Respondent owns and operates a gravel pit in Wisconsin, where it
employs 15 to 20 men. Petitioner unions sought unsuccessfully to
induce some of respondent's employees to join the unions, and began
picketing the entrance to respondent's gravel pit with signs
reading, "The men on this job are not 100% affiliated with the
A.F.L." As a result, drivers of several trucking companies refused
to deliver and haul goods to and from respondent's plant, causing
substantial damage to respondent. On respondent's application, a
State Court enjoined the picketing. The injunction was sustained by
the State Supreme Court on findings by it that (1) the picketing
had been engaged in for the purpose of coercing respondent to force
its employees to become members of petitioner unions, and (2) such
picketing was for "an unlawful purpose," since Wis.Stat. §
111.06(2)(b) made it an unfair labor practice for an employee
individually or in concert with others to
"coerce, intimidate or induce an employer to interfere with any
of his employes in the enjoyment of their legal rights . . . or to
engage in any practice with regard to his employes which would
constitute an unfair labor practice if undertaken by him on his own
the judgment is affirmed. Pp. 354 U. S.
(a) Prior decisions of this Court have established a broad field
in which a State, in enforcing some public policy, whether of its
criminal or its civil law, and whether announced by its legislature
or its courts, may constitutionally enjoin peaceful picketing aimed
at preventing effectuation of that policy. Pp. 354 U. S.
(b) Consistently with the Fourteenth Amendment, a State may
enjoin peaceful picketing the purpose of which is to coerce an
employer to put pressure on his employees to join a union in
violation of the declared policy of the State. Pappas v.
151 Me. 36,116 A.2d
, appeal dismissed,
350 U.S. 870. Pp. 354 U. S.
270 Wis. 321a, 74 N.W.2d 749, affirmed.
Page 354 U. S. 285
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
This is one more in the long series of cases in which this Court
has been required to consider the limits imposed by the Fourteenth
Amendment on the power of a State to enjoin picketing. The case was
heard below on the pleadings and affidavits, the parties
stipulating that the record contained "all of the facts and
evidence that would be adduced upon a trial on the merits. . . ."
Respondent owns and operates a gravel pit in Oconomowoc, Wisconsin,
where it employs 15 to 20 men. Petitioner unions sought
unsuccessfully to induce some of respondent's employees to join the
unions, and commenced to picket the entrance to respondent's place
of business with signs reading, "The men on this job are not 100%
affiliated with the A.F.L." "In consequence," drivers of several
trucking companies refused to deliver and haul goods to and from
respondent's plant, causing substantial damage to respondent.
Respondent thereupon sought an injunction to restrain the
The trial court did not make the finding, requested by
"That the picketing of plaintiff's premises has been engaged in
for the purpose of coercing, intimidating and inducing the employer
to force, compel, or induce its employees to become members of
defendant labor organizations, and for the purpose of injuring the
plaintiff in its
Page 354 U. S. 286
business because of its refusal to in any way interfere with the
rights of its employees to join or not to join a labor
It nevertheless held that, by virtue of Wis.Stat. §103.535,
prohibiting picketing in the absence of a "labor dispute," the
petitioners must be enjoined from maintaining any pickets near
respondent's place of business, from displaying at any place near
respondent's place of business signs indicating that there was a
labor dispute between respondent and its employees or between
respondent and any of the petitioners, and from inducing others to
decline to transport goods to and from respondent's business
On appeal, the Wisconsin Supreme Court at first reversed,
relying largely on A.F. of L. v. Swing, 312 U.
, to hold § 103.535 unconstitutional on the ground
that picketing could not constitutionally be enjoined merely
because of the absence of a "labor dispute." 270 Wis. 315, 71
Upon reargument, however, the court withdrew its original
opinion. Although the trial court had refused to make the finding
requested by respondent, the Supreme Court, noting that the facts
as to which the request was made were undisputed, drew the
inference from the undisputed facts and itself made the finding. It
canvassed the whole circumstances surrounding the picketing, and
"One would be credulous indeed to believe, under the
circumstances, that the union had no thought of coercing the
employer to interfere with its employees in their right to join or
refuse to join the defendant union."
