IN DEFENSE OF THE SUPREME COURT'S PICKETING DOCTRINE

Authors

Louis L. Jaffe, University of BuffaloFollow

Abstract

Picketing, pursued by state prohibition, has now found sanctuary in the Constitution. The Fourteenth Amendment recognizes it as free speech. But not always, says the majority of the Court. There has been sharp fire from both the Right and the Left. The criticism runs much as it did against the Duke of York's generalship of his men. "When they were half-way up they were neither up nor down." In a recent article Mr. Teller argues that picketing is not an exercise of free speech and should never have been constitutionally guaranteed as such. It was the first mistake of the Court that it did just that. Then, having carried the fort, the majority led by Justice Frankfurter fell back into a confused retreat which plunges into obscurity both the principle of protection and the principle of limitation. Incidentally, it established a precedent that the constitutional protection of a civil liberty may be qualified. This is far worse than that there be no protection at all. For Mr. Teller, half a loaf is worse than none. Justice Frankfurter is in even greater discredit with a distinguished and powerful wing of his own brethren and the important section of public opinion which it both leads and reflects. It is apparent to Justice Douglas that picketing is essentially a coercive technique. Its protection as free speech was necessarily a protection of its coercive effect, and as free speech (and here the two critics join hands) it cannot be qualified. Justice Frankfurter, in attempting qualification, either did not understand the implications of his own decision in the Swing case, or has not the courage to carry them through. Thus is the majority of the Court sadly boxed between two such traps of steely, inexorable logic. Yet there is a glimmer of comfort for the infralogical mind in the fact that such strong logic can arrive at quite opposite conclusions.

Recommended Citation

Louis L. Jaffe, IN DEFENSE OF THE SUPREME COURT'S PICKETING DOCTRINE, 41 Mich. L. Rev. 1037 (1943).
Available at: https://repository.law.umich.edu/mlr/vol41/iss6/3