*1 to make the issues to the but the denials serve rule, in the usual be resolved evidence taken must other office. The witnesses who way. They can have no subjected to examination ore tenus made them must Not by deposition as are all other witnesses. and the but the whole of the testi- pleadings affidavits, petitioner it be determined whether the has mony, must proof right burden of and shown his to a carried dis- his charge. allega- The Government’s contention that his improbable tions are unbelievable cannot serve to opportunity support him an them deny by evidence. his this record to be On heard. judgment is reversed and the cause remanded to for further proceedings
the District Court conformity opinion.
Reversed. UNION OF CHICAGO, WAGON DRIVERS MILK 753, et MEADOWMOOR DAIRIES, LOCAL al. INC. Argued 13, 16, February 10, 1940. Decided December 1941. No. *2 Brussell, Joseph with whom
Mr. Abraham W. Messrs. Riskind were on the Padway brief, A. and David A. ap- D. entered Myron Mr. Alexander petitioners. pearance. *4 Donald Boy
Messrs. N. for Massena Schaffer respondent. opinion delivered the
Mu. Justice Frankfurter Court.
The
court of Illinois sustained
supreme
Wagon
Milk
the latter’s
Drivers Union over
against
infringement of
freedom of
it involved an
claim that
by the Fourteenth Amendment. Since
speech guaranteed
question intrinsically
as
ruling
important,
raised a
Alabama, 310
affecting
as
of Thornhill v.
scope
well
California, 310 U. S.
we
108,
S.
Carlson v.
88,
U.
brought
the case here.
The for milk system” “vendor which was gave dispute. system, rise to Under Wagon Milk Drivers’ Union Lake analyzed fully Products, milk is sold Valley Farm 311 U. S. vendors own trucks dairy companies operating from the departed retailers. These vendors resell to who the Union for working theretofore achieved standards in order to dairy employees. Union, The members ac- standards, took established compel observance using system. pres- vendor against dairies tion brought suit Dairies, Inc., Meadowmoor respondent, ent stop its officials to interference the Union and against in- A products. preliminary of its distribution peace- all restraining union violent junction conduct, to a and the was referred master issued, case ful, promptly of the stores han- peaceful picketing Besides report. the master found products, dling Meadowmoor’s on a considerable scale. Wit- been violence there had than of window- fifty to more instances testified nesses injury bombs caused substantial explosive smashing; dairy using and another of Meadowmoor plants n were stores; and to five stench bombs system vendor were in five three trucks of vendors stores; dropped was injuring one and another wrecked, seriously driver, large fire and river; into a store was set on driven *5 burned; trucks of vendors were a two ruined; measure severely a truck driver were storekeeper beaten; and Meadowmoor, like used the dairy which, workers at a and guns severely held with beaten system were vendor being join the union”; while told “to car about the head trucks, followed vendors’ threatened the loads of men instance shot at truck driver. one drivers, occurrences, involving a dozen of these win In more than burnings, wrecking dow-smashing, bombings, testimony there was trucks, shootings, beatings, wrongdoers light as union men.1 In identify the the master recommended that all findings, picketing, his merely enjoined. violent should be The acts, and not however, accepted recommendations court, trial and permitted peaceful picketing. to acts of violence ruling by 371 Ill. supreme court, The reversal of 308, directing permanent 21 N. E. 2d 377; by the master, as recommended now before us. emerges which thus is whether a question state enjoin its courts to can choose to authorize acts of picket- ing peaceful they in themselves when are enmeshed with violent conduct which is contemporaneously concededly is invoked deny outlawed. The Constitution Illinois prevent its courts to power to authorize continu- flagrant violence, found after an ance and recurrence litigation under cir- specific extended to have occurred in such by the terms of a decree familiar cumstances, arising of a con- decree, particular cases. Such a out adjusted it, totally raises different con- troversy and be presented from those that would problems stitutional overhanging and unde- by an statute with an abstract fined threat to free utterance. To assimilate two needlessly quote reports encumber in detail 1 It would may evidence The curious turn to the thus summarized. record the case. *6 deal with the states historic freedom to deny liti- through the concreteness of individual
controversies through general of a the abstractions rather than gation law. in- Thornhill’s case. That case starting is point free on be- speech of protection the constitutional
voked for “publicizing, modern means relatively a half of the facts of any kind, threat of annoyance or without of The whole series dispute.” labor U. S. a under the Four- defining speech of free scope the cases in principle facets of the same Amendment are teenth assuring safeguard appropriate modes all they that Peaceful in different situations. right to utterance the communica- workingman’s means of the is picketing tion. the Bill of be forgotten, however,
It must never the Back of Enlightenment. the the child of Rights was of an power faith the speech lay free guarantee of gaining means for by peaceful all the to reason appeal avert force and mind. It was order to to the access of rational modes upon restrictions explosions due to free was guarantee speech of the communication context of But utterance generous scope. given a to reason an significance appeal can lose its violence utter- Such of force. instrument part become of an the by Constitution. to be sheltered not meant ance was that no constitutional importance prime is of Still Rights, Bill of the guarantees all freedom, least of screening findings of fact by insubstantial be defeated power ultimate Court has why is reality. That a claim where in the courts records state to search And so effectively made. constitutionality drawing a trivial from be denied speech free cannot exuberance of animal moment or a rough incident has taint picketing peaceful that otherwise conclusion of force.
