The thorny path to Thornhill: the origins at equity of the free speech overbreadth doctrine.

• Author: Cummins, Brendan D.

The overbreadth doctrine(1) is a mainstay of free speech jurisprudence, yet few historians have investigated its origins.(2) Most commentators(3) assert that the doctrine originated in the Supreme Court's landmark 1940 picketing decision in Thomhill v. Alabama.(4) But these scholars have overlooked the labor injunction cases that preceded Thomhill.(5) That line of cases, commonly considered to be hostile to labor,(6) ironically gave rise to what would become one of labor's most significant doctrinal protections.(7)

In labor injunction cases, courts of equity prior to the 1930s often abused their powers by issuing blanket decrees prohibiting picketing and union organizing.(8) A minority of appellate courts held, however, that blanket injunctions were "too broad,"(9) relying on traditional maxims of equity(10) to develop a doctrine regarding the proper breadth of labor injunctions. These courts ruled that a decree was "too broad" if it reached beyond unlawful acts and swept within its ambit "lawful persuasion"(11) or "publication"(12) of information about a labor dispute. A significant aspect of this analysis was that courts permitted defendants to challenge the potential breadth of injunctions that would reach peaceful "persuasion" even if the defendants' own conduct had been unlawful and properly enjoinable.(13)

In the crucible of the Great Depression and New Deal, courts increasingly began to recognize labor's right to organize as an important free speech issue,(14) engrafting constitutional analysis onto the extant overbreadth doctrinal structure in labor injunction cases.(15) As labor decrees became more limited, and as employers began to rely on equally expansive picketing statutes,(16) state high courts used the overbreadth approach of equity to invalidate such statutes under the First Amendment.(17) These opinions served as important precedents at the time the Court decided Thornhill, and their influence was evident in the Court's enunciation of the free speech overbreadth doctrine. Drawing from the approach at equity, the Court in Thornhill held that a picketing statute that was so broad as to restrict protected speech was unconstitutional, and that the defendant could challenge such a broad prohibition on its face regardless of whether his own conduct was not privileged.(18)

Part I of this Note traces the emergence of overbreadth analysis in the regulation of labor at equity, analyzing the rise of broad labor injunctions and judicial and legislative efforts to restrict them under the traditional principles of equity. Part II examines the constitutionalization of the overbreadth doctrine under the First Amendment in injunction cases, in state court statutory cases, and finally in the landmark case of Thornhill v. Alabama.

1. The Emergence of Overbreath Analysis in the Regulation of

   Labor at Equity

   1. The Ascendancy of the Labor Injunction and the Abuse of Equity

      The rise of the injunction as the principal tool for regulating labor catalyzed the development of overbreadth analysis at equity. Prior to the 1880s, the primary means of regulating labor disputes in the United States had been criminal prosecution under the common law doctrine of conspiracy.(19) In the late 1800s, however, the labor injunction supplanted criminal conspiracy trials,(20) largely as a result of employers' responses to changes in labor organizing tactics.(21) The local strike by informal groups of workers gave way to far-reaching strikes organized by unions that often coordinated activity across cities, regions, and even the entire nation.(22) Employers found that these new strategies were difficult to combat with conspiracy trials, which moved slowly and could affect only a limited number of people and range of activities.(23) The injunction, which did not require jury trials and could reach a wider range of people in speedier fashion,(24) was a more effective tool for controlling the new coordinated strike strategies and hence became employers' preferred remedy.(25)

      In order to seek injunctive relief, employers had to bring suit at equity rather than at law. Under traditional conceptions, equity served as a supplement to the law, providing a remedy in the interests of justice and fairness where no adequate relief at law was available.(26) The typical remedy at equity was the injunction, or judicial decree, whereas the remedies available at law were damages or criminal prosecution. In requesting equitable relief, employers argued that the available legal remedies of damages or prosecution were inadequate because it would be impracticable to file a multiplicity of actions. to redress a far-reaching labor conspiracy.(27)

