International Brotherhood of Teamsters, Local 695, A.F.L. v. Vogt/Dissent Douglas

Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.

The Court has now come full circle. In Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 744, 84 L.Ed. 1093, we struck down a state ban on picketing on the ground that 'the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution.' Less than one year later, we held that the First Amendment protected organizational picketing on a factual record which cannot be distinguished from the one now before us. A.F.L. v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855. Of course, we have always recognized that picketing has aspects which make it more than speech. Bakery and Pastry Drivers Local v. Wohl, 315 U.S. 769, 776 777, 62 S.Ct. 816, 819, 820, 86 L.Ed. 1178 (concurring opinion). That difference underlines our decision in Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834. There, picketing was an essential part of 'a single and integrated course of conduct, which was in violation of Missouri's valid law.' Id., 336 U.S. at page 498, 69 S.Ct. at page 688. And see National Labor Relations Board v. Virginia Elec. & Power Co., 314 U.S. 469, 477-478, 62 S.Ct. 344, 348, 86 L.Ed. 348. We emphasized that 'there was clear danger, imminent and immediate, that unless restrained, appellants would succeed in making (the state) policy a dead letter * *  * .' 336 U.S. at page 503, 69 S.Ct. at page 691. Speech there was enjoined because it was an inseparable part of conduct which the State constitutionally could and did regulate.

But where, as here, there is no rioting, no mass picketing, no violence, no disorder, no fisticuffs, no coercion-indeed nothing but speech-the principles announced in Thornhill and Swing should give the advocacy of one side of a dispute First Amendment protection.

The retreat began when, in International Brotherhood of Teamsters Union v. Hanke, 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 995, four members of the Court announced that all picketing could be prohibited if a state court decided that that picketing violated the State's public policy. The retreat became a rout in Local Union No. 10, United Ass'n of Journeymen, Plumbers and Steamfitters, etc. v. Graham, 345 U.S. 192, 73 S.Ct. 585, 97 L.Ed. 946. It was only the 'purpose' of the picketing which was relevant. The state court's characterization of the picketers' 'purpose' had been made wellnigh conclusive. Considerations of the proximity of picketing to conduct which the State could control or prevent were abandoned, and no longer was it necessary for the state court's decree to be narrowly drawn to prescribe a specific evil. Id., 345 U.S. at pages 201-205, 73 S.Ct. at pages 589-591 (dissenting opinion).

Today, the Court signs the formal surrender. State courts and state legislatures cannot fashion blanket prohibitions on all picketing. But, for practical purposes, the situation now is as it was when Senn v. Tile Layers Union, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229, was decided. State courts and state legislatures are free to decide whether to permit or suppress any particular picket line for any reason other than a blanket policy against all picketing. I would adhere to the principle announced in Thornhill. I would adhere to the result reached in Swing. I would return to the test enunciated in Giboney-that this form of expression can be regulated or prohibited only to the extent that it forms an essential part of a course of conduct which the State can regulate or prohibit. I would reverse the judgment below.