1. The freedom of speech guaranteed by the due process clause of
the Fourteenth Amendment is not infringed by a decree of a state
court enjoining, as a violation of the state antitrust law, the
picketing of a restaurant by union carpenters and painters having
no grievance against its owner other than that he had contracted
for the construction of a building not connected with the
restaurant business, and a mile and a half away, with a contractor
who employed nonunion labor. P.
315 U. S.
726.
2. This Court is not concerned with the wisdom of the policy
underlying state laws, but with their constitutional validity. P.
315 U. S.
728.
149 S.W.2d 694 affirmed.
Certiorari, 314 U.S. 595, to review a decree affirming an order
enjoining petitioners from certain picketing. The highest court of
the State refused a writ of error.
MR. JUSTICE FRANKFURTER, delivered the opinion of the Court.
The facts of this case are simple. Ritter, the respondent, made
an agreement with a contractor named Plaster for the construction
of a building at 2810 Broadway, Houston, Texas. The contract gave
Plaster the right to make his own arrangements regarding the
employment of labor in the construction of the building. He
employed nonunion carpenters and painters. The respondent was
also
Page 315 U. S. 723
the owner of Ritter's Cafe, a restaurant at 418 Broadway, a mile
and a half away. So far as the record discloses, the new building
was wholly unconnected with the business of Ritter's Cafe. All of
the restaurant employees were members of the Hotel and Restaurant
Employees International Alliance, Local 808. As to their restaurant
work, there was no controversy between Ritter and his employees or
their union. Nor did the carpenters' and painters' unions, the
petitioners here, have any quarrel with Ritter over his operation
of the restaurant. No construction work of any kind was performed
at the restaurant, and no carpenters or painters were employed
there.
But, because Plaster employed nonunion labor, members of the
carpenters' and painters' unions began to picket Ritter's Cafe
immediately after the construction got under way. Walking back and
forth in front of the restaurant, a picket carried a placard which
read:
"This Place is Unfair to Carpenters and Joiners Union of
America, Local No. 213, and Painters Local No. 130, Affiliated with
American Federation of Labor."
Later on, the wording was changed as follows:
"The Owner of This Cafe Has Awarded a Contract to Erect a
Building to W. A. Plaster Who is Unfair to the Carpenters Union 213
and Painter Union 130, Affiliated With the American Federation of
Labor."
According to the undisputed finding of the Texas courts, which
is controlling here, Ritter's Cafe was picketed
"for the avowed purpose of forcing and compelling plaintiff
[Ritter] to require the said contractor, Plaster, to use and employ
only members of the defendant unions on the building under
construction in the 2800 block on Broadway."
Contemporaneous with this picketing, the restaurant workers'
union, Local No. 808, called Ritter's employees out on strike and
withdrew the union card from his establishment. Union truck drivers
refused to cross the picket line to deliver food and other supplies
to the restaurant.
Page 315 U. S. 724
The effect of all this was
"to prevent members of all trades unions from patronizing
plaintiff's cafe and to erect a barrier around plaintiff's cafe,
across which no member of defendant unions or an affiliate will
go."
A curtailment of sixty per-cent of Ritter's business
resulted.
Holding the petitioners' activities to constitute a violation of
the state antitrust law, Texas Penal Code, Art. 1632
et
seq., the Texas Court of Civil Appeals enjoined them from
picketing Ritter's Cafe. The decree forbade neither picketing
elsewhere (including the building under construction by Plaster)
nor communication of the facts of the dispute by any means other
than the picketing of Ritter's restaurant. 149 S.W.2d 694. We
brought the case here to consider the claim that the decree of the
Court of Civil Appeals (the Supreme Court of Texas having refused a
writ of error) infringed the freedom of speech guaranteed by the
Due Process Clause of the Fourteenth Amendment. 314 U.S. 595.
The economic contest between employer and employee has never
concerned merely the immediate disputants. The clash of such
conflicting interests inevitably implicates the wellbeing of the
community. Society has therefore been compelled to throw its weight
into the contest. The law has undertaken to balance the effort of
the employer to carry on his business free from the interference of
others against the effort of labor to further its economic
self-interest. And every intervention of government in this
struggle has in some respect abridged the freedom of action of one
or the other or both.
The task of mediating between these competing interests has,
until recently, been left largely to judicial lawmaking, and not to
legislation.
