1. Section 506(a)(1) of the Communications Act, making it a
crime, by the use or threat of use of force, violence,
intimidation, or duress, to coerce, compel or constrain or attempt
to coerce, compel or constrain a radio broadcasting licensee to
employ or agree to employ, in connection with the conduct of the
licensee's broadcasting business, any person or persons "in excess
of the number of employees needed by such licensee to perform
actual services," is not so vague, indefinite or uncertain as to
violate the Due Process Clause of the Fifth Amendment. Pp.
332 U. S. 5-8.
(a) This question was properly presented to this Court for a
decision on an appeal by the Government under the Criminal Appeals
Act from a decision of a District Court dismissing, on the sole
ground that the section was unconstitutional, an information
charging a violation in substantially the statutory language. Pp.
332 U. S. 5-6.
(b) The contention that persons of ordinary intelligence would
be unable to know when their compulsive actions would force a
person against his will to hire employees he did not need cannot be
sustained. Pp.
332 U. S. 6-7.
(c) When measured by common understanding and practices, the
language of the statute provides an adequate warning as to what
conduct falls under its ban, and marks boundaries sufficiently
distinct for judges and juries fairly to administer the law in
accordance with the will of Congress, and the Constitution requires
no more. Pp.
332 U. S. 7-8.
Page 332 U. S. 2
2. It does not contravene the Due Process Clause of the Fifth
Amendment by denying equal protection of the laws to radio
broadcasting employees as a class -- even though it provides no
punishment for employers for violating the policy and leaves other
classes of employees free to engage in the practices forbidden to
radio workers. Pp.
332 U. S. 8-9.
(a) This question was properly presented to this Court for a
decision on an appeal by the Government under the Criminal Appeals
Act from a decision of the District Court dismissing an information
on the sole ground that the statute is unconstitutional as written.
P.
332 U. S. 8.
(b) It is not within the province of this Court to say that,
because Congress has prohibited some practices within its power to
prohibit, it must prohibit all within its power. Pp.
332 U. S. 8-9.
3. On its face, the statute does not contravene the First
Amendment by abridging freedom of speech; but, since the statute
does not mention picketing, and it is uncertain on the record in
this case whether it would have been applied so as to prohibit
peaceful picketing, the question whether such an application would
violate the First Amendment is not before this Court in a form
appropriate for decision. Pp.
332 U. S.
9-12.
4. On its face, the statute does not violate the provisions of
the Thirteenth Amendment prohibiting slavery and involuntary
servitude; but no decision is made on the question whether some
possible application of it to particular persons in particular sets
of circumstances would violate the Thirteenth Amendment, since
questions of that kind are not presented by the record in this case
in a form appropriate for decision by this Court. Pp.
332 U. S.
12-13.
5. The Criminal Appeals Act does not require this Court to pass
on constitutional questions prematurely decided by a district
court's dismissal of an information which had not been tested by a
motion to strike or for a bill of particulars. P.
332 U. S. 10.
68 F.
Supp. 845, reversed and remanded.
The District Court dismissed a criminal information charging
respondent with violation of § 506(a)(1) of the Communications Act
on the ground that the section was unconstitutional.
68 F. Supp.
845. On direct appeal by the Government under the Criminal
Appeals Act, 18 U.S.C. (Supp. V, 1946) § 682,
reversed and
remanded, p.
332 U. S. 13.
Page 332 U. S. 3
MR. JUSTICE BLACK delivered the opinion of the Court.
The District Court dismissed a criminal information filed
against the respondent, James C. Petrillo, on the ground that the
statute on which the information was founded was unconstitutional.
68 F. Supp.
845. The case is here on direct appeal by the Government as
authorized by the Criminal Appeals Act. 18 U.S.C. Supp. V, § 682.
The information charged a violation of the Communications Act of
1934, 48 Stat. 1064, 1102, as amended by an Act of April 16, 1946.
