The supreme court of Illinois sustained an injunction against the Milk Wagon Drivers Union over the latter's claim that it involved an infringement of the freedom of speech guaranteed by the Fourteenth Amendment. Since this ruling raised a question intrinsically important, as well as affecting the scope of Thornhill v. Alabama, 310 U.S. 88, and Carlson v. California, 310 U.S. 106, we brought the case here. 310 U.S. 655.
The "vendor system" for distributing milk in Chicago gave rise to the dispute. Under that system, which was fully analyzed in Milk Wagon Drivers' Union v. Lake Valley Farm Products, 311 U.S. 91, milk is sold by the dairy companies to vendors operating their own trucks who resell to retailers. These vendors departed from the working standards theretofore achieved by the Union for its members as dairy employees. The Union, in order to compel observance of the established standards, took action against dairies using the vendor system. The present respondent, Meadowmoor Dairies, Inc., brought suit against the Union and its officials to stop interference with the distribution of its products. A preliminary injunction restraining all union conduct, violent and peaceful, promptly issued, and the case was referred to a master for report. Besides peaceful picketing of the stores handling Meadowmoor's products, the master found that there had been violence on a considerable scale. Witnesses testified to more than fifty instances of window-smashing; explosive bombs caused substantial injury to the plants of Meadowmoor and another dairy using the vendor system and to five stores; stench bombs were dropped in five stores; three trucks of vendors were wrecked, seriously injuring one driver, and another was driven into a river; a store was set on fire and in large
The question which thus emerges is whether a state can choose to authorize its courts to enjoin acts of picketing in themselves peaceful when they are enmeshed with contemporaneously violent conduct which is concededly outlawed. The Constitution is invoked to deny Illinois the power to authorize its courts to prevent the continuance and recurrence of flagrant violence, found after an extended litigation to have occurred under specific circumstances, by the terms of a decree familiar in such cases. Such a decree, arising out of a particular controversy and adjusted to it, raises totally different constitutional problems from those that would be presented by an abstract statute with an overhanging and undefined threat to free utterance. To assimilate the two is
The starting point is Thornhill's case. That case invoked the constitutional protection of free speech on behalf of a relatively modern means for "publicizing, without annoyance or threat of any kind, the facts of a labor dispute." 310 U.S. 100. The whole series of cases defining the scope of free speech under the Fourteenth Amendment are facets of the same principle in that they all safeguard modes appropriate for assuring the right to utterance in different situations. Peaceful picketing is the workingman's means of communication.
It must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment. Back of the guarantee of free speech lay faith in the power of an appeal to reason by all the peaceful means for gaining access to the mind. It was in order to avert force and explosions due to restrictions upon rational modes of communication that the guarantee of free speech was given a generous scope. But utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution.
Still it is of prime importance that no constitutional freedom, least of all the guarantees of the Bill of Rights, be defeated by insubstantial findings of fact screening reality. That is why this Court has the ultimate power to search the records in the state courts where a claim of constitutionality is effectively made. And so the right of free speech cannot be denied by drawing from a trivial rough incident or a moment of animal exuberance the conclusion that otherwise peaceful picketing has the taint of force.
These acts of violence are neither episodic nor isolated. Judges need not be so innocent of the actualities of such an industrial conflict as this record discloses as to find in the Constitution a denial of the right of Illinois to conclude that the use of force on such a scale was not the conduct of a few irresponsible outsiders. The Fourteenth Amendment still leaves the state ample discretion in dealing with manifestations of force in the settlement of industrial conflicts. And in exercising its power a state is not to be treated as though the technicalities of the laws of agency were written into the Constitution. Certainly a state is not confined by the Constitution to narrower limits in fashioning remedies for dealing with industrial disputes than the scope of discretion open to the National Labor Relations Board. It is true of a union as of an employer that it may be responsible for acts which it has not expressly authorized or which might not be attributable to it on strict application of the rules of respondeat superior. International Association of Machinists v. Labor Board, 311 U.S. 72, 80; Heinz Co. v. Labor Board, 311 U.S. 514. To deny to a state the right to a judgment which the National Labor Relations Board has been allowed to make in cognate situations, would indeed be distorting the Fourteenth Amendment with restrictions upon state power which it is not our business to impose. A state may withdraw the injunction from labor controversies but no less certainly the Fourteenth Amendment does not make unconstitutional the use of the injunction as a means of restricting violence. We find nothing in the Fourteenth Amendment that prevents a state if it so chooses from placing confidence in a chancellor's decree and compels it to rely exclusively on a policeman's club.
