Rhodes, Roy T.

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Labor Law: Picketing and Free Speech

University of Florida Levin College of Law

Florida Law Review Volume 2 Issue 1 Article 18 January 1949 Labor Law: Picketing and Free Speech Roy T. Rhodes Follow this and additional works at: https://scholarship.law.ufl.edu/flr  Part of the Law Commons Recommended Citation Roy T. Rhodes, Labor Law: Picketing and Free Speech, 2 Fla. L. Rev. 153 (1949). Available at: https://scholarship.law.ufl.edu/flr/vol2/iss1/18 This Case Comment is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Florida Law Review by an authorized editor of UF Law Scholarship Repository. For more information, please contact kaleita@law.ufl.edu. CASE COMMENTSrealizing his own incapacity with respect to tax matters, turned to aprofessional man publicly regarded as an expert on taxes. The accountant'sopinion was fortified by the investigation of petitioner's books by an in-ternal revenue agent, who made no mention of the tax in question and evensecured a rebate for overpayment. Certainly Mr. Burman exercised rea-sonable care in accepting all this as authority that his taxes were properlypaid, and to impose a fine for wilful neglect would shock not only one'ssense of justice but one's common sense as well.Tom WADDELL, JR.LABOR LAW: PICKETING AND FREE SPEECHWhitehead v. Miami Laundry Co., 36 So2d 382 (Fla. 1948)Defendants, four former employees of the plaintiff and a businessagent for the International Laundry Workers Union, picketed plaintiff'slaundry, carrying cards condemning the wcrking conditions; handedout hand-bills; and through advertisement in the newspapers calledupon plaintiff's employees to strike. The union agent had tried withlittle success to enlist plaintiff's employees as union members, unioniza-tion being the object of the picketing. Only a negligible number ofworkers failed to go to work during this time. An injunction, partiallybased on Florida Statutes 1941, §481.09(3), was granted against theseactivities. On appeal, HELD, peaceful picketing by discharged employeesin cooperation with a union organizational drive to require employer tonegotiate with union representatives is a lawful exercise of the constitu-tional guaranty of freedom of communication. Decree reversed and billdismissed, Justices Terrell, Adams, and Barns dissenting.The Court decided that Florida Statutes 1941, §481.09(3) wasinapplicable, since as a matter of fact a strike was non-existent.' Itthen proceeded to consider the constitutional question involved.Since the earliest days there has been constant confusion in Amer-ican courts as to the exact status of picketing. Many early decisions136 So.2d 382, 385 (Fla. 1948).1Rhodes: Labor Law: Picketing and Free SpeechPublished by UF Law Scholarship Repository, 1949154 UNIVERSITY OF FLORIDA LAW REVIEWheld picketing illegal, 2 while others said that peaceful picketing was acontradiction of terms,8 there being no such thing as peaceful picketingany more than chaste vulgarity.4 Florida originally held peaceful picket-ing illegal, in the absence of a strike, as an infringement upon the em-ployer's business interest.5 In later cases, following the modem trend,picketing was allowed when there was no violence, force, or intimidation,either on the basis that picketing was incidental to the right to strike,or by indulging the fiction that picketing was not calculated to injurethe respondent's business.6 The true reason is that picketing has inrecent years come to be regarded as a legitimate method of forcing theemployer to meet the demands of labor by way of adjusting the interestsof both and of the consumer.Although it is generally conceded that the entire concept of picket-ing was revolutionized by the association thereof with free speech, be-ginning with the Senn7 case and crystalized in the ThornhillS andCarlson9 cases, there is some early authority justifying peaceful picketingon this basis.' 0 This free-speech concept as applied to picketing is wellfounded in logic" and is thought by many to produce social benefits.' 