60 Stat. 89. The specific provisions of the Amendment charged to
have been violated read:
"SEC. 506. (a) It shall be unlawful, by the use or express or
implied threat of the use of force, violence, intimidation, or
duress, or by the use or express or implied threat of the use of
other means, to coerce, compel, or constrain or attempt to coerce,
compel, or constrain a licensee --"
"(1) to employ or agree to employ, in connection with the
conduct of the broadcasting business of such licensee, any person
or persons in excess of the number of employees needed by such
licensee to perform actual services; or"
"
* * * *"
"(d) Whoever willfully violates any provision of subsection (a)
or (b) of this section shall, upon conviction
Page 332 U. S. 4
thereof, be punished by imprisonment for not more than one year
or by a fine of not more than $1,000, or both."
Pub.L. No.344, 79th Cong., 2d Sess.
The information alleged that a radio broadcasting company,
holding a federal license, had, for several years immediately
preceding, employed
"certain persons who were sufficient and adequate in number to
perform all of the actual services needed . . . in connection with
the conduct of its broadcasting business."
The information further charged that the respondent,
Petrillo,
"willfully, by the use of force, intimidation, duress and by the
use of other means, did attempt to coerce, compel and constrain
said licensee to employ and agree to employ, in connection with the
conduct of its radio broadcasting business, three additional
persons not needed by said licensee to perform actual services. . .
."
The coercion was allegedly accmplished in the following
manner:
"(1) By directing and causing three musicians, members of the
Chicago Federation of Musicians, theretofore employed by the said
licensee in connection with the conduct of its broadcasting
business, to discontinue their employment with said licensee;"
"(2) By directing and causing said three employees and other
persons, members of the Chicago Federation of Musicians, not to
accept employment by said licensee; and"
"(3) By placing and causing to be placed a person as a picket in
front of the place of business of said licensee."
The only challenge to the information was a motion to dismiss on
the ground that the Act on which the information was based (a)
abridges freedom of speech in contravention of the First Amendment;
(b) is repugnant to the Fifth Amendment because it defines a crime
in
Page 332 U. S. 5
terms that are excessively vague, and denies equal protection of
the law and liberty of contract; (c) imposes involuntary servitude
in violation of the Thirteenth Amendment. [
Footnote 1] The District Court dismissed the
information, holding that the 1946 Amendment on which it was based
violates the First, Fifth, and Thirteenth Amendments.
Two general principles which concern our disposition of appeals
involving constitutional questions have special application to this
case: we have consistently refrained from passing on the
constitutionality of a statute until a case involving it has
reached a stage where the decision of a precise constitutional
issue is a necessity. The reasons underlying this principle and
illustrations of the strictness with which it has been applied
appear in the opinion of the Court in the
Rescue Army v.
Municipal Court, 331 U. S. 549,
331 U. S. 568,
and cases there collected. And, in reviewing a direct appeal from a
District Court under the Criminal Appeals Act,
supra, our
review is limited to the validity or construction of the contested
statute. For "The Government's appeal does not open the whole
case."
United States v. Borden Co., 308 U.
S. 188,
308 U. S.
193.
First. One holding of the District Court was that, as
contended here, the statute is repugnant to the due process clause
of the Fifth Amendment because its words, "number of employees
needed by such licensee," are so vague, indefinite and uncertain
that "persons of ordinary intelligence cannot, in advance, tell
whether a certain action or course of action would be within its
prohibition. . . ." The information here, up to the place where it
specifically charges the particular means used to coerce the
licensee, substantially employs this statutory language. And the
motion to dismiss on the ground of vagueness and indefiniteness
Page 332 U. S. 6
squarely raises the question of whether the section invoked in
the indictment is void
in toto, barring all further
actions under it, in this, and every other case.
Cf. United
States v. Thompson, 251 U. S. 407,
251 U. S. 412.
Many questions of a statute's constitutionality as applied can best
await the refinement of the issues by pleading, construction of the
challenged statute and pleadings, and, sometimes, proof.
Rescue
Army v. Municipal Court, supra; Watson v. Buck, 313 U.
S. 387,
313 U. S. 402.
Borden's Company v. Baldwin, 293 U.