Such picketing, the court held, was for "an unlawful purpose,"
since Wis.Stat. § 111.06(2)(b) made it an unfair labor practice for
an employee, individually or in concert with others, to
"coerce, intimidate or induce any employer to interfere with any
of his employes in the enjoyment of their legal rights . . . or to
engage in any practice with regard to his employes which would
Page 354 U. S. 287
constitute an unfair labor practice if undertaken by him on his
Relying on Building Service Employees v. Gazzam,
339 U. S. 532
Pappas v. Stacey,
151 Me. 36, 116 A.2d
, the Wisconsin Supreme Court therefore affirmed the
granting of the injunction on this different ground. 270 Wis. 321a,
74 N.W.2d 749.
We are asked to reverse the judgment of the Wisconsin Supreme
Court, which to a large extent rested its decision on that of the
Supreme Judicial Court of Maine in Pappas v. Stacey,
When an appeal from that decision was filed here, this
Court granted appellee's motion to dismiss for lack of a
substantial federal question. 350 U.S. 870. Since the present case
presents a similar question, we might well have denied certiorari
on the strength of our decision in that case. In view of the
recurrence of the question, we thought it advisable to grant
certiorari, 352 U.S. 817, and to restate the principles governing
this type of case.
It is inherent in the concept embodied in the Due Process Clause
that its scope be determined by a "gradual process of judicial
inclusion and exclusion," Davidson v. New Orleans,
96 U. S. 97
96 U. S. 104
Inevitably, therefore, the doctrine of a particular case "is not
allowed to end with its enunciation and . . . an expression in an
opinion yields later to the impact of facts unforeseen."
Jaybird Mining Co. v. Weir, 271 U.
, 271 U. S. 619
(Brandeis, J., dissenting). It is not too surprising that the
response of States -- legislative and judicial -- to use of the
injunction in labor controversies should have given rise to a
series of adjudications in this Court relating to the limitations
on state action contained in the provisions of the Due Process
Clause of the Fourteenth Amendment. It is also not too surprising
that examination of these adjudications should disclose an
evolving, not a static, course of decision.
The series begins with Truax v. Corrigan, 257 U.
, in which a closely divided Court found it to be
Page 354 U. S. 288
of the Equal Protection Clause -- not of the Due Process Clause
-- for a State to deny use of the injunction in the special class
of cases arising out of labor conflicts. The considerations that
underlay that case soon had to yield, through legislation and later
through litigation, to the persuasiveness of undermining facts.
Thus, to remedy the abusive use of the injunction in the federal
Frankfurter and Greene, The Labor Injunction,
the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. § 101, withdrew,
subject to qualifications, jurisdiction from the federal courts to
issue injunctions in labor disputes to prohibit certain acts. Its
example was widely followed by state enactments.
Apart from remedying the abuses of the injunction in this
general type of litigation, legislatures and courts began to find
in one of the aims of picketing an aspect of communication. This
view came to the fore in Senn v. Tile Layers Union,
301 U. S. 468
where the Court held that the Fourteenth Amendment did not prohibit
Wisconsin from authorizing peaceful stranger picketing by a union
that was attempting to unionize a shop and to induce an employer to
refrain from working in his business as a laborer.
Although the Court had been closely divided in the Senn
case, three years later, in passing on a restrictive, instead of a
permissive, state statute, the Court made sweeping pronouncements
about the right to picket in holding unconstitutional a statute
that had been applied to ban all picketing, with
"no exceptions based upon either the number of persons engaged
in the proscribed activity, the peaceful character of their
demeanor, the nature of their dispute with an employer, or the
restrained character and the accurateness of the terminology used
in notifying the public of the facts of the dispute."
Thornhill v. Alabama, 310 U. S. 88
310 U. S. 99
the statute dealt at large with all picketing, so the Court
Page 354 U. S. 289
assimilated peaceful picketing in general to freedom of speech,
and as such protected against abridgment by the Fourteenth
These principles were applied by the Court in A. F. of L. v.
Swing, 312 U. S. 321
hold unconstitutional an injunction against peaceful picketing,
based on a State's common law policy against picketing when there
was no immediate dispute between employer and employee. On the same
day, however, the Court upheld a generalized injunction against
picketing where there had been violence because
"it could justifiably be concluded that the momentum of fear
generated by past violence would survive even though future
picketing might be wholly peaceful."