In found this case master “intimidation of the vendors plaintiff’s customers the commission violence,” supreme justified acts court “in because picketing, decision connection or fol- lowing a series assaults destruction of property, could help intimidating but have effect of persons premises picketing front of whose oc- causing curred and of them to believe non-compli- possibly ance would followed acts of unlawful character.” us independent not for to make an *7 valuation before testimony the master. We have findings not his his findings but authenticated through State of Illinois speaking supreme her court. reject We can such a determination if only we can say it is without so warrant as to be palpable a that evasion guarantee constitutional here invoked. The place in resolve conflicts the testimony and in its interpreta- tion was in the Illinois courts and not here. To substi- judgment tute our for that of the state court is to trans- cend the limits of our authority. And do in so name of the Fourteenth Amendment in matter pecu- a touching liarly the local policy of a state regarding vio- great lence tends to discredit the immunities of the Bill Rights. No one will doubt can protect Illinois storekeepers its from being coerced by fear of window- smashings burnings bombings. or And acts which in peaceful isolation are be may part of a coercive thrust entangled with when acts of violence. picketing in background this case was set in In a of-violence. a it could be setting justifiably concluded that the mo- generated by past mentum of fear violence would sur- though might vive even future picketing wholly be peace- supreme ful. So the court Illinois found. We can- say that such a so finding experience contradicted as rejection. to warrant our Nor can say we was written into the Fourteenth Amendment that a state through its cannot protection against, courts base future coercion on an inference of the threat of past continuing Ethyl Corp. misconduct. Cf. Gasoline States, United 309 U. S. violence are neither nor episodic
These acts of
isolated.
innocent
Judges need not be so
actualities of such
an industrial conflict as this record discloses as
find
denial
the right
the Constitution a
of Illinois to
force
a
conclude that the use of
on such scale was not the
irresponsible
conduct of
few
outsiders. The
a
Four-
Amendment still leaves the state ample
teenth
discretion
with manifestations of force
dealing
settlement
And
exercising
power
of industrial conflicts.
treated
though
state is not to be
as
technicalities of
agency
the laws of
were written into the Constitution.
Certainly
a state is not confined
the Constitution to
in fashioning
dealing
for
narrower limits
remedies
scope
industrial
than the
of discretion
disputes
open to
the National Labor Relations Board.
is true
aof
it may
responsible
union
of an
employer
expressly
might
acts which it has not
authorized or which
to it
strict application
no't be attributable
on
rules
*8
respondeat superior.
International Association Ma-
Board,
chinists
Labor
311 U.
Heinz Co.
80;
v.
S.
v.
72,
Board,
deny
Labor
We have speech. Espe- of free guarantee given must in where, be observed labor attitude to cially is detached feelings of even the most controversies, may violence engaged and a show of may become minds judgment. calm demands on further make still deny that the what power to remind therefore relevant derives from picketing be lawful would otherwise Right future coercion. prevent states power cannot be forfeited because of in the future speech free may enjoin Nor a violence. state past acts of dissociated merely may provoke because vio- peaceful picketing v. 697, S. Minnesota, Near 283 U. lence others. Cantwell v. Connecticut, Inas- U. S. 721-22; findings was based on made injunction much as the court bar to resort to the state this decision is no 1937, the terms of the should for a modification of time passage deprived find has that court In excep- influence. picketing of its coercive warranting upon normally restraint free con- tional cases ought the restraint to be defined clear and duct, language. According to the best guarded practice, draw the terms judge specific himself should of such rely parties. restraint and not on drafts submitted revisory not state power But we do have over practice, to evade provided practice such used constitu- Co. v. guarantees. See Fox River Railroad tional 651, Long Development 274 U. Sault Comm’n, 655; S. here Co. U. 277. We are concerned Call, S. not with the We power and wisdom of its exercise. hold that the circumstances merely record before us the authorized the supreme court of transgress Illinois does not power. constitutional That other states have chosen a different path a situation indicates differences of social view ain domain *9 shape which states are free to their local policy. Com-
297 pare Busch Co. v. United Retail Jewelry Employees’ Union, 22 E. N. 2d and Baillis 150; N. Y. v. Y. 2d Fuchs, 283 N. 812. 133; N. E.
To maintain balance of our federal insofar system, as it is our committed to demands at once zealous care, regard guarantees for the of the Bill and due Rights recognition powers belonging Such states. adjustment requires an austere judgment, precise summary of the result may help avoid misconstruc- tion.
