The latest nationwide boycott of California table grapes launched by the United Farm Workers (UFW) of the AFL-CIO has resulted in scores of arrests on supermarket property across the country. Most of those arrested are what the union calls "informational pickets," who gather at the supermarkets to warn consumers that table grapes receive more applications of the most toxic kinds of pesticides than any other California fruit crop, and to explain the special hazards faced by farm workers when such pesticides are used. Through the boycott, the UFW hopes to compel California's wealthy grape growers to sit down with them to negotiate an end to the use of the five most toxic pesticides currently in the grape fields.
Most of the arrests are for criminal trespass. They prove what can happen when free speech runs up against its most formidable opponent in this country: private property. In court, the cases demonstrate that freedom of speech is more a political than a legal matter; that is, that there exists no transcendental legal guarantee of free speech.
Consider, for example, the arrests of eight UFW pickets in Austin, Texas, in 1988 and 1989. All were charged with criminal trespass. Four went to trial in the courtroom of Travis County Court-at-Law Judge Steve Russell. The case of the other four, held under Travis County Court-at-Law Judge Michael Schless, went only as far as pretrial hearings because the supermarket decided to drop its charges against the defendants.
The cases, though identical in terms of the charges, drew opposite opinions from their respective presiding judges:
Judge Schless: "When the free speech occurs on private property, you must balance the free speech rights of the speaker against the private property rights of the owner, and it comes down in favor of the owner."
Judge Russell: "The [defendants] were will within their rights [to be picketing on store property]."
This difference in judgment demonstrates that freedom of expression is interpreted variably and upheld arbitrarily, and is therefore still more a political than a legal matter.
David Kairys, in his instructive article "Freedom of Speech" (in The Politics of Law [Pantheon, 1982]), points out that no clear right of free speech existed, either in law or in practice, until a series of labor struggles between 1919 and 1940 finally compelled the Supreme Court to give it some formal recognition. The landmark case was Hague v. CIO (1939), which gave members of the Congress of Industrial Organizations the right to hand out union literature on the streets of Jersey City, the very "crime" for which the Austin Eight were arrested half a century later.
The Austin arrests show that despite Hague v. CIO, freedom of speech in this country remains under constant threat. One also need only recall the McCarthy years or the recent jingoistic moves to outlaw flagburning to realize the precariousness of the right to free expression. "Clear and present danger" arguments hang over freedom of expression like a cloud of paranoia. They would allow expression only if it is sure to be ineffective, and have resulted in laws limiting the number of pickets allowed during a strike, ordering the pickets to stand so many feet apart, and so forth.
The only conceivable "danger" the Austin pickets presented to the supermarkets was harm to their profits. The main reason the plaintiffs in the case presided over by Judge Schless decided to drop their suit against the UFW was because they could not prove actual damage from the speech; however, the judge made it clear that if actual damage to the plaintiffs' profits had been proven, he would have decided in the plaintiffs' favor.
Both judges are considered liberals, Russell slightly more so than Schless. Russell found the pickets not guilty, and went on to deplore the existence "in the minds of so many of [the notion that] free speech is deadly to commerce," implying that if free speech were so injurious, then the court's decision might well be different. …