Milk Wagon Drivers Union v. Meadowmoor Dairies,
312 U. S. 287
312 U. S.
Soon, however, the Court came to realize that the broad
pronouncements, but not the specific holding, of Thornhill
had to yield "to the impact of facts unforeseen," or at least not
sufficiently appreciated. Cf. People v. Charles Schweinler
214 N.Y. 395, 108 N.E. 639; 28 Harv.L.Rev. 790. Cases
reached the Court in which a State had designed a remedy to meet a
specific situation or to accomplish a particular social policy.
These cases made manifest that picketing, even though "peaceful,"
involved more than just communication of ideas, and could not be
immune from all state regulation.
"Picketing by an organized group is more than free speech, since
it involves patrol of a particular locality and since the very
presence of a picket line may induce action of one kind or another,
quite irrespective of the nature of the ideas which are being
Bakery and Pastry Drivers Local v. Wohl, 315 U.
, 315 U. S. 776
(concurring opinion); see Carpenters Union v. Ritter's
Cafe, 315 U. S. 722
315 U. S.
These latter two cases required the Court to review a choice
made by two States between the competing interests of unions,
employers, their employees, and the
Page 354 U. S. 290
public at large. In the Ritter's Cafe
case, Texas had
enjoined as a violation of its antitrust law picketing of a
restaurant by unions to bring pressure on its owner with respect to
the use of nonunion labor by a contractor of the restaurant owner
in the construction of a building having nothing to do with the
restaurant. The Court held that Texas could, consistent with the
Fourteenth Amendment, insulate from the dispute a neutral
establishment that industrially had no connection with it. This
type of picketing certainly involved little, if any,
In Bakery and Pastry Drivers Local v. Wohl,
315 U. S. 769
a very narrowly restricted decision, the Court held that, because
of the impossibility of otherwise publicizing a legitimate
grievance and because of the slight effect on "strangers" to the
dispute, a State could not constitutionally prohibit a union from
picketing bakeries in its efforts to have independent peddlers,
buying from bakers and selling to small stores, conform to certain
union requests. Although the Court in Ritter's Cafe
did not question the holding of Thornhill,
the strong reliance on the particular facts in each case
demonstrated a growing awareness that these cases involved not so
much questions of free speech as review of the balance struck by a
State between picketing that involved more than "publicity" and
competing interests of state policy. (See also Cafeteria
Employees Union v. Angelos, 320 U. S. 293
where the Court reviewed a New York injunction against picketing by
a union of a restaurant that was run by the owners without
employees. The New York court appeared to have justified an
injunction on the alternate grounds that there was no "labor
dispute" under the New York statute, or that use of untruthful
placards justified the injunction. We held, in a brief opinion,
that the abuses alleged
Page 354 U. S. 291
did not justify an injunction against all picketing, and that
A. F. of L. v. Swing
governed the alternate ground for
The implied reassessments of the broad language of the
case were finally generalized in a series of
cases sustaining injunctions against peaceful picketing, even when
arising in the course of a labor controversy, when such picketing
was counter to valid state policy in a domain open to state
regulation. The decisive reconsideration came in Giboney v.
Empire Storage & Ice Co., 336 U.
. A union, seeking to organize peddlers, picketed
a wholesale dealer to induce it to refrain from selling to nonunion
peddlers. The state courts, finding that such an agreement would
constitute a conspiracy in restraint of trade in violation of the
state antitrust laws, enjoined the picketing. This Court affirmed
"It is contended that the injunction against picketing adjacent
to Empire's place of business is an unconstitutional abridgment of
free speech because the picketers were attempting peacefully to
publicize truthful facts about a labor dispute. . . . But the
record here does not permit this publicizing to be treated in
isolation. For, according to the pleadings, the evidence, the
findings, and the argument of the appellants, the sole immediate
object of the publicizing adjacent to the premises of Empire, as
well as the other activities of the appellants and their allies,
was to compel Empire to agree to stop selling ice to nonunion
peddlers. Thus, all of appellants' activities . . . constituted a
single and integrated course of conduct, which was in violation of
Missouri's valid law. In this situation, the injunction did no more
than enjoin an offense against Missouri law, a felony."
at 336 U. S.
