1. Interstate communication of a business nature, whatever the
means employed, is interstate commerce subject to regulation by
Congress. P.
301 U. S.
128.
2. The Associated Press, a nonprofitmaking corporation whose
members are the owners of newspapers published for profit
throughout the country, is engaged as their agency in exchanging
news between those publications, using the telegraph and telephone
and other means of communication, and in supplying them in like
manner with domestic and foreign news collected by itself.
Held engaged in interstate commerce within the meaning of
the National Labor Relations Act and Constitution, Art. I, § 8. P.
301 U. S.
125.
3. This conclusion is unaffected by the facts that the
Associated Press does not itself sell news or operate for profit,
and that technically it retains title to the news during interstate
transmission. P.
301 U. S.
128.
Page 301 U. S. 104
4. Provisions of the National Labor Relations Act empowering the
National Labor Relations Board, in protection of intestate
commerce, to require that employees discharged for union activities
and advocacy of collective bargaining be restored to employment and
their losses of pay made good
held valid as applied to the
Associated Press in the case of an employee whose duties were
editorial, having to do with the preparation of news for
transmission, rather than its actual transmission in interstate
commerce.
Virginian Ry. Co. v. System Federation No. 40,
300 U. S. 515;
Texas & N.O. R. Co. v. Railway Clerks, 281 U.
S. 548. P.
301 U. S.
129.
5. The National Labor Relations Act, as so applied in this case,
does not unconstitutionally abridge the freedom of the press. P.
301 U. S.
130.
The Act does not compel the Associated Press to employ anyone,
or to retain an incompetent editor, or one who fails faithfully to
edit the news without bias. It does not interfere with the right to
discharge any employee (including one who has been so reinstated by
order of the Labor Board) for any cause deemed proper by the
employer, save only the forbidden reasons of union activities and
advocacy of collective bargaining.
6. The contentions that the National Labor Relations Act
deprives petitioner of property without due process; that the order
of the Board requiring restoration of lost pay deprives petitioner
of the right to trial by jury, and that the Act is invalid on its
face because it seeks to regulate both interstate and intrastate
commerce are rejected upon the authority of
Texas & N.O. R.
Co. v. Railway Clerks, 281 U. S. 548, and
Labor Board v. Jones & Laughlin Steel Cop., ante, p.
301 U. S. 1. P.
301 U. S.
133.
85 F.2d 56 affirmed.
Certiorari, 299 U.S. 532, to review a decree sustaining an order
of the National Labor Relations Board. The case came before the
court below on the Board's petition for enforcement of its
order.
Page 301 U. S. 122
MR. JUSTICE ROBERTS delivered the opinion of the Court.
In this case, we are to decide whether the National Labor
Relations Act, [
Footnote 1] as
applied to the petitioner by an order of the National Labor
Relations Board, exceeds the power of Congress to regulate commerce
pursuant to article I, § 8, abridges the freedom of the press
guaranteed by the First Amendment, and denies trial by jury in
violation of the Seventh Amendment of the Constitution.
Page 301 U. S. 123
In October, 1935, the petitioner discharged Morris Watson, an
employee in its New York office. The American Newspaper Guild, a
labor organization, filed a charge with the Board alleging that
Watson's discharge was in violation of § 7 of the National Labor
Relations Act, which confers on employees the right to organize, to
form, join, or assist labor organizations to bargain collectively
through representatives of their own choosing and to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection; that the petitioner had engaged in
unfair labor practices contrary to subsections (1) and (3) of § 8
by interfering with, restraining, or coercing Watson in the
exercise of the rights guaranteed him by § 7, and by discriminating
against him in respect of his tenure of employment and discouraging
his membership in a labor organization. The Board served a
complaint upon the petitioner charging unfair labor practices
affecting commerce within the meaning of the statute. The
petitioner answered, admitting Watson's discharge but denying that
it was due to his joining or assisting the Guild or engaging in
union activities, and denying, on constitutional grounds, the
validity of the act and the jurisdiction of the Board.