2"Pierce v. Stablemen's Union, 156 Cal. 70, 103 Pac. 324 (1909); George JonasGlass Co. v. Glass Bottle Blowers' Ass'n, 72 N. J. Eq. 653, 66 Ad. 953 (1907).'Elkind & Sons v. Retail Clerks' Int'l Prot. Ass'n, 114 N. J. Eq. 586, 169 At.494 (1933)."Atchison, T. & S. F. Ry. v. Gee, 139 Fed. 582 (S. D. Iowa 1905).'Retail Clerks' Union v. Lerner Shops, Inc., 140 Fla. 865, 193 So. 529 (1939).'Southern Calif. Iron & Steel Co. v. Amalgamated Ass'n, 186 Cal. 604, 200Pac. 1 (1921); Karges Furn. Co. v. Amalgamated Woodworkers, 165 Ind. 421,75 N. E. 877 (1905); Church Shoe Co. v. Turner, 218 Mo. App. $16, 279 S. W.232 (1926).'Senn v. Tile Layers Prot. Union, 301 U. S. 468 (1937).'Thornhill v. Alabama, 310 U. S. 88 (1940).'Carlson v. California, 310 U. S. 106 (1940)."Local Union v. Stathakis, 135 Ark. 86, 205 S. W. 450 (1918); Wood v. Toohey,114 Misc. 185, 186 N. Y. Supp. 95 (1921)."Bakery Drivers Local v. Wohl, 315 U. S. 769 (1942); American Fed. Laborv. Swing, 312 U. S. 321 (1941); Milkwagon Drivers Union v. MeadowmoorDairies, 312 U. S. 287 (1941); see Jaffe, In Defense of the Supreme Court's Picket-ing Doctrine, 41 MicH. L. RaV. 1037 (1943).'Glover v. Retail Clerks' Union, 10 Alaska 274 (D. C. 1942); People v. Saffel,74 Cal.2d 967, 168 P.2d 497 (1946); Westinghouse Elec. Corp. v. United Elec.Radio & Mach. Workers, 353 Pa. 446, 46 A.2d 16 (1946).2Florida Law Review, Vol. 2, Iss. 1 [1949], Art. 18https://scholarship.law.ufl.edu/flr/vol2/iss1/18CASE COMMENTSThere has been praise', on the one hand and harsh criticism14 on the otherof the so-called "picketing policy" instigated in the late thirties by theUnited States Supreme Court.In cases following the Thornhill and Carlson cases the Supreme Courthas attempted to clarify the application of this new concept. Theselater decisions show that an injunction against picketing with a back-ground of violence is constitutional,' 5 and that a state is not requiredin all places and all circumstances to tolerate even peaceful picketing.1lThus the states have the right of regulation as an exercise of policepower for an infringement upon the public interest.' 7 Since freedom ofspeech is not an absolute right,' 8 picketing, a form of free speech, is notabsolute1O Picketing involves more than the exercise of free speechand hence is subject to even greater restrictive regulation. 20 Picketingmay be regulated as to numbers, 2 ' area,2 2 and even purpose, 23 with-out encroaching upon the constitutional protection. Today the trend"'Dodd, Picketing and Free Speech: A Dissent, 56 HAzv. L. REv. 513 (1943);Jaffe, In Defense of the Supreme Court's Picketing Doctrine, 41 Mic. L. REv.1037 (1943); Schlusselberg, The Free Speech Safeguard for Labor Picketing, 34Ky. L. J. 3 (1945); Note, The Doctrine of Picketing as Free Speech-Six YearsAfter, 21 N. Y. U. L. Q. REv. 406 (1946).1'Teller, Picketing and Free Speech, 56 HARv. L. REV. 180 (1942); Teller, Picket-ing and Free Speech: A Reply, 56 H~Av. L. Rzv. 532 (1943)."Milkwagon Drivers Union v. Meadowmoor Dairies, 312 U. S. 287 (1941); RetailClerks' Union v. Wisconsin Emplm't Rel. Board, 242 Wis. 21, 6 N. W.2d 698 (1942)."Bakery Drivers Local v. Wohl, 315 U. S. 769, 775 (1942)."Allen-Bradley Local v. Wisconsin Emphn't Rel. Board, 315 U. S. 740 (1942);Hall v. Hawaiian Pineapple Co., 72 F. Supp. 533 (Hawaii 1947); James v. Martin-ship Corp., 25 Cal.2d 721, 155 P.2d 329 (1944); American Fed. Labor v. Reilly, 113Colo. 90, 155 P.2d 145 (1944)."Kiyoshi Okamoto v. United States, 152 F.2d 905 (C. C. A. 10th 1945); In reHayes, 72 Fla. 558, 73 So. 362 (1916); People v. Schaffner, 382 Ill. 266, 46 N.E.2d 984 (1943)."'United Elec. Radio & Mach. Workers v. Baldwin, 67 F. Supp. 235 (D. D. C.1946); Northwestern Pac. Ry. v. Lumber & Sawmill Workers, 189 P.2d 277 (Cal.1948)."See Mr. Justice Douglas, concurring in Bakery Drivers Local v. Wohl, 315 U. S.769 (1942); Lebaron Printing Specialties v. Paper Converters Union, 75 F. Supp. 678(S. D. Cal. 1948)."Phelps Dodge Copper Prod. Corp. v. United Elec. Radio & Mach. Workers, 138N. J. Eq. 3, 46 A.2d 453 (1946)."Gomez v. United Office & Prof. Workers, 73 F. Supp. 679 (D. D. C. 1947)."OPeters v. Central Labor Council, 179 Ore. 1, 169 P.2d 870 (1946).3Rhodes: Labor Law: Picketing and Free SpeechPublished by UF Law Scholarship Repository, 1949

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Labor Law: Picketing and Free Speech

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University of Florida Levin College of Law