Page 354 U. S. 292
The Court therefore concluded that it was
"clear that appellants were doing more than exercising a right
of free speech or press. . . . They were exercising their economic
power, together with that of their allies, to compel Empire to
abide by union, rather than by state, regulation of trade."
at 336 U. S.
The following Term, the Court decided a group of cases applying
and elaborating on the theory of Giboney.
In Hughes v.
Superior Court, 339 U. S. 460
Court held that the Fourteenth Amendment did not bar use of the
injunction to prohibit picketing of a place of business solely to
secure compliance with a demand that its employees be hired in
percentage to the racial origin of its customers.
"We cannot construe the Due Process Clause as prohibiting
California from securing respect for its policy against involuntary
employment on racial lines by prohibiting systematic picketing that
would subvert such policy."
at 339 U. S. 466
The Court also found it immaterial that the state policy had been
expressed by the judiciary, rather than by the legislature.
On the same day, the Court decided Teamsters Union v.
Hanke, 339 U. S. 470
holding that a State was not restrained by the Fourteenth Amendment
from enjoining picketing of a business, conducted by the owner
himself without employees, in order to secure compliance with a
demand to become a union shop. Although there was no one opinion
for the Court, its decision was another instance of the affirmance
of an injunction against picketing because directed against a valid
public policy of the State.
A Third case, Building Service Employees v. Gazzam,
339 U. S. 532
decided the same day. Following an unsuccessful attempt at
unionization of a small hotel and refusal by the owner to sign a
contract with the union as bargaining agent, the union began to
picket the hotel with signs stating that the owner was unfair to
Page 354 U. S. 293
labor. The State, finding that the object of the picketing was
in violation of its statutory policy against employer coercion of
employees' choice of bargaining representative, enjoined picketing
for such purpose. This Court affirmed, rejecting the argument
is controlling. . . .
In that case, this Court struck down the State's restraint of
picketing based solely on the absence of an employer-employee
relationship. An adequate basis for the instant decree is the
unlawful objective of the picketing, namely, coercion by the
employer of the employees' selection of a bargaining
representative. Peaceful picketing for any lawful purpose is not
prohibited by the decree under review."
at 339 U. S.
A similar problem was involved in Plumbers Union v.
Graham, 345 U. S. 192
where a state court had enjoined, as a violation of its "Right to
Work" law, picketing that advertised that nonunion men were being
employed on a building job. This Court found that there was
evidence in the record supporting a conclusion that a substantial
purpose of the picketing was to put pressure on the general
contractor to eliminate nonunion men from the job and, on the
reasoning of the cases that we have just discussed, held that the
injunction was not in conflict with the Fourteenth Amendment.
This series of cases, then, established a broad field in which a
State, in enforcing some public policy, whether of its criminal or
its civil law, and whether announced by its legislature or its
courts, could constitutionally enjoin peaceful picketing aimed at
preventing effectuation of that policy.
In the light of this background, the Maine Supreme Judicial
Court in 1955 decided, on an agreed statement of facts, the case of
Pappas v. Stacey,
151 Me. 36, 42, 116 A.2d
, 500. From the statement, it appeared that three union
employees went on strike and picketed a restaurant peacefully
"for the sole purpose of seeking to organize other
Page 354 U. S. 294
employees of the Plaintiff, ultimately to have the Plaintiff
enter into collective bargaining and negotiations with the Union. .
Maine had a statute providing that workers should have full
liberty of self-organization, free from restraint by employers or
other persons. The Maine Supreme Judicial Court drew the inference
from the agreed statement of facts that
"there is a steady and exacting pressure upon the employer to
interfere with the free choice of the employees in the matter of
organization. To say that the picketing is not designed to bring
about such action is to forget an obvious purpose of the picketing
-- to cause economic loss to the business during noncompliance by
the employees with the request of the union."
It therefore enjoined the picketing, and an appeal was taken to
The whole series of cases discussed above allowing, as they did,
wide discretion to a State in the formulation of domestic policy,
and not involving a curtailment of free speech in its obvious and
accepted scope, led this Court, without the need of further
argument, to grant appellee's motion to dismiss the appeal in that
it no longer presented a substantial federal question. 350 U.S.
case is this case. As in Stacey,
the present case was tried without oral testimony. As in
the highest state court drew the inference from
the facts that the picketing was to coerce the employer to put
pressure on his employers to join the union, in violation of the
declared policy of the State. (For a declaration of similar
congressional policy, see
§ 8 of the National Labor
Relations Act, 61 Stat. 140, 29 U.S.C. § 158.) The cases discussed
above all hold that, consistent with the Fourteenth Amendment, a
State may enjoin such conduct.