At a hearing before a trial examiner, the petitioner appeared
specially and moved to dismiss the complaint on constitutional
grounds. The motion was overruled on all grounds except upon the
question whether the proceeding was within the federal commerce
power. Counsel thereupon withdrew from the hearing, and the matter
was further heard without the participation of the petitioner or
its counsel. After receiving voluminous evidence as to the
character of the petitioner's business, the examiner overruled the
contention that interstate commerce was not involved, and proceeded
to hear the merits. At the close of the hearing, he recommended
that an order be entered against the petitioner. Notice of the
filing of this report
Page 301 U. S. 124
and of hearing thereon by the Board was given the petitioner,
but it failed to appear. Based upon the examiner's report, the
Board made findings of fact, stated its conclusions of law, and
entered an order that the Associated Press cease and desist from
discouraging membership in the American Newspaper Guild or any
other labor organization of its employees by discharging,
threatening to discharge, or refusing to reinstate any of them for
joining the Guild or any other labor organization of its employees,
and from discriminating against any employee in respect of hire of
tenure of employment or any term or condition of employment for
joining the Guild or any other such organization, and from
interfering with, restraining, or coercing its employees in the
exercise of the rights guaranteed in § 7 of the Act. It further
enjoined the Associated Press to offer Watson reinstatement to his
former position without prejudice to any rights and privileges
previously enjoyed by him; to make him whole for any loss of pay
suffered by reason of his discharge; to post notices in its New
York office stating it would cease and desist from the enjoined
practices, and to keep such notices posted for thirty days.
[
Footnote 2]
The petitioner refused to comply with the order, and the Board,
pursuant to § 10(e) of the Act, petitioned the Circuit Court of
Appeals for enforcement. The petitioner answered again setting up
its contentions with respect to the constitutionality of the Act as
applied to it. After argument, the court made a decree enforcing
the order. [
Footnote 3]
In its answer to the Board's petition for enforcement, the
petitioner did not challenge the Board's findings of fact, and no
error is assigned in this Court to the action of the Circuit Court
of Appeals in adopting them. We therefore accept as established
that the Associated Press
Page 301 U. S. 125
did not, as claimed in its answer before the Board, discharge
Watson because of unsatisfactory service, but, on the contrary, as
found by the Board, discharged him for his activities in connection
with the Newspaper Guild. It follows that § 8, subsections (1) and
(3), authorize the order and the only issues open here are those
involving the power of Congress under the Constitution to empower
the Board to make it in the circumstances.
First. Does the statute, as applied to the petitioner,
exceed the power of Congress to regulate interstate commerce? The
solution of this issue depends upon the nature of the petitioner's
activities and Watson's relation to them. The findings of the Board
in this aspect are unchallenged, and the question becomes,
therefore, solely one of law, to be answered in the light of the
uncontradicted facts.
The Associated Press is a membership corporation under the laws
of New York which does not operate for profit, but is a cooperative
organization whose members are representatives of newspapers. It
has about 1,350 members in the United States, and practically all
the newspapers represented in its membership are conducted for
profit. Its business is the collection of news from members and
from other sources throughout the United States and foreign
countries, and the compilation, formulation, and distribution
thereof to its members. In the process, the news is prepared for
members' use by editing, rewriting, selecting, or discarding the
information received in whole or in part. The product is
transmitted to member newspapers and also to foreign agencies
pursuant to mutual exchange agreements. The service is not sold,
but the entire cost is apportioned amongst the members by
assessment.
Petitioner maintains its principal office in New York City, but
has also division points scattered over the United
Page 301 U. S. 126
States, each of which is charged with the duty of collecting
information from a defined territory and preparing and distributing
it to newspapers within the assigned area and to other division
points for use within their respective areas. Each member newspaper
forwards news deemed important to the divisional headquarters of
its area. In addition, employees of the petitioner obtain news
which is transmitted to the appropriate division headquarters to be
edited and forwarded to members within the area represented by that
headquarters and to other divisions for distribution to member
newspapers within their respective areas. The means of
communication commonly used in receiving and transmitting news
consists of wires leased from telegraph and telephone companies,
but messenger service, the wireless, and the mail are also
employed. Each division point is connected with every other by
telegraph wires for exchange of news. Regional circuits supplement
these primary circuits. All these lines of communication are
utilized throughout the twenty-four hours of every day.