(1) We de- qualify do not the Thornhill and Carlson They cisions. We reaffirm them. involved statutes baldly forbidding place all near picketing employer’s an Entanglement expressly business. with violence was out of those cases. The statutes had to dealt with on an face, and therefore we them down. Such struck unlimited ban on free communication declared as the law of a state enjoys greater a state court no protection Connecticut, here. Cantwell 310 U. S. American 296; v. Swing, post, p. just Federation Labor 321. But as a v. through legislature state cir- may specific deal with menacing peace by appropriately cumstances Alabama, Thornhill law of a act, supra, drawn so the may through state be fitted to a concrete situation authority given This is pre- state to its courts. cisely opinion the kind which of situation the Thornhill scope. excluded from its “We are not now concerned with picketing en masse or otherwise conducted which might danger such imminent and aggravated occasion ... a statute drawn justify narrowly to cover precise giving danger.” situation rise to the 310 U. S. We would not strike down a statute author- 105.2 opinion: in the power 2 See also this statement Carlson “The duty adequate steps preserve peace to take State protect privacy, lives, property and the its residents cannot be doubted.” U. S. *10 Illinois to when prohibit picketing they
ized the courts of given picketing violence had should find that whereby it would as operate destructively effect coercive presented force and intimidation. Such a situation is meaning things gener- this record. It distorts the injunction alize the terms an derived from and directed misconduct it though towards violent were an abstract picketing prohibition wholly of all unrelated to the vio- lence involved.
(2) The power exercise state’s which we are sustaining very is the antithesis of a ban on all discussion Chicago matter of public importance. of a Of course injunction we would not sustain such a ban. The is con fined to near dealing conduct stores in respondent’s milk, and it with this deals narrow area precisely because the affected it. An injunction coercive conduct adjusted so to a is in particular situation accord with the settled practice equity, guardians sanctioned of civil liberty as Justice Cardozo. Compare Mr. Nann v. Raim ist, 307; 255 N. Y. N. E. 690. an injunction Such in the must be read context of its circumstances. Nor ought action be held state unconstitutional by interpret the state as ing law of to use though, a phrase of Holmes, one Mr. Justice were fired with a zeal pervert. injunction If appropriate were put to abnormal uses enforcement, in its so encroachments were made on free discussion outside limits of violence, as for in through discussion or newspapers stance on the radio, the are always doors of this Court open.
(3) we sustain is “permanent” only temporary period for the for which it may last. justified by only violence that induced it and long as counteracts a continuing so intimidation. Fa- equity miliar procedure assures opportunity for modify- ing vacating an when its continuance is no longer warranted. Here again, the state courts have not the duty last subordination They must act say. even liberties when of this enforce constitutional Court to in a findings of state court. through spurious denied fact Florida, 309 U. Since Compare Chambers S. had the coercive effect urge disap- union did not before the apparently, us state or, either before peared *11 now here. court, question that freedom of and of (4) speech A word. Freedom final to be too often invoked as basic our press cannot ad- But these liberties will not be society. scheme by denying maintained to the states with vanced or even including instrumentality of their resources, their all due to to deal with coercion extensive courts, power Illinois to withdraw If the desire people violence. controversies, in labor demo- injunction the use of the their legislative disposal. reform is at for process cratic their if choose leave hand, they courts theOn other have they historically exercised, which power with the limits opinion which this de- the circumscribed within them deny that instrument of government, we fines, and from them-permanently. taken Just power has been raise conflicts anxious difficulties, industrial because these not to into the us intrude realm important it is most reading our own notions into the policy-making Constitution.
Affirmed. Black, dissenting. Mr. Justice just gives opinion approval announced my In belief seriously infringes upon the con- injunction to an speech freedom of and the rights of press. stitutional agree. I cannot a result To such detailing my the reasons'for disagreement, Before some will aid in clarifying observations doubtless preliminary issues. the Illinois subsidiary courts And I enjoin is not denied this case. agree violence nothing in the Federal Constitution them deprives right. of that But it is claimed through that Illinois — its courts —has here sanctioned an sweep- so ing in deny terms as to petitioners others rights freely express constitutional their views on mat- public single ters of concern. And this is the federal In their we must decide. question brief, petitioners state “have not at they never do time in present any way justify any condone or violence any member not object defendant union. Petitioners did to the injunction restraining an issuance of acts of violence. There made that is no contention the act of the Chan- granting cellor was erroneous.” morally “Ethically, legally,” the petitioning union condemns the disclaims and acts violence. And the hearings master conducted the who the case specif- ically found that the union officials had instructed their to refrain from violence.2 The pickets record shows that *12 petition in 1 The record shows to determine damages, that filed even order, petitioners before the court entered final the trial said: “The original was informed at that time court the [when effort was injunction] temporary made to secure dissolution the the de wholly them, were in injunction fendants and each of accord with the prohibiting any kind. . . .” R. violence given persons “That the instructions such patrolling to so or picketing by the officers of the defendant Union have been to do peacefully same and not to interfere with ordinary the course of except stores, patrol to business in said back and forth with said placards.” 230-231. R. originally sought had
