Picketing typically consists of one or more persons patrolling or stationed at a particular site, carrying or wearing large signs with a clearly visible message addressed to individuals or groups approaching the site. Some form of confrontation between the pickets and their intended addressees appears an essential ingredient of picketing. Congress and the National Labor Relations Board have distinguished between picketing and handbilling, however, and merely passing out leaflets without carrying a placard does not usually constitute picketing. What stamps picketing as different from more conventional forms of communication, for constitutional and other legal purposes, ordinarily seems to be the combination of a sign big enough to be seen easily and a confrontation between picketer and viewer.
Constitutional determinations concerning picketing
have usually involved LABOR unions that are advertising a dispute with employers and appealing to the public or fellow employees for support. The assistance sought might be a refusal by customers to patronize the picketed business or a refusal by workers to perform services or make deliveries there. In addition, picketing has often been a weapon of CIVIL RIGHTS demonstrators, political and religious activists, environmentalists, and other interest groups.
The leading Supreme Court decision upholding picketing as an exercise of FREEDOM OF SPEECH protected by the FIRST AMENDMENT is THORNHILL V. ALABAMA (1940). In striking down a state antipicketing statute, Justice FRANK MURPHY declared that an abridgment of the right to publicize through picketing or similar activity "can be justified only where the clear danger of substantive evils arises under circumstances affording no opportunity to test the merits of ideas by competition for acceptance in the market of public opinion." Despite this sweeping language, the actual holding in Thornhill was narrow. The Alabama courts were prepared to apply a criminal statute to prohibit a single individual from patrolling peacefully in front of an employer's establishment carrying a sign stating truthfully that the employer did not employ union labor.
Following Thornhill two principal themes have dominated the Supreme Court's analysis of the constitutional status of picketing. One is the "unlawful objectives" test and the other is the concept of picketing as "speech plus." Under the first approach, as illustrated by GIBONEY V....