To maintain the balance of our federal system, insofar as it is committed to our care, demands at once zealous regard for the guarantees of the Bill of Rights and due recognition of the powers belonging to the states. Such an adjustment requires austere judgment, and a precise summary of the result may help to avoid misconstruction.
(1) We do not qualify the Thornhill and Carlson decisions. We reaffirm them. They involved statutes baldly forbidding all picketing near an employer's place of business. Entanglement with violence was expressly out of those cases. The statutes had to be dealt with on their face, and therefore we struck them down. Such an unlimited ban on free communication declared as the law of a state by a state court enjoys no greater protection here. Cantwell v. Connecticut, 310 U.S. 296; American Federation of Labor v. Swing, post, p. 321. But just as a state through its legislature may deal with specific circumstances menacing the peace by an appropriately drawn act, Thornhill v. Alabama, supra, so the law of a state may be fitted to a concrete situation through the authority given by the state to its courts. This is precisely the kind of situation which the Thornhill opinion excluded from its scope. "We are not now concerned with picketing en masse or otherwise conducted which might occasion such imminent and aggravated danger . . . as to justify a statute narrowly drawn to cover the precise situation giving rise to the danger." 310 U.S. 105.
(2) The exercise of the state's power which we are sustaining is the very antithesis of a ban on all discussion in Chicago of a matter of public importance. Of course we would not sustain such a ban. The injunction is confined to conduct near stores dealing in respondent's milk, and it deals with this narrow area precisely because the coercive conduct affected it. An injunction so adjusted to a particular situation is in accord with the settled practice of equity, sanctioned by such guardians of civil liberty as Mr. Justice Cardozo. Compare Nann v. Raimist, 255 N.Y. 307; 174 N.E. 690. Such an injunction must be read in the context of its circumstances. Nor ought state action be held unconstitutional by interpreting the law of the state as though, to use a phrase of Mr. Justice Holmes, one were fired with a zeal to pervert. If an appropriate injunction were put to abnormal uses in its enforcement, so that encroachments were made on free discussion outside the limits of violence, as for instance discussion through newspapers or on the radio, the doors of this Court are always open.
(3) The injunction which we sustain is "permanent" only for the temporary period for which it may last. It is justified only by the violence that induced it and only so long as it counteracts a continuing intimidation. Familiar equity procedure assures opportunity for modifying or vacating an injunction when its continuance is no longer warranted. Here again, the state courts have not
(4) A final word. Freedom of speech and freedom of the press cannot be too often invoked as basic to our scheme of society. But these liberties will not be advanced or even maintained by denying to the states with all their resources, including the instrumentality of their courts, the power to deal with coercion due to extensive violence. If the people of Illinois desire to withdraw the use of the injunction in labor controversies, the democratic process for legislative reform is at their disposal. On the other hand, if they choose to leave their courts with the power which they have historically exercised, within the circumscribed limits which this opinion defines, and we deny them that instrument of government, that power has been taken from them permanently. Just because these industrial conflicts raise anxious difficulties, it is most important for us not to intrude into the realm of policy-making by reading our own notions into the Constitution.
MR. JUSTICE BLACK, dissenting.
In my belief the opinion just announced gives approval to an injunction which seriously infringes upon the constitutional rights of freedom of speech and the press. To such a result I cannot agree.