S. 194,
293 U. S. 204,
293 U. S. 210,
and concurring opinion at
293 U. S. 213.
But no refinement or clarification of issues which we can
reasonably anticipate would bring into better focus the question of
whether the contested section is written so vaguely and
indefinitely that one whose conduct it affected could only guess
what it meant. Consequently, since this phase of the appeal raises
a question of validity of a statute within our jurisdiction under
the Criminal Appeals Act,
supra, and is ripe for our
decision, we turn to the merits of the contention.
We could not sustain this provision of the Act if we agreed with
the contention that persons of ordinary intelligence would be
unable to know when their compulsive actions would force a person
against his will to hire employees he did not need.
Connally v.
General Construction Co., 269 U. S. 385,
269 U. S. 391;
Lanzetta v. New Jersey, 306 U. S. 451. But
we do not agree. Of course, as respondent points out, there are
many factors that might be considered in determining how many
employees are needed on a job. But the same thing may be said about
most questions which must be submitted to a factfinding tribunal in
order to enforce statutes. Certainly, an employer's statements as
to the number of employees "needed" is not conclusive as to that
question. It, like the alleged willfulness of a defendant, must be
decided in the light of all the evidence.
Page 332 U. S. 7
Clearer and more precise language might have been framed by
Congress to express what it meant by "number of employees needed."
But none occurs to us, nor has any better language been suggested,
effectively to carry out what appears to have been the
Congressional purpose. The argument really seems to be that it is
impossible for a jury or court ever to determine how many employees
a business needs, and that therefore no statutory language could
meet the problem Congress had in mind. If this argument should be
accepted, the result would be that no legislature could make it an
offense for a person to compel another to hire employees, no matter
how unnecessary they were and however desirable a legislature might
consider suppression of the practice to be.
The Constitution presents no such insuperable obstacle to
legislation. We think that the language Congress used provides an
adequate warning as to what conduct falls under its ban, and marks
boundaries sufficiently distinct for judges and juries fairly to
administer the law in accordance with the will of Congress. That
there may be marginal cases in which it is difficult to determine
the side of the line on which a particular fact situation falls is
no sufficient reason to hold the language too ambiguous to define a
criminal offense.
Robinson v. United States, 324 U.
S. 282,
324 U. S.
285-286. It would strain the requirement for certainty
in criminal law standards too near the breaking point to say that
it was impossible judicially to determine whether a person knew
when he was willfully attempting to compel another to hire unneeded
employees.
See Screws v. United States, 325 U. S.
91;
United States v. Ragen, 314 U.
S. 513,
314 U. S. 522,
314 U. S.
524-525. The Constitution has erected procedural
safeguards to protect against conviction for crime except for
violation of laws which have clearly defined conduct thereafter to
be punished; but the Constitution does not require impossible
standards.
Page 332 U. S. 8
The language here challenged conveys sufficiently definite
warning as to the proscribed conduct when measured by common
understanding and practices. The Constitution requires no more.
Second. It is contended that the statute denies equal
protection of the laws to radio broadcasting employees as a class,
and, for this reason, violates the due process clause of the Fifth
Amendment. This contention, raised by the motion to dismiss, and
sustained by the District Court as a ground for holding the statute
unconstitutional as written, is properly before us, and we reach
this equal protection ground for the same reason that we decided
the question of whether the section was unconstitutionally vague
and indefinite.
In support of this contention, it is first argued that, if
Congress concluded that employment by broadcasting companies of
unneeded workers was detrimental to interstate commerce, in order
to be consistent, it should have provided for the punishment of
employers, as well as employees, who violate that policy. [
Footnote 2] Secondly, it is argued, the
Act violates due process because it singles out broadcasting
employees for regulation while leaving other classes of employees
free to engage in the very practices forbidden to radio workers.
But it is not within our province to say that, because Congress has
prohibited some practices within its power to prohibit, it must
prohibit all within its power. Consequently, if Congress believes
that there are employee practices in the radio industry which
injuriously affect interstate commerce, and directs its
prohibitions against those practices, we could not set aside its
legislation even if we were persuaded that employer practices also
required regulation.