Consideration of the relation of Watson's activities to
interstate commerce may be confined to the operations of the New
York office, where he was employed. This office is the headquarters
of the Eastern Division, and through it operates the petitioner's
foreign service, with offices, staffs, and correspondents
throughout the world. News received in New York from foreign parts,
from newspaper members within the Eastern Division, and from other
division points is edited by employees acting under the direction
of supervising editors and, in its edited form, is transmitted
throughout the division and to the headquarters of other divisions.
The distributees of any given item are selected by those employed
for the purpose in accordance with their judgment as to the
usefulness of that item to the members or the divisions to
which
Page 301 U. S. 127
it is transmitted. Thus, the New York office receives and
dispatches news from and to all parts of the world, in addition to
that from New York State and other Northeastern and Middle Atlantic
states which comprise the Eastern Division. The work of the office
is divided into two departments, known as the Traffic Department
and the News Department. All those employed in the Actual receipt
and transmission of news are in the Traffic Department; all others,
including editorial employees, are grouped in the News Department.
Watson, at the time of his discharge, was in the latter class,
whose duty is to receive, rewrite, and file for transmission news
coming into the office. An executive news editor, assisted by
supervising editors and editorial employees, has general charge of
the revision of news received from so-called filing editors, who
are in immediate charge of the telegraph wires connecting with the
sources and destination of news. These filing editors supervise the
news as it goes out from New York City; they determine what news,
from the total copy delivered to them, is to be sent over the wires
of which they have charge to the area reached by those wires, and
they have charge of rewriting such copy as it comes from the other
editors as may be appropriate for use in their respective circuits,
and the delivery of the selected and rewritten news to teletype
operators for transmission over their wires. The function of
editors and editorial employees such as Watson is to determine the
news value of items received, and speedily and accurately to
rewrite the copy delivered to them so that the rewritten matter
shall be delivered to the various filing editors who are
responsible for its transmission, if appropriate, to the areas
reached by their circuits.
Upon the basis of these facts, the Board concluded that the
Associated Press was engaged in interstate commerce; that Watson's
services bore a direct relation to petitioner's
Page 301 U. S. 128
interstate commerce activities, and that labor disputes between
petitioner and employees of his class and labor disturbances or
strikes affecting that class of employees tend to hinder and impede
interstate commerce. These conclusions are challenged by the
petitioner.
Section 2(6) of the Act defines the term "commerce" as meaning
"trade, traffic, commerce, transportation, or communication among
the several States, . . . or between any foreign country and any
State. . . ." Subsection (7) provides: "The term
affecting
commerce' means in commerce, or burdening or obstructing commerce
or the free flow of commerce."
The Associated Press is engaged in interstate commerce within
the definition of the statute and the meaning of Article I, § 8, of
the Constitution. It is an instrumentality set up by constituent
members who are engaged in a commercial business for profit, and,
as such instrumentality, acts as an exchange or clearing house of
news as between the respective members, and as a supplier to
members of news gathered through its own domestic and foreign
activities. These operations involve the constant use of channels
of interstate and foreign communication. They amount to commercial
intercourse, and such intercourse is commerce within the meaning of
the Constitution. [
Footnote 4]
Interstate communication of a business nature, whatever the means
of such communication, is interstate commerce regulable by Congress
under the Constitution. [
Footnote
5] This conclusion is unaffected by the fact that the
petitioner
Page 301 U. S. 129
does not sell news and does not operate for profit, [
Footnote 6] or that technically the
title to the news remains in the petitioner during interstate
transmission. [
Footnote 7]
Petitioner being so engaged in interstate commerce, the Congress
may adopt appropriate regulations of its activities for the
protection and advancement and for the insurance of the safety of
such commerce.
The National Labor Relations Act seeks to protect the employees'
right of collective bargaining and prohibits acts of the employer
discriminating against employees for union activities and advocacy
of such bargaining by denominating them unfair practices to be
abated in accordance with the terms of the Act. As is shown in the
opinion in
Virginia Ry. Co. v. System Federation No. 40,
300 U. S. 515, the
experience under the Railway Labor Act has demonstrated the
efficacy of such legislation in preventing industrial strikes and
obviating interference with the flow of interstate commerce. The
petitioner, however, insists that editorial employees such as
Watson are remote from any interstate activity, and their
employment and tenure can have no direct or intimate relation with
the course of interstate commerce. We think, however, it is obvious
that strikes or labor disturbances amongst this class of employees
would have as direct an effect upon the Activities of the
petitioner as similar disturbances amongst those who operate the
teletype machines or as a strike amongst the employees of telegraph
lines over which petitioner's messages travel.
