People v. Bush, 39 N.Y.2d 529 (1976)

Picketing on private property is not automatically protected by the First Amendment and may be subject to state criminal trespass laws, and state court jurisdiction is not necessarily preempted by federal labor law if the picketing involves trespassing conduct.

Summary

Union members picketed in front of stores selling their employer’s products, inside the cart corrals on private property. They were arrested for criminal trespass after refusing to move to a nearby parking lot. The New York Court of Appeals held that the picketing was not protected by the First Amendment or federal labor law because the union members were trespassing and interfering with customer access. The court affirmed the convictions, finding that the state’s interest in preventing trespass outweighed the union’s right to picket on private property, especially when reasonable alternative locations were offered.

Facts

Defendants, employees of Lorenz Schneider Co., Inc. (Wise Potato Chips distributor) and members of the Independent Routeman’s Association, engaged in a labor dispute with Schneider. The defendants picketed several stores that sold Wise products obtained from Schneider. The picketing took place in the cart corrals, areas directly in front of store entrances fenced off by steel railings. Pickets carried signs urging customers not to buy Wise products and chanted loudly. Store managers requested the pickets move to the parking lot driveway; police offered a barricaded area nearby. The pickets refused, claiming a right to picket on private property, leading to their arrest for criminal trespass.

Procedural History

The defendants were convicted of criminal trespass in a lower court and received unconditional discharges. The Appellate Term upheld the convictions. The case was then appealed to the New York Court of Appeals.

Issue(s)

1. Whether picketing by union members in front of a store selling their employer’s products is protected under the First Amendment when it takes place on private property.
2. Whether the jurisdiction of state courts over conduct constituting a violation of the state’s criminal trespass statute is preempted by federal labor law.

Holding

1. No, because the right to picket on private property is not absolute and can be restricted when it interferes with property rights and access to businesses.
2. No, because the state has a legitimate interest in enforcing its criminal trespass laws, which is not necessarily preempted by federal labor law, especially when the picketing involves conduct beyond protected speech.

Court’s Reasoning

The court reasoned that while the Supreme Court had previously addressed picketing on private property in cases like Food Employees v. Logan Valley Plaza, subsequent decisions, particularly Hudgens v. N.L.R.B., clarified that private property rights generally supersede First Amendment rights unless the property functions as a complete substitute for a traditional public forum, like a company town as in Marsh v. Alabama. Here, the court emphasized that the pickets were asked to move due to their trespassing conduct, not because of their message. The court cited established precedent affirming states’ power to regulate the conduct aspects of picketing, even on public property, citing Cox v. New Hampshire. Therefore, this power extends a fortiori to private property.

Regarding preemption, the court distinguished San Diego Unions v. Garmon, noting that Garmon and its progeny primarily addressed state attempts to regulate the economic aspects of labor disputes or internal union activities, not trespass. The court cited Meat Cutters v. Fairlawn Meats, implying that a state court ruling focused solely on trespassing conduct would not be preempted. The court emphasized that unions cannot unilaterally decide to invade private property. The court noted the NLRB could potentially grant access to private property for picketing under certain circumstances, citing N.L.R.B. v. Babcock & Wilcox Co., which balances employee rights with private property rights. The court emphasized that the union should have ascertained their rights through the NLRB before trespassing, as in Hudgens v. N.L.R.B., where the union peacefully departed and sought an NLRB order. The court concluded that the union’s actions conflicted with the state’s police powers because they failed to determine their rights in advance and insisted on picketing on private property after being asked to move. The court found the requests by store managers and police to be reasonable, and that there was no attempt to ban picketing altogether.