"Courts were required, in the absence of legislation, to
determine what the public welfare demanded, whether it would not be
best subserved by leaving the contestants free to resort to any
means not
Page 315 U. S. 725
involving a breach of the peace or injury to tangible property,
whether it was consistent with the public interest that the
contestants should be permitted to invoke the aid of others not
directly interested in the matter in controversy, and to what
extent incidental injury to persons not parties to the controversy
should be held justifiable."
Mr. Justice Brandeis in
Truax v. Corrigan, 257 U.
S. 312,
257 U. S. 363.
The right of the state to determine whether the common interest is
best served by imposing some restrictions upon the use of weapons
for inflicting economic injury in the struggle of conflicting
industrial forces has not previously been doubted.
See Mr.
Justice Holmes in
Aikens v. Wisconsin, 195 U.
S. 194,
195 U. S. 205,
and Mr. Justice Brandeis in
Truax v. Corrigan, supra,
257 U. S. 372;
Dorchy v. Kansas, 272 U. S. 306,
272 U. S. 311,
and
Senn v. Tile Layers Protective Union, 301 U.
S. 468,
301 U. S. 481.
But the petitioners now claim that there is to be found in the Due
Process Clause of the Fourteenth Amendment a constitutional command
that peaceful picketing must be wholly immune from regulation by
the community in order to protect the general interest, that the
states must be powerless to confine the use of this industrial
weapon within reasonable bounds.
The constitutional right to communicate peaceably to the public
the facts of a legitimate dispute is not lost merely because a
labor dispute is involved,
Thornhill v. Alabama,
310 U. S. 88, or
because the communication takes the form of picketing, even when
the communication does not concern a dispute between an employer
and those directly employed by him.
American Federation of
Labor v. Swing, 312 U. S. 321. But
the circumstance that a labor dispute is the occasion of exercising
freedom of expression does not give that freedom any greater
constitutional sanction or render it completely inviolable. Where,
as here, claims on behalf of free speech are met with claims on
behalf
Page 315 U. S. 726
of the authority of the state to impose reasonable regulations
for the protection of the community as a whole, the duty of this
Court is plain. Whenever state action is challenged as a denial of
"liberty," the question always is whether the state has violated
"the essential attributes of that liberty." Mr. Chief Justice
Hughes, in
Near v. Minnesota, 283 U.
S. 697,
283 U. S. 708.
While the right of free speech is embodied in the liberty
safeguarded by the Due Process Clause, that Clause postulates the
authority of the states to translate into law local policies
"to promote the health, safety, morals, and general welfare of
its people. . . . The limits of this sovereign power must always be
determined with appropriate regard to the particular subject of its
exercise."
283 U.S. at
283 U. S.
707.
"The boundary at which the conflicting interests balance cannot
be determined by any general formula in advance, but points in the
line, or helping to establish it, are fixed by decisions that this
or that concrete case falls on the nearer or farther side."
Hudson County Water Co. v. McCarter, 209 U.
S. 349,
209 U. S.
355.
In the circumstances of the case before us, Texas has declared
that its general welfare would not be served if, in a controversy
between a contractor and building workers' unions, the unions were
permitted to bring to bear the full weight of familiar weapons of
industrial combat against a restaurant business, which, as a
business, has no nexus with the building dispute, but which happens
to be owned by a person who contracts with the builder. The precise
question is therefore whether the Fourteenth Amendment prohibits
Texas from drawing this line in confining the area of unrestricted
industrial warfare.
Texas has undertaken to localize industrial conflict by
prohibiting the exertion of concerted pressure directed at the
business, wholly outside the economic context of the real dispute,
of a person whose relation to the dispute arises from his business
dealings with one of the disputants.
Page 315 U. S. 727
The state has not attempted to outlaw whatever psychological
pressure may be involved in the mere communication by an individual
of the facts relating to his differences with another. Nor are we
confronted here with a limitation upon speech in circumstances
where there exists an "interdependence of economic interest of all
engaged in the same industry,"
American Federation of Labor v.
Swing, 312 U. S. 321,
312 U. S. 326.
Compare Journeymen Tailors Union Local No.195 v. Miller's
Inc., 312 U.S. 658,
and Bakery & Pastry Drivers and
Helpers Local No. 802 v. Wohl, post, p.
