[The plaintiff John Nash, the president of Rubber Workers Local 746, and some 90 other individuals were arrested by Tyler, Texas, police officers for unlawful picketing at the Schoellkopf Products Co. plant in Tyler, Texas, under the Texas mass picketing statute. The arrests forced the collapse of a strike against the company. Some three weeks after the arrests began, the plaintiffs received a preliminary injunction against the police in federal court and now seek declaratory relief that the mass picketing statute unconstitutionally infringed their First Amendment rights.] JUSTICE, C. J.... I.
On September 18, 1978, the National Labor Relations Board certified Local 746 of the United Rubber Workers ("the union") as the collective bargaining representative of an appropriate unit of employees at the Schoellkopf Products plant in Tyler.... During the period from September 1978, to February 8, 1979, the union bargained with Schoellkopf Products, without any disruption of work at the company's Tyler plant. On February 8, 1979, the union began engaging in protected concerted activity, in the form of a strike, against the company. Picket lines were thereafter established at the entrance to the company's plant in Tyler....
On March 14, 1979, the company filed a suit in a state court against the union, John Nash, and another union member, seeking a temporary restraining order, a temporary injunction, and a permanent injunction against the union's picketing activities. A temporary restraining order was granted, ex parte,.... on March 14, 1979, restraining picketing and other alleged activities of the union and Local 746.
On March 15, 1979, the company's president Hugo Schoellkopf, arranged for a meeting to be held in the office of the City Manager of Tyler, Texas, at 11:00 A.M. Schoellkopf, executive vice president Delbert Chandler, plant manager Jeff Keasler, and company attorney Erich Klein represented the company. Also present were City Manager Ed Wagoner, Assistant City Manager Terry Childress, Chief of Police Willie Hardy, and the executive director of the Tyler Chamber of Commerce, Freeman Carney. Neither the City Attorney, State District Attorney, nor any union representative was invited to attend this meeting.
According to Schoellkopf, the purpose of the meeting was to ensure that the City of Tyler and its Police Chief would enforce the mass picketing statute at the company's Tyler plant. At the gathering, copies of the statute were made available to the city officials by the company representatives.... From March 15, 1979, to March 28, 1979, approximately 90 arrests were made for "unlawful picketing." In arresting the picketers, the police cited three alleged violations of the mass picketing statute, Article 5154d, as follows: picketers within fifty-foot markers laid out by police and union members was arrested, even a person intending to relieve a picketer on duty; 2.
A picketer who caused a vehicle driven on the access and exit roads to the plant to stop, even momentarily, was arrested, allegedly pursuant to § 1, paragraph 2; and 3. Any striker or sympathizer who shouted "scab" or who was accused of uttering a profanity was arrested, supposedly in accordance with § 2 [an intimidating language provision] of the statute. No arrests were made for alleged acts or threats of violence, destruction of property, or resisting arrest. The arrests of the union's attorneys were particularly notable. Ken Miller, Esquire, and Joe Beam, Esquire, counsel for Local 746, approached the picket line on March 15, 1979, at about 4:30 in the afternoon.
Each identified himself to the police as an attorney for the picketing union members. Without regard to these facts, the Tyler police officers on the scene arrested each attorney for unlawful picketing, handcuffed both, and placed them, first, in the police paddy wagon and, later, in a patrol car. The two attorneys were afterwards taken to jail, booked, and processed. They were ultimately released on bail near midnight on March 15, 1979.... II. Section 1, paragraph 1, the Numbers-Distance Provision. The numbers-distance section of the mass picketing statute makes it illegal for "more than two (2) pickets at any time" to be "within either fifty (50) feet of any entrance to the premises being picketed, or within fifty (50) feet of any other picket or pickets." Tex.Rec.Civ. Stat.Ann. art. 5154d § 1, paragraph 1 (Vernon 1971). This provision, therefore, regulates the time, place, and manner of speech, for the enforcement of this section is not, facially, affected by the content of speech.
The Supreme Court has held that a state may regulate the time, place, and manner of speech, if there is a compelling state interest justifying the restriction. Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 649 (1981). If a compelling interest is shown, nonetheless, the regulation must be content-neutral, narrowly drawn so as to least restrict protected speech, allow alternative means of expression, and, as well, be rationally related to the state interest it is designed to further. Consequently, in preparation for determining whether the questioned statute was drawn with sufficient precision, its potential for misuse must be pragmatically confronted.... It is unquestioned that a state may legitimately regulate violence at a picket line, because the First Amendment protects only "peaceful" picketing. See, e.g., Thornhill, 310 U.S. 88, 102 (1940) ("the dissemination of information concerning the facts of a labor dispute must be regarded as within the area of free discussion that is guaranteed by the constitution").
A state, therefore, has a "substantial" interest in arresting violent picketers. But the statute under consideration is not aimed at violence per se. The state characterizes Article 5154d as a preventive measure, and, in fact, the statute "prohibit[s] conduct which often le[ads] to ... violence." Sherman v. State, 626 S.W. 2d 520, 524 (Tex.Cr.App. 1981) (emphasis added).