In
Texas & N.O. R. Co. v. Brotherhood of Railway &
Steamship Clerks, 281 U. S. 548,
281 U. S. 570,
we held a statute
Page 301 U. S. 130
protecting the rights of collective bargaining by railway
employees was within the competence of Congress under the commerce
clause, and that its provisions extended to clerks who had no
direct contact with the actual facilities of railway
transportation. We there said:
"Exercising this authority, Congress may facilitate the amicable
settlements of disputes which threaten the service of the necessary
agencies of interstate transportation. In shaping its legislation
to this end, Congress was entitled to take cognizance of actual
conditions and to address itself to practicable measures. The
legality of collective action on the part of employees in order to
safeguard their proper interests is not to be disputed. It has long
been recognized that employees are entitled to organize for the
purpose of securing the redress of grievances and to promote
agreements with employers relating to rates of pay and conditions
of work.
American Steel Foundries v. Tri-City Central Trades
Council, 257 U. S. 184,
257 U. S.
209. Congress was not required to ignore this right of
the employees, but could safeguard it and seek to make their
appropriate collective action an instrument of peace, rather than
of strife."
In
Virginian Railway Co. v. System Federation No. 40,
300 U. S. 515, we
have held an amendment of the Railway Labor Act, in all material
respects analogous to the statute here under consideration,
applicable to so-called backshop employees of railroads despite the
contention that their employment is remote from interstate
transportation.
These decisions foreclose the petitioner's contention that
Watson's employment had no relation to interstate commerce and
could not be subjected to the regulatory provisions of the National
Labor Relations Act.
Second. Does the statute, as applied to the petitioner,
abridge the freedom of speech or of the press safeguarded by the
First Amendment? We hold that it does not. It
Page 301 U. S. 131
is insisted that the Associated Press is, in substance, the
press itself, that the membership consists solely of persons who
own and operate newspapers, that the news is gathered solely for
publication in the newspapers of members. Stress is laid upon the
facts that this membership consists of persons of every conceivable
political, economic, and religious view, that the one thing upon
which the members are united is that the Associated Press shall be
wholly free from partisan activity or the expression of opinions,
that it shall limit its function to reporting events without bias
in order that the citizens of our country, if given the facts, may
be able to form their own opinions respecting them. The conclusion
which the petitioner draws is that, whatever may be the case with
respect to employees in its mechanical departments, it must have
absolute and unrestricted freedom to employ and to discharge those
who, like Watson, edit the news, that there must not be the
slightest opportunity for any bias or prejudice personally
entertained by an editorial employee to color or to distort what he
writes, and that the Associated Press cannot be free to furnish
unbiased and impartial news reports unless it is equally free to
determine for itself the partiality or bias of editorial employees.
So it is said that any regulation protective of union activities,
or the right collectively to bargain on the part of such employees,
is necessarily an invalid invasion of the freedom of the press.
We think the contention not only has no relevance to the
circumstances of the instant case, but is an unsound
generalization. The ostensible reason for Watson's discharge, as
embodied in the records of the petitioner, is "solely on the
grounds of his work's not being on a basis for which he has shown
capability." The petitioner did not assert, and does not now claim,
that he had shown bias in the past. It does not claim that, by
reason
Page 301 U. S. 132
of his connection with the union, he will be likely, as the
petitioner honestly believes, to show bias in the future. The
actual reason for his discharge, as shown by the unattacked finding
of the Board, was his Guild activity and his agitation for
collective bargaining. The statute does not preclude a discharge on
the ostensible grounds for the petitioner's action; it forbids
discharge for what has been found to be the real motive of the
petitioner. These considerations answer the suggestion that, if the
petitioner believed its policy of impartiality was likely to be
subverted by Watson's continued service, Congress was without power
to interdict his discharge. No such question is here for decision.
