Amendment 1 — Public Issue Picketing And Parading

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First Amendment :

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In its early cases, the Supreme Court held that picketing and parading were forms of expression entitled to some First Amendment protection.[1](https://www.law.cornell.edu/constitution-conan/amendment-1/public-issue-picketing-and-parading#fn1amd1 " Hague v. CIO, 307 U.S. 496 (1939); Cox v. New Hampshire, 312 U.S. 569 (1941); Kunz v. New York, 340 U.S. 290 (1951); Niemotko v. Maryland, 340 U.S. 268 (1951). ") Those early cases did not, however, explicate the difference in application of First Amendment principles that the difference between mere expression and speech-plus would entail. Many of these cases concerned disruptions or feared disruptions of the public peace occasioned by the expressive activity and the ramifications of this on otherwise protected activity.[2](https://www.law.cornell.edu/constitution-conan/amendment-1/public-issue-picketing-and-parading#fn2amd1 " Cantwell v. Connecticut, 310 U.S. 296 (1940); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Terminiello v. City of Chicago, 337 U.S. 1 (1949); Feiner v. New York, 340 U.S. 315 (1951). ") A series of other cases concerned the permissible characteristics of permit systems in which parades and meetings were licensed, and expanded the procedural guarantees that must accompany a permissible licensing system.[3](https://www.law.cornell.edu/constitution-conan/amendment-1/public-issue-picketing-and-parading#fn3amd1 " See, e.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969); National Socialist Party v. Village of Skokie, 432 U.S. 43 (1977); Carroll v. President & Commr’s of Princess Anne, 393 U.S. 175 (1968). ") In Hughes v. Superior Court, however, the Supreme Court upheld an injunction against picketers asking a grocery store to adopt a quota-hiring system for Black employees, affirming the state court’s ruling that picketing to coerce the adoption of racially discriminatory hiring was contrary to state public policy.[4](https://www.law.cornell.edu/constitution-conan/amendment-1/public-issue-picketing-and-parading#fn4amd1 " Hughes v. Superior Court, 339 U.S. 460 (1950). ")

A series of civil rights picketing and parading cases led the Court to formulate standards seemingly more protective of expressive activity. The process began with Edwards v. South Carolina,[5](https://www.law.cornell.edu/constitution-conan/amendment-1/public-issue-picketing-and-parading#fn5amd1 " 372 U.S. 229 (1963). ") in which the Court reversed a breach of the peace conviction of several Black protesters for their refusal to disperse as ordered by police. The statute was so vague, the Court concluded, that the demonstrators had been convicted simply because they peaceably expressed unpopular views. Describing the demonstration upon the grounds of the legislative building in South Carolina’s capital, Justice Potter Stewart observed that “[t]he circumstances in this case reflect an exercise of these basic [ First Amendment
] constitutional rights in their most pristine and classic form.” [6](https://www.law.cornell.edu/constitution-conan/amendment-1/public-issue-picketing-and-parading#fn6amd1 " Id. at 235. See also Fields v. South Carolina, 375 U.S. 44 (1963); Henry v. City of Rock Hill, 376 U.S. 776 (1964). ") In subsequent cases, however, the Court rejected the idea that the First Amendment “afford[s] the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as . . . to those who communicate ideas by pure speech.” [7](https://www.law.cornell.edu/constitution-conan/amendment-1/public-issue-picketing-and-parading#fn7amd1 " Cox v. Louisiana, 379 U.S. 536, 555 (1965). Nonetheless, in this opinion, the Court concluded that a state breach-of-the-peace law granting city officials “completely uncontrolled discretion” to permit parades or demonstrations was unconstitutional. Id. at 557–58. The Court described the facts as “strikingly similar to those present in Edwards v. South Carolina.” Id. at 544–45. ") The Court emphasized that “certain forms of conduct mixed with speech may be regulated or prohibited,” and further concluded that picketing and parading may be regulated under a sufficiently narrowly drawn statute “even though [such conduct is] intertwined with expression and association.” [8](https://www.law.cornell.edu/constitution-conan/amendment-1/public-issue-picketing-and-parading#fn8amd1 " Id. at 563. The Court ruled the state law at issue in this opinion sufficiently narrowly drawn, as it targeted picketing near a courthouse, with the intent of interfering with the administration of justice. Id. at 562, 564. ")