Meadowmoor in the federal report, district court. federal master’s introduced in case Meadowmoor, as an exhibit “I states: further find that given persons instructions patrolling to such peacefully or picketing by the officers of the defendant association have speak been not to carry any any or on person conversation with other persons or premises, front of the said nor to interfere with the orderly course of business stores, said except to patrol back and forth with R, 165, placard,” the said gave officials these (which instructions were obeyed), not they because realized that resort to force and violence would reprehensible but indefensible, they recognized also because that such lawless conduct injures a labor union far more than it helps it. Aside from it this, cannot be doubted that attempts to per- application suade others of physical force and violence as a substitute for persuasion by reason and peaceable argument contrary to first principles of government. our Nor can it be questioned is a prime function of courts provide law enforcement means intended both punish illegal conduct and against it. protect great But this responsibility is en- not merely trusted to courts to determine guilt or innocence of but defendants, to do so such manner brought those before theta may enjoy a trial rights their constitutional which all are safeguarded— including guaranties the constitutional of freedom of press. speech and determining
In whether does deprive constitutional petitioners liberties, we cannot sight not lose of the nature should and importance liberties that particular are at stake. And reaching my guaranties conclusion I view the of the as the upon First Amendment3 foundation which our governmental structure rests and without which it could conceived planned.4 continue to endure as Free-
3“Congress respecting make no shall law an establishment of re ligion, prohibiting thereof; or the free exercise abridging or speech, freedom press; or of the people peace ably assemble, petition and to the Government for a redress of *13 grievances.” require is now too settled well citation that to guaranties the Fourteenth Amendment the of the First Amendment protected against abridgment are by the states. Jefferson, great strategist campaign Thomas bring the the to adoption campaign Rights, about the of the Bill of which he began adopted, to even one of before the Constitution was said im- public questions and write about is as speak
dom to government to the life of our as is the heart to portant In body. privilege is the heart of fact, the human If that government. heart be the result weakened, our it if the result is death. debilitation; stilled, system In I deem essential to our federal addition, govern wholly the states should be left free to within govern- the ambit of their Their deliberate powers. actions should not be declared lightly beyond mental powers. power For us to shear them of not denied them the Federal Constitution would to amount since— n judicial usurpation. long But this Court has think properly and I itself to the doctrine —committed through any that a state either cannot, agency, wholly remove, or whittle the vital individual partially away, guaranteed by freedoms the First Amendment. And in solemnly adjudicating validity touch- state action ing privileges merely these cherished we look cannot things, at surface of for were we to do so these con- guaranties stitutional would barren and sterile. become must look beneath the surface, carefully We and must each step proceedings examine which lead a court to enjoin peaceful case, discussion. In this order to de- termine overstepped whether or not the state has con- give I find it boundaries, necessary stitutional consid- including eration number to a nature factors, indefiniteness and con- proceedings; definiteness, the in- validity upon stitutional of the basic law junction findings evidence; is said to and the rest; language of the definiteness, scope indefiniteness and guaranties the First govern- Amendment: “The basis of our being opinion people, very object ments first should keep right; be to it left were to me decide whether we government should newspapers, newspapers have a without with- government, out a I hesitate prefer should not a moment latter.”
303 injunction alleged and the itself; imminence of the dangers justify threatened said to abridg- admitted of free speech. My ment conclusion that the injunction by Supreme as directed Court of Illinois invades the guaranties constitutional of freedom of speech and the belief press my rests on these propositions are cor- subjects (1) rect: banned public from discussion injunction by the are matters of public concern, touching guarantees which the Constitution right of freedom expression; (2) the law of Illinois, as declared its Court, illegal makes Supreme the exercise of constitu- tionally guaranteed privileges, inadequate is an basis which to upon abridgment defend this of free speech; the rule (3) upon which injunction is supported here which this Court now declares to be the Illinois law upon is not the rule which the Illinois Supreme Court the rule relied; (4) announced here as supporting the abridge of a state to freedom expression is so general sweeping implications that opens up possibilities broad for invasion of these constitutional (5) any injunction here rights; approved event, sweeping justification too broad and in its find terms to under the rule announced court, Illinois and even though under other circumstances such an would be under permissible the rule now announced by Court, still this case such an is sup- findings neither nor the ported evidence.