315 U. S. 769.
This line drawn by Texas in this case is not the line drawn by New
York in the
Wohl case. The dispute there related to the
conditions under which bakery products were sold and delivered to
retailers. The business of the retailers was therefore directly
involved in the dispute. In picketing the retail establishments,
the union members would only be following the subject matter of
their dispute. Here, we have a different situation. The dispute
concerns the labor conditions surrounding the construction of a
building by a contractor. Texas has deemed it desirable to insulate
from the dispute an establishment which industrially has no
connection with the dispute. Texas has not attempted to protect
other business enterprises of the building contractor, Plaster, who
is the petitioners' real adversary. We need not, therefore,
consider problems that would arise if Texas had undertaken to draw
such a line.
It is true that, by peaceful picketing, workingmen communicate
their grievances. As a means of communicating the facts of a labor
dispute, peaceful picketing may be a phase of the constitutional
right of free utterance. But recognition of peaceful picketing as
an exercise of free speech does not imply that the states must be
without power to confine the sphere of communication to that
directly related to the dispute. Restriction of picketing
Page 315 U. S. 728
to the area of the industry within which a labor dispute arises
leaves open to the disputants other traditional modes of
communication. To deny to the states the power to draw this line is
to write into the Constitution the notion that every instance of
peaceful picketing -- anywhere and under any circumstances -- is
necessarily a phase of the controversy which provoked the
picketing. Such a view of the Due Process Clause would compel the
states to allow the disputants in a particular industrial episode
to conscript neutrals having no relation to either the dispute or
the industry in which it arose.
In forbidding such conscription of neutrals in the circumstances
of the case before us, Texas represents the prevailing, and
probably the unanimous, policy of the states.
* We hold that the
Constitution does not forbid Texas to draw the line which has been
drawn here. To hold otherwise would be to transmute vital
constitutional liberties into doctrinaire dogma. We must be mindful
that
"the rights of employers and employees to conduct their economic
affairs and to compete with others for a share in the products of
industry are subject to modification or qualification in the
interests of the society in which they exist. This is but an
instance of the power of the State to set the limits of permissible
contest open to industrial combatants."
Thornhill v. Alabama, 310 U. S. 88,
310 U. S.
103-104.
It is not for us to assess the wisdom of the policy underlying
the law of Texas. Our duty is at an end when we find that the
Fourteenth Amendment does not deny her the power to enact that
policy into law.
Affirmed.
Page 315 U. S. 729
* The authorities are collected in Teller, Labor Disputes and
Collective Bargaining (1940), § 123; Hellerstein, Secondary
Boycotts in Labor Disputes, 47 Yale L.J. 341; Frey, Cases on Labor
Law (1941), pp. 239-273;
cf. Galenson and Spector, The New
York Labor Injunction Statute and the Courts, 42 Col.L.Rev. 51,
68-71.
MR. JUSTICE BLACK, dissenting, with whom MR. JUSTICE DOUGLAS and
MR. JUSTICE MURPHY concur.
The petitioners sought to convey to the public certain
information. The injunction here sustained imposed two restraints
on their doing so: (1) it enjoined them from picketing the
respondent's cafe; (2) it enjoined them from carrying banners in
front of the respondent's cafe, banners which contained
inscriptions telling the public that the respondent had awarded a
building contract to a man who was unfair to organized labor.
One member of the petitioner unions at a time peacefully walked
in front of the respondent's cafe, carrying such a banner. It is
not contended that the inscriptions were untruthful, nor that the
language used was immoderate. There was no violence threatened or
apprehended. Passers-by were not molested. It is clear from the
opinion of the Texas Court of Civil Appeals that the injunction
against picketing was granted not because of any law directly aimed
at picketing -- Texas has no statute against picketing as such --
nor to prevent violence, disorder, breach of the peace, or
congestion of the streets. The immediate purpose of the injunction
was to frustrate the union's objective of conveying information to
that part of the public which came near the respondent's place of
business, an objective which the court below decided was a
violation of Texas antitrust laws. Conveying this truthful
information in the manner chosen by the union was calculated to,
and did, injure the respondent's business. His business was injured
because many of those whom the information reached were sympathetic
with the union side of the controversy, and declined to patronize
the respondent's cafe or have any other business transactions with
him. Does injury of this kind to the respondent's business justify
the Texas courts in thus restricting freedom of expression?