Of course, the mere fact that there is "picketing" does not
automatically justify its restraint without an investigation into
its conduct and purposes. State courts, no
Page 354 U. S. 295
more than state legislatures, can enact blanket prohibitions
against picketing. Thornhill v. Alabama
and A. F. of
L. v. Swing, supra.
The series of cases following
demonstrate that the policy
of Wisconsin enforced by the prohibition of this picketing is a
valid one. In this case, the circumstances set forth in the opinion
of the Wisconsin Supreme Court afford a rational basis for the
inference it drew concerning the purpose of the picketing. No
question was raised here concerning the breadth of the injunction,
but, of course, its terms must be read in the light of the opinion
of the Wisconsin Supreme Court, which justified it on the ground
that the picketing was for the purpose of coercing the employer to
coerce his employees.
"If astuteness may discover argumentative excess in the scope of
the [injunction] beyond what we constitutionally justify by this
opinion, it will be open to petitioners to raise the matter, which
they have not raised here, when the [case] on remand [reaches] the
Teamsters Union v. Hanke,
339 U.S. at 339 U. S.
Therefore, having deemed it appropriate to elaborate on the
issues in the case, we affirm.
MR. JUSTICE WHITTAKER took no part in the consideration or
decision of this case.
MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE and MR. JUSTICE
BLACK concur, dissenting.
The Court has now come full circle. In Thornhill v.
Alabama, 310 U. S. 88
310 U. S. 102
we struck down a state ban on picketing on the ground that
"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."
Less than one year later, we held that the First Amendment
Page 354 U. S. 296
picketing on a factual record which cannot be distinguished from
the one now before us. A. F. of L. v. Swing, 312 U.
. Of course, we have always recognized that
picketing has aspects which make it more than speech. Bakery
and Pastry Drivers Local v. Wohl, 315 U.
, 315 U. S.
-777 (concurring opinion). That difference underlines
our decision in Giboney v. Empire Storage & Ice Co.,
336 U. S. 490
There, picketing was an essential part of "a single and integrated
course of conduct, which was in violation of Missouri's valid law."
at 336 U. S. 498
And see Labor Board v. Virginia Elec. & Power Co.,
314 U. S. 469
314 U. S.
-478. We emphasized that
"there was clear danger, imminent and immediate, that unless
restrained, appellants would succeed in making [the state] policy a
dead letter. . . ."
336 U.S. at 336 U. S. 503
Speech there was enjoined because it was an inseparable part of
conduct which the State constitutionally could and did
But where, as here, there is no rioting, no mass picketing, no
violence, no disorder, no fisticuffs, no coercion -- indeed nothing
but speech -- the principles announced in Thornhill
should give the advocacy of one side of a dispute
First Amendment protection.
The retreat began when, in Teamsters Union v. Hanke,
339 U. S. 470
four members of the Court announced that all picketing could be
prohibited if a state court decided that that picketing violated
the State's public policy. The retreat became a rout in
Plumbers Union v. Graham, 345 U.
. It was only the "purpose" of the picketing which
was relevant. The state court's characterization of the picketers'
"purpose" had been made well nigh conclusive. Considerations of the
proximity of picketing to conduct which the State could control or
prevent were abandoned, and no longer was it necessary for the
state court's decree to be narrowly drawn to prescribe a specific
at 345 U. S.
-205 (dissenting opinion).
Page 354 U. S. 297
Today, the Court signs the formal surrender. State courts and
state legislatures cannot fashion blanket prohibitions on all
picketing. But, for practical purposes, the situation now is as it
was when Senn v. Tile Layers Union, 301 U.
, was decided. State courts and state legislatures
are free to decide whether to permit or suppress any particular
picket line for any reason other than a blanket policy against all
picketing. I would adhere to the principle announced in
I would adhere to the result reached in
I would return to the test enunciated in
-- that this form of expression can be regulated
or prohibited only to the extent that it forms an essential part of
a course of conduct which the State can regulate or prohibit. I
would reverse the judgment below.