Can Tennessee make it a separate crime to engage in mass picketing during a labor strike or lockout?

Subject

Opinion No. 14-31, Constitutionality of Legislation that would Prohibit Mass Picketing, March 17, 2014

Plain-English summary

Representative Mike Turner asked the AG to evaluate HB 1688, a 2014 bill that would have amended Tenn. Code Ann. § 39-17-307 (the obstruction statute) by adding new subsections specifically criminalizing "mass picketing" in the context of a strike, lockout, or other labor dispute. The bill defined mass picketing to include obstructing ingress and egress with one's body or a vehicle, preventing the pursuit of lawful work by disturbance or nuisance, civil-rights intimidation under § 39-17-309(b), and picketing a private residence in a way that interfered with quiet enjoyment. It also gave a business or property owner the right to seek injunctive relief in a labor-related mass-picketing case without showing irreparable harm. A saving clause said the bill should not be interpreted to alter federal labor-law protections.

The AG concluded the bill was likely unconstitutional under the First Amendment and Tennessee's Article I, Section 19 free-speech clause, and that at least parts of it could be preempted by the National Labor Relations Act.

The First Amendment analysis began with the standard rule: government may not restrict expression because of its message, idea, subject matter, or content. A regulation is content-based if it singles out speech by what is being communicated. HB 1688 was openly directed at "mass picketing activity in the context of a strike, lockout, or other labor dispute." That is a content-based classification. The U.S. Supreme Court has struck down precisely this kind of classification before, most famously in Police Department of Chicago v. Mosley, 408 U.S. 92 (1972), where a Chicago ordinance allowed peaceful labor picketing but banned other peaceful picketing near schools.

Content-based restrictions are presumptively invalid and must survive strict scrutiny: the state must show a compelling interest and narrow tailoring. The AG accepted that public safety can be a compelling interest, citing State v. Crain, 972 S.W.2d 13, 16 (Tenn. Crim. App. 1998), but explained that the bill's preamble was speculative ("violence . . . that may be caused by mass picketing") and that "[m]ere speculation of harm does not constitute a compelling state interest" (Consolidated Edison). The Supreme Court's decision in Brown v. Entertainment Merchants Association rejected predictive legislative judgments as a basis for preemptive speech restrictions. Beyond compelling interest, the bill was not narrowly tailored: Mosley already explained that "[s]ome labor picketing is peaceful, some disorderly; the same is true of picketing on other themes." Targeting labor picketing as a class fails the tailoring requirement. The opinion lined up persuasive authority on point: United Food & Commercial Workers Local 99 v. Bennett (D. Ariz. 2013), CF&I Steel v. United Steel Workers (Colo. 2001), Davis v. Village of Newburgh Heights (N.D. Ohio 1986), and Pineros Y Campesinos Unidos v. Goldschmidt (D. Or. 1990) had all struck down labor-specific picketing rules as content-based.

The AG also flagged an equal-protection dimension, citing Carey v. Brown, 447 U.S. 455 (1980), which invalidated a statute distinguishing between labor and non-labor picketing on equal-protection grounds. Same flaw, different doctrinal label.

On NLRA preemption, the AG applied Garmon preemption (San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959)). States cannot regulate activity that is either "arguably protected" under § 7 of the NLRA or "arguably prohibited" as an unfair labor practice under § 8. Peaceful picketing is protected concerted activity under § 7 (Int'l Longshoremen's Local 1416 v. Ariadne Shipping). HB 1688's subsection (e)(2) ("preventing the pursuit of any lawful work or employment by means of disturbance or nuisance") could reach peaceful picketing that incidentally inconveniences others, and would therefore be preempted as applied to such activity. The saving clause in subsection (i) (that the act "shall not be interpreted to alter . . . the protections afforded under the federal labor laws") does not, by itself, cure preemption (Bldg. & Const. Trades Council). The AG noted that the NLRA does not reach all employers (29 U.S.C. § 152(2), (3) carve out states and political subdivisions, agricultural laborers, domestic servants, family-business employees, independent contractors, supervisors, and railroad workers), so preemption would not bar the bill in those zones.