See Labor Board v. Jones & Laughlin
Steel Corporation, 301 U. S. 1,
301 U. S. 46.
Page 332 U. S. 9
Nor could we strike down such legislation even if we believed
that, as a matter of policy, it would have been wiser not to enact
the legislation or to extend the prohibitions over a wider or
narrower area. Here, Congress aimed its law directly against one
practice -- compelling a boradcasting company to hire unneeded
workers. There is nothing novel about laws to prohibit some persons
from compelling other persons to act contrary to their desires.
Whatever may be the limits of the power of Congress that do not
apply equally to all classes, groups, and persons,
see Steward
Machine Co. v. Davis, 301 U. S. 548,
301 U. S. 584,
we are satisfied that Congress has not transgressed those limits in
the provisions of this statute which are here attacked.
Third. Respondent contends here, and the District Court
has held, that the statute abridges freedom of speech by making
peaceful picketing a crime. It is important to note that the
statute does not mention picketing, peaceful or violent. The
proposed application of the statute to picketing therefore does not
derive from any specific prohibition written into the statute
against peaceful picketing. Rather it comes from the information's
charge that respondent attempted to compel the licensee to hire
unneeded employees by placing "a picket in front of the place of
business of [the]. . . licensee." Yet the respondent's motion to
dismiss was made only on the ground that the statute, as written,
contravenes the First Amendment. In ruling on this motion, the
District Court assumed that, because "there was no charge of
violence . . . , the placing of a picket must be regarded . . . as
peaceful picketing." From this assumption, it concluded that "the
application [of the statute] here sought to be made violates the
First Amendment by its restriction upon freedom of speech by
peaceful picketing." Thus, rather than holding the statute, as
written, to be an unconstitutional violation of the First
Page 332 U. S. 10
Amendment, the District Court ruled on the statute as it was
proposed to be applied by the information as it then read.
We consider it inappropriate to reach the merits of this
constitutional question now. As we have pointed out, we have
consistently said that we would refrain from passing on the
constitutionality of statutes in advance of the necessity to do so.
And the provisions for direct appeal from District Courts of
certain criminal cases do not require us to pass on constitutional
questions prematurely decided by a district court's dismissal of an
information.
The information, here, up to the place where it alleges the use
of particular coercive means, charges in substantially the language
of the statute that respondent coerced the licensee. The
information's charges up to this point constitute a sufficient
basis for a challenge to the statute on the ground that it
contravenes the Constitution. Whether this part of the information,
or the information as a whole, was adequate definitely to inform
the respondent of the nature of the charge against him is another
question.
See United States v. Lepowitch, 318 U.
S. 702,
318 U. S. 704;
Potter v. United States, 155 U. S. 438;
cf. United States v. Hess, 124 U.
S. 483. Had the District Court postponed ruling on the
First Amendment question raised by the motion to dismiss, or had it
denied the motion, respondent could have sought a bill of
particulars, apart from attacking the constitutionality of the Act.
See Husty v. United States, 282 U.
S. 694,
282 U. S. 702;
Bartell v. United States, 227 U.
S. 427,
227 U. S.
433-434;
Dunbar v. United States, 156 U.
S. 185,
156 U. S. 192.
So also, if the additional allegations describing the means used to
accomplish the proscribed purpose were not definite enough for the
court to determine whether they were sufficient in law to charge an
offense, and if such allegations were not mere surplusage,
see
United States v. Socony-Vacuum Oil Company, 310 U.
S. 150,
310 U. S. 222,
a challenge could have been
Page 332 U. S. 11
made to the information,
see United States v. Hess,
supra, 124 U.S. at
124 U. S.
487-488, as distinguished from a challenge to the
statute on which it rested. In that event, and upon a holding of
insufficiency of the information, appeal by the United States would
have properly gone, under the Criminal Appeals Act,
supra,
to the Circuit Court of Appeals, and if inappropriately brought
here, that Act, as amended, 56 Stat. 271, would have required us to
transfer the cause to the Circuit Court of Appeals. But no such
challenge was made to the information.
