EDWARD J. DEBARTOLO CORP., PETITIONER V. FLORIDA GULF COAST BUILDING AND CONSTRUCTION TRADES COUNCIL AND NATIONAL LABOR RELATIONS BOARD No. 86-1461 In the Supreme Court of the United States October Term, 1987 On Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit Brief for the National Labor Relations Board as Respondent Supporting Petitioner TABLE OF CONTENTS Questions Presented Opinions below Jurisdiction Statutory provisions involved Statement Summary of argument Argument I. A union "threatens, coerces, or restrains" a neutral employer within the meaning of Section 8(b)(4)(ii)(B) when it distributes handbills urging a total consumer boycott of a neutral employer's business A. The statutory phrase "threaten, coerce, or restrain" encompasses handbilling urging a total consumer boycott of a secondary employer B. Notwithstanding Catholic Bishop, the text and legislative history of Section 8(b)(4)(ii)(B) do not permit the construction the court of appeals reached II. Section 8(b)(4)(ii)(b), as applied to respondent's handbilling in this case, does not violate the first amendment Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-37a) is reported at 796 F.2d 1328. The supplemental decision and order of the National Labor Relations Board (Pet. App. 38a-46a) is reported at 273 N.L.R.B. 1431. The case was previously before this Court in Edward J. DeBartolo Corp. v. NLRB, 463 U.S. 147 (1983), which vacated and remanded for further consideration the decision of the Court of Appeals for the Fourth Circuit, 662 F.2d 264 (1981), which had affirmed an initial decision of the National Labor Relations Board, 252 N.L.R.B. 702 (1980). JURISDICTION The judgment of the court of appeals (Pet. App. 47a-48a) was entered on August 11, 1986. A timely petition for rehearing was denied on November 12, 1986 (Pet. App. 49a-50a). On January 28, 1987, Justice Powell extended the time for filing a petition for a writ of certiorari to and including March 11, 1987 (Pet. App. 51a), and the petition was filed on that date. On June 6, 1987, the Court issued a writ of certiorari. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED Section 8(b)(4)(ii)(B) of the National Labor Relations Act, 29 U.S.C. 158(b)(4)(ii)(B), is reprinted in the Appendix to this brief. QUESTIONS PRESENTED 1. Whether respondent union's distribution of handbills at a shopping mall urging a total consumer boycott of retail establishments with which the union had no primary labor dispute "threaten(ed), coerce(d), or restrain(ed)" those establishments within the meaning of Section 8(b)(4)(ii)(B) of the National Labor Relations Act, 29 U.S.C. 158(b)(4)(ii)(B). 2. Whether Section 8(b)(4)(ii)(B) of the NLRA, as applied to respondent union's distribution of handbills urging a total consumer boycott of those establishments, contravenes the First Amendment. STATEMENT 1. The facts of this case have been stipulated by the parties (J.A. 19a-27a) and are detailed in this Court's opinion in Edward J. DeBartolo Corp. v. NLRB, 463 U.S. 147, 148-153 (1983) (DeBartolo I). Petitioner, the Edward J. DeBartolo Corp., owns and operates the East Lake Square Mall, a large shopping mall in Tampa, Florida (463 U.S. at 149). In August 1979, petitioner leased to the H.J. Wilson Company (Wilson) a plot of land abutting the mall on which Wilson agreed to construct and operate a department store that would become part of the already operating mall (J.A. 23a). Wilson retained the H.J. High Construction Company (High) to build the store (ibid.). High, however, subsequently became involved in a primary labor dispute with respondent union, the Florida Gulf Coast Building and Construction Trades Council, AFL-CIO, over High's payment of allegedly sub-standard wages and benefits to the employees involved in the construction of Wilson's store (463 U.S. at 150). While neither petitioner nor any of the mall's approximately 85 other retail tenants had any right to control the manner in which High discharged its contractual obligation to Wilson (id. at 149-150; J.A. 23a-24a), /1/ respondent union nevertheless began distributing handbills at all four entrances of the mall complaining about petitioner's tolerance of High's substandard compensation practices (463 U.S. at 150). /2/ Among other things, the union asked in these handbills that consumers "not patronize the stores in the East Lake Square Mall until the Mall's owner publicly promises that all construction at the Mall will be done using contractors who pay their employees fair wages and fringe benefits" (id. at 150 & n.3). /3/ Petitioner demanded that the union modify the handbills to make clear that the labor dispute did not involve petitioner or any mall tenant other than Wilson and that the union limit its activity to the immediate vicinity of Wilson's construction site (or to places where public roads intersect and lead to petitioner's property) (463 U.S. at 151; J.A. 25a, 87a-88a). The union, however, persisted in distributing the handbills without regard to these limitations (463 U.S. at 151). Petitioner then filed an unfair labor practice charge with the National Labor Relations Board (NLRB) (ibid.). /4/ The General Counsel issued a complaint alleging that respondent union's handbilling violated Section 8(b)(4)(ii)(B) of the National Labor Relations Act (NLRA), 29 U.S.C. 158(b)(4)(ii)(B), in that it "threaten(ed), coerce(d), or restrain(ed)" the mall tenants "to cease doing business" with petitioner in order to force petitioner or Wilson not to do business with High (463 U.S. at 151; J.A. 6a-11a). The NLRB, without deciding whether the handbilling constituted a form of "threat," "coercion," or "restraint" proscribed by Section 8(b)(4)(ii)(B), held (see 463 U.S. at 151-152) that the union's handbilling was protected by the "publicity proviso" to Section 8(b)(4) and that the complaint should therefore be dismissed. The NLRB reasoned that petitioner and its tenants, including Wilson, would all derive a substantial benefit from the "product" that High was constructing, namely Wilson's store, and, accordingly, that this consumer publicity was directed at a "producer" within the meaning of the proviso. See Florida Gulf Coast Building Trades Council (Edward J. DeBartolo Corp.), 252 N.L.R.B. 702, 705 (1980). The Fourth Circuit affirmed (Edward J. DeBartolo Corp. v. NLRB, 662 F.2d 264 (1981)), but this Court reversed that judgment (DeBartolo I, 463 U.S. 147 (1983)). The Court in DeBartolo I identified the critical question as "whether the handbilling 'advis(ed) the public * * * that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer'" (463 U.S. at 154). The Court said that the NLRB had "not (found) that any product produced by High was being distributed by (petitioner) or any of Wilson's cotenants" and had instead "relied on the theory that there was a symbiotic relationship between them and Wilson()" (id. at 156). The Court rejected this theory of the publicity proviso, finding that it "would almost strip the distribution requirement of its limiting effect" and that, "if Congress had intended all peaceful, truthful handbilling that informs the public of a primary dispute to fall within the proviso, the statute would not have contained a distribution requirement" (ibid. (footnote omitted)). The court remanded the case to the NLRB to determine whether the union's handbilling violated Section 8(b)(4)(ii)(B) apart from the publicity proviso; and it declined to decide whether a ban on such handbilling would violate the First Amendment until this statutory question had been resolved (463 U.S. at 156-158). 2. On remand, the NLRB found (Pet. App. 38a-46a) that the handbilling violated Section 8(b)(4)(ii)(B). It determined that "(r)espondent (union), * * * by distributing handbills requesting the public not to patronize mall tenants because High allegedly pays substandard wages and fringe benefits to its employees constructing a store for Wilson's, coerced the mall tenants" (Pet. App. 42a), reasoning that "(a)ppealing to the public not to patronize secondary employers is an attempt to inflict economic harm on the secondary employers by causing them to lose business" and that, as explained in its prior cases, "such appeals constitute 'economic retaliation' and are therefore a form of coercion" (id. at 42a n.6). The NLRB noted (id. at 42a n.8) that respondent union had "asked customers to forgo shopping at the mall entirely; it did not merely ask them not to deal with High," and thus its conduct did "not fall within the privilege to engage in product boycotts recognized in NLRB v. Fruit & Vegetable Packers, Local 760, 377 U.S. 58 (1964)." It then determined that "an object of the * * * (union's) conduct was to force the mall tenants to cease doing business with (petitioner) in order to force (petitioner) and/or Wilson's not to do business with High" (Pet. App. 42a (footnote omitted)). Finally, it rejected the union's contention "that the first amendment protects its handbilling and * * * that * * * the complaint (should be dismissed) in order to avoid a conflict with the Constitution" (id. at 42a-43a), reasoning that "the statute's literal language and the applicable case law require that we find a violation(,)" and that, "as a Congressionally created administrative agency(,) we will presume the constitutionality of the Act we administer." It therefore issued an order directing respondent union to cease and desist from distributing handbills and to post an appropriate notice (id. at 44a-45a). 3. On appeal, the Eleventh Circuit denied enforcement of the NLRB's order (Pet. App. 1a-37a). The court noted that "'this case arises out of an entirely peaceful and orderly distribution of a written message, rather than picketing,'" and that "(n)either the courts nor the NLRB has directly considered the constitutionality of restricting nonpicketing union publicity" (id. at 4a (citation omitted)). Quoting (id. at 5a) this Court's statement in NLRB v. Catholic Bishop, 440 U.S. 490, 500 (1979), that "'an Act of Congress (should) not be construed to violate the Constitution if any other possible construction remains available,'" the court below concluded (Pet. App. 5a-6a (citation omitted)) that if "the statutory interpretation suggested by the (NLRB) would cause serious doubts about the constitutionality of (Section) 8(b)(4)," an "'affirmative intention of the Congress clearly expressed' to restrict such handbilling" would have to be found in order to sustain the NLRB's interpretation. The court found that applying Section 8(b)(4)(ii)(B) to the union's handbilling would raise such a serious constitutional question (Pet. App. 6a-14a). It said that "the distribution of handbills is generally fully protected by the First Amendment" (id. at 7a, citing Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971)) and that "'(s)peech does not lose its protected character * * * simply because it may embarrass others or coerce them into action'" (Pet. App. 7a, quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910 (1982)). The court acknowledged that restrictions on secondary boycotts and picketing by labor unions have been held constitutional by this Court (Pet. App. 7a, citing NAACP v. Claiborne Hardware Co., supra, and NLRB v. Retail Store Employees Union, Local 1001, 447 U.S. 607 (1980) (Safeco)), but it attributed those holdings to "the settled principle that labor picketing is entitled to less First Amendment protection than pure speech" (Pet. App. 7a). It then reiterated that "(t)he handbilling in the instant case was peaceful and orderly" and "involved none of the non-speech elements, e.g., patrolling, which justify restrictions on picketing" (id. at 10a-11a (footnote omitted)); it emphasized that "(t)he handbills left the recipients completely free to act in agreement with the ideas presented or to refuse to do so" (id. at 11a), and that "the Union was not seeking to have the consumers, the mall tenants, or (petitioner) and/or Wilson's do anything which would be illegal" (id. at 13a). /5/ The court thus concluded that, "(i)n light of the absence of the non-speech elements which have permitted