States retain power to regulate "mass picketing, obstructive picketing, or picketing that threatens or results in violence" (Sears, Roebuck, 436 U.S. at 220 (Brennan, J., dissenting)). The AG did not say Tennessee can never restrict picketing tactics. It said this particular bill, drawn with explicit reference to labor disputes, runs into the First Amendment, equal protection, and NLRA preemption all at once.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What did HB 1688 do?

It amended Tenn. Code Ann. § 39-17-307 (obstruction of highway or other public passageway) by adding new subsections (c) through (i). It declared that engaging in mass picketing during a labor dispute was no defense to prosecution; made it a criminal offense to engage in "any form of mass picketing activity" in a labor dispute; defined mass picketing to include body-blocking ingress/egress, vehicular obstruction, "preventing the pursuit of any lawful work or employment by means of disturbance or nuisance," civil-rights intimidation, and certain picketing of private residences; allowed business or property owners to seek injunctive relief in labor disputes without showing irreparable harm; and included a saving clause for federal labor law.

Why is a content-based restriction on speech so hard to defend?

Because the First Amendment treats restrictions on the substance of speech as a near-prohibited move. The U.S. Supreme Court in Ashcroft v. ACLU and many other cases has said content-based restrictions are "presumptively invalid" and must clear strict scrutiny: compelling interest and narrow tailoring. The AG quoted Playboy Entertainment for the proposition that "[i]t is rare that a regulation restricting speech because of its content will ever be permissible." The handful of historic categories where content discrimination is allowed (incitement, obscenity, defamation, child pornography, fighting words, fraud, true threats, speech integral to criminal conduct, grave and imminent threats) do not include "mass picketing during a labor dispute."

Was the bill content-based even though it called itself an extension of an existing obstruction statute?

Yes. The AG cited Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001): "[R]egulations cannot be insulated from First Amendment challenge based on the argument that they do no more than prohibit conduct that is already unlawful." HB 1688 went beyond existing obstruction law. For example, subsection (e)(4) made picketing a private residence a Class B misdemeanor rather than a Class C, but only in the labor-dispute context. That differential treatment is the content-based hook.

What was the equal-protection angle?

In Carey v. Brown, 447 U.S. 455 (1980), the Supreme Court invalidated an Illinois statute that distinguished between labor and non-labor picketing on equal-protection grounds. Same problem here: by carving out labor-related picketing for harsher treatment, HB 1688 created a class-based distinction without an adequate justification. Mosley folded the same concern into the First Amendment analysis itself.

What is Garmon preemption?

The Supreme Court's decision in San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), held that states are preempted from regulating activity that is either arguably protected by § 7 of the NLRA or arguably prohibited as an unfair labor practice under § 8. The doctrine protects the NLRB's primary jurisdiction. Peaceful picketing falls within § 7's protection of concerted activities, so states cannot impose extra penalties on peaceful picketing in NLRA-covered settings.

Could states still regulate violent or obstructive picketing?

Yes. The AG noted that Garmon and later decisions permit states to regulate "mass picketing, obstructive picketing, or picketing that threatens or results in violence." The problem with HB 1688 is not that it touched mass picketing at all, but that it singled out labor mass picketing as a separate category, and reached peaceful concerted activity in some places (subsection (e)(2)'s "disturbance or nuisance" language).

Did the saving clause save the bill?

No. The AG explained that a clause saying the statute should not alter federal labor protections does not by itself cure preemption when the operative provisions actually reach activity protected by § 7. Courts look at substance, not labels.

Where would the bill survive preemption?

In the zones where the NLRA does not reach. The AG flagged 29 U.S.C. § 152(2) and (3): public-sector employers (state and political subdivisions), agricultural laborers, domestic servants, family-business employees, independent contractors, supervisors, and railroad workers (covered by the Railway Labor Act, not the NLRA). HB 1688 could apply to those categories without NLRA preemption, though the First Amendment problem would still independently sink the bill in those settings.

Background and statutory framework

Tenn. Code Ann. § 39-17-307 has long made it an offense to obstruct a highway or other public passageway. HB 1688 sought to add labor-dispute-specific obstruction rules to that statute, layering criminal penalties and a streamlined injunctive remedy onto the existing prohibition. The bill's text expressly applied only in the labor-dispute context (defined in subsection (g)).