We therefore have a situation in which we are urged to strike
down a statute as violative of the constitutional guarantees of
free speech when the statute has not been, and might never be,
applied in such manner as to raise the question respondent asks us
to decide. For the gist of the offense here charged in the statute
and in the information is that respondent "willfully, by the use of
force, intimidation, duress
and by the use of other means,
did attempt to coerce, compel and constrain" [
Footnote 3] the licensee to hire unneeded
employees. If the allegations that this prohibited result was
attempted to be accomplished by picketing are so broad as to
include action which either is not coercive, compelling, or
constraining within the statute's meaning, or could not be
constitutionally held to be, the trial court would be free, on
motion of the respondent, to strike the particular allegations if
they are surplusage. Rules of Criminal Procedure, § 7(d). Or the
Government might amend the information "at any time before verdict
or finding if no additional or different offense is charged and if
substantial rights of the defendant are not prejudiced."
Id., § 7(e).
The foregoing analysis shows that we are asked to rule on
constitutional questions that are not yet precisely in issue. The
question as it was decided by the District
Page 332 U. S. 12
Court, was not the question raised by the motion to dismiss --
whether the statute is invalid on its face -- but whether it is
invalid as it is proposed to be applied. And even if our decision
could be evoked upon a showing that the statute certainly, but for
our intervention, would have punished respondent for peaceful
picketing, there is no such certainty here. No final issue had been
drawn. The information was still subject to amendment to fit,
within the permissible area of amendments, the type of coercive
means developed by further pleading or proof.
See Borden's Co.
v. Baldwin, supra, at
293 U. S. 213. Further pleadings and proof might well
draw the issues into sharper focus, making it unnecessary for us to
decide questions not relevant to determination of the
constitutionality of the statute as actually applied. Thus, this
case had not reached a stage where the decisin of a precise
constitutional issue was a necessity. Consequently, we refrain from
considering any constitutional questions except those concerning
the Act as written. We do not decide whether the allegations of the
information, whatever shape they might eventually take, would
constitute an application of the statute in such manner as to
contravene the First Amendment. We only pass on the statute on its
face; it is not in conflict with the First Amendment.
Fourth. The District Court held, and it is argued here,
that the statute, as sought to be applied in the information,
violates the Thirteenth Amendment, which prohibits slavery and
involuntary servitude. This contention is also rooted in that part
of the information which particularizes the means by which
respondent attempted to compel action by the licensee,
i.e., by causing three musicians to discontinue, and three
musicians not to accept, employment. The argument is that employees
have a constitutional right to leave employment singly,
see
Pollock v. Williams, 322 U. S. 4,
322 U. S. 17-18,
or in concert, and consequently
Page 332 U. S. 13
that respondent cannot be guilty of a crime for directing or
causing them to do so. For the reasons given with reference to the
picketing specification, therefore, we consider the Thirteenth
Amendment question only with reference to the statute on its face.
Thus considered, it plainly does not violate the Thirteenth
Amendment. Whether some possible attempted application of it to
particular persons in particular sets of circumstances would
violate the Thirteenth Amendment is a question we shall not pass
upon until it is appropriately presented.
Reversed and remanded.
MR. JUSTICE DOUGLAS took no part in the consideration or
decision of this case.
[
Footnote 1]
Another ground, not argued here, was that the Act represents an
exercise of power by Congress not delegated to the United
States.
[
Footnote 2]
The Act does not prohibit radio broadcasters from voluntarily
hiring more employees than they need.
[
Footnote 3]
Italics supplied.
MR. JUSTICE FRANKFURTER, concurring.
I agree with the Court's judgment and opinion because it holds
that the Lea Act is not beyond the power of Congress to regulate
commerce. I desire, however, to add a few words.
The constitutional basis for the legislation is the same as that
upon which the validity of the Sherman Anti-Trust Law rests. It is
too late in the day to require argument or citation of cases in
support of the right of Congress to free interstate commerce from
obstruction that the exertion of monopolistic power may entail or
from interference that may reasonably be deemed to promote
monopoly. Equally clear is it that Congress may direct its
legislation specifically towards a disclosed evil, without
generalizing its prohibition, when in its judgment like evils have
not disclosed themselves elsewhere. It would be a usurpation of the
legislative authority for us to find that there was no basis in
reason for the judgment of Congress that the public interest called
for legislation to deal with what is colloquially called
"featherbedding"
Page 332 U. S. 14
in connection with the broadcasting business. Beyond that it is
not our province to go.