restrictions on labor picketing and in light of the full First Amendment protection afforded to handbilling and pamphleteering," "if (Section) 8(b)(4)(ii)(B) is construed to prohibit (this) * * * handbilling, serious constitutional questions will arise" (ibid. (footnote omitted)). /6/ On this premise, the court turned to "the statute and its legislative history in order to identify 'the affirmative intention of the Congress clearly expressed' to prohibit such speech" (Pet. App. 13a-14a). But, while conceding that Section 8(b)(4)(ii)(B)'s "prohibition against threatening, coercing, or restraining could be read very broadly," it concluded that "(t)he language of the statute contains no clear expression of an affirmative intent of Congress to prohibit the distribution of handbills urging a secondary boycott" (Pet. App. 15a). And it reached the same conclusion with respect to the legislative history, stating (id. at 18a-19a) that "the proponents of the (1959) amendments to (Section) 8(b)(4) had in mind non-consumer picketing and more direct economic actions, e.g., strikes, when they proposed to amend that section by making its restriction apply to (actions that) "threaten, coerce, or restrain,'" and stating (id. at 19a) that "(t)here is no indication that they intended to restrict distribution of publicity to consumers." The court acknowledged that several proponents of the 1959 amendments to the secondary boycott provisions of the statute proposed that union publicity directed toward customers of secondary employers be restricted (Pet. App. 19a-24a). But it said that the proponents "had in mind only prohibiting consumer picketing" (id. at 23a) and that "(t)he only suggestion in either house of Congress that the proposed amendments to (Section) 8(b)(4) would apply to nonpicketing labor publicity came from opponents of the amendments" (id. at 24a), persons whose views, the court said, cannot be "controlling" (ibid.). And it noted that, "(i)n response to the fears of the(se) opponents of the amendments to (Section) 8(b)(4), the conference committee drafted the publicity proviso to (Section) 8(b)(4), which protects union appeals made through handbilling, advertising, and other nonpicketing publicity to consumers not to deal with a secondary employer who has a 'producer-distributor' relationship with a primary employer" (id. at 25a). It rejected the argument that, "if Congress had not intended to restrict nonpicketing publicity under (Section) 8(b)(4)(ii)(B), it would not have drafted the publicity proviso" (id. at 26a), /7/ stating that "the publicity proviso was inserted * * * to allay the fears of the opponents of the amendments that such speech would be restricted" (ibid.), that the conference committee's "summary analysis explains that the publicity proviso is a clarification of the fact that the prohibition was never intended to apply to nonpicketing publicity" (id. at 30a), and that "(t)he fact that the publicity proviso says 'nothing * * * shall be construed to prohibit publicity' indicates that this proviso only explains how the prohibition of the statute should be interpreted rather than creating an exception to the prohibitions contained in the statute" (id. at 32a (emphasis in original)). /8/ In sum, the court could not "find any indication that the entirely peaceful and orderly distribution of handbills, as in the instant case, was intended to be proscribed by Congress " (Pet. App. 37a). It therefore "appl(ied) the rule of Catholic Bishop" and denied enforcement of the NLRB's order (ibid.). SUMMARY OF ARGUMENT I. In NLRB v. Fruit & Vegetable Packers, Local 760, 377 U.S. 58 (1964) (Tree Fruits), and NLRB v. Retail Store Employees Union, Local 1001, 447 U.S. 607 (1980) (Safeco), this Court interpreted the phrase "threaten, coerce, or restrain," as that phrase is used in Section 8(b)(4)(ii)(B), to encompass peaceful picketing that asks consumers to cease all trading with a neutral employer. Such picketing is coercive of the neutral because the response for which it calls is a total boycott that will threaten the neutral employer with ruin or substantial loss. Nonpicketing publicity, such as handbilling or the circulation of employer blacklists, may be equally coercive of the neutral employer. The coercion arises from the threat of a total consumer boycott, regardless of whether the threat comes from picketing, or handbilling, or otherwise. The NLRB has therefore consistently found handbilling and other nonpicketing publicity calling for a total consumer boycott of a neutral employer coercive and, unless the publicity proviso is applicable, violative of Section 8(b)(4)(ii)(B). The court below did not dispute the reasoning that led the NLRB to find that respondent union's handbilling was "coercive" within the meaning of Section 8(b)(4)(ii)(B). Rather, it said, citing NLRB v. Catholic Bishop, 440 U.S. 490 (1979), that an Act of Congress should be construed so as not to violate the Constitution if another construction is fairly possible, and it therefore construed the statute not to prohibit nonpicketing publicity (such as handbilling) under any circumstances. But the language and legislative history of the statute do not permit this construction. The phrase "threaten, coerce, or restrain" must be read together with the "publicity proviso"; the proviso exempts only "publicity, other than picketing," and does so only when such publicity satisfies three qualifying conditions, viz., that it be truthful, that it advise the public of a producer/distributor relationship between the primary and secondary employers, and that it not result in an interference with deliveries or a work stoppage at the neutral employer's premises. Construing Section 8(b)(4)(ii)(B) not to prohibit any nonpicketing publicity would make the proviso unnecessary and deprive the three statutory qualifying conditions of all practical effect. The legislative history of the prohibition and the proviso makes clear that Congress understood that the statutory phrase "threaten, coerce, or restrain" would encompass some nonpicketing publicity (such as handbilling, newspaper advertisements, and radio appeals); a proviso permitting some but not all such publicity was the compromise that produced the consensus necessary for the enactment of the legislation. The court of appeals' construction of the statute unravels this legislative compromise. The principle of Cathloic Bishop should not be used to defeat what Congress intended. II. The Court's decision in Safeco makes clear that the compromise that Congress struck in Section 8(b)(4)(ii)(B) is constitutional as applied to respondent union's handbilling in this case. In Safeco, six Justices agreed that application of Section 8(b)(4)(ii)(B) to a union's peaceful picketing urging a total consumer boycott of a neutral employer did not violate the First Amendment. The "speech" interest, the governmental interest, and the fit between regulatory means and regulatory end are essentially the same in this case as in Safeco. Accordingly, the constitutionality of Section 8(b)(4)(ii)(B) as applied to respondent union's handbilling should follow directly from the Safeco decision. Safeco is not distinguishable on the ground that picketing, rather than handbilling, was involved in that case. Picketing involves both speech and conduct, but as Justice Blackmun noted in his Safeco concurrence, Section 8(b)(4)(ii)(B) regulates only the speech aspect of picketing: it bans picketing only when, and because, the picketing conveys a particular message to consumers. Similarly, Section 8(b)(4)(ii)(B) bans handbilling only when, and because, it conveys a particular message to consumers. The subject of regulation in both cases is the message that the union seeks to convey, not the medium used to convey it. The decision in Safeco and the constitutional question in this case are therefore properly understood not in terms of the Court's "picketing" cases but rather in terms of the Court's "content-based" speech regulation cases. Those cases acknowledge that certain categories of speech are of less central concern to the First Amendment and, accordingly, are subject to less rigorous First Amendment protection. Labor speech urging consumers to boycott a neutral employer in order to facilitate the favorable resolution of a primary labor dispute reflects the "commonsense differences" that distinguish these less central categories of speech from speech subject to full First Amendment protection. Labor speech of this type seeks economic gain and requests economic action; it is unlikely to be unduly deterred by government regulation; and it takes place in an area that has traditionally been subject to government regulation. Thus, regulation of this labor speech should be analyzed in terms of the less exacting standards applied to less central categories of speech. As applied to the message conveyed by the picketing at issue in Safeco and by the handbilling at issue here, Section 8(b)(4)(ii)(B) passes constitutional muster under these less exacting standards. The government's interest in discouraging the involvement of neutral employers in labor disputes, in order to prevent the spread of labor discord, is well established and substantial. The statutory ban on the union's consumer appeals "directly advances" this governmental interest: it bans only coercive appeals -- i.e., those that are likely to cause a neutral employer to become enmeshed in a labor dispute between a union and a primary employer. And the restriction imposed by Section 8(b)(4)(ii)(B) is no more extensive than is necessary to serve the government's interest: it does not prohibit any consumer appeal directed against the primary employer; it does not prohibit any noncoercive appeal to the customers of secondary employers; and it allows coercive appeals to the customers of secondary employers where the conditions of the publicity proviso are satisified. Section 8(b)(4)(ii)(B) prohibits only those secondary appeals that, in Congress's judgment, are likely to result in an unacceptable spread of labor discord to true neutrals. Congress has therefore struck a reasonable "balance between union freedom of expression and the ability of neutral employers, employees, and consumers to remain free from coerced participation in industrial strife" (Safeco, 447 U.S. at 617-618 (opinion of Blackmun, J.)). ARGUMENT I. A UNION "THREATENS, "COERCES, "OR "RESTRAINS" A NEUTRAL EMPLOYER WITHIN THE MEANING OF SECTION 8(b)(4)(ii)(B) WHEN IT DISTRIBUTES HANDBILLS URGING A TOTAL CONSUMER BOYCOTT OF A NEUTRAL EMPLOYER'S BUSINESS Section 8(b)(4)(ii)(B) makes it an unfair labor practice for a union to "threaten, coerce, or restrain" any person with an "object" of "forcing or requiring" that person to "cease doing business with any other person," unless the union is engaging in "publicity, other than picketing, for the purpose of truthfully advising the public, including consumers * * * , that a product or products are produced by an employer with whom the (union) has a primary dispute and are distributed by another employer" and "such publicity does not have an effect of inducing any individual employed by any person other than the primary employer" to refuse to make deliveries or perform services "at the establishment of the employer engaged in such distribution" (29 U.S.C. 158(b)(4)(ii)(B)). The handbilling in this case clearly had the proscribed secondary "object": as the NLRB found (Pet. App. 42a), it was intended "to force the mall tenants to cease doing business with (petitioner) in order to force (petitioner) and/or Wilson's (to cease) do(ing) business with High." And this Court held in DeBartolo I (463 U.S. at 155-157) that the union's handbilling was not protected by the publicity proviso because there is no "distributor" relationship between High and Wilson's cotenants. The remaining statutory question is whether the handbilling "threaten(ed), coerce(d), or restrain(ed)" the mall's tenants within the meaning of Section 8(b)(4)(ii)(B). The answer is that, by urging a total consumer boycott of the mall's