smoking by adults alone. Under such circumstances 
a dual impact communication could be prohib ited.

IV. THE FIRST AMENDMENT PRECLUDES INTERFERENCE 
WITH A PARTICULAR METHOD OF ADVOCACY OR 
COMMUNICATION BECAUSE THAT METHOD IS THOUGHT 
TO BE EXCESSIVELY EFFECTIVE

Congress acted to  forbid  certain picketing 
because i t  bel ieved p icketing was the most impor­
tant and e f f e c t i v e  method by which a union urged 
p e op le  to  b o y c o t t  a vendor .  The l e g i s l a t i v e  

h i s t o r y  se t  out in  d e t a i l  by S a feco  suggests  
Congress may have f e l t  that picketing was in a 
sense to o  e f f e c t i v e ,  that  i t  would t o o  e a s i l y



-  41

succeed in persuading consumers not to patronize a
vendor or , perhaps, not to buy a product. Actual
experience, o f  course, i s  often to the contrary;
re cen t  un ion -sup p orted  b o y c o t t s  o f  nonunion
l e t t u c e  and o f  c l o t h e s  produced by the J .P .
Stevens Company have met with uneven r e s u l t s .
Union members at times cross picket l in es ,  not
only to shop, but also  to work. However, even i f
a p i c k e t  l in e  had the g a lv a n iz in g  e f f e c t  that
Congress may have bel ieved, that would not be a
legit imate basis for  r e s t r i c t in g  i t s  use.

The p o s s i b i l i t y  that some form o f  advocacy
could be forbidden because i t  was thought "unduly"
e f f e c t i v e  at promoting the advocated, and ent ire ly
lawful,  act ion,  has been consistent ly  re jec ted  by
t h i s  Court . In F i r s t  Nat iona l  Bank o f  Boston
v. B e l l o t t i , 435 U.S. 765 (1978), a prohibit ion
ag a in s t  c o r p o r a t e  expen ditures  to  in f lu e n c e
referenda was defended on the ground that, because
o f  their  great wealth, corporate advocates could
overwhelm opposing points o f  view. This Court
found that argument con s t i tu t ion a l ly  untenable:

To be sure, corporate advert is ing may in f lu ­
ence the outcome o f  the v o t e ;  t h i s  would 
be i t s  purpose .  But the f a c t  that  the 
advocacy may persuade the e l e c t o r a t e  is



-  42

hardly a reason to suppress i t :  the Consti­
tution "protects  expression which is eloquent 
no less than that which is  unconvincing." 435 
U.S. at 790.

In Buckley v. Valeo, 424 U.S. 1 (1976), the Court
disapproved on similar grounds a c e i l in g  on d irect
expenditures in support o f  candidates:

It i s  argued . . .  that the anc i l lary  govern­
mental interest  in equalizing the re la t ive  
a b i l i t y  of  individuals and groups to in f lu ­
ence the outcome o f  e l e c t i o n s  se rv es  to  
j u s t i f y  the l im itat ion .  . . .  But the concept 
that government may r e s t r i c t  the speech 
of  some elements o f  our soc ie ty  in order to 
e n ch a n ce  t h e  r e l a t i v e  v o i c e  o f  o t h e r s
is wholly fore ign to the F irs t  Amendment___
424 U.S. at 48-49.

Mills v. Alabama, 384 U.S. 214 (1966), re jected  
the suggestion that e le c t io n  day newspaper ed i to r ­
ia ls  could be prohibited  because they might have 
a d i s p r o p o r t i o n a t e  e f f e c t  on the e l e c t o r a t e .

These decis ions apply a_ f o r t i o r i  to  peaceful 
p icket ing .  Picketing is  p a r t icu la r ly  e f f e c t i v e  
fo r  three reasons. F irs t ,  i t s  message is  d e l iv ­
ered  at the time and p la c e  where a consumer 
decides whether to patronize the vendor or buy the 
struck product. But this  does not involve any



-  43 -

exaggerated impact o f  the message on the people to 
whom i t  i s  r e l e v a n t ,  on ly  the e f f i c i e n c y  o f  
avoiding giving that message to  the vast majority 
o f  the population who would never deal with the 
vendor anyway. Targeting communication at the 
audience which w i l l  act  on i t  i s  the normal 
pract ice  in a l l  areas of  speech.

Second, the message i s  presented on a sign, 
whose content can be gleaned by consumers from a 
distance, affording them time to r e f l e c t  on i ts  
contents before they reach the door o f  the vendor. 
The sign may be read by consumers who would be 

r e l u c t a n t  to a ccept  a h a n d b i l l ,  or  who would 
take a l e a f l e t  but only  read i t ,  i f  at a l l ,  
a f t e r  they had l e f t  the v e n d o r ' s  prem ises .  A 
two foot  square sign, which o ften  consists  of  a 50 

cent  p ie c e  o f  cardboard on which the p i c k e t  
has hand written his  or her message, i s  among the 

most modest c o n c e iv a b le  methods o f  w r i t t e n  
communication.  The use o f  such s igns  i s  a 
universal ly  available  method o f  written speech, 
access ib le  to the vast majority o f  the population 
unable to a f ford  the mult imil lion d o l lar  adver-  
t i s in g  campaigns approved in First  National Bank
and Buckley, or to buy and e d i t o r ia l i z e  through



-  44 -

the newspaper involved in M i l l s , and even to those 
so impecunious that they cannot a fford to print 
h a n d b i l l s  or  l e a f l e t s .  I f  there i s  a s e r io u s  
imbalance o f  communicative a b i l i t y  between such a 
sign in the hands o f  a lone p icket ,  and a corp­
orate employer or vendor which can spend mil l ions 
o f  do l lars  on sophist icated  radio , t e l e v i s i o n  and 
newspaper advertisements promoting i t s  goods or 
serv ices ,  that imbalance surely i s  not one which 
favors the sign.