Before detailing the reasons for my disagreement, some preliminary observations will doubtless aid in clarifying the subsidiary issues. The right of the Illinois courts to enjoin violence is not denied in this case. And I agree
In determining whether the injunction does deprive petitioners of their constitutional liberties, we cannot and should not lose sight of the nature and importance of the particular liberties that are at stake. And in reaching my conclusion I view the guaranties of the First Amendment
In addition, I deem it essential to our federal system that the states should be left wholly free to govern within the ambit of their powers. Their deliberate governmental actions should not lightly be declared beyond their powers. For us to shear them of power not denied to them by the Federal Constitution would amount to judicial usurpation. But this Court has long since — and I think properly — committed itself to the doctrine that a state cannot, through any agency, either wholly remove, or partially whittle away, the vital individual freedoms guaranteed by the First Amendment. And in solemnly adjudicating the validity of state action touching these cherished privileges we cannot look merely at the surface of things, for were we to do so these constitutional guaranties would become barren and sterile. We must look beneath the surface, and must carefully examine each step in proceedings which lead a court to enjoin peaceful discussion. In this case, in order to determine whether or not the state has overstepped constitutional boundaries, I find it necessary to give consideration to a number of factors, including the nature of the proceedings; the definiteness, indefiniteness and constitutional validity of the basic law upon which the injunction is said to rest; the findings and the evidence; the definiteness, indefiniteness and scope of the language
First. What petitioners were enjoined from discussing were matters of public concern "within that area of free discussion that is guaranteed by the Constitution."
Second. In essence, the Illinois Supreme Court held that it was illegal for a labor union to publicize the fact of its belief that a cut-rate business system was injurious to the union and to the public, since such publicity necessarily discouraged that system's prospective purchasers. This conclusion of the court was based on the following reasoning: The Fourteenth Amendment and the Due Process Clause of the Illinois Constitution, considered (in some way not made clear) in connection with the unwritten "common law," assure respondent the unqualified right to do business free from all unjustifiable interference;
Third. But this Court sustains the injunction on the ground that the Illinois Supreme Court "justified its decision" by reference to violence, thereby indicating that that characteristic was made an essential element of the rule from which the injunction sprang. I do not so read that court's opinion, and apparently the Illinois Supreme Court itself does not so read it. That this is true is evidenced by that court's language in a later decision where, speaking of the present case, it said: "In that case there was some evidence of violence, but .. . the issue of violence was not the turning point of the decision."
Fourth. There is no state statute upon which either this Court or the Supreme Court of Illinois could have relied in sustaining the injunction.
Fifth. In my opinion the sweeping injunction here approved is justified by neither of the rules, and is not supported by the record.
For our purposes, in order to reach a proper conclusion as to just what is the sweep of the injunction, we must necessarily turn to the complaint, the answer, the evidence, the findings, and the decision and judgment of the Illinois courts. And whether the injunction will restrain the exercise of constitutional rights depends upon the effect it will have upon the minds of those whose freedom of expression might be abridged by its mandate. This effect in turn depends upon the language appearing upon the face of the injunction. By that language we must judge it. For this injunction does not run merely against lawyers who might give it a legalistic interpretation, but against laymen as well. Our question then
But the injunction approved here does not stop at closing the mouths of the members of the petitioning union. It brings within its all-embracing sweep the spoken or written words of any other person "who may . . . now . . . or hereafter . . . agree or arrange with them . . ." So, if a newspaper should "agree or arrange" with all or some of those here enjoined to publish their side of the controversy, thereby necessarily tending to "discourage" the sale of cut-rate milk, the publishers might likewise be subject to punishment for contempt.
