Document Type



Harvard Civil Rights-Civil Liberties Law Review




In the late 1930s and early 1940s, mass picketing, characterized by large numbers of workers congregating in common protest at or near their employers' establishments, emerged as a crucial weapon in a historic campaign by American workers to realize basic labor rights and build an enduring labor movement in the face of strident resistance from a powerful business community. So potent a weapon did mass picketing prove that these business interests, aided by allies at all levels of government, moved quickly to ban the tactic. From the real-world complexities of labor conflict, this coalition forged a simplistic, analytically dubious, but difficult to contest picture of mass picketing as inherently violent, oppressive, and unjustifiable, and constructed a legal regime that proscribed the tactic even when it was not accompanied by overt violence. By the late 1940s, mass picketing was effectively banned by legislatures, courts, and police. Thereafter, it ceased to serve as an effective means of labor protest. Although overlooked by labor scholars and legal historians, this successful crusade against mass picketing was a crucial event in American legal and social history. For it not only anchored a broad-ranging attack on labor rights that culminated in the 1947 enactment of the Taft-Hartley Act; it also disarmed the labor movement, leaving unions and workers unable to consolidate the rights they seized in the 1930s and 1940s and impotent against renewed attacks on labor rights that began to unfold in the 1970s and that have left the labor movement shattered. This article tells the story of mass picketing as it shaped the content of labor rights and the fortunes of organized labor from the 1930s through the present day. In so doing, the article discerns in the history of mass picketing a fundamental dilemma inherent in liberal labor rights: that liberal labor law can neither reconcile itself to the kind of working class militancy manifested in mass picketing nor survive without it.