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45 Geo. Wash. L. Rev. 812 (1976-1977)
Shopping Center Picketing: The Impact of Hudgens v. National Labor Relations Board

handle is hein.journals/gwlr45 and id is 824 raw text is: SHOPPING CENTER PICKETING: THE IMPACT OF
HUDGENS v. NATIONAL LABOR RELATIONS BOARD*
In Hudgens v. National Labor Relations Board,' the Supreme Court
held that the first amendment guarantee of freedom of expression
does not protect union picketing activity in large privately owned
shopping centers;2 any legal protection for such picketing depends on
the statutory guarantees of the National Labor Relations Act
(NLRA).3 Although the decision appears to limit the right to picket
on private property, it does not withdraw protection from NLRA-
protected activities such as picketing by employees designed to put
economic pressures on their employer. The Court did not decide, how-
ever, the standard that courts and the National Labor Relations Board
(the Board) should use in determining the scope of protection pro-
vided by the NLRA. The purpose of this note is to evaluate the im-
pact of the Court's decision in Hudgens on picketing rights afforded
by both the first amendment and NLRA and to suggest the factors
that are relevant to a determination of the statutory rights of labor
picketers.
The first amendment traditionally has occupied a preferred position
among rights established and protected by the Constitution.4 In
Thornhill v. Alabama,5 the Supreme Court first held that the first
amendment protects picketing as an exercise of free speech.6 The
Court subsequently recognized that picketing includes elements of
both conduct and speech,7 and held that statess may make reasonable
* This note was developed by Wendy S. Rudolph.
1. 424 U.S. 507 (1976).
2. Id. at 520-21.
3. 29 U.S.C. §§ 151-68 (1970), as amended, 29 U.S.C. §§ 151-69 (Supp. V,
1975).
4. See Marsh v. Alabama, 326 U.S. 501, 509 (1946); Murdock v. Pennsyl-
vania, 319 U.S. 105, 115 (1943).
5. 310 U.S. 88 (1940).
6. The Court invalidated a state statute prohibiting loitering in the vicinity
of a business with intent to influence persons not to deal with that business.
Id. at 101. The Court concluded that a state could abridge first amendment
rights only when a person's actions presented a clear and present danger of
invasion of the right of privacy, breach of the peace, or injury to person or
property. Id. at 105. A blanket prohibition against picketing was invalid be-
cause these dangers were not inherent in all picketing. Id.
7. Cox v. Louisiana, 379 U.S. 559, 563 (1965); Hughes v. Superior Court,
339 U.S. 460, 464-65 (1950). See generally Note, First Amendment Analysis
of Peaceful Picketing, 28 MANE L. REV. 203, 205-08 (1976). In Bakery &
Pastry Drivers Local 802 v. Wohl, 315 U.S. 769 (1942), the concurring opinion
noted that the presence of a picket line induces action by others regardless
of the picketers' message. Because of this inducement component, under cer-
tain circumstances states may prohibit picketing entirely. Id. at 776 (Douglas,
J., concurring).
8. Although the first amendment restricts only the federal government, the
May 1977 Vol. 4S No. 4

[voL. 45:812

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