The First Amendment doctrine the AG applied is well-settled. Mosley, Carey v. Brown, and the long line of strict-scrutiny content-based cases (Playboy, Stevens, Alvarez) establish that singling out a category of speech by subject matter is a heavy lift. State public-safety interests can justify content-neutral rules (a ban on body-blocking entrances applies to all picketers) but rarely content-based ones (a ban on body-blocking entrances during labor disputes).

The NLRA framework starts with § 7 (29 U.S.C. § 157), which guarantees employees the right to organize and engage in "other concerted activities for the purpose of collective bargaining or other mutual aid or protection," and § 8, which defines unfair labor practices. Garmon preemption flows from those provisions. The exceptions to NLRA coverage at § 152(2) and (3) are the standard carve-outs that have generated their own bodies of state and federal law.

The persuasive authority the AG cited (Bennett, CF&I Steel, Davis, Pineros) reflects a fairly uniform pattern of courts striking down labor-specific picketing restrictions. Tennessee's own Mosley-style framework, articulated in Doe v. Doe and Leech v. American Booksellers, provides protections at least as broad as the First Amendment.

Citations

• Tenn. Code Ann. § 39-17-307 (obstruction; bill targeted this section)
• Tenn. Code Ann. § 39-17-309(b) (civil-rights intimidation, referenced by bill)
• U.S. Const. amend. I; Tenn. Const. art. I, § 19
• U.S. Const. art. VI, cl. 2 (Supremacy Clause)
• 29 U.S.C. § 151 et seq. (National Labor Relations Act); § 152(2), (3) (coverage exceptions); § 157 (Section 7 protected activity)
• De Jonge v. Oregon, 299 U.S. 353 (1937)
• Roberts v. U.S. Jaycees, 468 U.S. 609 (1984)
• Ashcroft v. ACLU, 535 U.S. 564 (2002); Ashcroft v. ACLU, 542 U.S. 656 (2004)
• Bays v. City of Fairborn, 668 F.3d 814 (6th Cir. 2012)
• Doe v. Doe, 127 S.W.3d 728 (Tenn. 2004) (Tennessee Supreme Court)
• Leech v. Am. Booksellers Ass'n, 582 S.W.2d 738 (Tenn. 1979) (Tennessee Supreme Court)
• NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958)
• Police Dep't of Chicago v. Mosley, 408 U.S. 92 (1972)
• Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200 (3d Cir. 2001)
• Brown v. Entm't Merchants Ass'n, 564 U.S. 786 (2011)
• United States v. Playboy Entm't Grp., 529 U.S. 803 (2000); United States v. Stevens, 559 U.S. 460 (2010); United States v. Alvarez, 567 U.S. 709 (2012)
• Simon & Schuster v. N.Y. State Crime Victims Bd., 502 U.S. 105 (1991)
• State v. Crain, 972 S.W.2d 13 (Tenn. Crim. App. 1998)
• Consolidated Edison v. PSC of N.Y., 447 U.S. 530 (1980)
• Carey v. Brown, 447 U.S. 455 (1980)
• United Food & Commercial Workers Local 99 v. Bennett, 934 F. Supp. 2d 1167 (D. Ariz. 2013)
• CF&I Steel, L.P. v. United Steel Workers, 23 P.3d 1197 (Colo. 2001) (Colorado Supreme Court)
• Davis v. Village of Newburgh Hts., 642 F. Supp. 413 (N.D. Ohio 1986)
• Pineros Y Campesinos Unidos v. Goldschmidt, 790 F. Supp. 216 (D. Or. 1990)
• Chamber of Commerce v. Brown, 554 U.S. 60 (2008)
• San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959)
• Golden State Transit Corp. v. Los Angeles, 475 U.S. 608 (1986)
• Bldg. & Const. Trades Council v. Associated Builders & Contractors of Mass./R.I., 507 U.S. 218 (1993)
• Sears, Roebuck & Co. v. San Diego Cnty. Dist. Council of Carpenters, 436 U.S. 180 (1978)
• Int'l Longshoremen's Local 1416 v. Ariadne Shipping Co., 397 U.S. 195 (1970)
• United Mine Workers v. Gibbs, 383 U.S. 715 (1966)
• Tenn. Att'y Gen. Op. 14-20 (Feb. 19, 2014)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-031.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
March 17, 2014
Opinion No. 14-31
Constitutionality of Legislation that would Prohibit Mass Picketing

QUESTIONS

1. Does H.B. 1688, 108th Gen. Assem. (2014) (hereinafter "HB1688"),[1] present an invalid content-based restriction on speech under the First Amendment to the United States Constitution and/or Article I, § 19, of the Tennessee Constitution?

