CBR’s Uniquely Forceful Boycotts Are Lawful
I am always glad to get the benefit of Ken’s thinking (or that of any other lawyer) and I will look forward to his message but I can assure you that violating prohibitions against interference in business relationships requires more than intent. It requires impermissible behavior. I can intend to prevent customers from entering the Safeway store but if all I am doing to stop them is stand in the parking lot and pray silent, imprecatory prayers, I am not violating the law because prayer is not unlawful (yet). On the other hand, if I tackle customers and hog-tie them and drag them back to their cars, I could be arrested. The same is true with holding a sign. My right to display a sign is constitutionally protected, even if my intent is to prevent customers from entering the store.
Not all “turmoil” is against the law. Attacking people physically is unlawful “turmoil” but inciting passersby to even unlawful “turmoil” is not unlawful if our only act of incitement is the peaceful display of abortion pictures. Our incitement would not be unlawful unless, for instance, we blocked the entrance or threatened customers or our signs contained “fighting words.” In our case, if we really wanted to be cautious, we could merely warn businesses that our lawful display of lawful signs tends to case unlawful “turmoil” without intending that our lawful display of lawful signs cause that unlawful “turmoil.” The fact that we are aware of the probability that our lawful behavior is likely to incite an unlawful reaction (praying silently on the sidewalk outside an gay, atheist anarchists’ convention could get you punched in the face) doesn’t make our prayer unlawful. Even the fact that we want to get punched in the face doesn’t, in and of itself, make or prayer unlawful.
There is an enormous body of labor law, for example, which permits striking workers to hold signs outside of businesses for the express purpose of discouraging patronage. Those signs may permissibly say “SAFEWAY UNFAIR TO WORKERS” but they may not falsely accuse Safeway of selling products tainted with botulism toxin or e-coli bacteria. That would be an impermissible interference in business relationships. It is not against the law for us to accurately inform customers that the owners of a business or the property on which a business is being conducted are tolerating or contributing to the performance of abortions and showing them what abortions look like. It is not against the law for us to encourage customers to go elsewhere. We can even do this on the private property of a mall if we confine our activity to the immediate vicinity of the offending store. It is not against the law for us to pray (a constitutionally protected activity) that our photos will cause even unlawful “turmoil” in the parking lot or on the streets or even in the store. If the “turmoil” we incite by engaging in is lawful behavior is unlawful, the culpability belongs to the people engaging in unlawful “turmoil” and to hold us accountable for the behavior of passersby it would be to confer on the passersby a classic “hecklers veto.”
It would be against the law for us use painfully amplified bull-horns which create “turmoil” by deafening customers etc. But it would be the sound laws which would be violated, not the content of the amplified speech or the purpose in speaking. My point is that we can’t violate the law by intending to interfere in business relationships if the interference is not unlawful apart from our intent. It would LOVE to litigate that issue if anyone were dumb enough to arrest us or sue us. But if Ken’s point is that we want to make sure we know applicable state statutes and local ordinances, of course I agree. But if those laws purport to prohibit the holding of an abortion photo sign in the parking lot of a business involved in abortion, directly or indirectly, those laws would be unconstitutional either on their face or at least as applied and we would challenge them if they were enforced against us.