Nor is it any answer to say that the injunction would not be carried out in all its potential rigor. It was to obtain just these potentialities that respondent, already having secured from the trial court an injunction against acts of violence, appealed to the Illinois Supreme Court in order to secure an injunction broad enough to prevent petitioners' peaceable communication to the public of their side of the controversy. It is too much to expect that after complete approval of this abridgment of public discussion by the Supreme Court of Illinois, and after the opinion just announced, the injunction will not be enforced as written. So written, there could hardly be provided a more certain method wholly and completely to prevent all public discussion antagonistic to respondent's method of selling milk. And it is claimed by the
A careful study of the entire record in this case convinces me that neither the findings nor the evidence, even viewed in the light most favorable to respondent, showed such imminent, clear and present danger
There was evidence that violence occurred — some committed by identified persons and some by unidentified persons. A strike of farmers supplying most of Chicago's milk took place in the early part of January, 1934. This strike practically stopped the inflow of milk into the city. As a result, the union drivers were ordered not to report for work on January 8 and 9, at the height of the strike. It was during this period that the larger part of the major acts of violence occurred. According to the complaint and the evidence, seven trucks were seized or damaged on the 8th and 9th of January, 1934, and one on the 6th. These are the only trucks that were ever seized or damaged, according to both the complaint and the evidence, and it was in connection with these seizures that the injuries to truck drivers, the shootings, and the threats referred to in this Court's opinion took place. Undoubtedly, some of the members of the union participated in this violence, as is shown by the fact that several were arrested, criminal prosecutions were instituted, and the cases later settled with the approval of the trial judge. It was eight months after this before any picketing occurred; four years afterwards before the trial judge granted an injunction, limited to violence alone; five years before the Supreme Court of Illinois directed a more stringent injunction against peaceful persuasion; and seven years before this Court sustained the injunction.
During the period of the farmers' strike in 1934, and in the immediately succeeding months, five stores were either bombed or burned. Three union members were tried, convicted and sentenced to the penitentiary for arson in connection with one of these burnings. All of this violence took place many months before any of the
The only other violence alleged or testified to was the breaking of windows in cut-rate stores. Most of the testimony as to these acts of violence was given by respondent's vendors, and was extremely indefinite. The master made no findings as to specific acts of violence, nor as to the dates of their occurrence. Viewing the evidence in the light most favorable to respondent, however, all of the acts of violence as to which any testimony was offered are gathered in the accompanying footnote.
No one doubts that Illinois can protect its storekeepers from being coerced by fear of damage to their property from window-smashing, or burnings or bombings. And to that end Illinois is free to use all its vast resources and powers, nor should this Court stand in the way so long as Illinois does not take away from its people rights guaranteed to them by the Constitution of the United States. When clear and present danger of riot, disorder,
MR. JUSTICE DOUGLAS concurs in this opinion.
MR. JUSTICE REED, dissenting.
My conclusion is that the injunction ordered by the Supreme Court of Illinois violates the constitutional rights of the Milk Wagon Drivers Union of Chicago, its officers and members. The Court reaches a contrary
The record shows inexcusable acts of violence, committed at least in part by members of the union. For such conduct, the offenders are subject to punishment by the criminal laws of Illinois. The future conduct of the rioters is also subject to state control by injunction, exercised within the limits of the Constitution. The burden and the duty of maintaining law and order fall primarily on Illinois. Whether it chooses an injunction against violence alone or against violence and peaceful picketing, it must be assumed that its commands will be obeyed. It is a postulate of reasoned thinking that the judicial decrees will be faithfully carried out. This question then emerges. Is the right to picket peacefully an employer's place of business lost for any period of future time by past acts of violence? The trial court, in this very case, while prohibiting all violence, permitted by its injunction the continuance of efforts by the union, either singly or in concert, to peaceably persuade others by picketing or other lawful means to support its contentions.