tenants, respondent union's handbilling had this statutorily proscribed effect. A. The Statutory Phrase "Threaten, Coerce, or Restrain" Emcompasses Handbilling Urging A Total Consumer Boycott Of A Secondary Employer The phrase "threaten, coerce, or restrain," as used in labor-management relations law, has long been understood to encompass the kind of indirect pressure involved in this case: a message from an employer or (here) a union to third parties (here, consumers) asking them to take specified action (here, a boycott), in order to exert economic pressure on a target (here, the neutral retailers), to compel the target to act in a desired manner. For example, very similar phrases in Sections 8(a)(1) /9/ and 8(b)(1) /10/ of the statute have long been construed to encompass "blacklisting" of employees -- that is, the sending of a message to third-party employers asking them to refrain from employing the listed employees in order to exert pressure on those employees. See, e.g., Cousins Associates, Inc., 125 N.L.R.B. 73, 83 (1959), enforced, 283 F.2d 242 (2d Cir. 1960) (employer threat to blacklist union supporters); Globe Products Corp., 102 N.L.R.B. 278, 284 (1953) (same); F.W. Woolworth Co., 101 N.L.R.B. 1457, 1458 (1952) (same); Pacific American Shipowners Ass'n, 98 N.L.R.B. 582, 586, 639-640 (1952) (union threat to blacklist non-union supporters); National Union of Marine Cooks and Stewards, C.I.O., 92 N.L.R.B. 877, 891 (1950) (same). The phrase has also been applied to a union's distribution of "(w)e do not patronize" lists to consumers in order to compel an employer to recognize a union and sign a union shop agreement. See, e.g., International Ass'n of Machinist, Lodge 942 (Alloy Mfg. Co.), 119 N.L.R.B. 307, 309 (1957), enforcement denied in pertinent part, 263 F.2d 796, 799-800 (9th Cir. 1959); NLRB v. United Rubber Workers (O'Sullivan Rubber Corp.), 269 F.2d 694, 697-701 (4th Cir. 1959), rev'd on other grounds, 363 U.S. 329 (1960). This Court has similarly interpreted the statutory phrase "threaten, coerce, or restrain" in Section 8(b)(4)(ii)(B) to encompass speech or conduct by a union that asks third parties to act in a way that exerts economic pressure on a neutral employer to compel him to bow to the union's will. For example, in NLRB v. Fruit & Vegetable Packers, Local 760, 377 U.S. 58 (1964) (Tree Fruits), the Court held that the phrase "threaten, coerce, or restrain" bars a union from engaging in peaceful picketing that asks consumers to cease all trading with the neutral, but not peaceful picketing that merely asks consumers to refrain from purchasing the primary employer's product from the neutral employer. The Tree Fruits Court reasoned (377 U.S. at 72 (footnote omitted)): When consumer picketing is employed only to persuade customers not to buy the struck product, the union's appeal is closely confined to the primary dispute. The site of the appeal is expanded to include the premises of the secondary employer, but if the appeal succeeds, the secondary employer's purchases from the struck firms are decreased only because the public has diminished its purchases of the struck product. On the other hand, when consumer picketing is employed to persuade customers not to trade at all with the secondary employer, the latter stops buying the struck product, not because of a falling demand, but in response to pressure designed to inflict injury on his business generally. In such cases, the union does more than merely follow the struck product; it creates a separate dispute with the secondary employer (and thus "threaten(s), coerce(s), or restrain(s)" the secondary employer within the meaning of the statute). Similarly, in NLRB v. Retail Store Employees Union, Local 1001, 447 U.S. 607 (1980) (Safeco), the Court held that the phrase "threaten, coerce, or restrain" bars a union from engaging in peaceful picketing that urges a total consumer boycott of a product that constitutes all of a neutral employer's business. The Court in Safeco explained that Congress intended in Section 8(b)(4)(ii)(B) to prohibit unions from embroiling or threatening to embroil neutral employers in their primary labor disputes (447 U.S. at 611-613), that neutral employers will become so embroiled whenever a "successful" appeal is "resonably likely" to threaten them with "ruin or substantial loss" (id. at 613-614, 614-615, 615-616 n.11), and that such ruin or substantial loss will result whenever "(s)econdary picketing against consumption of the primary product leaves responsive consumers no realistic option other than to boycott the (neutral employer) altogether" (id. at 613; see also 614-615). /11/ Nonpicketing publicity, such as handbilling, may, when it urges a total consumer boycott, be just as coercive of the neutral employer. See Cox, Strikes, Picketing And The Constitution, 4 Vand. L. Rev. 574, 599-602 (1951); Gregory, Constitutional Limitations On The Regulation Of Union And Employer Conduct, 49 Mich. L. Rev. 191, 198-210 (1950); cf. Tree Fruits, 377 U.S. at 68 (emphasis added) (the "prohibition of (Section) 8(b)(4) is keyed to the coercive nature of conduct, whether it be picketing or otherwise"). In assessing coercion, this Court has focused on the nature of the actions required or requested of "responsive consumers"; the Court held in Tree Fruits and Safeco that peaceful picketing urging a total consumer boycott of a secondary employer is "coercive" within the meaning of Section 8(b)(4)(ii)(B) because "responsive consumers" have no choice but to take actions that are "reasonably likely to threaten the neutral party with ruin or substantial loss" (Safeco, 447 U.S. at 613, 615-616 n.11; see also Tree Fruits, 377 U.S. at 72). The NLRB has, for the same reason, consistently found that handbilling or other similar publicity calling for a total consumer boycott of a secondary employer's business "threaten(s), coerce(s), or restrain(s)" the secondary employer within the meaning of the statute. For example, shortly after the enactment of Section 8(b)(4)(ii)(B), the NLRB found that a union's distribution of "Do Not Patronize" lists to union members and the public in support of its primary dispute with a radio station "threatened, restrained, and coerced the listed neutral() (merchants)" (Local 662, Radio and Television Engineers (Middle South Broadcasting), 133 N.L.R.B. 1698, 1705 (1961)). /12/ The NLRB explained that "(t)he 'DO NOT PATRONIZE' leaflets threatened economic retaliation against the listed firms by seeking to induce individuals not to trade with the listed firms and thereby cause them loss of business. No more potent form of restraint and coercion can by visualized than economic retaliation in the form of loss of business" (id. at 1714). And, the NLRB added, prior to the enactment of Section 8(b)(4)(ii)(B), it had interpreted the phrase "restrain or coerce" in Section 8(b)(1)(A) of the statute to encompass such indirect economic pressure tactics in the Alloy Mfg. Co. case and, while that case had been "called to the attention of the Senate during the debates on the Section 8(b)(4) amendments, there is nothing in the legislative history to indicate any intention on the part of the sponsors of this amendment to exclude this type of union conduct from the reach of the amendment" (133 N.L.R.B. at 1715). /13/ The NLRB again found that nonpicketing publicity urging a total consumer boycott is "coercive" within the meaning of Section 8(b)(4)(ii)(B) a few years later in American Federation of Television and Radio Artists (Great Western Broadcasting Corp.), 150 N.L.R.B. 467 (1964) aff'd sub nom. Great Western Broadcasting Corp. v. NLRB, 356 F.2(9th Cir.), cert. denied, 384 U.S. 1002 (1966). In Great Western Broadcasting Corp., the union asked various advertisers to cease doing business with a television station with which the union was involved in a primary strike. In furtherance of its request, however, the union distributed and threatened to distribute handbills urging a total consumer boycott of advertisers that refused to cooperate with it. The NLRB found that the union's "activities were directed toward the institution of a consumer boycott of all products distributed by the companies it listed as advertising on (the television station, * * * (that by) failing to limit its activities to the products in dispute, * * * (the union) (had) exceeded the limited privilege to engage in product boycotts which the Tree Fruits decision recognized, * * * (and) that such conduct clearly constitutes threats, restraint, or coercion within the meaning of Section 8(b)(4)(ii) of the Act" (150 N.L.R.B. at 471). /14/5737 The subsequent cases in which the NLRB has confronted this issue consistently rely on and reflect the same reasoning: that nonpicketing publicity urging a total consumer boycott of a secondary employer "threaten(s), coerce(s), or restrain(s)" within the meaning of Section 8(b)(4)(ii)(B) because it threatens that employer not with a loss of sales only of the primary employer's product but with a loss of all patronage of those customers who choose to respond to the appeal. See, e.g., Honolulu Typographical Union No. 37 (Hawaii Press Newspaper, Inc.), 167 N.L.R.B. 1030, 1032 (1967), enforced, 401 F.2d 952 D.C. Cir. 1968) (distribution of handbills at entrance to shopping center complex asking for consumer boycott of retail establishments located therein "coerced" those establishments within the meaning of Section 8(b)(4)(ii)(B)); Hospital and Service Employees Union, Local 339 (Delta Air Lines, Inc.), 263 N.L.R.B. 996, 997 (1982), remanded, 743 F.2d 1417 (9th Cir. 1984) (handbills distributed outside of airport terminal facility and city ticket offices asking the public not to "Fly Delta" were "coercive" within the meaning of Section 8(b)(4)(ii)(B)); Local No. P-9, United Food and Commercial Workers Union (Geo. A. Hormel Co.), 281 N.L.R.B. No. 135, at 5 (Feb. 26, 1986) (handbills asking depositors to close their accounts in banks with which the primary employer had banking transactions were "coercive" within the meaning of the statute). This consistent application of the statutory phrase by the expert agency charged with responsibility for administering the statute is entitled to deference. Accord, Safeco, 447 U.S. at 615-616 n.11; see generally Pattern Makers' League v. NLRB, 473 U.S. 95, 114-115 (1985); id. at 116-117 (White, J., concurring); Ford Motor Co. v. NLRB, 441 U.S. 448, 497 (1979). B. Notwithstanding Catholic Bishop, The Text And Legislative History Of Section 8(b)(4)(ii)(B) Do Not Permit The Construction The Court Of Appeals Reached The court below did not dispute the reasoning that led the NLRB to find that nonpicketing publicity seeking a total consumer boycott of a secondary employer is coercive. Instead, citing (Pet. App. 4a-6a, 14a, 37a) NLRB v. Catholic Bishop, 440 U.S. 490, 500 (1979) ("an Act of Congress ought not be construed to violate the Constitution if any other possible construction remains available"), it construed Section 8(b)(4)(ii)(B) as not prohibiting the use of peaceful, nonpicketing publicity (such as handbilling) under any circumstances. As the Court noted in DeBartolo I, however, the principle of statutory construction applied in Cathloic Bishop "serves only to authorize the construction of a statute in a manner that is 'fairly possible'" (DeBartlo I, 463 U.S. at 157, quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)), and does not license an interpretation that would deprive "the statutory language * * * of substantial practical effect" (DeBartolo I, 463 U.S. at 157 n.10), or an interpretation that would otherwise nullify "the affirmative intention of the Congress clearly expressed" (NLRB v. Catholic Bishop, 440 U.S. at 501). Construing Section 8(b)(4)(ii)(B) not to prohibit secondary handbilling under any circumstances is not "fairly possible." 