First. What enjoined were petitioners discussing from public were matters of concern “within that area of free 5 guaranteed by discussion that the Constitution.” controversy quarrel here not a mere private was involving individuals, between their interests alone. conflicting injunction dealt with methods of This two milk distribution —a matter of interest not to Chi-
5 Negro Thornhill v. 102. Cf. Alabama, 310 U. Alli S. New Grocery ance Sanitary Co., U. S. dairies, employees
cago’s and their hundreds outlets, but to the mass of milk retail consumers *15 Chicago area well. The older method of distribution, which members of by petitioning the union are employed, major milk by distributes a the part supply door-to-door deliveries the ultimate consumer. rival method in distribution, respondent engages, takes two using forms: dairies this sell method their milk to either stores, directly “cut-rate” or through the medium milk “vendors.” The so-called cut-rate stores sell at a price quart retail two cents a less by than that fixed employing dairies union labor. According to the court below, system of cut-rate resulting distribution, in by loss of business union dairies, loss of employment the union by drivers, and loss of a thousand members union itself, at the root of a long-standing contro- versy. Not this: the situation here is an intimate larger problem of milk part production and distri- throughout country, bution and, indeed, of the still problem of all larger sorts of cut-rate distribution. practices are thus involved trade There which are not Chicago alone —trade practices confined which there a cleavage known to be distinct public thought nation. throughout essence, In Supreme
Second. the Illinois Court held it for illegal publicize was a labor union to that the fact system its belief that cut-rate business injurious was the public, the union and to since such publicity neces- sarily discouraged system’s prospective purchasers. conclusion of the court was based on This the following reasoning: The Fourteenth Amendment and the Due Clause the Illinois Process Constitution, considered clear) not way made (in some connection with the un- law,” “common assure respondent written unquali- unjustifiable to do business free fied from all inter- ference; publication peaceful argument intended to respondent’s customers that its methods persuade of do- they buy were such ing business should illegal dairy’s interference; were therefore products working better conditions of its mem- purpose union’s justification discussion of the peaceful bers was no nor the controversy. presence Neither absence necessary considered the court to be a violence was say All was but to .its conclusion. element criticism of the “vendor controversy peaceful in this might injure illegal respondent’s because system” was cannot, But discouraging trade. Illinois business it il- make nullifying guaranties, constitutional without against general these public opinion legal to marshal *16 agreement An public so to marshal practices. business though Constitution, the even protected is opinion law” conspiracy or a “common “common law” called a more names, nothing it is still invidious Despite tort. look they that should persuade people to attempt than an controversy. public side of a upon one favor with the on the sustains this Court Third. But “justified de Court Supreme Illinois that the ground indicating violence, thereby that to reference cision” element of the essential made an was characteristic I do not so read injunction sprang. the which from rule Illinois Supreme apparently and opinion, that court’s true evi it. That this is read not so does Court itself in later decision language where, a court’s by that denced “In there it said: that case case, present speaking but . . . the issue of violence, evidence some was 6 of the decision.” turning point was violence unintentionally included or if were violence And even formulating a in the course referred incidentally 6 567, 568; Union, Labor Cases Wagon 2 Ellingsen Drivers’ v. Milk Ill.
rule of free uninten- touching speech, an reference is tional inclusion or incidental too uncertain support deprivation a which rest a of this vital upon privilege.
Fourth. There is no upon state statute which either this Court Court of Illinois could have Supreme in sustaining injunction.7 Assuming relied the rule Supreme of Illinois did declare which this Court doing it has not adopted, so marked Court has clarity limits of the rule with that be a should abridgment speech. free Nor do prerequisite an if it Court, should, supplied I believe even has dealing we are here that essential definiteness. What narrowly not a “statute injunction, threatening a “imminent drawn” to cover situation aggravated danger.” Speaking abridgment a similar rights legis- where there was no guiding of constitutional said Cantwell Connecticut: lative “Violation we act, exhibiting legislative judgment such a of an Act narrowly prevent supposed pose would drawn evil, differing from that we must here answer. question a weigh heav- policy state’s would declaration Such any challenge infringing of the law as constitutional ily judgment is based on a limitations. Here, however, concept general of the most and undefined common law analogous Here we have a situation to a nature. . .. *17 in a sweeping a great variety under statute conviction anti-injunction relating 7 Illinois to matters involv has an statute (Ill. chap. 48, 1939, (a)). 2 ing disputes labor Rev. Stat. § modeled the federal Supreme said that this statute was on Court 52). Clayton (38 But the court held 738, C. Act Stat. 29 U. S. § type dispute” not constitute the “labor the facts here did applied. 383-386; N. Cf. 371 21 E. 2d 308. to which the act Ill. at Wagon Valley Products, Farm Milk Drivers’ Union 311 v. Lake S. 91. U. 8 Alabama, 88, 310 U. Thornhill S.
307 indefinite characteriza- general conduct a and under judicial branches leaving the executive and tion, In the application.” present discretion too wide a its of infor- against the dissemination prohibition the case, one the was but through peaceful picketing mation sweeping injunction. the As many imposed restraints a prohibitions the number single to this element of one On in the now formulated. appear rule of statements past it that “dissociated acts of the one hand is said enough forfeit of free are not violence” a “background of violence” On the other hand speech. any Nor are more definite sufficient. appears be in such clauses “con- to be found guides standards “coer- “entanglement violence”; violence”; text of and “coercive thrust.” “taint of force”; effect”; cive embodying rule such broad that a my apprehension possibilities for invasion of up new opens generalizations Amendment. by the First rights guaranteed injunction here sweeping In my opinion Fifth. rules, neither of the and is not justified approved by-the record. supported proper reach a conclu- order to
For purposes, our we sweep injunction, just what is as to sion complaint, answer, to the necessarily turn must judgment the decision findings, evidence, will And whether the courts. the Illinois upon rights depends constitutional the exercise of restrain of those it the minds whose upon will have effect abridged by might mandate. expression freedom language appearing upon in turn depends effect This language we injunction. By face of the upon merely run does not it. For judge must legalistic interpre- give lawyers might who against then question Our laymen as well. against but tation, 307-308. U. S. *18 308 layman To what extent will the might
becomes:
who
prohibited
about
discuss the
subjects
wish to write
or
feel that he cannot do so without
himself
subjecting
jail
a
sentence under
possibility
summary pun-
a
contempt?
ishment for
This
like
injunction,
a criminal
conduct under
fear
prohibits
punishment.
statute,
every
why
injunc-
There is
reason
we should look at the
if
tion as we would a
statute,
upon
abridges
its face it
guaranties
of freedom
constitutional
expression,
especially
should be stricken down. This is
true because
must
question
we
deal
with the federal
presented,
petitioners
which is
have
whether
been denied
rights
under
the First Amendment. The
like a
injunction,
an overhanging
stands as
threat of
statute,
future pun-
ishment.
law
of Illinois has been declared by its
highest
court
such manner as to infringe upon consti-
tutional guaranties. And by
this
law
actually
as
applied abridges
freedom of expression.
