whether under the Constitution the Government can bar all picketing simply because some picketing may properly be subject to restraint.
The defendants seek to justify a total picketing ban on the ground that this broad prohibition is necessary to prevent interference with Government business. It is urged that some picketing by its very nature immediately interferes, and that during a labor controversy any type of picketing is always potentially disruptive. The crucial or sensitive nature of a particular Government activity, or other comparable circumstances, on a proper factual showing might well support such a sweeping interdiction. But surely not all Government activity, at all Government offices, requires such broad protection from peaceful picketing. Picketing that is strictly informational, and limited in place and focus, does not in all situations create the probability of interference with Government functions sufficient to justify the limitation on free speech involved here. Police Dept. of Chicago v. Mosley, supra, 408 U.S. at 100-101, 92 S. Ct. 42. In many instances, the Government's interest is adequately protected without a total picketing ban since, if any picketing ever interferes with Government business, or has such intent, Executive Order 11491 provides administrative machinery to put a cease and desist order into effect almost immediately.
National Association of Letter Carriers v. United States Civil Service Commission, 413 U.S. 548, 93 S. Ct. 2880, 37 L. Ed. 2d 796 (1973), is not to the contrary as defendants suggest. There, the Hatch Act's First Amendment restrictions on political activity were upheld to avoid conduct by federal employees which Congress and the Supreme Court concluded would by its very nature corrupt our basic institutions. No comparable interest is suggested here, nor can it be, given the scope and variety of governmental activity that could be affected and the differing forms expression by picketing can take. A potential momentary interference with some limited phase of Government activity cannot be analogized to the vital interests of the Government which were at issue in Letter Carriers, O'Brien, or in Cox v. Louisiana, 379 U.S. 559, 85 S. Ct. 476, 13 L. Ed. 2d 487 (1965), where the Supreme Court upheld a ban on picketing which attempted to interfere with "the administration of justice."
The litigants here seek a broad ruling on the constitutionality of the picketing ban in Executive Order 11491. The Court is unwilling to make such a determination given the limited record presented. Indeed, it would be wholly inappropriate to do so. As noted, the Executive Order has a very wide sweep encompassing all unionized federal employees, all federal facilities regardless of size, location or function, and all kinds and degrees of picketing during labor disputes.
Moreover, there are no executive findings or administrative rules based on fact or experience that identify the difficulties peaceful informational picketing might be expected to create. It is difficult to determine on the record before the Court why or how any kind of peaceful informational picketing by a Union member during a labor dispute is always to be deemed so potentially disruptive that it must be banned regardless of circumstances. Yet neither can a dividing line between constitutionally permissible and nonpermissible types of picketing be drawn, as plaintiff suggests, by the use of such vague terms as "informational" or "non-informational" picketing. Some types of peaceful informational picketing at certain facilities under certain conditions could easily be disruptive and so injure the Government that a ban could be lawfully imposed. Resolution by declaratory judgment of these broad issues would be wholly inappropriate.
There is need for more facts. And expert judgment must, at least initially, be brought to bear on the problem. The Federal Labor Relations Council may, if it chooses, develop through rulemaking proceedings a record delineating more precisely the nature of the Government interest to be protected under various circumstances. It could consider whether there may be factual grounds for differentiating types of picketing based on the sensitivity of the particular governmental function involved, the location of the picketed facility, the number of pickets, purpose and matters of that kind.
While a declaratory judgment will not be granted, the Court must consider the validity of the Decision and Order against the precise fact situation presented. It appears that in this particular instance the Order unduly intrudes upon free expression. The concerns of the able Administrative Law Judge as to the constitutionality of the Executive Order as applied here were well placed. Certainly in the record before the Court it appears that the absolute ban upon all picketing during any labor controversy contained in the Decision and Order is overly broad and violates the First Amendment when improperly applied. The interests of the Federal Government in the smooth, efficient functioning of IRS Service Centers can be adequately protected by a more limited order.
The Decision and Order of the Assistant Secretary of Labor for Labor-Management Relations must be and, accordingly, is vacated.