2. Are any of the provisions of HB1688 contrary to United States or Tennessee Supreme Court jurisprudence regarding the freedom of speech or freedom of assembly?

3. Is HB1688 contrary to any provision of the National Labor Relations Act and therefore invalid under Article VI of the United States Constitution?

OPINIONS

1. Yes.

2. Yes.

3. HB1688 could be preempted by the National Labor Relations Act, at least in part.

ANALYSIS

1 and 2. Tenn. Code Ann. § 39-17-307(a) currently makes it a criminal offense to obstruct a highway or other public passageway. HB1688 would add new subsections (c) through (i) to the statute. New subsections (c) and (d) provide that "[i]t is no defense to prosecution that an organization or individual engages in mass picketing to further an objective in the context of a labor dispute" and make it an offense to "engage[] in mass picketing activity in the context of a strike, lockout, or other labor dispute." H.B. 1688, § 1. New subsection (e) defines the term "mass picketing"; subsection (f) provides that (e) shall not apply to mass picketing at any governmental building; subsection (g) defines "labor dispute"; and subsection (h) allows a business or property owner to seek injunctive relief without showing irreparable harm "[i]f, in a labor dispute, an organization or individual is engaged in mass picketing at a business or private residence." Id. Subsection (i) provides that nothing in the bill should be construed "to alter, modify or amend the protections afforded under the federal labor laws." Id. HB1688, therefore, is clearly directed at mass picketing activities by individuals or organizations in the context of a labor dispute.

The Free Speech Clause of the First Amendment to the United States Constitution provides that "Congress shall make no law . . . abridging the freedom of speech." Similarly, Article I, § 19, of the Tennessee Constitution states in relevant part that "[t]he free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty."[2] Peaceable assembly is protected by the First Amendment and "cannot be made a crime." De Jonge v. Oregon, 299 U.S. 353, 364 (1937).[3] But the government may regulate "violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact." Roberts v. U.S. Jaycees, 468 U.S. 609, 628 (1984).

"[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 573 (2002) (internal quotation marks omitted). As a result, the Constitution "demands that content-based restrictions on speech be presumed invalid . . . and that the Government bear the burden of showing their constitutionality." Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 660 (2004). Government regulations of speech are content-neutral if they are justified without reference to the content or viewpoint of the regulated speech. Bays v. City of Fairborn, 668 F.3d 814, 821 (6th Cir. 2012). A government restriction is content-based if it was adopted because of disagreement with the message the speech conveys. Id.

HB1688 presents a content-based restriction upon speech. It would criminalize "any form of mass picketing activity in the context of a strike, lockout, or other labor dispute" (emphasis added). See Police Dep't of Chicago v. Mosley, 408 U.S. 92, 100 (1972) ("The central problem with [the city's] ordinance is that it describes permissible picketing in terms of its subject matter."). It could be said that HB1688 would prohibit conduct in the labor-dispute context that is already made unlawful by Tenn. Code Ann. § 39-17-307.[4] But it cannot be said that that is all that HB1688 would do. See Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 210 (3d Cir. 2001) ("[R]egulations cannot be insulated from First Amendment challenge . . . based on the argument that they do no more than prohibit conduct that is already unlawful."). HB1688 includes labor-dispute-specific proscriptions on conduct that do not apply in non-labor contexts.[5] Furthermore, the injunction provision of HB1688 (new subsection (h)) would establish a different standard for business and private-property owners who are the targets of labor-related mass picketing.[6]