Where nothing further appears, it is agreed that peaceful picketing, since it is an exercise of freedom of speech, may not be prohibited by injunction or by statute. Thornhill v. Alabama, 310 U.S. 88; American Federation of Labor v. Swing, post, p. 321. It is equally clear that
The Court now determines that where there is a background of violence, and inferentially, I think it must be admitted, that where there is a reasonable fear of violence, the freedom of speech which is secured to all persons by the First and Fourteenth Amendments to the Constitution may be withdrawn. It finds its justification in the authority of Illinois to "protect its storekeepers from being coerced by fear of window-smashings or burnings or bombings." The momentum of fear from past violence, it is thought, would reach over into the peaceful picketing of the future. This goes much farther than the injunction approved by this Court in Hague v. C.I.O., 307 U.S. 496, 517, which forbade interferences with the liberty of free speech but left to the guardians of public peace the right "to enforce law and order by lawful search and seizure or by arrest and production before a judicial officer." This authority of Illinois to protect its storekeepers must be exercised, however, within the framework of the Constitution. If Illinois were not a member of the United States, but a sovereign without exterior political or social obligations, it would be in a position to use whatever means it or its courts might decide would best put an end to labor disturbances. As a state of the Union it is subject to the restraints of the Constitution. If the fear engendered by past misconduct coerces storekeepers during peaceful picketing, the remedy lies in the maintenance of order, not in denial of free speech. Constitutional guarantees against oppression are of value only when needed to challenge attacks.
This nation relies upon public discussion as one of the indispensable means to attain correct solutions of problems of social welfare. Curtailment of free speech limits this open discussion. Our whole history teaches that adjustment of social relations through reason is possible while free speech is maintained. This Court has the solemn duty of determining when acts of legislation or decrees of courts infringe that right guaranteed to all citizens. Free speech may be absolutely prohibited only under the most pressing national emergencies. Those emergencies must be of the kind that justify the suspension of the writ of habeas corpus or the suppression of the right of trial by jury. Nothing approaching this situation exists in this record and, in my judgment, the
Meadowmoor had originally sought an injunction in the federal district court. The federal master's report, introduced in this case as an exhibit for Meadowmoor, states: "I further find that the instructions given to such persons patrolling or peacefully picketing by the officers of the defendant association have been not to speak or carry on any conversation with any other person or persons in front of the said premises, nor to interfere with the orderly course of business of the said stores, except to patrol back and forth with the said placard." R. 165.
And a comparison of the language of the statutes held invalid in the Thornhill and Carlson cases with that of the injunction here sustained is very revealing:
Thornhill Meadowmoor injunction: statute: Carlson statute: "go[ing] near to "walking up and down "loiter[ing] in front of or loiter[ing] in front of said stores . . . any place of business about the premises . . .; discouraging . . . . . .; influencing or place of persons . . . contemplating . . . any person to refrain business . . .; purchasing . . .; from purchasing influencing . . . interfering, hindering, or . . .; intimidating, persons not to . . . divert[ing] . . . threatening or coercing trade . . .; persons desirous of . . . . . . any person . . .; picket[ing] the purchasing . . .; us[ing] display[ing] any banner works or place signs, banners or placards . . . badge or sign of business . . ." . . . in front of in front of . . . any said stores . . ." place of business . . ."
---------------------------------------------------------------------------- | | | Stores | | Windows | Trucks | Bombed or | Miscellaneous | Broken | Seized | Burned | ---------------------------|-----------|---------|-----------|-------------- | | | | 1934 ____________________ | 34 | 8 | 5 | 4 | | | | 1935 ____________________ | 5 | 0 | 1 | 0 | | | | 1936 ____________________ | 7 | 0 | 1 | 0 | | | | 1937 ____________________ | 7 | 0 | 2 | 0 |-----------|---------|-----------|-------------- | 53 | 8 | 9 | 4 ----------------------------------------------------------------------------
Petitioners offered evidence that three men, with no union connections whatsoever, confessed to and were convicted of the smashing of windows in twenty-four cut-rate milk stores in 1934, pursuant to an insurance racket. The master struck this evidence from the record, on respondent's motion.
In addition to the acts of violence enumerated in the foregoing table, there was evidence of six acts of violence in 1932, among them the bombing of Meadowmoor's plant referred to in the opinion. Petitioners offered evidence to show that at that time respondent was gangster-dominated, and that the gangsters in question had sought to obtain control of the union, but this evidence was excluded.
The opinion also refers to the beating of workers at a cut-rate dairy other than Meadowmoor. The master did not mention this incident in his findings, but it is referred to in the evidence, and from that source it appears that those beaten and told "to join the union" were inside workers not eligible for membership in the petitioning union.