1. The phrase "threaten, coerce, or restrain" in Section 8(b)(4)(ii)(B) cannot be read in isolation. It is expressly modified by the publicity proviso that Congress adopted at the same time. That proviso relates only to nonpicketing publicity, and it exempts such publicity only if it meets three qualifying conditions: it must be truthful; it must advise the public of a producer-distributor relationship between the primary and secondary employers; and it must not result in an interference with deliveries or in a work stoppage at the neutral employer's premises. The proviso itself would serve no purpose and these elaborate conditions would have no meaning if nonpicketing publicity could not violate Section 8(b)(4)(ii)(B) in any circumstances. See Tree Fruits, 377 U.S. at 69 (emphasis added) ("the Senate conferees refused to accede to the House proposal without safeguards for the right of unions to appeal to the public, even by some conduct which might be 'coercive,'" and "(t)he result was the addition of the proviso"). Thus, in DeBartolo I, the Court ruled that Section 8(b)(4)(ii)(B) must be interpreted in a way that gives meaning to the qualifying conditions on the proviso. The Court stated that "(t)he only (nonpicketing) publicity exempted from the prohibition is (truthful) publicity intended to inform the public that the primary employer's product is 'distributed by' the secondary employer" (463 U.S. at 155). The Court was 'persuaded that Congress included that requirement to reflect the concern that motivates all of (Section) 8(b)(4): 'shielding unoffending employers and others from pressures in controversies not (of) their own'" (id. at 155-156, quoting NLRB v. Denver Building Construction Trades Council, 341 U.S. 675, 692 (1951)). And the Court emphasized that, "if Congress had intended all peaceful, truthful handbilling that informs the public of a primary dispute to fall within the proviso, the statute would not have contained a distribution requirement" (463 U.S. at 156). Accordingly, the Court concluded that the handbilling in this case is not protected by the publicity proviso, for to conclude otherwise would, in the Court's view, deprive the distribution requirement of "substantial practical effect" (id. at 157 n.10). The necessary corollary of this conclusion, of course, is that some nonpicketing publicity, like some picketing publicity, is coercive and, if not exempt under the proviso, unlawful. See Tree Fruits, 377 U.S. at 69; NLRB v. Servette, 377 U.S. 46, 54-56 (1964). The court below attempted to respond to the "substantial practical effect" argument by suggesting (Pet. App. 32a-33a n.19) that "(t)he proviso was not designed to restrict communicative activity" and that "the portions of the amendments to (Section) 8(b)(4) which restrict communicative activity continue to have substantial practical effect -- they regulate picketing, strikes, threats to employers, etc." This suggestion is sophistic. It is true, of course, that the proviso is not itself designed to "restrict communicative activity." But Section 8(b)(4)(ii)(B) is designed to restrict communicative activity, and the proviso is designed to exempt elaborately specified kinds of nonpicketing publicity, and those elaborate specifications have no meaning unless Section 8(b)(4)(ii)(B) applies to at least some truthful nonpicketing publicity. Accord DeBartolo I, 463 U.S. at 156, 157 & n.10. The contrary suggestion of the court below reduces the qualifying conditions in the nonpicketing publicity proviso to mere legislative "blather" (Boxhorn's Big Muskego Gun Club, Inc. v. Electrical Workers, Local 494, 798 F.2d 1016, 1024 (7th Cir. 1986) (criticizing Eleventh Circuit's treatment of the "publicity proviso"). 2. The legislative history of Section 8(b)(4)(ii)(B) indicates that the qualifying conditions in the publicity proviso were no accident. To the contrary, it is clear that Congress understood that the statutory phrase "threaten, coerce, or restrain" would exempt only some nonpicketing publicity. This Court has reviewed the legislative history of the Act's secondary boycott provisions in detail on prior occasions. See Tree Fruits, 377 U.S. at 64-70; NLRB v. Servette, 377 U.S. 46, 51-56 (1964). As explained in those cases, Congress first made secondary boycotts an unfair labor practice in 1947 in Section 8(b)(4) of the Taft-Hartley Act, ch. 120, 61 Stat. 141. Section 8(b)(4) prohibits a union from calling for a strike, or concerted refusal to handle goods, where the object is to compel an employer to cease doing business with another person. But, as originally enacted, Section 8(b)(4) had many significant loopholes. /15/ Accordingly, in 1959, the Administration introduced legislation in the Senate aimed at comprehensively addressing the secondary boycott problem by making it an unfair labor practice for a union to "threaten, coerce, or restrain" a secondary employer with the object of forcing that employer to cease doing business with a primary employer. See S. 748, 86th Cong., 1st Sess. 59 (1959); I NLRB, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, at 84, 142 (1959) (hereinafter Leg. Hist.). Testifying in support of this proposal, Secretary of Labor Mitchell stated that, "(u)ndoubtedly, prior interpretations of the words 'coerce' and 'restrain' will be extended to those provisions of the proposed bill which use identical language" (Labor-Management Reform Legislation: Hearings on S. 505 et al. Before the Subcomm. on Labor of the Senate Comm. on Labor and Public Welfare, 86th Cong., 1st Sess. 407, 410 (1959) (Senate Hearings). He offered cases decided under Sections 8(a)(1) and 8(b)(1) of the statute to illustrate his point (Senate Hearings 409-411). See also 105 Cong. Rec. 1567-1568 (1959); II Leg. Hist. 993-994. While this testimony no doubt heartened Senators who favored restricting all forms of pressure on secondary employers by unions, /16/ it also provoked Senators who, citing the Alloy Mfg. Co. case, objected to the bill for precisely the same reason: the words "coerce" and "restrain" had been interpreted in other provisions of the statute to encompass nonpicketing appeals to consumers. See, e.g., 105 Cong. Rec. 6231-6232; II Leg. Hist. 1037 (remarks of Senator Humphrey). /17/ Ultimately, the Senate adopted an alternative proposal, the Kennedy-Ervin bill, which did not include the Administration's proposed revisions to Section 8(b)(4). See S. 1555, 86th Cong., 1st Sess. (1959); I Leg. Hist. 516-585. In the House, by contrast, the Landrum-Griffin bill from the outset embodied the Administration's proposed revisions to Section 8(b)(4), including the prohibiton against "coercion" of neutral employers. See Tree Fruits, 377 U.S. at 67; I Leg. Hist. 680-681. While Congressman Griffin introduced the bill bearing his name by giving direct coercion of a secondary employer as an example of the kind of conduct that the amended Section 8(b)(4)(ii)(B) would prohibit (see 105 Cong. Rec. 15532; II Leg. Hist. 1568), he subsequently indicated that the provision would also bar a union from putting indirect economic pressure on a secondary employer to cease doing business with a primary employer -- by, for example, engaging in picketing that urged a total consumer boycott of the neutral's business (105 Cong. Rec. 15672-15673; II Leg. Hist. 1615). The House adopted the Landrum-Griffin bill on this understanding. See 105 Cong. Rec. 14540-14541; II Leg. His. 1701-1702. On August 18, 1959, a conference committee, chaired by Senator Kennedy, took up consideration of the two chambers' respective bills. See 105 Cong. Rec. 15942, 15965, 17325; II Leg. Hist. 1335, 1351, 1375. Two days later, while the conference was in progress, Senator Kennedy and Congressman Thompson, a house conferee, issued a joint analysis of the Senate and House bills. See Tree Fruits, 377 U.S. at 69; 105 Cong. Rec. 16588, 16591. With respect to the secondary boycott provisions of the Landrum-Griffin bill, Senator Kennedy and Congressman Thompson stated: 7. CONSUMER BOYCOTTS The House bill provides that a union may not "restrain" or "coerce" an employer where an object is to require him to cease doing business with any other employer. The prohibition reaches not only picketing but leaflets, radio broadcasts and newspaper advertisements, thereby interfering with freedom of speech. Suppose that the employees of the Coors Brewery were to strike for higher wages and the company attempted to run the brewery with strikebreakers. Under the present law, the union can ask the public not to buy Coors beer during the strike. It can picket the bars and restaurants which sell Coors beer with the signs asking the public not to buy the product. It can broadcast the request over the radio or in newspaper advertisements. The House bill outlaws such appeals to the general public for assistance in winning fair labor standards. * * * This is a basic infringement upon freedom of expression. The portions of the House bill which have this effect are unacceptable. But other members of the conference committee, while sharing this understanding of the meaning and effect of the Landrum-Griffin bill, expressed their approval of these secondary boycott provisions and apparently were unwilling totally to abandon them. See 105 Cong. Rec. 17325-17327; II Leg. Hist. 1375-1377. Accordingly, on August 28, 1959, Senator Kennedy suggested that, to break the deadlock, the Senate should "accept the broad language of the House bill with respect to secondary boycotts" and instead "insist on a few wholly reasonable and necessary limitations" (105 Cong. Rec. 17327; II Leg. Hist. 1377). Specifically, he proposed a resolution under which the Senate would accept the House version of Section 8(b)(4)(ii)(B), completely "recede() on the question of consumer picketing of a secondary employer" (105 Cong. Rec. 17328; II Leg. Hist. 1378), and insist on the addition of the following language with respect to nonpicketing publicity (105 Cong. Rec. 17333; II Leg. Hist. 1383): Provided, That nothing contained in this subsection (b) shall be construed * * * to prohibit publicity for the purpose of truthfully advising the public (including consumers) that an establishment is operated, or goods are produced or distributed, by an employer engaged in a labor dispute, without inducing employees to refuse to pick up, deliver or transport any goods, or perform any services at such establishment. The explanation accompanying this resolution stated that "secondary boycotts would be forbidden with only the() reservation() * * * (that) (w)orkers would not be denied the traditional right to ask the public not to patronize one who sells nonunion goods or goods of a manufacturer engaged in a labor dispute" (105 Cong. Rec. 17334; II Leg. Hist. 1384). See also 105 Cong. Rec. 17327, 17333; II Leg. Hist. 1377, 1383. The conference committee then resumed its deliberations and, on September 3, 1959, adopted with only slight modification the compromise that Senator Kennedy had suggested. In explaining the conference committee's agreement, Senator Kennedy stated (105 Cong. Rec. 17878-17899; II Leg. Hist. 1432) that the Senate conferees had insisted upon protecting: (c) The right to appeal to consumers by methods other than picketing asking them to refrain from buying goods made by nonunion labor and to refrain from trading with a retailer who sells such goods. Under the Landrum-Griffin bill it would have been impossible for a union to inform the customers of a secondary employer that that employer or store was selling goods which were made under racket conditions or sweatshop conditions, or in a plant where an economic strike was in progress. We were not able to persuade the House conferees to permit picketing in front of that secondary shop, but we were able to Persuade them to agree that the union shall be free to conduct information activitie(s) short of picketing. In other words, the union can hand out handbills at the shop, can place advertisements in (the) newspapers, can make announcements over the radio, and can carry on all publicity short of having ambulatory picketing in front of a secondary site. See also 105 Cong. Rec. 16254-16255; II Leg. Hist. 1388-1389 (remarks of Senator Kennedy). Congressman Thompson reported the "Major Changes" made by the conference committee to the Landrum-Griffin bill in similar terms, saying (105 