Neither before the Board nor in the court below nor here has the
petitioner professed such belief. It seeks to bar all regulation by
contending that regulation in a situation not presented would be
invalid. Courts deal with cases upon the basis of the facts
disclosed, never with nonexistent and assumed circumstances.
The act does not compel the petitioner to employ any one; it
does not require that the petitioner retain in its employ an
incompetent editor or one who fails faithfully to edit the news to
reflect the facts without bias or prejudice. The act permits a
discharge for any reason other than union activity or agitation for
collective bargaining with employees. The restoration of Watson to
his former position in no sense guarantees his continuance in
petitioner's employ. The petitioner is at liberty, whenever
occasion may arise, to exercise its undoubted right to sever his
relationship for any cause that seems to it proper save only as a
punishment for, or discouragement of, such activities as the Act
declares permissible.
The business of the Associated Press is not immune from
regulation because it is an agency of the press. The publisher of a
newspaper has no special immunity from the application of general
laws. He has no special privilege
Page 301 U. S. 133
to invade the rights and liberties of others. He must answer for
libel. [
Footnote 8] He may be
punished for contempt of court. [
Footnote 9] He is subject to the antitrust laws. [
Footnote 10] Like others, he must
pay equitable and nondiscriminatory taxes on his business.
[
Footnote 11] The regulation
here in question has no relation whatever to the impartial
distribution of news. The order of the Board in nowise
circumscribes the full freedom and liberty of the petitioner to
publish the news as it desires it published or to enforce policies
of its own choosing with respect to the editing and rewriting of
news for publication, and the petitioner is free at any time to
discharge Watson or any editorial employee who fails to comply with
the policies it may adopt.
Third. The contentions that the Act deprives the
petitioner of property without due process, that the order of the
Board deprives petitioner of the right to trial by jury, and that
the Act is invalid on its face because it seeks to regulate both
interstate and intrastate commerce are sufficiently answered in the
opinion in
Texas & N.O. R. Co. v. Brotherhood of Railway
& Steamship Clerks, supra, and in
Labor Board v. Jones
& Laughlin Steel Corp., ante, p.
301 U. S. 1, and
need no further discussion here.
The judgment of the Circuit Court of Appeals is
Affirmed.
[
Footnote 1]
July 5, 1935, c. 372, 49 Stat. 449, U.S.C.Supp. I, Tit. 29, §
151
et seq.. The terms of the act, the procedure
thereunder, and the relief which may be granted pursuant thereto
are set forth in the opinion in
Labor Board v. Jones &
Laughlin Steel Corp., ante, p.
301 U. S. 1.
[
Footnote 2]
1 N.L.R.B. 788.
[
Footnote 3]
85 F.2d 56.
[
Footnote 4]
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S. 189.
[
Footnote 5]
Pensacola Telegraph Co. v. Western Union Telegraph Co.,
96 U. S. 1,
96 U. S. 9-10;
Federal Radio Comm'n v. Nelson Bros. Co., 289 U.
S. 266,
289 U. S. 279;
International Textbook Co. v. Pigg, 217 U. S.
91,
217 U. S. 107;
Indiana Farmer's Guide Publishing Co. v. Prairie Farmer
Publishing Co., 293 U. S. 268,
293 U. S.
276.
[
Footnote 6]
United States v. Hill, 248 U.
S. 420;
United States v. Simpson, 252 U.
S. 465.
[
Footnote 7]
Pipe Line Cases, 234 U. S. 548,
234 U. S.
560.
[
Footnote 8]
Robertson v. Baldwin, 165 U. S. 275,
165 U. S.
281.
[
Footnote 9]
Toledo Newspaper Co. v. United States, 247 U.
S. 402.
[
Footnote 10]
Indiana Farmer's Guide Publishing Co. v. Prairie Farmer
Publishing Co., supra.
[
Footnote 11]
Grosjean v. American Press Co., 297 U.
S. 233,
297 U. S.
250.
MR. JUSTICE SUTHERLAND, dissenting*
MR. JUSTICE VAN DEVANTER, MR. JUSTICE McREYNOLDS, MR. JUSTICE
BUTLER, and I think the judgment below should be reversed.