      The first equitable decrees against far-flung strikes were issued in railway labor cases in the late 1870s and 1880s,(28) although the precise date of the first labor injunction is unknown.(29) Courts issued sweeping decrees to crush the national railroad strike of 1877(30) and the Pullman Strike of 1894.(31) Observing the expansive potential of this new weapon against labor organizing, employers and manufacturers' associations eagerly sought injunctions in labor disputes outside the railway context and in smaller-scale disputes as well.(32) Employers faced with strikes or other union activity increasingly went to judges, at times even judges who were not officially sitting, and alleged by affidavit that a labor conspiracy would do irreparable damage to their property unless restrained by court order. (33) judges usually granted requests for broad preliminary injunctions forbidding union activity and later issued formal injunctions after bench trials between the parties.(34)

      The scope of these formal injunctions was often expansive with respect to both the number of people and the types of activities covered.(35) The injunction issued against Eugene Debs and the Pullman railroad strikers in 1894, for example, ordered the defendants "and all persons combining and conspiring with them, and all other persons whomsoever, absolutely to desist ... from ... in any way or manner interfering with ... the business of any of the following named railroads."(36) Such a broad injunction put a large number of people at risk of contempt of court for engaging in peaceful efforts to persuade other workers to desist from work. In describing the problem of broad injunctions in 1915, Edwin Witte, a prominent contemporary commentator,(37) reported that "blanket clauses prohibiting interference in any manner with the business or property of complainants have occurred in probably more than one-half of all injunctions which have been issued in connection with labor disputes."(38) The broad reach of labor injunctions gave rise to the slogan "government by injunction,"(39) which reflected the growing discontent with the unbounded power of the equity courts in labor disputes.

      In issuing these injunctions, courts abused the traditional principles of equity that customarily had limited the scope of injunctive powers.(40) One of the central principles that the labor injunction courts overlooked was the tenet that equity courts should tailor their decrees to the substantive law on the matter at hand.(41) This principle is embodied in the maxim, aequitas sequitur legem, which means "equity follows the law."(42) Courts ignored this maxim when they issued blanket decrees without heed to the substantive law of labor conspiracies, which contained modest protections for labor activity.(43)

      Courts in labor injunction cases contravened, moreover, the traditional principle of equity that courts may only issue a decree to prevent irreparable injury that has been clearly proven likely to occur.(44) Courts violated this requirement by issuing injunctions against a wide range of actions that had not been pleaded or proven likely to transpire. In addition, by issuing decrees against virtually all the world, the courts violated the principle that equity should not interfere with the rights of innocent parties or third parties not privy to the suit.(45)

   2. The Emergence of a Doctrine Against Broad Labor Injunctions

      As blanket injunctions proliferated, some of the more prudent state appellate courts(46) began to hand down decisions criticizing the broad scope of labor injunctions under the traditional principles of equity jurisprudence. One of the central maxims that undergirded these decisions was aequitas sequitur legem, which prompted some appeals courts to limit lower court injunctions to the ambit warranted by the common law of labor conspiracy.(47)

      Since the 1840s, the common law in the United States had held that labor organizing did not constitute unlawful conspiracy if both the means and the ends of the activity were legitimate.(48) Over time, courts had developed criteria for identifying legitimate or "justifiable" means and ends. The means of labor activity were deemed legitimate if they fell within relatively narrow constraints of socially acceptable behavior and did. not pose a threat of physical injury or undue economic harm.(49) Courts characteristically distinguished, for example, between legitimate "persuasion" and unacceptable "intimidation."(50) This distinction was malleable,(51) leading to varying levels of protection for picketing and organizing in different jurisdictions.(52) As for labor's ends, courts found them to be legitimate if they fell within the immediate range of workers' economic self-interest and did not interfere with an employer's freedom of contract.(53)

      In following the law, a small number of equity courts at the turn of the century, particularly state appellate courts(54) of California (55) Massachusetts,(56) and New York,(57) began to hold that injunctions were "too broad" if they prohibited labor activity with legitimate means and ends.(58) Although these decisions varied in their degree of substantive protection,(59) with some providing only nominal protection,(60) they were significant because they...