Looking at the
we find that under
injunction,
pain of
punishment
judge
future
aby
trial
all of the mem-
bers of the petitioning
(about
union
six thousand) are
prohibited “From
hindering
interfering,
or otherwise .dis-
or
couraging
attempting
to interfere
diverting,
with,
discourage or divert
hinder,
persons desirous of or con-
templating
milk
purchasing
and cream or other products
including the use of
aforesaid,
said signs, banners or
placards,
walking up
and down in front of said stores
and further
aforesaid,
preventing the deliveries to
said
stores
other articles which said stores
through
sell
retail;
From
threatening
any
[or]
manner to do the
foregoing
.
acts;
surely
.
cannot be doubted that
an act of the Illinois legislature, couched in
sweeping
language, would be held invalid on its face.10 For this
Alabama,
Cf. Thornhill v.
88;
U.
S.
California,
Carlson v.
change
And a of the statutes held invalid in injunction the Thornhill and cases that of the here Carlson revealing: is very sustained injunc-
Thornhill
Meadowmoor
tion:
statute:
Carlson statute:
in,
[ing]
“loiter[ing]
down
“go
“walking up
near
to
front of
loiter[ing]
place
any
in front
said stores . . .
of busi-
or
of
discouraging
.;
influencing
prem-
.;
. . . ness .
.
. .
about
any person
. .
place
persons
.
. contem-
.
to re-
ises
of
.
or
.;
purchasing
purchasing
plating
in-
. .
frain from
business . .
interfering, hindering,
.;
intimidating,
fluencing
per-
or
.
.
. . .
diverting]
threatening
coercing
.
.
.
.
.
or
sons
to trade
.
not
[ing]
of......any
.;
.
.; picket
person .
persons
.
desirous
.
...;
[ing] display [ing]
any
us
ban-
purchasing
the works
or
sign
piar
badge
signs,
ner
. .
or
place of business
banners or
.
any
.
in front of
front
of .
.
. . .”
cards ...
.”
place
business . .
. . .”
of
said stores
contempt
summarily for
said
power
punish
Illinois,
11 In
statutory
power
courts, “independent
of
“inherent”
be a broad
Cooper,
grant.”
274
“constitutional
Schmidt v.
provisions” and of
Peters,
223, 226-227;
People v.
305 Ill.
243,
641;
E.
250;
Ill.
113 N.
is or
judge
ruled that conduct
a trial
has
Nor the injunction would not be all its potential rigor. carried out It was to just potentialities these obtain respondent, already having from the trial secured court injunction against appealed to violence, acts of the Illinois Supreme Court secure an enough order to broad prevent comunication petitioners’ peaceable to the public of their controversy. side of the is too much to expect that approval of this complete abridgment after public Supreme discussion Court of Illinois, and after just opinion announced, will not be enforced as written. So written, there could hardly provided a more certain method wholly and completely to prevent public all antagonistic discussion to respond- selling ent’s method of milk. And it is claimed
313 the petitioning members of union that foreclosure of op- portunity public discussion amounts to a death sen- tence for the method gives of business which them em- The ployment. decision here thus permits state control by injunction as a substitute for competitive discussion controversy of a interest to the particular union, and public a matter of concern as well. study
A careful of the entire record in this case con- findings vinces me that neither nor the evidence, even light viewed most favorable to respondent, showed clear and imminent, present danger14 justify rights of freedom abridgment speech and press. begin which did not until picketing, 1934, has at all times been September, peaceful. Usually and never more than picket, one walked two, along the bearing sign. pickets street These never impeded either on the sidewalks or traffic nor street, did they In any passersby disturb customers. fact, pickets in the stipulated record “made no threats against any storekeepers, of these but peacefully pick- They eted made attempt these stores. no to stop any stop delivery except customers or to insofar as their situ- signs they ation bore had that tendency.” There them with any was no evidence to connect kind or type time or any place. at As was violence found by the with the this was accordance instruction master, them the union given to officials.15 There was is no 14 Connecticut, 296, 308; 310 Cantwell v. U. S. Carlson v. Cali fornia, 106, 113; Lowry, S. Herndon v. 301 242, 258; 310 U. U. S. States, 47, And concurring United 249 U. S. 52. see the Schenck v. opinion Whitney Holmes and Brandéis in California, of Justices v. dissenting opinions 357, 373, 274 U. S. the same Justices in York, 652, 672-673; Gitlow v. New States, 268 U. Pierce United S. 239, 255; States, 466, 482; U. S. v. United 251 U. S. Schaefer States, Abrams v. United U. S. 2, supra. note See *23 finding that dissemination of no and evidence information any to commit anyone else act stimulated by pickets violence. that violence occurred —some com- evidence
There was and some unidentified persons identified mitted Chicago’s most of supplying A strike of farmers persons. milk early part in 1934. This January, took the place milk city. the inflow of into the stopped practically strike to report the drivers were ordered not result, union As height the the January 9, work on 8 and at strike. for larger part this during period It was According to the com- major of violence occurred. acts or evidence, seven trucks were seized dam- and plaint 1934, and one on aged January, on the 8th and 9th of only that were ever seized 6th. These are the trucks complaint both and evi- according to damaged, seizures that dence, it was in connection with these and shootings, and the injuries, drivers, to truck opinion in took place. this Court’s threats referred partici- the members of the union Undoubtedly, some of in is shown fact several this pated violence, instituted, were arrested, prosecutions were criminal judge. of the trial approval the cases later settled any this oc- picketing after before eight was months judge before the trial curred; years afterwards four alone; to violence five granted limited injunction, Court of Illinois directed a years Supreme before injunction against peaceful stringent persuasion; more the injunc- sustained Court years seven before tion. in strike