One of the points made in the court below, and assigned as error
here, is that the statute involved, as applied,
Page 301 U. S. 134
abridges the freedom of the press in violation of the First
Amendment.
The Associated Press is engaged in collecting, editing, and
distributing news to its members, publishers of some 1,300
newspapers throughout the United States. These newspapers represent
many diverse policies and many differences in point of view. It
obviously is essential that the news furnished should not only be
without suppression, but that it should be, as far as possible,
free from color, bias, or distortion. Such is the long established
policy of the Associated Press. If the Congressional act here
involved, upon its face or in its present application, abridges the
freedom of petitioner to carry its policy into effect, the Act, to
that extent, falls under the condemnation of the First Amendment.
We shall confine ourselves to that question, the gravity of which
is evident; but we do not mean thereby to record our assent to all
that has been said with regard to other questions in the case.
The first ten amendments to the Constitution safeguard the
fundamental rights therein mentioned from every form of unpermitted
federal legislation. The due process clause of the Fifth Amendment
protects the person against deprivation of life, liberty, or
property except by due process of law. "Liberty" is a word of wide
meaning, and, without more, would have included the various
liberties guaranteed by the First Amendment.
De Jonge v.
Oregon, 299 U. S. 353, and
cases cited;
Grosjean v. American Press Co., 297 U.
S. 233,
297 U. S.
243-245;
Near v. Minnesota, 283 U.
S. 697,
283 U. S. 707;
Pierce v. Society of Sisters, 268 U.
S. 510,
268 U. S.
534-535.
But the framers of the Bill of Rights, regarding certain
liberties as so vital that legislative denial of them should be
specifically foreclosed, provided by the First Amendment:
Page 301 U. S. 135
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress
of grievances."
The difference between the two amendments is an emphatic one,
and readily apparent. Deprivation of a liberty not embraced by the
First Amendment -- as, for example, the liberty of contract -- is
qualified by the phrase "without due process of law;" but those
liberties enumerated in the First Amendment are guaranteed without
qualification, the object and effect of which is to put them in a
category apart and make them incapable of abridgment by any process
of law. That this is inflexibly true of the clause in respect of
religion and religious liberty cannot be doubted, and it is true of
the other clauses save as they may be subject in some degree to
rare and extreme exigencies such as, for example, a state of war.
Legislation which contravenes the liberties of the First Amendment
might not contravene liberties of another kind falling only within
the terms of the Fifth Amendment. Thus, we have held that the
governmental power of taxation, one of the least limitable of the
powers, may not be exerted so as to abridge the freedom of the
press (
Grosjean v. American Press Co., supra), albeit the
same tax might be entirely valid if challenged under the "liberty"
guaranty of the Fifth Amendment, apart from those liberties
embraced by the First.
Compare Louisville & Nashville R.
Co. v. Mottley, 219 U. S. 467,
219 U. S.
482-483.
No one can read the long history which records the stern and
often bloody struggles by which these cardinal rights were secured
without realizing how necessary it is to preserve them against any
infringement, however slight. For, as Mr. Justice Bradley said in
Boyd v. United States, 116 U. S. 616,
116 U. S.
635,
"illegitimate and unconstitutional practices get their first
footing in that way, namely,
Page 301 U. S. 136
by silent approaches and slight deviations from legal modes of
procedure. . . . It is the duty of courts to be watchful for the
constitutional rights of the citizen, and against any stealthy
encroachments thereon. Their motto should be
obsta
principiis."
"Experience should teach us," it was said in another case,
"to be most on our guard to protect liberty when the
government's purposes are beneficent. Men born to freedom are
naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious
encroachment by men of zeal, well meaning but without
understanding."
Olmstead v. United States (dissent), 277 U.S.
277 U. S. 471,
277 U. S. 479.
A little water, trickling here and there through a dam, is a small
matter in itself, but it may be a sinister menace to the security
of the dam, which those living in the valley below will do well to
heed.
The destruction or abridgment of a free press, which constitutes
one of the most dependable avenues through which information of
public and governmental activities may be transmitted to the
people, would be an event so evil in its consequences that the
least approach toward that end should be halted at the
threshold.