The Court must determine, of course, whether the regulation is aimed primarily at conduct, or whether instead the aim is to regulate the content of speech. In a series of decisions, the Court refused to permit restrictions on parades and demonstrations, and reversed convictions for breach of the peace and similar offenses, when, in the Court’s view, opponents of the demonstrators’ messages had created the disturbance.[9](https://www.law.cornell.edu/constitution-conan/amendment-1/public-issue-picketing-and-parading#fn9amd1 " Edwards v. South Carolina, 372 U.S. 229 (1963); Cox v. Louisiana, 379 U.S. 536 (1965); Gregory v. City of Chicago, 394 U.S. 111 (1969); Bachellar v. Maryland, 397 U.S. 564 (1970). See also Collin v. Smith, 447 F. Supp. 676 (N.D. Ill.), aff’d, 578 F.2d 1197 (7th Cir.), stay denied, 436 U.S. 953 (1978), cert. denied, 439 U.S. 916 (1978). ") Subsequently, however, the Court upheld a ban on residential picketing in Frisby v. Shultz,[10](https://www.law.cornell.edu/constitution-conan/amendment-1/public-issue-picketing-and-parading#fn10amd1 " 487 U.S. 474 (1988). ") finding that the city ordinance was narrowly tailored to serve the “significant” governmental interest in protecting residential privacy. As interpreted, the ordinance banned only picketing that targeted a single residence, and it is unclear whether the Court would uphold a broader restriction on residential picketing.[11](https://www.law.cornell.edu/constitution-conan/amendment-1/public-issue-picketing-and-parading#fn11amd1 " An earlier case involving residential picketing had been resolved on equal protection rather than First Amendment grounds, the ordinance at issue making an exception for labor picketing. Carey v. Brown, 447 U.S. 455 (1980). ")

In 1982’s NAACP v. Claiborne Hardware Co.,[12](https://www.law.cornell.edu/constitution-conan/amendment-1/public-issue-picketing-and-parading#fn12amd1 " 458 U.S. 886 (1982). ") the Justices confronted a case, that, like Hughes v. Superior Court,[13](https://www.law.cornell.edu/constitution-conan/amendment-1/public-issue-picketing-and-parading#fn13amd1 " 339 U.S. 460 (1950). ") involved a state court injunction on picketing, although this one also involved a damage award. The case arose in the context of a protest against racial conditions by Black citizens of Claiborne County, Mississippi. Listing demands that included desegregation of public facilities, hiring Black policemen, hiring more Black employees by local stores, and ending verbal abuse by police, the local chapter of the National Association for the Advancement of Colored People, Inc. (NAACP) unanimously voted to boycott the area’s White merchants. The boycott was carried out through speeches and nonviolent picketing and solicitation of others to cease doing business with the merchants. Individuals were designated to watch stores and identify Black people patronizing the stores; their names were then announced at meetings and published. Persuasion of others included social pressures and threats of social ostracism. Acts of violence did occur from time to time, directed in the main at Black people who did not observe the boycott.

The state Supreme Court imposed joint and several liability upon leaders and participants in the boycott, and upon the NAACP, for all of the merchants’ lost earnings during a seven-year period on the basis of the common law tort of malicious interference with the merchants’ business, holding that the existence of acts of physical force and violence and the use of force, violence, and threats to achieve the ends of the boycott deprived it of any First Amendment protection.

Reversing, the Supreme Court observed that the goals of the boycotters were legal and that most of their means were constitutionally protected; although violence was not protected, its existence alone did not deprive the other activities of First Amendment coverage, particularly where there was no evidence that the boycott organizers authorized, ratified, or even had specific knowledge of the violence. Thus, speeches and nonviolent picketing, both to inform the merchants of grievances and to encourage others to join the boycott, were protected activities, and association for those purposes was also protected.[14](https://www.law.cornell.edu/constitution-conan/amendment-1/public-issue-picketing-and-parading#fn14amd1 " NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907–08 (1982). ") The Court ruled that the activity was protected even though nonparticipants had been urged to join by threats of social ostracism: “[s]peech does not lose its protected character . . . simply because it may embarrass others or coerce them into action.” [15](https://www.law.cornell.edu/constitution-conan/amendment-1/public-issue-picketing-and-parading#fn15amd1 " Id. at 910. The Court cited Thomas v. Collins, 323 U.S. 516, 537 (1945), a labor picketing case, and Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971), a public issues picketing case, which had also relied on the labor cases. Compare NLRB v. Retail Store Employees, 447 U.S. 607, 618–19 (1980) (Stevens, J., concurring) (labor picketing that coerces or “signals” others to engage in activity that violates valid labor policy, rather than attempting to engage reason may be prohibited). To the contention that liability could be imposed on “store watchers” and on a group known as “Black Hats” who also patrolled stores and identified Black patrons of the businesses, the Court responded