Cong. Rec. 18133; II Leg. Hist. 1720) that: 2. Consumer Appeals: The right to publicize nonunion goods to consumers, without causing a secondary work stoppage, is recognized in the conference agreement. Employees will also be entitled to publicize, without picketing, the fact that a wholesaler or retailer sells goods of a company involved in a labor dispute. All appeals for a consumer boycott would have been barred by (the) House bill. In sum, the legislative history of the statute shows that two key members of the conference committee, including the committee's chairman, understood -- and explained to their colleagues in their respective chambers -- that the phrase "threaten, coerce, or restrain" would cover consumer appeals carried out not only through picketing but also through such other means as handbilling, newspaper advertisements, and radio broadcasts. These committee members understood -- and again explained to their colleagues in their respective chambers -- that certain nonpicketing consumer appeals would be exempted from the statutory proscription, but only when those appeals satisfied the specific conditions of the publicity proviso -- including the condition that there be a producer/distributor relationship between the primary and secondary employers; every example given by Senator Kennedy or Congressman Thompson in explaining the conference agreement involved nonpicketing publicity directed against a secondary employer distributing the products of the employer with whom the union had a primary dispute. There simply is no evidence that any member of the conference committee or, for that matter, any member of the Congress had any different understanding, /18/ and the statements of Senator Kennedy and Representative Thompson, as members of the conference committee and as sponsors of the compromise reached therein, /19/ are entitled to authoritative weight. See Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 656 n.9 (1982); National Woodwork Mfrs. Ass'n v. NLRB, 386 U.S. 612, 640 (1967). To be sure, as the court below noted (Pet. App. 26a-32a), the conference committee's "summary analysis" described (1) the House bill as "(p)rohibit(ing) secondary customer picketing at retail stores which (happens to) sell a product produced by manufacturer with whom the union has a primary dispute(,)" and (2) the conference committee's agreement as "(a)dopt(ing) House provision with clarification that other forms of publicity are not prohibited * * * (and with) clarification that picketing at primary site is not secondary boycott" (105 Cong. Rec. 18021-18022; II Leg. Hist. 1712). But this "summary analysis" is just what its title suggests it is: a table summarizing the principal provisions of the conference agreement. Accordingly, when the summary analysis was introduced into the legislative record, Congressman Griffin emphasized that it was "a preliminary report on the agreement worked out in conference * * * (and) (was) not designed to explain the bill in every detail but * * * (rather to) serve as a helpful summary to indicate the nature of the settlement reached by the conference on the important points of difference between the House and the Senate bill" (105 Cong. Rec. 18021; II Leg. Hist. 1712). /20/ It is therefore not surprising that the "summary analysis" discussed only the paradigms upon which the conference committee principally focused -- i.e., consumer picketing and nonpicketing consumer publicity directed at a secondary employer in a producer/distributor relationship with the primary employer -- and did not expressly deal with the less common forms of secondary boycott -- e.g., nonpicketing publicity urging a total consumer boycott of a secondary employer that is not in a producer/distributor relationship with the primary employer. But these less common forms of secondary boycott were also subject to the conference committee's compromise and nothing in the "summary analysis" indicates that these less common forms of secondary boycott were not intended to be covered. /21/ The summary analysis offers highlights rather than exegesis, and it simply is not a precise description of what activities are prohibited. For example, the summary analysis states without qualification that the statutory prohibition extends to "secondary customer picketing at retail store which happens to sell product produced by manufacturer with whom union has dispute" (105 Cong. Rec. 18021-18022; II Leg. Hist. 1712). But that is clearly a substantial overstatement: Tree Fruits held that the statutory prohibiton extends only to secondary customer picketing that is aimed at entirely "shutting off the patronage of a secondary employer" (377 U.S. at 67). 3. Accordingly, the principle of statutory construction set forth in Catholic Bishop cannot be appoied in the way the court of appeals sought to apply it. The language of Section 8(b)(4)(ii)(B), including the publicity proviso, as well as the legislative history of the section, demonstrate that Congress intended to bar some nonpicketing secondary activity and to provide only a limited exemption. Catholic Bishop does not authorize the courts to undo what Congress -- after lengthy negotiation and compromise -- plainly intended. See DeBartolo I, 463 U.S. at 157 n.10; George Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933); Yu Cong Eng v. Trinidad, 271 U.S. 500, 518 (1926); Crowell v. Benson, 285 U.S. at 76-77 (Brandeis, J., dessenting). II. SECTION 8(b)(4)(ii)(B), AS APPLIED TO RESPONDENT'S HANDBILLING IN THIS CASE, DOES NOT VIOLATE THE FIRST AMENDMENT The remaining question is whether the compromise that Congress struck in Section 8(b)(4)(ii)(B) contravenes the First Amendment when applied to respondent's handbilling in this case. The Court's decision in Safeco makes it clear that this question should be answered in the negative. 1. In Safeco, six Justices agreed that application of Section 8(b)(4)(ii)(B) to a union's peaceful picketing urging a total consumer boycott of a neutral employer did not violate the First Amendment. See 447 U.S. at 616 (plurality opinion); id. at 617-618 (opinion of Blackmun, J.); id. at 618-619 (opinion of Stevens, J.). /22/ The plurality reasoned that Congress has prohibited unions from "spread(ing) labor discord by coercing a neutral party to join the fray" (id. at 616), that "a prohibition on 'picketing in furtherance of * * * unlawful objective's' (does) not offend the First Amendment" (id. at 616, quoting Electrical Workers v. NLRB, 341 U.S. 694, 705 (1951)), and therefore that, "(a)s applied to picketing that predictably encourages consumers to boycott a secondary business, (Section) 8(b)(4)(ii)(B) imposes no impermissible restrictions upon constitutionaly protected speech" (447 U.S. at 616). Justice Blackmun said that "(t)he plurality's cursory discussion" of the First Amendment question was imcomplete because it did not address the content-based nature of the regulation in issue, but agreed that the Court should not "hold unconstitutional Congress's striking of the delicate balance between union freedom of expression and the ability of neutral employers, employees, and consumers to remain free from coerced participation in industrial strife" (447 U.S. at 616, 617-618). And Justice Stevens, agreeing with Justice Blackmun that "(t)he constitutional issue * * * (was) not quite as easy as the plurality would make it seem" since a content-based regulation was in issue, concluded that Section 8(b)(4)(ii)(B)'s limited ban on the union's picketing was "sufficiently justified by the purpose to avoid embroiling neutrals in a third party's labor disputes" (447 U.S. at 618, 619). The First Amendment question that arises from the application of Section 8(b)(4)(ii)(B) to respondent union's handbilling is not materially different from the First Amendment question decided in Safeco. The union's First Amendment interest in being free to urge a total public boycott of a secondary employer, in order to facilitate a favorable resolution of a primary labor dispute, is essentially the same in both cases. The governmental interest in preventing the spread of labor discord to neutral, secondary employers is essentially the same if not stronger in this case -- because the neutral employer here is not even in the chain of distribution. And in each instance the statute bans no more communicative activity than is necessary to further the governmental interest at issue. Accordingly, the constitutionality of Section 8(b)(4)(ii)(B) as applied to the union's handbilling in this case should follow directly from the Safeco decision. 2. Safeco involved picketing, rather than handbilling, but that does not make this case distinguishable for First Amendment purposes. As Justice Black noted in his Tree Fruits concurrence (377 U.S. at 77-79), picketing includes both (1) conduct (that is, standing or marching back and forth or round and round on the streets or sidewalks adjacent to someone's property) and (2) speech (that is, arguments or appeals, usually set forth on a placard, made to persuade other people to take the picketers' side of a dispute). See also Safeco, 447 U.S. at 618-619 (opinion of Stevens, J.); Bakery & Pastry Drivers v. Wohl, 315 U.S. 769, 775-777 (1942) (Douglas, J., concurring). The conduct aspect of picketing may be regulated subject to different First Amendment considerations than the speech aspect. See Hotel & Restaurant Employees' International Alliance, Local 122 v. Wisconsin Employment Relations Board, 315 U.S. 437, 442 (1942); Milk Wagon Drivers' Union, Local 753 v. Meadowmoor Dairies, 312 U.S. 287, 298 (1941). But as Justice Black also noted in his Tree Fruits concurrence (377 U.S. at 77-79), and as Justices Blackmun and Stevens reiterated in their Safeco concurrences (447 U.S. at 617, 618), Section 8(b)(4)(ii)(B) does not regulate the conduct aspect of picketing. /23/ It does not ban or physically restrict picketing for reasons of public order; rather, it bans picketing only when it involves the expression of a particular appeal to consumers (i.e., to cease all trade with a neutral employer because of a union's labor dispute with a primary employer). /24/ Similarly, Section 8(b)(4)(ii)(B) bans handbilling only when it involves the expression of a particular appeal to consumers. Therefore, the decision in Safeco cannot properly be explained, or distinguished from the present case, on the ground that picketing was in issue there and handbilling is in issue here; in both cases, the subject of the regulation is the message that the union seeks to convey, not the medium used to convey the message. /25/ 3. The content-based speech regulation in Safeco was properly upheld, and no different result is appropriate here. To be sure, content-based restrictions on speech generally will not be sustained unless they are "narrowly drawn" to achieve a "compelling" state interest. See, e.g., Carey v. Brown, 447 U.S. 455, 461-463, 464-469 (1980); First National Bank v. Bellotti, 435 U.S. 765, 784-787, 787-795 (1978). But certain categories of speech occupy a less central position in relation to First Amendment values than speech on issues of public concern and the Court has said that content-based regulations of these kinds of speech will be sustained if they directly advance a "substantial" governmental interest and are no more restrictive than is necessary to serve that interest. See Posadas de Puerto Rico Associates v. Tourism Co., No. 84-1903 (July 1, 1986) (commercial speech) (Posadas); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) (credit reporting); FCC v. Pacifica Foundation, 438 U.S. 726 (1978) (indecent language); see generally Young v. American Mini Theatres, Inc., 427 U.S. 50, 63-71 (1976) (opinion of Stevens, J.). The content-based restrictions at issue in Safeco and the instant case are sustainable because the "labor speech" involved in the two cases occupies such a less central position in the hierarchy to First Amendment values. a. In concluding that some speech is of less central concern to the First Amendment, the Court has repeatedly pointed to certain "commonsense differences" between those varieties of speech and expression that addresses issues of public concern. See, e.g., Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 562 (1980); Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 455-456 (1978). The Court has said, for example, that speech connected with profit-making transactions is generally more hardy than classic political speech and is therefore less likely to be unduly deterred by government regulation. See Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. at 762 (opinion of Powell, J.); Friedman v. Rogers, 440 U.S. 1, 9-10 & n.9 (1979); Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748, 771-772 n.24 (1976). The Court has also said that the truthfulness of some varieties of speech is easier to verify and that inaccuracies in such speech need not be tolerated as much as in speech relating to matters of public concern. