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LABOR MOVEMENT

The American labor movement has had a passionate, paradoxical, and often bitter relationship with the Constitution. During the era of LOCHNER V. NEW YORK (1905), from the 1880s to the 1920s, most judges agreed that labor was a commodity like any other; the Constitution guaranteed workers the right freely to sell their labor "just as the employer may sell his iron or coal." During these decades, state and federal courts protected employers' and individual workers' rights to contract and compete in the marketplace free from what judges deemed unwarranted governmental interferences. Courts voided many hours and safety laws as unconstitutional interferences with liberty of contract. Courts enjoined strikes and BOYCOTTS as tortious interferences with employers' freedom of enterprise. Even in "legal" strikes, many state and federal courts held that there was no such thing as peaceful PICK-ETING.

The burdens of repression and semi-outlawry drove trade unionists to develop an alternative constitutional outlook. They assailed the COMMON LAW view that labor was a mere commodity and that employers could acquire a property right in their workers' labor or "human capacities." The INJUNCTIONS that forbade strikers' "interference" with this right were, in labor's view, "judicial re-enactments of slavery." The THIRTEENTH AMENDMENT—even some of the Supreme Court's own Thirteenth Amendment decisions—seemed to support these claims. According to the unions, the Thirteenth Amendment, which abolished slavery, was a "glorious labor amendment" that stood not only for self-owernship but also for labor's dignity and independence. These ideas drew upon the Lincolnian "Free Labor" philosophy of the Thirteenth Amendment's framers who vowed that the amendment would always stand as a shield against the oppression of "free labor both black and white."

Labor's constitutional critique of the injunction also invoked the FIRST AMENDMENT. However slight a feature of official constitutional doctrine, the First Amendment, in the eyes of nineteenth-century trade unionists, always stood for the sanctity of association by citizens and "uniting peaceably to redress wrongs." Injunctions against peaceful persuasion, meetings, publications, parades, and picketing "trampled on" this vision of the First Amendment.

During the Lochner era, only a few dissenting jurists embraced aspects of labor's constitutional vision. But labor's constitutional views were seconded by many NEW DEAL congressmen who championed the NORRIS-LAGUARDIA ACT and WAGNER ACT. These statutes supplanted the old common law regime and ushered in the modern labor-law era. Then, with the demise of Lochner -era SUBSTANTIVE DUE PROCESS and the emergence of a New Deal majority on the Supreme Court, the Court began to extend First Amendment protection to labor protest.

In THORNHILL V. ALABAMA (1940) the Court struck down a state antipicketing statute, declaring 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." Picketing was a means of communicating with the public about matters of public concern. Although decided on the narrow ground of OVERBREADTH, Thornhill established that restrictions on picketing were subject to the constraints of the First Amendment.

In Thornhill, the Court did not adopt organized labor's—and New Deal reformers'—view that liberty of labor protest was bound up with an alternative conception of labor and of industrial democracy. Instead, the Thornhill Court classified picketing as political speech, perhaps because it had just abandoned the economic due-process doctrines of the Lochner era and did not want to appear to be meddling anew in economic affairs. But the marketplace dimension of picketing was inescapable. Picketing is inextricable from strikes and boycotts: a form of moral and political expression at the same time it aims to produce marketplace pressure and advantage. The Court could not recognize and define a constitutional right to picket without confronting the question of constitutional protection for strikes and boycotts. After Thornhill, several lower federal courts began to forge substantial First and Thirteenth Amendment limits on the states' power to bar peaceful strikes and boycotts.

But the Supreme Court soon dissappointed those who expected it to recognize these nascent rights. Instead, the Court returned the issue to the common-law terrain, reaffirming the law's traditional role of restricting the scope of allowable protest and mutaul aid. In Carpenters & Joiners Union, Locale 213 v. Ritter's Cafe (1942) the Court upheld a state court injunction against peaceful picketing. "[R]ecognition of peaceful picketing as an exercise of free speech," the Court reasoned, "does not imply that the states must be without power" to confine the bounds of industrial disputes—in this case, to forbid any pickets urging the public to boycott a cafe whose owner "had awarded a building contract to a man who was unfair to organized labor." The state court had found that the boycott violated the state's ANTITRUST LAWS; the Supreme Court held that state courts and legislatures remained free to "draw the line" in this fashion, balancing "the effort of the employer to carry on his business free from the interference of others against the effort of labor to further its economic self-interest."