Page 315 U. S. 730
I am unable to agree that the controversy which prompted the
unions to give publicity to the facts was no more than a private
quarrel between the union and the nonunion contractor. Whether
members or nonmembers of the building trades unions are employed is
known to depend to a large extent upon the attitude of building
contractors. Their attitude can be greatly influenced by those with
whom they do business. Disputes between one or two unions and one
contractor over the merits and justice of union, as opposed to
nonunion, systems of employment are but a part of the nationwide
controversy over the subject. I can see no reason why members of
the public should be deprived of any opportunity to get information
which might enable them to use their influence to tip the scales in
favor of the side they think is right.
If there had been any doubt before, I should have thought that
our decision in
Thornhill v. Alabama, 310 U. S.
88, settled the question. There, we said at pages
310 U. S.
102-104:
"In the circumstances of our times, the dissemination of
information concerning the facts of a labor dispute must be
regarded as within that area of free discussion that is guaranteed
by the Constitution. . . . Free discussion concerning the
conditions in industry and the causes of labor disputes appears to
us indispensable to the effective and intelligent use of the
processes of popular government to shape the destiny of modern
industrial society. The issues raised by regulations, such as are
challenged here, infringing upon the right of employees effectively
to inform the public of the facts of a labor dispute are part of
this larger problem. . . . It may be that effective exercise of the
means of advancing public knowledge may persuade some of those
reached to refrain from entering into advantageous relations with
the business establishment which is the scene of the dispute. . . .
But the group in power at any moment may not impose penal sanctions
on
Page 315 U. S. 731
peaceful and truthful discussion of matters of public interest
merely on a showing that others may thereby be persuaded to take
action inconsistent with its interests."
Whatever injury the respondent suffered here resulted from the
peaceful and truthful statements made to the public that he had
employed a nonunion contractor to erect a building. This
information, under the
Thornhill case, the petitioners
were privileged to impart and the public was entitled to receive.
It is one thing for a state to regulate the use of its streets and
highways so as to keep them open and available for movement of
people and property,
Schneider v. State, 308 U.
S. 147,
308 U. S. 160;
or to pass general regulations as to their use in the interest of
public safety, peace, comfort, or convenience,
Cantwell v.
Connecticut, 310 U. S. 296,
310 U. S.
306-307; or to protect its citizens from violence and
breaches of the peace by those who are upon them,
Thornhill v.
Alabama, supra, 310 U. S. 105.
It is quite another thing, however, to "abridge the constitutional
liberty of one rightfully upon the street to impart information
through speech or the distribution of literature. . . ."
Schneider v. State, supra, 308 U. S. 160.
The court below did not rest the restraints imposed on these
petitioners upon the state's exercise of its permissible powers to
regulate the use of its streets or the conduct of those rightfully
upon them. Instead, it barred the petitioners from using the
streets to convey information to the public because of the
particular type of information they wished to convey. In so doing,
it directly restricted the petitioners' rights to express
themselves publicly concerning an issue which we recognized in the
Thornhill case to be of public importance. It imposed the
restriction for the reason that the public's response to such
information would result in injury to a particular person's
business, a reason which we said in the
Thornhill case was
insufficient to justify curtailment of free expression.
Page 315 U. S. 732
The injunction is defended, however, on the ground that the
petitioners have been prohibited from passing information to the
public at only some, but not at all, places. It may be that the
petitioners are left free to inform the public at other places or
in other ways. Possibly they might, at greater expense, reach the
public over the radio or through the newspapers, although, if the
theory of the court below be correct, it would seem that they could
be enjoined from using these means of communication, too, to
persuade people not to patronize the respondent's cafe. In any
event, "one is not to have the exercise of his liberty of
expression in appropriate places abridged on the plea that it may
be exercised in some other place."
Schneider v. State,
supra, 308 U. S.
163.
Accepting the Constitutional prohibition against any law
"abridging the freedom of speech, or of the press" -- a prohibition
made applicable to the states by the Fourteenth Amendment -- "as a
command of the broadest scope that explicit language, read in the
context of a liberty-loving society, will allow,"
Bridges v.
California, 314 U. S. 252, I
think the judgment should be reversed.
MR. JUSTICE REED, dissenting.
The Texas court enjoined petitioners, a labor union of
carpenters and joiners, another union of painters, and all of their
members from picketing the restaurant of the respondent, E. R.