"Content-based restrictions are presumptively invalid . . . ." Doe v. Doe, 127 S.W.3d 728, 732 (Tenn. 2004). In order to overcome the presumption, the State must demonstrate that the restriction passes strict scrutiny, i.e., that it is (1) justified by a compelling government interest and (2) narrowly drawn to serve that interest. Brown v. Entm't Merchants Ass'n, 131 S. Ct. 2729, 2738 (2011); accord Doe, 127 S.W.3d at 732. The State must specifically identify an "actual problem" in need of solving, and the curtailment of free speech must be actually necessary to the solution. Id. "It is rare that a regulation restricting speech because of its content will ever be permissible." United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 818 (2000). Content-based restrictions on speech have been permitted, as a general matter, only when confined to the few "historic and traditional categories [of expression]." United States v. Stevens, 559 U.S. 460, 468 (2010) (quoting Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 127 (1991) (Kennedy, J., concurring)) (internal quotation marks omitted). These categories include advocacy intended and likely to incite imminent lawless action; obscenity; defamation; speech integral to criminal conduct; "fighting words"; child pornography; fraud; true threats; and speech presenting some grave and imminent threat the government has the power to prevent. United States v. Alvarez, 132 S. Ct. 2537, 2543-44 (2012) (citations omitted).

The preamble to HB1688 declares that "the state has a compelling interest in protecting the safety and well-being of the public from violence, threats of violence, intimidation and other disruptive behavior that may be caused by mass picketing." Protecting the safety and well-being of the public may well be a compelling state interest, see State v. Crain, 972 S.W.2d 13, 16 (Tenn. Crim. App. 1998), but it is not at all clear that the risk of such harms in the labor-dispute context is sufficiently compelling so as to justify the bill's content-based restrictions on speech. The preamble asserts that these harms "may" be caused by mass picketing, but "[m]ere speculation of harm does not constitute a compelling state interest." Consolidated Edison Co. of N.Y., Inc. v. Public Serv. Comm'n of N.Y., 447 U.S. 530, 543 (1980); see also Brown, 131 S.Ct. at 2739. Furthermore, even if the State has a sufficiently compelling public-safety interest in prohibiting mass picketing, the bill's prohibitions on "any form of mass picketing in labor disputes" would not be narrowly tailored to serve that interest. See Mosley, 408 U.S. at 101 ("Some labor picketing is peaceful, some disorderly; the same is true of picketing on other themes."). In either event, HB1688, targeted as it is at labor-dispute picketing activities, would likely run afoul of the First Amendment. See United Food & Commercial Workers Local 99 v. Bennett, 934 F. Supp. 2d 1167, 1193-94 (D. Ariz. 2013); CF&I Steel, L.P. v. United Steel Workers of Am., 23 P.3d 1197, 1204 (Colo. 2001); Davis v. Village of Newburgh Hts., 642 F. Supp. 413 (N.D. Ohio 1986); Pineros Y Campesinos Unidos v. Goldschmidt, 790 F. Supp. 216 (D. Or. 1990).

3. Article VI, Clause 2, of the United States Constitution provides that "the Laws of the United States which shall be made in Pursuance [of the Constitution] . . . shall be the supreme Law of the Land." State law, therefore, may be preempted by federal law, either expressly or impliedly. See Tenn. Att'y Gen. Op. 14-20, at 2 (Feb. 19, 2014). The National Labor Relations Act (NLRA) contains no express preemption provision, but the United States Supreme Court has held that Congress implicitly mandated two types of preemption as necessary to implement federal labor policy. See Chamber of Commerce of U.S. v. Brown, 554 U.S. 60, 65 (2008). The form most applicable to this analysis is known as Garmon preemption. See San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959). Garmon preemption "is intended to preclude state interference with the National Labor Relations Board's interpretation and active enforcement of the 'integrated scheme of regulation' established by the NLRA." Golden State Transit Corp. v. Los Angeles, 475 U.S. 608, 613 (1986).

Under the theory of Garmon preemption, states are prohibited from regulating activities that are "protected by § 7 of the NLRA, or constitute an unfair labor practice under § 8." Bldg. & Const. Trades Council of Metro. Dist. v. Associated Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218, 224 (1993); see Sears, Roebuck & Co. v. San Diego Cnty. Dist. Council of Carpenters, 436 U.S. 180, 190 (1978) (determining whether preemption is justified "under either the arguably protected or the arguably prohibited branch of the Garmon doctrine"). Regard for the federal system, though, requires courts "not to find withdrawal from the States of power to regulate where the activity regulated was a merely peripheral concern of the Labor Management Relations Act" or where the conduct touches on interests "deeply rooted in local feeling and responsibility." Garmon, 359 U.S. at 243-44. See Sears Roebuck, 436 U.S. at 207 (holding that state court not deprived of jurisdiction over trespass action). Thus, states may regulate "mass picketing[,] obstructive picketing, or picketing that threatens or results in violence." Id. at 220 (Brennan, J., dissenting) (citing cases).

