Picketing-Free Speech The Growth of the New Law of Picketing from 1940 to 1952

On April 22, 1940, the Supreme Court of the United States in Thornhill v. Alabama, invalidated a state law prohibiting all picketing.1 Industrial controversies, wrote Mr. Justice Murphy for the Court, are "matters of public concern," and picketing the only "practicable method whereby the facts of a labor dispute may be publicized in the vicinity of the place of business of the employer."'Alabama's statute, he continued, since it forbids even picketing peaceably engaged in for the purpose of dissuading persons from dealing with a disputed firm, unconstitutionally restricts freedom of speech.In one bold move the Court stripped away the fifty-year-old underpinnings of the law of picketing.3 From 1880 to 1940, that law had rested on a foundation of tort principles.As an intentional act which damaged "property" rights, picketing, unless legally privileged, was actionable at law and enjoinable in equity.The burden of proving justification rested with the pickets, who, in order to establish the lawfulness of their activity, were required to show self-interest.Well-defined rules, both statutory and common law, developed within each jurisdiction separating legitimate picketing activities from those which were not legally recognized.While the Supreme Court of the United States had used its influence to set uniform confines beyond which picketing should not be allowed to go, the states retained considerable freedom in defining the objectives for which picketing could be undertaken.* See Contributors' Section, Masthead, p. 73, for biographical data.1 310 U.S. 88 (1940).justice McReynolds dissented without opinion.In a companion case, Carlson v. California, 310 U.S. 106 (1940) the Court ruled equally invalid an ordinance that, counsel argued, proscribed picketing only "for the purpose of persuading others not to buy merchandise or perform services"-objectives thought the Court implicit in all picketing.2 310 U.S. at 104.