Ritter, plaintiff below, doing business under the trade name of
Ritter's Cafe at 418 Broadway, in Houston, "and from carrying
banners peacefully and in any other manner upon the sidewalks in
front" of the restaurant. There had been no violence. Only two
pickets, one from each union, walked back and forth, carrying
placards which before the injunction issued were modified to
read,
"The Owner of This Cafe Has Awarded a Contract to Erect a
Building to W. A. Plaster Who is Unfair to the
Page 315 U. S. 733
Carpenters Union 213 and Painter Union 130, Affiliated with the
American Federation of Labor."
Plaster, a building contractor, who putting up a structure for
respondent, Ritter, in the 2800 block of Broadway, under a contract
which did not require Plaster to employ union labor. The record
does not show whether or not this new building is to be used in the
restaurant business. He was employing nonunion workers. The
restaurant, however, was unionized, its employees being members of
Hotel and Restaurant Employees' Local 808. They quit on the day the
picketing began, union drivers refused to deliver supplies, and the
business slumped sixty percent. The court found petitioners'
conduct an invasion of respondents' right to conduct a legitimate
business and an attempt to interfere illegally with a contract with
third parties.
The injunction was issued by the Texas court because such
invasion or attempt at invasion of the rights of a businessman was
held "to create restrictions in the free pursuit" of business
contrary to the Texas antitrust laws. Tex.Rev.Civ.Stat. (Vernon,
1936) Arts. 7426, 7428; Tex.Penal Code (Vernon, 1936) Arts. 1632,
1634, 1635. 149 S.W.2d 694, 699. The petitioners' challenge to the
validity of the injunction is based on the constitutional right of
free speech guaranteed them by the Fourteenth Amendment to the
Constitution of the United States.
Schneider v. State,
308 U. S. 147,
308 U. S.
160.
This challenge involves two particularly delicate relationships.
These are that between the federal and state governments and that
between a state and labor unions within its borders. So far as the
injunction depends upon the action of the Texas court in construing
its antitrust statutes to forbid such interference with the
restaurant business, the order is unassailable here. But if such an
interpretation denies to Texans claimed rights guaranteed to them
by the federal Constitution, the state authority must
Page 315 U. S. 734
accommodate its orders to preserve that right.
Cf.
International Harvester Co. v. Kentucky, 234 U.
S. 216;
Lindsey v. Washington, 301 U.
S. 397,
301 U. S. 400;
Minnesota v. Probate Court, 309 U.
S. 270,
309 U. S.
273.
Recent cases in this Court have sought to make more definite the
extent and limitations of the rights of free speech in labor
disputes. For some time, there has been general acceptance of the
fundamental right to publicize "the facts of a labor dispute in a
peaceful way through appropriate means." One of the recognized
means is by orderly picketing with banners or placards.
Thornhill v. Alabama, 310 U. S. 88,
310 U. S. 104.
In
Carlson v. California, 310 U.
S. 106,
310 U. S. 113, we
said:
"For the reasons set forth in our opinion in
Thornhill v.
Alabama, supra, publicizing the facts of a labor dispute in a
peaceful way through appropriate means, whether by pamphlet, by
word of mouth or by banner, must now be regarded as within that
liberty of communication which is secured to every person by the
Fourteenth Amendment against abridgment by a State."
The desire of both sides in labor controversies to gain
advantages for themselves and limit similar opportunities for their
opponents has led each to seek to expand or contract the
constitutionally protected area for picketing operations as suits
their respective purposes. Recognition of the basic right to picket
made the location of lines beyond which picketing could not be
employed an important objective of those who suffer from its
use.
In the
Carlson and
Thornhill cases,
legislation forbidding picketing for the purpose of interfering
with the business of another was invalidated because it was an
unconstitutional prohibition of the worker's right to publicize his
situation. It was not thought of sufficient importance in either
case to mention in the opinion whether the picket was an interested
disputant with those picketed or an utter stranger to the
controversy and the industry. In those
Page 315 U. S. 735
carefully phrased decisions, the possibility of state control of
socially menacing evils, flowing from industrial disputes, was
recognized, but those general evils were not of the kind which were
considered to warrant interference with free speech by peaceful
picketing. [
Footnote 1] We
said:
"It is true that the rights of employers and employees to
conduct their economic affairs and to compete with others for a
share in the products of industry are subject to modification or
qualification in the interests of the society in which they exist.