Nevertheless, parts of HB1688 could be preempted. Section 7 of the NLRA gives employees the right to "engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. § 157. This protection includes peaceful picketing activities. See Int'l Longshoremen's Local 1416, AFL-CIO v. Ariadne Shipping Co., 397 U.S. 195, 200-01 (1970). Some of HB1688's proscriptions arguably extend into this sphere and would thus be preempted to that extent by the NLRA. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 729 (1966); see also Garmon, 359 U.S. at 247 (states may regulate "conduct marked by violence and imminent threats to the public order"). For example, one engaged in peaceful picketing activities under § 7 could conceivably prevent the pursuit of lawful work "by means of disturbance or nuisance" under the bill's new subsection (e)(2). The bill's provision in subsection (i) that it "shall not be interpreted to alter, modify or amend the protections afforded under the federal labor laws" would not save the state law from preemption in such an instance. See United Food & Commercial Workers Local 99, 934 F. Supp. 2d at 1193; see also Bldg. & Const. Trades Council, 507 U.S. at 225 (holding that Garmon preemption extends to activities arguably protected or prohibited by the NLRA).[7]

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

JEFFREY D. ZENTNER
Assistant Attorney General

Requested by:
The Honorable Mike Turner
State Representative
17 Legislative Plaza
Nashville, Tennessee 37243-0151

[1] On February 26, 2014, the House Consumer and Human Resources Subcommittee recommended HB1688 for passage as amended (drafting code number 012464) (copy attached). This opinion addresses that amended version of the bill.

[2] Article I, § 19, provides protection of free-speech rights at least as broad as that provided by the First Amendment. Doe v. Doe, 127 S.W.3d 728, 732 (Tenn. 2004) (citing Leech v. Am. Booksellers Ass'n, Inc., 582 S.W.2d 738, 745 (Tenn. 1979)).

[3] The United States Supreme Court has tended to treat the right of assembly as a facet of the right of free expression. See Tabatha Abu El-Haj, The Neglected Right of Assembly, 56 UCLA L. Rev. 543, 589 n.10 (2009); see also Nat'l Ass'n for Advancement of Colored People v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958) (recognizing that there is a "close nexus between the freedoms of speech and assembly"). Accordingly, this opinion focuses on the free-speech implications of HB1688.

[4] For example, HB1688 would prohibit obstructing with a person's body ingress and egress of a place of employment (under new subsection (e)(1)(A)), while Tenn. Code Ann. § 39-17-307(a) already prohibits obstructing by a person's acts any place used for the passage of persons.

[5] For example, HB1688 would prohibit picketing a private residence so as to interfere with the resident's right to quiet enjoyment and would make such offense a Class B, rather than a Class C, misdemeanor (under new subsection (e)(4)). See United Food & Commercial Workers Local 99 v. Bennett, 934 F. Supp. 2d 1167, 1196 (D. Ariz. 2013) (invalidating legislative enactment that mandated greater penalties for defamation of an employer, even though defamation was already actionable under Arizona law). New subsection (e)(4) goes on to say that the prohibition on picketing a private residence would not apply "to the extent that the same is protected under the United States Constitution and the Constitution of Tennessee," but this serves only to beg the constitutional question.

[6] As was the case in Mosley, 408 U.S. 92, because the bill would treat labor-dispute picketing differently, the First Amendment inquiry is intertwined with an equal-protection concern. See id. at 95; see also Carey v. Brown, 447 U.S. 455, 461-62 (1980) (invalidating on equal-protection grounds a statute distinguishing between labor and non-labor picketing).

[7] The NLRA does not apply when the employer is a state or any political subdivision thereof. 29 U.S.C. § 152(2). Nor does it apply to agricultural laborers, domestic servants, employees of immediate family members, independent contractors, supervisors, or railroad laborers. 29 U.S.C. § 152(3). Thus, HB1688 would not be preempted as to these specific employers and employees.