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. at 564 n.6; Bates v. State Bar, 433 U.S. 350, 381, 383 (1977). And the Court has said that some speech occurs in "area(s) traditionally subject to government regulation" and that "(t)o require a parity of constitutional protection" between such speech and expression that addresses issues of public concern "could invite dilution, simply by a leveling process, of the force of the (First) Amendment's guarantee with respect to the latter kind of speech" (Ohralik v. Ohio State Bar Ass'n, 436 U.S. at 456). Accord, Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. at 562-563 n.5. As the Court has recognized, these "commonsense differences" also distinguish much speech on particular labor disputes from speech on matters of public concern. The Court has said, for example, that "(t)he interests of the contestants in a labor dispute are primarily economic" (Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. at 762), and that the speech of employers and unions with respect to organizational and collective bargaining issues is therefore unlikely to be unduly deterred by government regulation. See id. at 763 n.17; id. at 778 & n.3 (Stewart, J., concurring); Bates v. State Bar, 433 U.S. at 383. Similarly, the Court has said that the contestants in a labor dispute are uniquely situated to understand the characteristics and costs of their organizational and collective bargaining activities and thus may be held accountable for the accuracy of their statements concerning these issues. See NLRB v. Gissell Packing Co., 395 U.S. 575, 618, 620 (1969) (employer predictions of economic loss resulting from union organization must "be carefully phrased on the basis of objective fact"); NLRB v. Operating Engineers, 400 U.S. 297, 304-305 (1971) (union responsible for "foreseeable consequences" of its conduct). And, most importantly, the Court has said that "(a)ny assessment" of labor speech "must be made in the context of its labor relations setting" (NLRB v. Gissel Packing Co., 395 U.S. at 617), and that "what is basically at stake is the establishment of a nonpermanent, limited relationship between the employer, his economically dependent employee(s,) and (their) union agent(s), not the election of legislators or the enactment of legislation whereby that relationship is ultimately defined and where the independent voter may be freer to listen more objectively and employers (and unions) as a class freer to talk" (id. at 617-618). Thus, in Virginia Pharmacy Bd., the Court said that it could "see no satisfactory distinction between" commercial speech and labor speech (425 U.S. at 763) and Justice Stewart, pursuing the commercial speech-labor speech analogy, noted that Congress may impose "restrictions designed to promote antiseptic conditions in the labor relations context * * * (that) would be constitutionally intolerable if applied in the political arena" (id. at 778 n.3 (Stewart, J., concurring)). /26/ Speech by a union urging consumers to boycott a neutral employer in order to help bring about the favorable resolution of a primary labor dispute over wages or other terms and conditions of employment also manifests "commonsense differences" from speech on issues of public concern. As Professor Cox has noted, "(r)equests for immediate assistance in putting economic pressure upon one with whom the speaker is engaged in driving a private business bargain are readily distinguishable from words looking forward to political action. In the former instance the gain sought and the action requested are both economic" (Cox, The Supreme Court 1979 Term -- Foreward: Freedom of Expression in the Burger Court, 94 Harv. L. Rev. 1, 39 (1980)). Moreover, the union is uniquely situated in these cases to evalute the accuracy and effect of its message. Accord Longshoremen Ass'n v. Allied International, Inc., 456 U.S. 212, 224-225, 226-227; Safeco, 447 U.S. at 614-615 & n.9. And, finally, whether it be conveyed by means of pickets, handbills, or other media, speech by a labor organization promoting a consumer boycott of a neutral employer to facilitate resolution of a primary labor dispute takes place in an area traditionally subject to government regulation. See, Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. at 777-778 (Stewart, J., concurring). Compare NAACP v. Claiborne Hardward Co., 458 U.S. 886, 912 1982), and Organization for a Better Austin v. Keefe, 402 U.S. 415, 417-419 (1971), with Longshoremen Ass'n v. Allied International, Inc., 456 U.S. at 226-227. Accordingly, regulation of that speech -- in Safeco and here -- is best understood and analyzed in terms of the standards applied to regulation of less central categories of expression (such as commercial speech). Accord, Cox, supra, 94 Harv. L. Rev. at 39; cf. Carey v. Brown, 447 U.S. at 466-467 (suggesting that labor picketing is less "deserving of First Amendment protection than are public protests over other issues, particulary * * * economic, social, and political subjects"); Roberts v. United States Jaycees, 468 U.S. 609, 637-638 (1984) (O'Connor, J., concurring) (less First Amendment protection available to unions "for the commercial purposes of engaging in collective bargaining, administering labor contracts, and adjusting employment-related grievances," than for "ideological or political associations"). /27/ b. Speech of kinds less central to First Amendment concerns "receives a limited form of First Amendment protection so long as it concerns a lawful activity and is not misleading or fraudulent" (Posadas, slip op. 11). See also Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. at 563-564. "Once it is determined that the First Amendment applies to the particular kind of * * * speech at issue, then the speech may be restricted only if the government's interest in doing so is substantial, the restrictions directly advance the government's asserted interest, and the restrictions are no more extensive than necessary to serve that interest" (Posadas, slip op. 11). See also Metromedia, Inc. v. San Diego, 453 U.S. 490, 507 (1981) (opinion of White, J.). Here, as in Safeco, it is undisputed that the union's speech concerned a lawful activity -- a boycott by consumers in order to encourage a neutral employer to put pressure on a primary employer -- and that this speech was neither misleading nor fraudulent. But it is equally clear that the regulation of the union's speech, both here and in Safeco, satisfied the other standards applied to categories of expression that are of less central concern to the First Amendment. /28/ The government's interest in restricting a union's call for a total consumer boycott of a neutral secondary employer is well established. Section 8(b)(4) aims to "shield() unoffending employers and others from pressures in controversies not their own" (NLRB v. Denver Building Construction Trades Council, 341 U.S. 675, 692 (1951)), and thereby to prevent the spread of "labor discord" (Safeco, 447 U.S. at 616). Accord Longshoremen Ass'n v. Allied International, Inc., 456 U.S. at 223 & n.20, 225; Carpenters v. NLRB, 357 U.S. 93, 100 (1958). All six Justices who reached the First Amendment question in Safeco agreed that this governmental interest is substantial. See 447 U.S. at 616 (plurality opinion); id. at 616 (opinion of Blackmun, J.); id. at 618 (opinion of Stevens, J.). The statutory ban on union appeals for a total consumer boycott of neutral employers "directly advances" this governmental interest. The prohibition shields unoffending employers from labor controversies that are not of their own making. Moreover, it does so only in circumstances where the appeals are or threaten to be coercive; that is, in circumstances where the appeal threatens to expose the secondary employer to substantial loss or ruin. Congress reasonably determined that restrictions on such appeals will make neutral employers less likely to become enmeshed in the labor disputes of primary employers and unions. See generally Posadas, slip op. 12 ("direct advancement" step met where legislative judgment is a "reasonable one"); Metromedia, Inc. v. San Diego, 453 U.S. at 508-509 (opinion of White, J.) ("direct advancement" step met where legislative judment is "not manifestly unreasonable"). Finally, the restriction on the union's speech is no more extensive than is necessary to serve the government's interest. Section 8(b)(4)(ii)(B) does not prohibit consumer appeals, by picketing or otherwise, directed solely against the primary employer; thus, in this case, respondent union could, for example, have engaged in picketing or handbilling at appriproate locations that told consumers about its dispute with High without asking for a boycott of the mall tenants. See International Brotherhood of Electrical Workers, Local No. 278 (Kelinske Elec. Co.), 232 N.L.R.B. 1044 (1977); Amalgamated Packinghouse Workers (Packerland Packing Co.), 218 N.L.R.B. 853, 854 (1975). Nor does Section 8(b)(4)(ii)(B) prohibit secondary consumer appeals, by picketing or otherwise, that are not coercive of the secondary employer; thus, an appeal that would not reasonably cause the secondary employer to fear loss of business would not be unlawful and, in fact, in this case, no challenge was brought to respondent union's appeal to consumers to "express to store managers your concern over substandard wages and your support of our efforts" (Pet. App. 41a). And, by virtue of the publicity proviso, Section 8(b)(4)(ii)(B) even allows a union to engage in coercive consumer appeals, provided that the union makes the appeal by a means other than picketing, ensures that the appeal is truthful, limits the appeal to advising consumers and the public that a secondary employer is in the chain of distribution, and does not affect deliveries or work at the neutral's business establishment; thus, in Safeco, the union's handbilling was not challenged (447 U.S. at 610 n.3) and, in this case, respondent union could have distributed handbills (at the East Lake Square Mall or the site of any other Wilson store) urging consumers to boycott Wilson (or any other business for whom High was performing construction work). See Local Union No. 54, Sheet Metal Workers (Sakowitz, Inc.), 174 N.L.R.B. 362, 363-364 (1969). Section 8(b)(4)(ii)(B) prohibits only secondary consumer boycotts that, in Congress 's judgment, are likely to result in an unacceptable spread of labor discord to true neutrals -- i.e., picketing that is reasonably likely to threaten a secondary employer with ruin or substantial loss, and nonpicketing publicity that is reasonably likely to threaten a secondary employer who is not in the chain of distribution with such ruin or loss. Section 8(b)(4)(ii)(B) is a "narrowly drawn" regulation. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. at 565; cf. City of Renton v. Playtime Theatres, Inc., No. 84-1360 (Feb. 25, 1986), slip op. 10 ("ordinance is 'narrowly tailored' to affect only that category of theatres shown to produce the unwanted secondary effects"). That Section 8(b)(4)(ii)(B) satisfies each of the standards applicable to content-based regulation of less central categories of speech explains, we submit, the First Amendment result reached by the six Justices in the Safeco majority and, concomitantly, why the same result should be reached here. The speech and expressive conduct of private employers, their employees, and the employees' unions with respect to organizational and collective bargaining issues simply does not lie at the heart of the First Amendment. Rather, it is a type of speech that, because of the labor context in which it arises, may be subjected to reasonable government regulation -- even on the basis of content. /29/ This explains why the six Justices in the Safeco majority were able to find that, notwithstanding the fact that the union had been denied the right to engage in secondary picketing on the basis of the message it was expressing, Congress had struck a reasonable "balance between union freedom of expression and the ability of neutral employers, employees, and consumers to remain free from coerced participation in industrial strife" (447 U.S. at 617-618 (opinion of Blackmun, J.)). Accord id. at 616 (plurality opinion); id. at 619 (opinion of Stevens, J.). /30/ And it also explains why Congress may constitutionally bar respondent union from engaging in handbilling that expresses the same view. The First Amendment interest in the two cases is essentially the same; the governmental interest in protecting neutrals is even stronger where, as here, the neutral is outside of the chain of distribution; and the balance of the First Amendment and governmental interests in the two cases cannot reasonably be found to differ. CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. CHARLES FRIED Solicitor General LOUIS R. COHEN Deputy Solicitor General GLEN D. NAGER Assistant to the Solicitor General ROSEMARY M. COLLYER General Counsel JOHN E. HIGGINS, JR. Deputy General Counsel ROBERT E. ALLEN Associate General Counsel NORTON J. COME Associate General Counsel LINDA SHER Assistant General Counsel CARMEL P. EBB Attorney National Labor Relations Board AUGUST 1987 /1/ High had no contract or other business relationship with petitioner or with any mall tenant other than Wilson (J.A. 23a-24a). /2/ The handbilling was done in an orderly manner, lasted for about three weeks, and was not accompanied by any picketing or patrolling (DeBartolo I, 463 U.S. at 150; J.A. 24a-25a). /3/ The handbills stated (Pet. App. 40a-41a) in full: PLEASE DON'T SHOP AT EAST LAKE SQUARE MALL PLEASE The FLA. GULF COAST BUILDING TRADES COUNCIL, AFL-CIO is requesting that you do not shop at the stores in the East Lake Square Mall because of The Mall ownership's contribution to substandard wages. The Wilson's Department Store under construction on these premises is being built by contractors who pay substandard wages and fringe benefits. In the past, the Mall's owner, The Edward J. DeBartolo Corporation, has supported labor and our local ecomony insuring that the Mall and its stores be built by contractors who pay fair wages and fringe benefits. Now, however, and for no apparent reason, the Mall owners have taken a giant step backwards by permitting our standards to be torn down. The payment of substandard wages not only diminishes the working person's ability to purchase with earned, rather than borrowed, dollars, but it also undercuts the wage standard of the entire community. Since low construction wages at this time of inflation means decreased purchasing power, do the owners of East Lake Mall intend to compensate for the decreased purchasing power of workers of the community by encouraging the stores in East Lake Mall to cut their prices and lower their profits? CUT-RATE WAGES ARE NOT FAIR UNLESS MERCHANDISE PRICES ARE ALSO CUT-RATE. We ask for your support in our protest against substandard wages. Please do not patronize the stores in the East Lake Square Mall until the Mall's owner publicly promises that all construction at the Mall will be done using contractors who pay their employees fair wages and fringe benefits. IF YOU MUST ENTER THE MALL TO DO BUSINESS, please express to the store managers your concern over substandard wages and your support of our efforts. We are appealing only to the public -- the consumer. We are not seeking to induce any person to cease work or to refuse to make deliveries. /4/ Petitioner also filed a trespass action in state court and obtained an injunction against the handbilling. See J.A. 25; see also Florida Gulf Coast Building Trades Council v. DeBartolo Corp., 106 L.R.R.M. 2310 (Fla. Dist. Ct. of App. 1980). No issue concerning the trespass action is before this Court. /5/ The court explains (Pet. App. 13a) that "(t)he consumers were legally free to agree with the Union's position and decline to patronize the mall tenants. The mall tenants would have been acting equally legally if, in response to the consumer pressure, they requested that (petitioner) and/or Wilson's request that High use union labor. In the same way, Wilson's and/or (petitioner) would have been within the law if they requested High to accede to the Union's demands regarding terms and conditions of employment." /6/ The court refused to decide whether "speech which urges consumers to engage in a secondary boycott is commercial speech which can be and has been restricted in response to a substantial governmental interest" (Pet. App. 14a n.7). It noted, however, that "(i)t is not clear that the handbills involved in the instant case are commercial speech or should be treated as commercial speech" since "a strong argument could be made that the Union * * * was expressing social and moral values() as well as economic considerations in its written message" (ibid.), that "the Court has yet to include economic or labor speech in (the commercial speech) category" (ibid.), and that "(i)t has been suggested that nonpicketing labor publicity is not commercial speech and should not be treated like commercial speech * * * (id. at 15a n.7, citing Goldman, The First Amendment and Nonpicketing Labor Publicity Under Section 8(b)(4)(ii)(B) of the National Labor Relations Act, 36 Vand. L. Rev. 1469, 1490 (1983)). /7/ In response to the contention that rejection of this argument deprived the publicity proviso of "substantial practical effect" and thus conflicted with this Court's decision in DeBartolo I, the court said (Pet. App. 32a-33a n.19): "The proviso was not designed to restrict communicative actitity; only the prohibitions of (Section) 8(b)(4) were intended to do so" and, "(a)lthough() under our narrow construction of the prohibitions set out in (Section) 8(b)(4), handbilling is not restricted, the portions of the amendments to (Section) 8(b)(4) which restrict communicative activity continue to have substantial practical effect -- they regulate picketing, strikes, threats to employers, etc." /8/ In this regard, the court compared (Pet. App. 30a-31a n.17, 31a-32a) the publicity proviso to the primary activity proviso of Section 8(b)(4)(ii)(B), which states "(t)hat nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing" (29 U.S.C. 158(b)(4)(ii)(B)). The court concluded that, "(t)hus, one of (Section) 8(b)(4)'s provisos was certainly not drafted as an exception, but rather as an explanation of Congress' intent not to reach such conduct by its prohibition" (Pet. App. 31a n.17). /9/ Section 8(b)(1) provides (29 U.S.C. 158(a)(1)) that "(i)t shall be an unfair labor practice for an employer * * * to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in (Section 7) of (the statute)." /10/ Section 8(b)(1) provides (29 U.S.C. 158(b)(1)) that "(i)t shall be an unfair labor practice for a labor organization or its agents * * * to restrain or coerce (A) employees in the exercise of rights guaranteed in (Section 7) of (the statute) * * * ; or (B) an employer in the selection of his representatives for the purpose of collective bargaining or the adjustment of grievances." /11/ Three Justices dissented in Safeco on the theory (447 U.S. at 620 (emphasis in original)) that consumer picketing at a secondary site is not "coercive" when it "is directed (only) at the primary employer's product" and does not "more broadly exhort() customers to withhold patronage from the full range of goods carried by the secondary retailer, including those goods originating from nonprimary sources." Respondent union urged consumers to withhold all patronage from the secondary employers. Thus, the issue that divided the Court in Safeco is not presented here. Accord, Boxhorn's Big Muskego Gun Club, Inc. v. Electrical Workers Local 494, 798 F.2d 1016, 1019 (7th Cir. 1986). /12/ The NLRB, however, found that the union's distribution of the "Do Not Patronize" lists came within the protection of the publicity proviso. See 133 N.L.R.B. at 1705-1706. /13/ In International Ass'n of Machinist, Lodge 942 (Alloy Mfg. Co.), 119 N.L.R.B. 307, 309 (1957), the NLRB found that a minority union had violated Section 8(b)(1)(A) by, among other things, distributing "(w)e do not patronize" lists in support of its demand that an employer recognize the union and sign a union shop agreement with it. While the Ninth Circuit denied enforcement of the part of the NLRB'S order in Alloy Mfg. Co. on the ground that the union's nonpicketing publicity fell "within the general area of protection of the 1st amendment guaranteeing freedom of speech" (NLRB v. International Ass'n of Machinist, Lodge 942, 263 F.2d 796, 799-800 (9th Cir. 1959)), the Fourth Circuit upheld the NLRB's position in another similar case (see NLRB v. United Rubber Workers (O'Sullivan Rubber Corp.), 269 F.2d 694 (1959), rev'd on other grounds, 363 U.S. 329 (1960)). At the time Congress debated whether to enact the "threaten, coerce, or restrain" standard in Section 8(b)(4)(ii)(B), it was aware of the conflict between these two decisions. See 105 Cong. Rec. 14348, 15520, 15855-15856 (1959); II NLRB, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, at 1523, 1556, 1688 (1959) (hereinafter Leg. Hist.). But Congress did not resolve the conflict; it addressed only the "recognitional" picketing question that had been decided in those two cases. See H.R. Rep. 1147, 86th Cong., 1st Sess. 40-41 (1959); I Leg. Hist. 944-945. See also NLRB v. Drivers Local 693 (Curtis Bros.), 362 U.S. 274, 290 (1960) (holding that Section 8(b)(1)(A) is a limited grant of authority "to proceed against union tactics involving violence, intimidation, and reprisal or threats thereof" and cannot be interpreted to regulate peaceful "recognitional" picketing that does not have the unlawful objective specified in Section 8(b)(4) of the statute). /14/ The NLRB found, however, that the union's nonpicketing publicity met the publicity proviso's distribution requirement and, accordingly, did not violate Section 8(b)(4)(ii)(B) (150 N.L.R.B. at 472). /15/ In Tree Fruits, the Court noted (377 U.S. at 64-65) that "(t)hree major loopholes were revealed. Since only inducement of 'employees' was proscribed, direct inducement of a supervisor or the secondary employer by threats of labor trouble was not prohibited. Since only a 'strike or a concerted refusal' was prohibited, pressure upon a single employee was not forbidden. Finally, railroads, airlines and municipalities were not 'employers' under the Act and therefore inducement or encouragement of their employees was not unlawful." /16/ During the Senate hearings, various members of the Senate expressed their support for prohibiting all forms of coercion of secondary employers by unions. Senator McClellan, for example, proposed to amend an alternative proposal, the Kennedy-Ervin bill (which did not include a "coercion" prohibition), to make it unlawful to "exert, or attempt to exert, any ecomonic or other coercion against, or offer any inducement to, any (secondary) person engaged in commerce * * * " (105 Cong. Rec. 5970; II Leg. His. 1193); Senator McClellan made clear that his proposal would cover appeals to consumers of the secondary employer (105 Cong. Rec. 5971; II Leg. Hist. 1194). Senator Curtis similarly favored legislation that would broadly bar unions from pressuring secondary employers in furtherance of their primary labor disputes. He