For some, p a r t i c u l a r l y  union members or  
s u p p o r t e r s ,  a p i c k e t  l i n e  may be v e s te d  with 
specia l  importance. For them, though c lea r ly  not 
f o r  o t h e r s ,  " [ t ] h e  l o y a l t i e s  and responses  
evoked and exacted  by p i c k e t  l i n e s  are un l ik e  
those fo l lowing from appeals by printed word". 
Hughes v. Super ior  C ou rt , 339 U.S. 460, 464-5 
(1950). But i f  certa in  individuals have a par­
t i c u la r  sense o f  loya lty  evoked by a picket  l ine ,  
that is not because human beings are born with 
an i n s t i n c t i v e  r e s p e c t  f o r  p i c k e t  l i n e s .  On 
the contrary, a picket line in 1800 would have 
provoked no part icu lar  response other than public  
c u r io s i t y ,  and today an anti-union picket line 
ob ject ing  that an employer hired union members



-  45 -

would not provoke the r e a c t i o n  r e f e r r e d  to 
in Hughes. The public  response to a picket line 
i s  o b v i o u s ly  dependent on the i d e n t i t y  o f  the 
pickets  and the content o f  their  message.

Any s p e c i a l  r e s p e c t  a ccorded  union p i c k e t  
lines is the result  o f  a century o f  argument and 
debate, repeated within each generation, as to 
whether working men and women ought to support one 
another during periods o f  labor negotiations and 
str ik es .  Advocates o f  the union movement have 
urged their  members and others that improvements 
in the terms and condit ions o f  employment require 
such outside assistance, and that individuals not 
d i r e c t ly  involved in the dispute could or should 
re ly  on the union concerned to se le c t  appropriate 
goals or t a c t i c s .  The correctness or wisdom o f  
such assoc iat iona l  or id e o log ica l  lo y a l t ie s  are 
not matters into  which the government can inquire. 
Loyalty to a union, or the union movement, and 
d e fe r e n c e  to  i t s  v iew s ,  are not d i f f e r e n t  in  
p r in c ip le  from similar l o y a l t ie s  and deference to 
one 's  employer, the chamber o f  commerce, a p o l i t i ­
ca l  party , or a r e l ig iou s  organization.  Much of 
the free speech which occurs in our so c ie ty  is  
d i r e c t e d  at producing  j u s t  such a l l e g i a n c e s .



-  46

To implement t h i s  l o y a l t y  unions have f o r
years  sought with some success  to  e s t a b l i s h
the picket l ine as the generally accepted method
by which a labor organization indicates  to i t s
supporters that i t  wishes them to take some act ion
with regard to the s i t e  involved. In an ea r l ie r
era unions used d i f fe ren t  methods, such as hand-
. . . .  11/b i l l s , ----  or  urging  su p p or te rs  to  p a t r o n iz e
only  s t o r e s  d i s p la y in g  a union card in  t h e i r  
windows. International Brotherhood o f  Teamsters 
v Hanke, 339 U.S. 470 (1950). Today the Inter­
national Ladies Garment Workers Union broadcasts 
commercials  urg ing  consumers to  " l o o k  f o r  the 
union l a b e l " ,  in the hope they w i l l  buy on ly  
clothes which have such a labe l .  These devices 
are s imilar to  the forms o f  communicative short­
hand used by o th er  o r g a n iz a t io n s  and i n s t i ­
tutions .

When union l a b e l s ,  union ca rd s ,  or  union 
p i c k e t  l i n e s  are extrem ely  e f f e c t i v e  methods 
o f  communication, that  is  not because l a b e l s ,  
cards, or picket  lines  have some mysterious and 
talismanic s ig n i f i ca n ce ,  but because management

11/  See M. B. Schnapper, American Labor:  A
P ic t o r ia l  Social History, 245-47 (1972).



-  47 -

has for  the time being lost  the debate for the 
l o y a l t i e s  o f  the American p u b l i c  concern in g  
labor disputes in general,  or as to the particular  
la b or  d isp u te  in v o lv e d .  To the extent  that 
management has los t  the debate regarding whether 
consumers should heed the c a l l  to act ion signaled 
by labe ls ,  cards or p ickets ,  the government can no 
more seek to compensate for  the unpersuasiveness 
o f  management arguments by forbidding use o f  such 
signals than i t  could seek to compensate for  the 
momentary unpopularity o f  the Democratic party by 
forbidding Republicans from d is c lo s in g  the party 
to which they belonged.



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CONCLUSION

For the above reasons Carpenters and Joiners 
Union v. R i t t e r ' s  Cafe, 315 U.S. 722 (1942), should 
be overruled.  Section 8( b ) ( 4 ) ( i i )  o f  the National 
Labor Relations Act, insofar  as i t  forbids peace­
ful  picketing advocating lawful conduct, should 
be d e c la r e d  u n c o n s t i t u t i o n a l .  A c c o r d in g ly ,  
the judgment o f  the Court o f  Appeals should be 
affirmed.

Respectfully  submitted,

JACK GREENBERG 
ERIC SCHNAPPER 

Suite 2030 
10 Columbus Circle  
New York, New York 10019

Attorneys for  Amicus Curiae



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