The District Court took a different view, and, on defendant's
motion, dismissed this information on the ground that the statute
is unconstitutional.
68 F. Supp.
845. Since the Court now holds that the statute is
constitutional, the case goes back to the District Court.
The Court conjures up difficulties which I do not share. The
case is here under the Criminal Appeals Act of 1907, 34 Stat. 1246,
as amended by the Act of May 9, 1942, 56 Stat. 271, 18 U.S.C. Supp.
V, § 682, whereby a direct review can be had of a district court
judgment setting aside an indictment or information if the decision
of the district court is based "upon the invalidity or construction
of the statute upon which the indictment or information is
founded." Our decisions have construed this to mean that review can
be had here only if a district court's decision was based
exclusively upon the invalidity or construction of a statute. A
criminal case cannot be reviewed here if questions of criminal
pleading -- defects not arising from the statute under
consideration -- enter into a decision sought to be reviewed.
See United States v. Hastings, 296 U.
S. 188,
296 U. S. 192,
296 U. S. 194;
United States v. Borden Co., 308 U.
S. 188,
308 U. S. 193;
United States v. Swift & Co., 318 U.
S. 442. If both the sufficiency of criminal pleading and
the validity or construction of the underlying statute were in
issue before the District Court, and views as to both were
interwoven in the court's decision, this Court has no jurisdiction
to entertain the appeal. Under the Act of May 9, 1942, it must
remand the cause to the appropriate circuit court of appeals. On
the other hand, if the question of constitutional construction was
the isolated ground of decision by district court dismissing a
federal prosecution, that is the only question to be considered
here, and it must be considered within the scope given it by
Page 332 U. S. 15
the district court. Other questions may be imbedded in the case
which may eventually come to the surface. But they are not to be
brought to the surface here under the limited, specific review
given by the Criminal Appeals Act. It is to such implicit questions
of pleading, and to statutory or constitutional questions not
passed upon by a district court, that Mr. Chief Justice Hughes had
reference when he said, "The Government's appeal does not open the
whole case."
United States v. Borden Co., supra, at
308 U. S.
193.
There is no complication in the record before us to an exercise
of our jurisdiction under the Criminal Appeals Act. The District
Judge's decision is wholly free from any ruling involving criminal
pleading. He stated precisely what he deemed to be the sole issue
before him, and which alone he decided:
"The only question before the court is the constitutional aspect
of this statute as it was written by Congress. On this question,
the court is of the opinion that this statute is unconstitutional
for the reasons above stated."
68 F. Supp. at 850.
We therefore have no acknowledgment or intimation by the
District Judge that he had any difficulty with the information as a
matter of pleading, or that it carried any ambiguities which he
resolved one way rather than another. If that were so, we would
have no jurisdiction to review his decision. The District Court
found constitutional defects in the statute "as it was written by
Congress." We find the contrary. Therefore, the information should
go back to the District Court for disposition. Just as we cannot go
behind a district court's determination regarding the sufficiency
of the indictment as a matter of pleading as a preliminary to
passing on statutory validity, so, when a naked question of
validity is presented to us, it is not for us to scrutinize the
charge and hypothesize possibilities whereby new questions may
arise of a statutory or constitutional nature.
Page 332 U. S. 16
MR. JUSTICE REED, dissenting.
I dissent from the opinion and judgment of the Court. My reason
for disagreement is that § 506(a)(1) of the Communications Act is
too indefinite in its description of the prohibited acts to support
an information or indictment for violation of its provisions. My
objection is not to the words in the first paragraph of § 506 that
made unlawful in labor matters the use of threats, force, violence,
intimidation or duress against an employer. There is a background
of experience and common understanding that ordinarily gives such
words, when used in criminal statutes, sufficient definiteness to
acquaint the public with the limits of the proscribed acts. When
such words are used, they place upon those affected the risk of
estimating incorrectly the sort of action that may ultimately be
held to violate the statutes.