Furthermore, the state admits that the goal of preventing violence "is achieved at considerable expense to an individual's or group of individuals' right to effectively communicate." Intervenor's Supplemental Pre-Trial Brief at 9. The Supreme Court has stressed that, while a state has a compelling interest in restricting violent behavior at a picket line, it has no substantial interest in regulating acts that might lead to violence. In Thornhill, the Supreme Court declared unconstitutionally overbroad an anti-picketing statute similar in many respects to the Texas mass picketing statute.
There, the Court determined that the declared state interest, the "protection of the community from the violence and breaches of the peace," did not sufficiently justify the statute that was adopted. Thornhill, 310 U.S. at 105. The court emphasized in Thornhill that, because there was no picketing "en masse," claims of a state interest in protecting the community were not credible, and that free speech could be abridged only where the clear danger of a substantive evil arises.
As in Thornhill, the numbers-distance formula here in issue is not limited to "en masse" picketing, for it prohibits more than two persons from standing near an entrance of a business. The presence of two picketers, both standing 50 feet from a company entrance and from one another, cannot forebode such violence that there is a "significant and legitimate state interest" in arresting those picketers and thereby curtailing their speech. Moreover, the Texas statute is even more restrictive than the statute challenged in Thornhill. The Thornhill statute applied only to the picketing of businesses. The Texas statute, on the other hand, applies to picketing at "any premises."
Additionally, the Thornhill statute applied only to labor picketing, whereas the Texas statute reaches more broadly, andrealistically could be employed to proscribe picketing activities in many other contexts. The state has not suggested any other compelling state interest that would justify the anti-picketing statute. For example, the Texas statute is not specifically directed at the state interest in protecting public order at critical locations. Anti-picketing statutes in issue before the Supreme Court have: assured peaceful ingress to and egress from public buildings, Cameron v. Johnson, 390 U.S. 611 (1968); regulated picketing near a school, Grayned v. City of Rockford, 408 U.S. 104 (1972); and restricted picketing at or near a courthouse, Cox v. Louisiana, 379 U.S. 559 (1965).
The reach of the Texas statute, to the contrary, is far more extensive than the regulations that have been upheld, and closely resembles enactments that have been declared unconstitutionally overbroad. ... The numbers-distance provision facially does not allow adequate "breathing space"; its overbreadth-its unnecessary stifling of First Amendment rights-renders it unconstitutional.
III. Section 2, The Intimidating Language Provision. Section 2 states: It shall be unlawful for any person, singly or in concert with others, by use of insulting, threatening or obscene language, to interfere with, hinder, obstruct, or intimidate, or seek to interfere with, hinder, obstruct, or intimidate, another in the exercise of his lawful right to work, or to enter upon the performance of any lawful vocation, or from freely entering or leaving any premises. Section 2 expressly regulates speech and is thus a content-based statute; as such, it is necessary that it be rigorously tested....
In this case, the statute proscribes such broad categories of speech that the meaning of the words, "insult," "threaten," "obscene," "interfere with," "hinder," "obstruct," and "intimidate," becomes unclear. By way of illustration, it would seem obvious that a protester should not be prosecuted for calling another person a "nerd," but, if a police officer conceived that the intimidating language provision was violated by its use, the statute would allow the prosecution. Because of that, a picketer must speculate as to which words are punishable. But due process requires that persons be given fair notice of what actions are illegal, and that the discretion allowed law enforcement officers be limited by explicit statutory standards. Kolender v. Lawson, 455 U.S. 999 (1983).
As presently drawn, the statute manifestly could have a chilling effect on those who are unclear regarding what is unlawful, and these individuals, on that account, well might restrict "their conduct to that which is unquestionably safe," Baggett v. Bullitt, 377 U.S. 360, 372 (1964). The circumstance of this case indicate that union members who called non-strikers "scabs" had no intention of violating § 2. Nevertheless, the police so interpreted the statute as to arrest the union members for simply using that word. The situation here was not one ... in which any word was said with the requisite degree of force, by a sufficient number of persons, to create a "fighting words" reaction; and there was no evidence of threatened violence in connection with use of the term. The workers who were leaving the plant were in vehicles, and there were few face-to-face confrontations.
If this statute were allowed to stand, local law enforcement officers conceivably could find such pejorative words as "strikebreaker" or "fink" to be in violation of § 2. Cf. Cohen v. California, 403 U.S. at 16 (refusing to forbid public display of single four-letter expletive when the prohibition would also create a substantial risk of suppressing ideas). Certainly, those contemplating picketing will have no assurance that this will not be the case. Therefore, "persons of common intelligence" cannot determine what words to avoid to remain within the laws; moreover, the discretion of law enforcement officers has not been sufficiently limited. Conclusion Picketing claims a historic place in the history of America, providing an opportunity for diverse groups to express their ideas publicly.
Article 5154d is not drafted with the precision necessary to save it from the challenges made to its constitutionality. Both § 2 and § 1, paragraph 1, of Article 5154 are in disregard of the First Amendment, since both are unconstitutionally overbroad. Additionally, § 2 is unconstitutionally vague.
Case Questions
1. Summarize the facts of the case.
2. Assess the fairness of the ex parte temporary restraining order granted on March 14.
3. Was the 50-foot provision justified by the state's interest in preventing violence?
4. What purpose does picketing serve?