THORNHILL v. ALABAMA 310 U.S. 88 (1940)

This case involved a first amendment challenge to convictions under an Alabama antipicketing statute. Normally one has standing only to plead one's own constitutional rights. In Thornhill, however, the Supreme Court did not ask whether the particular activity in which the pickets had engaged was constitutionally protected. Instead it asked whether the statute itself, rather than its application to these particular persons, violated the First Amendment. Because the statute was invalid on its face, it could be challenged, even by a union that itself might have engaged in violent picketing not protected by the First Amendment. The theory was that the statute's general ban on all labor dispute picketing would threaten peaceful picketers as well, even though no peaceful picketers had even been prosecuted.

Justice frank murphy acknowledged that the state legislature legitimately might have written a narrowly drawn statute that condemned only violent or mass picketing. Instead it wrote a general ban on all picketing in labor-management disputes. "The existence of such a statute … which does not aim specifically at evils within the allowable area of state control but, on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech … readily lends itself to … discriminatory enforcement by local prosecuting officials [and] results in a continuous and pervasive unconstitutional restraint on all freedom of discussion." Subsequently the Court was to speak of the unconstitutional chilling effect of such "facially over-broad" statutes.

Martin Shapiro
(1986)