Nash v. United States,
229 U. S. 373.
My objection is to the indefiniteness of the statutory
description of the thing for which force must not be used -- that
is, "to compel" a licensee under the Communications Act "to emply .
. . any person or persons in excess of the number of employees
needed by such licensee to perform actual services."
This criminal statute is the product of legislation directed at
the control of acts deemed evil by Congress. It is one of the many
regulatory acts that legislative bodies have passed in recent years
to make unlawful certain practices in the field of economics that
seemed contrary to the public interest. [
Footnote 2/1] These statutes made new crimes. Deeds
theretofore not subject to punishment fall within the general scope
of their prohibition. Common experience
Page 332 U. S. 17
has not created a general understanding of their criminality.
Consequently, in order to adequately inform the public of the
limitations on conduct, a more precise definition of the crime is
necessary to meet constitutional requirements. [
Footnote 2/2]
Anglo-American law does not punish citizens for violations of
vague and uncertain statutes. There is no place in our criminal law
for acts defined as detrimental to the interests of the state. A
statute is invalid when "so vague that men of common intelligence
must necessarily guess at its meaning." 269 U.S. at
269 U. S. 391.
It seems to me that this vice exists in this section of the
challenged act. How can a man or a jury possibly know how many men
are "needed" "to perform actual services" in broadcasting? What
must the quality of the program be? How skillful are the employees
in the performance of the their task? Does one weigh the capacity
of the employee or the managerial ability of the employer? Is the
desirability of short hours to spread the work to be evaluated? Or
is the standard the advantage in take-home pay for overtime
work?
The Government seeks to avoid the difficulty by interpreting the
section. Their brief says, after considering the legislative
history,
"the bill was not intended to apply to mere differences of
opinion as to whether men were overworked; it only fits deliverate
demands for payment to additional employees made in complete
disregard for the employer's need and without any justification
from the viewpoint of actually getting the employer's business
done. . . . If Paragraph (1) is read in its context, along with the
succeeding paragraphs, it is clear what Congress was driving at
when it characterized the Act
Page 332 U. S. 18
as one to prevent extortion, as distinct from
bona fide
demands relating to conditions of employment."
This interpretation seems to me to fly in the face of § 506(1).
There is another subsection to which the language might apply.
[
Footnote 2/3] This clearly defines
the prohibited acts. If the Congress wishes to fix the maximum
number of employees that a licensee may employ in stations of
various sizes, it may, of course, be done. Or, if it is impractical
for Congress to act because of the varying situations, the number
may be left to regulations of the Federal Communications Commission
or other regulatory body.
This is a criminal statute. The principle that such statutes
must be so written that intelligent men may know what acts of
theirs will jeopardize their life, liberty or property is of
importance to all. That principle requires, I think, a
determination that this section of the Communications Act is
invalid.
MR. JUSTICE MURPHY and MR. JUSTICE RUTLEDGE join in this
dissent.
[
Footnote 2/1]
Emergency Price Control Act, 56 Stat. 33, § 205(b), 50 U.S.C.
App. § 925(b); Fair Labor Standards Act, 52 Stat. 1069, § 16(a), 29
U.S.C. § 216(a); National Labor Relations Act, 49 Stat. 456, § 12,
29 U.S.C. § 162; Federal Corrupt Practices Act, as amended, 57
Stat. 167, § 9, 50 U.S.C. App. § 1509.
[
Footnote 2/2]
United States v. Cohen Grocery Co., 255 U. S.
81;
Cline v. Frink Dairy Co., 274 U.
S. 445;
International Harvester Co. v.
Kentucky, 234 U. S. 216;
Connally v. General Construction Co., 269 U.
S. 385.
See Gorin v. United States,
312 U. S. 19,
312 U. S.
26.
[
Footnote 2/3]
Pub. No. 344, 79th Cong., 2d Sess., 47 U.S.C. § 506(a)(4):
"to pay or give or agree to pay or give any money or other thing
of value for services, in connection with the conduct of the
broadcasting business of suchlicensee, which are not to be
performed. . . ."