Freedom of Speech First, the Drakes argue that the permanent injunction restricting their picketing and faxing activities against WIBW-TV's advertisers violates their right to freedom of speech under the First Amendment to the United States Constitution. In Claiborne , the Court held that a secondary boycott motivated by political issues was protected by the First Amendment, regardless of a state's broad power to regulate and protect economic activity. In this case, the trial court distinguished the Drakes' situation from Claiborne by noting that the Drakes' activities involved only economic concerns and not political concerns. Such picketing spreads labor discord by coercing a neutral party to join the fray. The Drakes do not dispute the trial court's classification of their activity as a secondary boycott resulting from a labor dispute or that the Supreme Court has held this activity is often unprotected by the First Amendment.
Federal law prohibits a labor union from engaging in a secondary boycott, including picketing.
Judicial action regulating activities such as these pursuant to the National Labor Relations Act have repeatedly been held not to violate the First Amendment. These cases emphasize that Congress has recognized the need to protect neutral employers from the labor disputes of others. Kansas also statutorily prohibits activities similar to those engaged in by the Drakes. In Kansas, a person is prohibited from picketing beyond the area of the industry within which a labor dispute arises. This law is similar to the federal law prohibiting secondary picketing, except the federal law only applies to labor unions.