testified (Labor-Management Reform Legislation: Hearings on S. 505 et al. Before the Subcomm. on Labor of the Senate Comm. on Labor and Public Welfare, 86th Cong., 1st Sess. 753 (1959) (Senate Hearings)): Another type of economic pressure not covered by the present language of Taft-Hartley's section 8(b)(4) is the secondary consumer or customer boycott. A union can apparently picket the customer entrances of a retail store which is carrying a product manufactured by a company with which a union has a primary dispute. Similarly, a union can organize a consumer or customer boycott against a soft drink distributing company merely because that company advertises on a radio or television station or in a newspaper with which the union has a primary dispute. These are examples of secondary customer or consumer boycotts. They are a potent form of economic pressure and are intended to be made unlawful by the language of my bill. A current case involves station WKRG and WKRG-TV in Mobile, Ala." A union which lost an election immediately began picketing the stations, and also is attempting to bring economic pressure on sponsors who continue to advertise on the stations. They threatened the sponsors with loss of business. The "current case involv(ing) Station WKRG and WKRG-TV in Mobile, Ala." to which Senator Curtis referred was Radio Broadcast Technicians, Local Union No. 1264 (WKRG-TV, Inc.), 123 N.L.R.B. 507 (1959), where a union had organized a consumer boycott by means of nonpicketing publicity (id. at 509-510). /17/ Senator Humphrey also suggested that the Administration's approach would raise serious constitutional questions. See 105 Cong. Rec. 6231-6232; II Leg. Hist. 1037. /18/ To the contrary, Senator Goldwater, for example, described the conference agreement as providing for "permitted-but-limited" nonpicketing publicity (105 Cong. Rec. 19771; II Leg. Hist. 1857). See also 105 Cong. Rec. 16419; II Leg. Hist. 1437 (remarks of Senator Goldwater); 105 Cong. Rec. 16423; II Leg. Hist. 1441 (remarks of Senator Curtis). /19/ The court below plainly erred in suggestingon (Pet. App. 35a n.20) that Senator Kennedy's views are not an authoritative guide to the construction of the statute because he was initially an opponent of the Landrum-Griffin bill. Whatever views Senator Kennedy may initially have held with respect to that bill, he was acting as chairman of the conference committee when he made the statements quoted in text and, even more important, he was the sponsor of the compromise that the conference committee adopted to settle the differences between the competing House and Senate bills. As the proponent of that compromise, Senator Kennedy's statements are clearly entitled to authoritative weight. Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. at 656 n.9. /20/ While Senator Goldwater introduced the "summary analysis" into the record without these qualifications (see 105 Cong. Rec. 18705-18706; II Leg. Hist. 1454), he did so on September 9, 1959, six days after the Senate had voted to accept the conference agreement (see 105 Cong. Rec. 17919-17920; II Leg. Hist. 1453). /21/ That the "summary analysis" uses the term "clarification" in describing the conference committee compromise with respect to both the publicity and primary activity provisos certainly does not contradict this understanding. The language of the two provisos makes them readily distinguishable. The primary activity proviso does not contain the words of limitation that the publicity proviso contains; thus, the former but not the latter may properly be treated as an explanation of the scope of, rather than as an exception to, the secondary boycott provisions. Furthermore, the final report of the conference committee, which repeats the publicity proviso in haec verba, does not in any way suggest that the publicity proviso is a mere restatement of any prior bill or law; in contrast, that report expressly states that the purpose of the primary activity proviso was "to make it clear that the changes in section 8(b)(4) do not overrule or qualify the present rules of law permitting picketing at the site of a primary labor dispute" (H.R. Rep. 1147, 86th Cong., 1st Sess. 38 (1959); I Leg. Hist. 942). Thus, contrary to the conclusion of the court below (Pet. App. 30a-31a), the use of the term "clarification" in the "summary analysis" cannot be taken as evidence that the publicity proviso was inserted merely to make clear that no prohibition was intended. /22/ Because they interpreted the statutory ban differently than did the six Justices in the majority, the dissenting Justices in Safeco had no occasion to discuss the First Amendment question. /23/ Though Justice Stevens' opinion in Safeco also discussed the conduct aspect of picketing, it started with the premise that "this is another situation in which regulation of the means of expression is predicated squarely on its content" (447 U.S. at 618). /24/ In Justice Black's words (377 U.S. at 79 (emphasis in original)): "we have neither a case in which picketing is banned because the picketers are asking others to do something unlawful nor a case in which all picketing is, for reasons of public order, banned. Instead, we have a case in which picketing, otherwise lawful, is banned only when the picketers express particular views. The result is an abridgement of the freedom of these picketers to tell a part of the public their side of a labor controversy, a subject the free discussion of which is protected by the First Amendment." /25/ While we believe that the constitutionality of Section 8(b)(4)(ii)(B) as applied to respondent union's handbilling should turn on the government's legitimate interest in narrowly regulating the specific message being expressed (and not on the question whether a constitutional distinction exists between regulation of picketing and regulation of handbilling), we note that on-the-spot handbilling, like picketing, has a conduct element that is subject to regulation in its own right; on-the-spot handbilling, like picketing, involves the possibly intimidating presence of the distributor. See Boxhorn's Big Muskego Gun Club, Inc. v. Electrical Workers, Local 494, 798 F.2d at 1020; cf. Amalgamated Food Employees Union, Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 315-316 (1968) overruled on other grounds sub nom. Hudgens v. NLRB, 424 U.S. 507 (1976) ("Handbilling, like picketing, involves conduct other than speech, namely, the physical presence of the person distributing leaflets * * * "); Ohralik v. Ohio State Bar Ass'n, 436 U.S. at 457 ("in-person solicitation may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection"). But see Babbit v. Farm Workers, 442 U.S. 289, 311 n.17 (1979) (citation omitted) ("picketing is qualitatively 'different from other modes of communication'"). /26/ Justice Stewart noted (425 U.S. at 778 n.3 (citations omitted)) that "(s)peech by an employer or a labor union organizer that contains material misrepresentations of fact or appeals to racial prejudice may form the basis of an unfair labor practice or warrant the invalidation of a certification election. * * * Such restrictions would clearly violate First Amendment guarantees if applied to political expression concerning the election of candidates to public office. * * * Other restrictions designed to promote antiseptic conditions in the labor relations context, such as the prohibition of certain campaigning during the 24-hour period preceding the election, would be constitutionally intolerable if applied in the political arena." /27/ That respondent union may have been "expressing social and moral values() as well as economic considerations in its written message" (Pet. App. 14a n.7) does not entitle it to have its economic message treated as if it were central to First Amendment values. For one thing, Section 8(b)(4)(ii)(B) does not prevent a union from expressing any social, moral, or economic views it may have; Section 8(b)(4)(ii)(B) only prevents the union from requesting that consumers totally boycott a neutral employer in order to facilitate its resolution of a labor dispute with a primary employer. See Safeco, 447 U.S. at 617-618 (Blackmun, J.); id. at 618-619 (Stevens, J.); see also Tree Fruits, 377 U.S. at 93 (Harlan, J., dissenting) (ban on secondary picketing constitutional because Congress has acted with "discriminating eye"). Second, it is not necessary that the sole object of a secondary boycott by a labor union be economic gain; an otherwise subordinate category of speech does not receive a higher level of First Amendment protection just because it is motivated by or appended to an issue of public interest (and therefore may incidentally stimulate thought or debate about that public issue). Accord, Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 637 n.7 (1985); Bolger v. Youngs Drug Product Corp., 463 U.S. 60, 67-68 (1983); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. at 563 n.5; Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. at 780 n.8 (Stewart, J., concurring). The same principle applies, of course, to regulable conduct intended as symbolic speech. See United States v. O'Brien, 391 U.S. 367 (1968). /28/ As the elements of this test make clear, an appropriate regulation of respondent union's handbilling may be sustained even though "the Union was not seeking to have the consumers, the mall tenants, or (petitioner) and/or Wilson's do anything which would be illegal" (Pet. App. 31a). Had respondent union been seeking to have any of these persons commit an illegal act, its handbilling would not be entitled to any First Amendment Protection at all. See Posadas, slip op. 11; Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 495-504 (1949). /29/ For this reason, Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), and NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), do not directly bear on the First Amendment question presented in this case. Those cases involved neither speech arising in the labor-management context nor a regulation of speech that was "narrowly drawn." In Keefe, a community organization was enjoined from leafletting or otherwise urging consumers to boycott a real estate broker who had engaged in various racially discriminatory tactics to increase his real estate business. 402 U.S. at 417, 419. In Claiborne Hardware Co., black citizens were enjoined from organizing or otherwise promoting a consumer boycott of white merchants in order to force those merchants and elected officials to accede to their demands for racial equality and integration. 458 U.S. at 893, 909, 914. In both cases, the Court found that the government had failed to show that the injunctions issued with respect to the particular expressive activity in issue were necessary to further a legitimate governmental interest. Keefe, 402 U.S. at 419-420; Claiborne Hardware Co., 458 U.S. at 912-915. In both cases, the Court made plain that a narrowly drawn regulation of a consumer boycott organized for economic as opposed to wholly political ends would be sustained. See Keefe, 402 U.S. at 419-420; Claiborne Hardware Co., 458 U.S. at 912, 915, 915 n.49. Indeed, Claiborne Hardware Co. expressly stated that, "Secondary boycotts and picketing by labor unions may be prohibited, as part of 'Congress' striking of the delicate balance between union freedom of expression and the ability of neutral employers, employees, and consumers to remain free of coerced participation in industrial strife" (id. at 912, quoting Safeco, 447 U.S. at 617-618 (opinion of Blackmun, J.)). /30/ Such cases as Hughs v. Superior Court, 339 U.S. 460 (1950), and Teamsters v. Voght, 354 U.S. 284 (1957), may also be so understood. While those cases suggest that a message conveyed through picketing may be proscribed because picketing is speech plus conduct, it was the speech element, not the conduct element, of picketing that was at issue in those cases. Accordingly, those cases are better understood in light of the Court's more recent content-based speech regulation cases. See Cox, supra, 94 Harv. L. Rev. at 36-39. APPENDIX