But the Supreme Court soon disappointed those who expected it to recognize these nascent rights. Instead, the Court returned the issue to the common-law terrain, reaffirming the law's tradtional role of restricting the scope of allowable protest and mutual aid. In Carpenter and Joiners Union, Local No. 213 v. Ritter's Cafe (1942) the Court upheld a state court injunction against peaceful picketing. "[R]ecognition of peaceful picketing as an excercise of free speach," the Court reasoned, "does not imply that the state must be without power" to confine the bounds of industrial disputes—in this case, to forbid any pickets urging the public to boycott a cafe whose owner "had awarded a building contract to a man who was unfair to organized labor." The state courts had found that the boycott violated the state's ANTITRUST LAWS; the Supreme Court held that state courts and legislatures remained free to "draw the line" in this fashion, balancing "the effort of the employer to carry on his business free from the interference of others against the effort of labor to further its economic self-interest.

In the new regime of judicial deference toward state regulation of business and commerce, this characterization of labor conflicts—as clashes of private economic interests—was a gloomy sign from labor's perspective. Beginning with Ritter's Cafe, the Court ceased characterizing industrial disputes and labor picketing as involving matters of public concern. By the 1950s, labor protest was held to involve "purely commercial activities which may be regulated by the state upon any reasonable basis." Organized workers once again were sellers of a commodity like any other, and judicial restraint was therefore the appropriate posture. Since the New Deal, primary strikes over wages and working conditions have enjoyed considerable statutory protection; but strikes or boycotts that fall outside the narrow circle of statutory or state court approval have found almost no shelter in the Constitution. Today, even peaceful picketing urging consumers not to buy the products of "unfair" employers continues to be routinely enjoined, and First Amendment challenges are routinely rebuffed.

Meanwhile, First Amendment doctrine has undergone transformations that render its treatment of labor protest anomalous. Nonlabor picketing now enjoys full First Amendment protection from content-based restrictions. Moreover, in NAACP v. Claiborne Hardware Co. (1982), the Court held that peaceful picketing by CIVIL RIGHTS groups in support of a boycott of white merchants was fully shielded by the First Amendment. The Court rejected the argument that the picketing was unprotected because the pickets frequently had no direct dispute with the merchants. The pickets' main goal was DESEGREGATION of local public facilities; thus, the boycott was largely a "secondary" one, in labor-law jargon. The Claiborne Court noted that no similar First Amendment protection shields picketing in support of labor boycotts, but the Court found the difference in constitutional status justified by the difference it perceived between the two kinds of boycotts. The black citizens' boycott involved "expression on public issues, which has always rested on the highest rung of the hierarchy of first amendment values." Labor boycotts, by contrast, involve mere clashes of economic interests. Forgetting what it once had recognized—that labor protest also involves "public issues"—the Court relegated labor picketing to a second-class status.

Many commentators have assailed the Court's "public issue" versus "labor" picketing distinction, particularly in light of the elevation of commercial advertising to the status of constitutionally protected speech. At the time of Thornhill, the Court regarded government regulation of COMMERCIAL SPEECH as falling within that domain of social and economic policy that it behooved the Court to leave alone. More recently, however, the Court in CENTRAL HUDSON GAS AND ELECTRIC CORP. V. PUBLIC SERVICE COMMISSION (1980) extended substantial First Amendment protection to commercial advertising so that it now enjoys more constitutional protection than peaceful labor picketing.

It may be that the Court continues to relegate labor protest to a second-class constitutional status because it does not view industrial conflict as a matter of much public concern. Other factors may also figure. Many current decisions rest on the hoary nineteenth-century assumption that picketing is inherently coercive. Today's courts still frequently seem unable to distinguish physical coercion on the part of pickets from the economic force exerted on an employer if uncoerced listeners are simply persuaded by the pickets' message.

Courts may also tolerate severe governmental restraints on labor protest in part because they see unions as powerful political and economic players, more or less evenly matched with their employer-adversaries. In fact, this parity has rarely existed; today, the labor movement is extremely weak—as weak, in some respects, as it was before the New Deal reforms. But it is unlikely that the courts will change the Constitution's treatment of labor protest unless workers and unions themselves again create on a massive scale a protest movement that appeals beyond existing law to an alternative constitutional tradition and the moral imagination of the public.