During 1934, the farmers’ period were succeeding months, five stores immediately in the Three union members were bombed or burned. either the penitentiary tried, convicted and sentenced burnings. in All of connection with one these arson any of the place many this violence took months before picketing occurred. In addition to these 1934 acts of the evidence violence, showed that one stench bomb was thrown into a store one 1936, and two identity The the persons throwing these stench bombs was not shown. alleged other violence or testified to was the
breaking of windows *24 cut-rate stores. Most of testimony as to these acts of violence was given by re- spondent’s vendors, and was extremely indefinite. The findings specific master made no as to acts of violence, nor as to the dates of their occurrence. Viewing the evi- in light dence most favorable to respondent, how- ever, all of the acts of violence as to which any testimony in gathered 16 was offeredare the accompanying footnote.16 men, Petitioners offered evidence that three with no union connec- whatsoever, smashing confessed to and were tions convicted of the twenty-four milk in pursuant of windows in cut-rate stores to an insurance racket. The master struck this evidence the rec- from ord, respondent's motion. on foregoing In of enumerated in the addition to the acts violence . 1932, among
table, of six acts of in them there was evidence violence bombing opinion. plant referred in the Peti- of Meadowmoor’s to respondent at that time was tioners offered evidence to show that sought gangster-dominated, gangsters question in had and that union, this was excluded. to obtain control but evidence beating opinion workers at a cut-rate refers to the also not mention this dairy than The master did other Meadowmoor. evidence, in the and from findings, incident in his it is referred to but join union” “to appears that beaten and told those source my study on basis of the entire record right my I conclusion that the forfeiture of the rest free effected warranted. speech reaching fully recognize I conclusion, In this subject pun- violence were guilty members union principles process accordance with due ishment And of them have fact been prosecuted some of law. conduct is ac- Punishment of lawless and convicted. government the necessities of and is essential cord with going But tranquillity society. it is to the peace of the acts of these few long way say that because other members of their union can be men, thousand six opinion to the extent express denied sweeping here sus- by the accomplished of crime are not Even those convicted tained.17 by having expression their freedom of country punished regulations, rules and prison under except curtailed of their sentence. for the duration then protect storekeepers can that Illinois No doubts one *25 damage to their property fear being coerced from burnings bombings. or or And window-smashing, from free all Illinois its vast resources end is to that to.use way should this Court stand so nor powers, away rights from its people does not take long Illinois the Constitution of the United them guaranteed to danger present of riot, disorder, clear and When States. eligible membership petitioning not inside workers were union. the decision here leaves Illinois courts said that free is injunction. But whether is consider modification of the modification depends permissible place will in fact take Illinois law and Illi or on subsequent repealed by A can modified or even nois courts. statute infringes right legislation, upon speech it but if face free injunction, making particular is And a court’s a law for a invalid. case, higher legislature’s generally applicable act, no can stand than a people. to all the
interference with traffic upon public or streets, other public immediate threat to or order safety, peace, appears, power of the Illinois courts to prevent punish obvious.18 true this is Furthermore, because a state has power adopt general laws of application to pro- vide that the streets shall be used for the purpose for they primarily and because the preservation exist, and order is one peace of the first government. duties of in a But series of cases we have held that local laws ostensibly passed pursuant to this admittedly possessed general power could be enforced in such a way as prior to amount to a on censorship freedom of expression, abridge or to that freedom as to those rightfully and lawfully on the Illinois, streets.19 like the other all states of a part national Union, system democratic depends continued existence which upon right public of free discussion of affairs —a whose denial to some leads the direction of its eventual denial to all. I opinion am of court’s strikes directly at the heart of our deprivation government, these essential liberties cannot be reconciled with the guaranteed to the 'rights people of this Nation Constitution. Douglas
Me. concurs this opinion. Justice Reed, dissenting. Mr. Justice
My conclusion is
ordered by the
Court of Illinois violates the
Supreme
constitutional
rights
Wagon
the Milk
Drivers Union of Chicago, its
*26
officers
members. The Court
a contrary
reaches
18
Connecticut,
Cantwell v.