The grants of the Constitution always are to be read in the
light of the restrictions. Thus, the exercise of the power to make
laws on the subject of bankruptcies, the exercise of the war
powers, of the power to tax, of the power to exclude aliens, or of
the power to regulate commerce is each subject to the qualified
restrictions of the Fifth Amendment (
Louisville Joint Stock
Land Bank v. Radford, 295 U. S. 555,
295 U. S.
589), as each also is subject, so far as appropriate, to
the unqualified restrictions of the First. Congress has no power to
regulate the relations of private employer and employee as an end
in itself, but only if that be an appropriate and legitimate means
to a constitutional end, which here is the regulation of interstate
commerce. Assuming that the statute upon its face satisfies this
test, does the
Page 301 U. S. 137
present application of it satisfy the requirement that the
freedom of the press shall not be abridged?
Freedom is not a mere intellectual abstraction, and it is not
merely a word to adorn an oration upon occasions of patriotic
rejoicing. It is an intensely practical reality, capable of
concrete enjoyment in a multitude of ways day by day. When applied
to the press, the term freedom is not to be narrowly confined, and
it obviously means more than publication and circulation. If
freedom of the press does not include the right to adopt and pursue
a policy without governmental restriction, it is a misnomer to call
it freedom. And we may as well deny at once the right of the press
freely to adopt a policy and pursue it as to concede that right and
deny the liberty to exercise an uncensored judgment in respect of
the employment and discharge of the agents through whom the policy
is to be effectuated.
In a matter of such concern, the judgment of Congress -- or,
still less, the judgment of an administrative censor -- cannot,
under the Constitution, be substituted for that of the press
management in respect of the employment or discharge of employees
engaged in editorial work. The good which might come to interstate
commerce or the benefit which might result to a special group,
however large, must give way to that higher good of all the people
so plainly contemplated by the imperative requirement that
"Congress shall make no law . . . abridging the freedom . . . of
the press."
The present case illustrates the necessity for the enforcement
of these principles. The board found, in effect, that the actual
reason for Watson's discharge was his activity as a member of a
labor organization in the furtherance of its aims. Accepting this
as a true statement of the reason for the discharge, let us
consider the question from the standpoint of that finding,
although, as already indicated, we are of opinion that the
constitutional immunity
Page 301 U. S. 138
of the press does not permit any legislative restriction of the
authority of a publisher, acting upon his own judgment, to
discharge any one engaged in the editorial service. Such a
restriction, of itself, would be an abridgment of the freedom of
the press no less than a law restricting the constitutional liberty
of one to speak would be an abridgment of the freedom of
speech.
For many years, there has been contention between labor and
capital. Labor has become highly organized in a wide effort to
secure and preserve its rights. The daily news with respect to
labor disputes is now of vast proportions, and clearly a
considerable part of petitioner's editorial service must be devoted
to that subject. Such news is not only of great public interest,
but an unbiased version of it is of the utmost public concern. To
give a group of employers, on the one hand, or a labor
organization, on the other, power of control over such a service is
obviously to endanger the fairness and accuracy of the service.
Strong sympathy for or strong prejudice against a given cause or
the efforts made to advance it has too often led to suppression or
coloration of unwelcome facts. It would seem to be an exercise of
only reasonable prudence for an association engaged in part in
supplying the public with fair and accurate factual information
with respect to the contests between labor and capital to see that
those whose activities include that service are free from either
extreme sympathy or extreme prejudice one way or the other. And it
would be no answer to say that dealing with news of this character
constitutes only a part of the duties of the editorial force. The
interest of a juror, for example, in the result which excludes him
from sitting in a case may be small, and the adverse effect upon
his verdict by no means certain. Nevertheless, the party affected
cannot be called upon to assume the hazard. In the present case, by
a parity of reasoning, the hope of benefit to a cherished cause
which may bias the editorial
Page 301 U. S. 139
employee is a contingency the risk of which the press, in the
exercise of its unchallengeable freedom under the Constitution, may
take or decline to take without being subject to any form of
legislative coercion.
