Secondary Consumer Picketing: The First Amendment Questions Remain

The United States Supreme Court has been faced many times with the question of the constitutionality of governmental restrictions on picketing in light of the first amendment protection of free speech. In these decisions, the Court has applied various approaches and tests in an effort to resolve the tension between governmental interests in controlling picketing and individual rights of expression consistent with the first amendment. The Court has confronted these issues particularly in the area of secondary consumer picketing, which is regulated by section 8(b)(4)(ii)(B) of the National Labor Relations Act, as amended. These issues surfaced first in 1957 with the enactment of section 8(b)(4)(ii)(B), which was interpreted by the Supreme Court in 1964 in NLRB v. Fruit Packers Local 760 (Tree Fruits) and recently in NLRB v. Retail Store Employees Union Local 1001 (Safeco). Though confronted by difficult first amendment questions in both cases, a majority of the Court refused to come to grips with the inherent conflicts between governmental regulation of secondary consumer picketing and the first amendment guarantees of freedom of speech. Instead, the Court glossed over the issues, superficially concluding that no conflict exists. This article will examine the Supreme Court\u27s treatment of the constitutional issues involved in governmental control of picketing in general, and will identify the Court\u27s varying approaches over the years. This discussion will, of course, involve a comparison of the Court\u27s resolution of similar questions presented in cases involving different types of picketing. The Court\u27s analysis of picketing in general will then be compared with the Court\u27s treatment of secondary consumer picketing in particular, in an effort to identify whether the Court has been consistent in its approach to first amendment questions presented in all picketing cases. Such a comparison will reveal that the Court provides lesser protection of freedom of expression in the context of secondary consumer picketing, as opposed to political and other types of labor picketing. This lowered constitutional shield is apparently attributable to the Court\u27s pragmatic approach to secondary consumer picketing. Analysis of case law in the area discloses that the Court has afforded reduced constitutional protection to secondary consumer picketing that has a substantial economic impact on the neutral secondary employer. The conclusion can be drawn, therefore, that control of effective picketing will be permitted by the Court. The danger of such an approach is that enforcement of first amendment rights is measured in monetary terms and will be protected only when picketing is ineffectual