308.
310
S.U.
19
444;
Griffin,
Lovell v.
303
v.
City
State,
U. S.
Schneider
of
147;
88;
U. S.
California,
Thornhill v.
S.
v.
Alabama,
310 U.
Carlson
106;
310 U.
Connecticut,
S.
v.
result on peaceful in themselves picketing enjoin acts of courts to violent contemporaneously enmeshed they when are con- this Since concededly outlawed.” which is conduct centers around opinion, of Court’s by virtue troversy, than around free rather speech of phase as a picketing desire to of I expression, freedom topic more of general me the con- lead to the reasons myself state prin- be reversed. A should judgment that viction scope over the dispute well as involved, thus ciple is injunction. aof court com- acts of violence, inexcusable
The record shows For by members of union. part at least mitted subject punishment are conduct, offenders future of Illinois. The conduct laws of by criminal by subject also state control injunction, is rioters the limits the Constitution. within exercised maintaining law and order fall duty of burden and injunction it chooses an on Illinois. Whether primarily against violence and against peaceful violence alone it must be assumed that its commands will picketing, It postulate be is a reasoned obeyed. thinking judicial be carried faithfully decrees will out. This then Is the question emerges. picket peacefully place any of business lost for employer’s period by past future time acts of violence? The trial court, very case, prohibiting while all permitted violence, the continuance efforts the union, inor singly concert, peaceably persuade either others lawful by picketing support or other means to its con- tentions. nothing agreed appears, peace-
Where further since it picketing, ful is an exercise of freedom speech, may prohibited or by statute. Alabama, U. 88; Thornhill v. S. American Federation Swing, p. equally Labor post, clear *27 the right picket is if may, actually not absolute. necessary, be limited, say, let us to two or three individ- uals at a time and their manner expressing their views may be reasonably restricted to orderly presentation. Thornhill Alabama, supra, 105. From the standpoint v.
of the state, industrial controversy may not overstep bounds of an appeal to reason and sympathy.
The Court now determines that where there is a back ground of violence, and I think it inferentially, must be admitted, that where there is a reasonable fear of vio lence, the freedom of speech which is secured per to all sons the First and Fourteenth Amendments to the Constitution may justifica be withdrawn. It finds its in tion the authority of “protect Illinois to its storekeep being ers from coerced by window-smashings fear of or burnings bombings.” The momentum of fear from past it violence, thought, would reach over into peaceful picketing goes future. This much farther Hague than approved by this Court O., I. 517, C. U. S. forbade interferences with the liberty speech guardians of free but left to' public peace right “to enforce law and order lawful search and production seizure or arrest and be judicial authority fore a officer.” This pro of Illinois to exercised, tect its storekeepers however, must within the framework of the Constitution. If Illinois were not States, sovereign a member of the United but a without it political obligations, exterior or social would be in a might to use whatever means or its courts de position best an end to labor put cide would disturbances. As a subject the Union it state of restraints of the engendered If the fear by past, Constitution. miscon storekeepers during peaceful duct coerces picketing, remedy order, the maintenance of lies denial of guarantees speech. against free Constitutional oppres-. only when challenge of value needed to sion are attacks. picket peacefully disputes industrial marshaling recognized opin- is a means for public *28 finding There is ion on the side of the worker. no planned encouraged by or the union. To violence was deny right picketing this of to thousands be- peaceful cutting a few means the of cause of the violence of off in which constitutionally protected ways the or- one of brought adjustments disputes economic are derly I problem see that constitutional is cannot about. “totally by a court decree different” because raised rather just guarantees are as Constitutional than statute. they general are the individual for effective for petitioners contended principle public. story by peaceful picket- of the right to tell side may ing despite picketing view that a state court’s In into the future. past fear from violence project protec- whether this analysis last we must ask ourselves flowing against future coercion from tion assumed fear of justify suspension violence is sufficient past If guarantee picketing of free speech. constitutional Thornhill v. right maintained here, prohibited on the first collapses Alabama attack. of the upon public
This relies discussion as one nation means,to of prob- attain correct solutions indispensable of free limits speech welfare. Curtailment lems of social teaches that history discussion. Our whole open this through possible reason is adjustment of social relations This has is maintained. Court speech while free determining legislation or when acts of duty of solemn infringe right guaranteed to all decrees courts absolutely may be speech prohibited Eree citizens. emergencies. national Those pressing most under the justify the kind emergencies suspen- must be of corpus suppression writ of habeas of the sion Nothing this jury. approaching trial .the in my and, judgment, record exists situation prohibiting Court of Illinois Supreme action rights violates the constitutional peaceful picketing petitioners. these LABOR FEDERATION OF
AMERICAN al. et SWING et al. February Argued 13, 1940. Decided December
No. 56. *29 D. Dodd, with Mr. Daniel Car- whom Mr. F. Walter brief, petitioners. on the mell was Mr. with whom A. Rosengard, Samuel N. Myer Mr. for respondents. on the brief, Rinella was