What, then, are the facts here involved? Morris Watson was
employed by petitioner first in 1928 as a reporter and rewrite
editor in petitioner's Chicago office. In 1930, he was transferred
to the New York office, and there served as editorial employee
until his discharge on October 18, 1935. One of his duties was to
rewrite and supervise the news received at the New York office and
determine what portion of it should be sent to points outside. As
the court already has pointed out, he had authority to determine
the news value of items received, and was required to speedily and
accurately rewrite the copy delivered to him.
In November, 1933, Watson was instrumental in organizing the
Associated Press Unit of the New York Newspaper Guild, a labor
organization, constituting a part of the American Newspaper Guild,
and he was, from the beginning, recognized as the outstanding union
representative of the press associations. He served successively as
chairman of the Associated Press Unit and as treasurer and
secretary of the New York Guild, and at the time of his discharge
was vice-president for wiring services of the American Guild. His
guild activities were immediately objected to by petitioner, and
thereafter, on numerous occasions, these activities were objected
to by petitioner's executives and inducements were held out to him
to abandon them. The findings of the board disclose that Watson
continued in various ways to promote the interests of the guild,
and there is no doubt that his sympathies were strongly enlisted in
support of the guild's policies, whether they clashed with the
policies of petitioner or not. We do not question his right to
assume and maintain that attitude. But, if petitioner
concluded,
Page 301 U. S. 140
as it well could have done, that its policy to preserve its news
service free from color, bias, or distortion was likely to be
subverted by Watson's retention, what power has Congress to
interfere in the face of the First Amendment?
And that question may not be determined by considering Watson
only, for the power to compel his continuance in the service
includes the power to compel the continuance of all guild members
engaged in editorial work, with the result that the application of
the statute here made, if carried to the logical extreme, would
give opportunity for the guild to exercise a high degree of control
over the character of the news service. Due regard for the
constitutional guaranty requires that the publisher or agency of
the publisher of news shall be free from restraint in respect of
employment in the editorial force. And we are dealing here not with
guild members employed in the mechanical or purely clerical work of
the press, but with those engaged, as Watson was, in its editorial
work, and having the power thereby to affect the execution of its
policies.
An illustration may be helpful: the right to belong to a labor
union is entitled to the shield of the law, but no more so than the
right not to belong. Neither can be proscribed. So much must be
true, or we do not live in a free land. Let us suppose the passage
of a statute of like character with that under review, having the
same objective, but to be effected by forbidding the discharge of
employees on the ground not that they are, but that they are not,
members of a labor association. Let us suppose further that a labor
association is engaged in publishing an interstate-circulated
journal devoted to furthering the interests of labor, and that
members of its editorial staff, resigning their membership in the
association, transfer their allegiance from the cause of the
workingman to that of the employer. Can it be doubted that an order
requiring
Page 301 U. S. 141
the reinstatement of an editorial writer who had been discharged
under these circumstances would abridge the freedom of the press
guaranteed by the First Amendment?
And if that view of the amendment may be affirmed in the case of
a publication issued for the purpose of advancing a particular
cause, how can it be denied in the case of a press association
organized to gather and edit the news fairly and without bias or
distortion for the use of all causes? To hold that the press
association must await a concrete instance of misinterpretation of
the news before it can act is to compel it to experiment with a
doubt when it regards certainty as essential.
The conclusion that the First Amendment is here infringed does
not challenge the right of employees to organize, to bargain
collectively with their employers about wages and other matters
respecting employment, or to refuse to work except upon conditions
they are willing to accept. Nor, the First Amendment aside, does it
challenge the Act insofar as it is an allowable regulation of
interstate commerce. All affirmations in respect of these matters
may be fully conceded without prejudice to our very definite view
that the application of the Act here has resulted in an
unconstitutional abridgment of the freedom of the press.
Do the people of this land -- in the providence of God, favored,
as they sometimes boast, above all others in the plenitude of their
liberties -- desire to preserve those so carefully protected by the
First Amendment: liberty of religious worship, freedom of speech
and of the press, and the right as freemen peaceably to assemble
and petition their government for a redress of grievances? If so,
let them withstand all beginnings of encroachment. For the saddest
epitaph which can be carved in memory of a vanished liberty is that
it was lost because its possessors failed to stretch forth a saving
hand while yet there was time.