This is but an instance of the power of the State to set the limits
of permissible contest open to industrial combatants.
See
Mr. Justice Brandeis in
Duplex Printing Press Co. v.
Deering, 254 U. S. 443, at
254 U. S.
488. It does not follow that the State, in dealing with
the evils arising from industrial disputes, may impair the
effective exercise of the right to discuss freely industrial
relations which are matters of public concern. A contrary
conclusion could be used to support abridgment of freedom of speech
and of the press concerning almost every matter of importance to
society. [
Footnote 2]"
An instance of state control over peaceful picketing soon
appeared. In
Milk Wagon Drivers Union v. Meadowmoor Co.,
312 U. S. 287,
this Court, though not without dissent, upheld Illinois' ruling
that, where "acts of picketing in themselves peaceful" are enmeshed
in violence, immediate future peaceful picketing may be enjoined.
This decision compelled a less extreme result in
Hotel &
Restaurant Employees' Alliance v. Wisconsin Employment Relations
Board, ante, p.
315 U. S. 437. In
the latter case, the order approved "forbids only violence" and
"permits peaceful picketing." Nothing more than the validity of
prohibitions against violence was decided as to the
constitutionality of the Wisconsin Employment Peace Act.
Page 315 U. S. 736
On the same day that
Meadowmoor was handed down,
American Federation of Labor v. Swing, 312 U.
S. 321, was decided. In
Swing's case, a union
of beauty shop workers picketed a beauty parlor. They were not and
had not been employees of the establishment. We stated the issue
thus:
"More thorough study of the record and full argument have
reduced the issue to this: is the constitutional guarantee of
freedom of discussion infringed by the common law policy of a state
forbidding resort to peaceful persuasion through picketing merely
because there is no immediate employer-employee dispute? [
Footnote 3]"
There was nothing in the opinion to intimate that the answer
would have varied if the union had been a local of the teamsters or
painters. The injunction granted by Illinois was set aside with
these words:
"Such a ban of free communication is inconsistent with the
guarantee of freedom of speech. That a state has ample power to
regulate the local problems thrown up by modern industry and to
preserve the peace is axiomatic. But not even these essential
powers are unfettered by the requirements of the Bill of Rights.
The scope of the Fourteenth Amendment is not confined by the notion
of a particular state regarding the wise limits of an injunction in
an industrial dispute, whether those limits be defined by statute
or by the judicial organ of the state. A state cannot exclude
workingmen from peacefully exercising the right of free
communication by drawing the circle of economic competition between
employers and workers so small as to contain only an employer and
those directly employed by him. The interdependence of economic
interest of all engaged in the same industry has become a
commonplace.
American Steel Foundries v. Tri-City Council,
257 U. S.
184,
257 U. S. 209. The right of
free communication cannot therefore be mutilated by denying it to
workers,
Page 315 U. S. 737
in a dispute with an employer, even though they are not in his
employ. Communication by such employees of the facts of a dispute,
deemed by them to be relevant to their interests, can no more be
barred because of concern for the economic interests against which
they are seeking to enlist public opinion than could the utterance
protected in
Thornhill's case."
"Members of a union might, without special statutory
authorization by a state, make known the facts of a labor dispute,
for freedom of speech is guaranteed by the Federal
Constitution."
"
Senn v. Tile Layers Union, 301 U. S.
468,
301 U. S. 478. [
Footnote 4]"
Today this Court decides
Bakery & Pastry Drivers &
Helpers Local 802 v. Wohl, post, p.
315 U. S. 769. In
this case, the union picketed manufacturing bakers who sold to and
threatened to picket grocers and retail bakers who bought from
peddlers. The peddlers purchased bakery goods and sold them to the
trade. The labor controversy was the effort of the unions to compel
the peddlers to hire a union driver one day a week. The state
forbade the picketing of the manufacturers and of the retailers,
regardless of whether the picketing placards were directed at the
product or the general business of the retailers. [
Footnote 5] Although there is no possible
labor relation between the peddlers and their customers or between
the grocers and retail bakers and the union, we decline to permit
New York to take steps to protect the places of business of those
who dealt with the peddlers against picketing. It seems obvious
that the selling of baked products, distributed by
Page 315 U. S. 738
the peddlers is a minor part of the grocery business. Recent
cases illustrate the present tendency of state courts to permit
workers outside the industry picketed to publicize their labor
disputes with others. [
Footnote
6] To permit the
Wohl injunction without evidence of
special embarrassment to peace and order would, we hold, go beyond
permissible limitations on free speech.
We are of the view that the right of free speech upheld in these
decisions requires Texas to permit the publicizing of the
dissatisfaction over Mr. Ritter's contract for his new building.
Until today, orderly, regulated, picketing has been within the
protection of the Fourteenth Amendment. Such picketing was
obviously disadvantageous to the business affected. In balancing
social advantages, it has been felt that the preservation of free
speech in labor disputes was more important than the freedom of
enterprise from the burdens of the picket line. It was a limitation
on state power to deal as it pleased with labor disputes; a
limitation consented to by the state when it became a part of the
nation and one of precisely the same quality as those enforced in
Carlson, Thornhill, and
Swing.
We are not here forced, as the Court assumes, to support a
constitutional interpretation that peaceful picketing "must be
wholly immune from regulation by the community in order to protect
the general interest." We do not doubt the right of the state to
impose not only some, but many, restrictions upon peaceful
picketing. Reasonable numbers, quietness, truthful placards, open
ingress and egress, suitable hours or other proper limitations,
not
Page 315 U. S. 739
destructive of the right to tell of labor difficulties, may be
required. The Court limits its holding to the peculiar
circumstances of this case. All decisions necessarily are so
limited, but, from the decisions, rules are drawn. By this
decision, a state rule is upheld which forbids peaceful picketing
of businesses by strangers to the business and the industry of
which it is a part. The legal kernel of the Court's present
decision is that the "sphere" of free speech is confined to the
"area of the industry within which a labor dispute arises." This
rule is applied, in this case, even though the picketers are
publicizing a labor dispute arising from a contract to which the
sole owner of the business picketed is a party. Even if the
construction contract covered an attached addition to the
restaurant, the Court's opinion would not permit picketing directed
against the restaurant. To construe this Texas decision as within
state powers, and the
Wohl decision as outside their
boundaries, plainly discloses the inadequacy of the test presumably
employed -- that is, the supposed lack of economic
"interdependence" between the picketers and the picketed.
The philosophy behind the conclusion of the Court in this case
gives to a state the right to bar from picket lines workers who are
not a part of the industry picketed. We are not told whether the
test of eligibility to picket is to be applied by crafts or
enterprises, or how we are to determine economic interdependence or
the boundaries of particular industries. Such differentiations are
yet to be considered. The decision withdraws federal constitutional
protection from the freedom of workers outside an industry to state
their side of a labor controversy by picketing. So long as civil
government is able to function normally for the protection of its
citizens, such a limitation upon free speech is unwarranted.
[
Footnote 1]
Evidently the conception was that of "imminent and aggravated
danger,"
American Federation of Labor v. Swing,
312 U. S. 321,
312 U. S.
325.
[
Footnote 2]
310 U. S. 310 U.S.
88,
310 U. S.
103-104.
[
Footnote 3]
312 U. S. 312 U.S.
321,
312 U. S.
323.
[
Footnote 4]
312 U. S. 312 U.S.
321,
312 U. S.
325-326.
[
Footnote 5]
"It is hereby ordered, . . . that the defendants, . . . are
perpetually restrained and enjoined:"
"(a) From picketing the places of business of manufacturing
bakers who sell to the plaintiffs . . . because of the fact that
said manufacturing bakers sell to these plaintiffs; and"
"(b) From picketing the places of business of customers of these
plaintiffs because such customers purchase baked products from
these plaintiffs. . . ."
[
Footnote 6]
People v. Harris, 104 Colo. 386, 91 P.2d 989;
Byck
Bros. & Co. v. Martin, 4 C.C.H. Labor Cases � 60,430
(Ky.Cir.Ct., March 1941);
Ellingsen v. Milk Wagon Drivers'
Union, 377 Ill. 76, 35 N.E.2d 349;
People v. Muller,
286 N.Y. 281, 36 N.E.2d 206;
Maywood Farms Co. v. Milk Wagon
Drivers' Union, 313 Ill.App. 24, 38 N.E.2d 972;
Mason
& Dixon Lines v. Odom, 18 S.E.2d 841.