International Brotherhood of Teamsters Chauffeurs Warehousemen Helpers Union Local 309 v. Hanke Automobile Drivers & Demonstrators Local Union No 882/Dissent Minton

Mr. Justice MINTON, with whom Mr. Justice REED joins, dissenting.

Petitioners in each of these cases were 'permanently restrained and enjoined from in any manner picketing' the places of business of respondents. The picketing here was peaceful publicity, not enmeshed in a pattern of violence as was true in Milk Wagon Drivers Union of Chicago, Local 753, v. Meadowmoor Dairies, 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836, 132 A.L.R. 1200; nor was there violence in the picketing, as in Hotel & Restaurant Employees' International Alliance, Local No. 122, v. Wisconsin E.R.B., 315 U.S. 437, 62 S.Ct. 706, 86 L.Ed. 946. The decrees entered in the instant cases were not tailored to meet the evils of threats and intimidation as Cafeteria Employees Union, Local 302, v. Angelos, 320 U.S. 293, 295, 64 S.Ct. 126, 88 L.Ed. 58, indicates they might have been; nor were they limited to restraint of picketing for the purpose of forcing the person picketed to violate the law and public policy of the state, as were the decrees in Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, and Building Service Employees Union v. Gazzam, 339 U.S. 532, 70 S.Ct. 784. The abuses of picketing involved in the above cases were held by this Court not to be protected by the Fourteenth Amendment from state restraint.

It seems equally clear to me that peaceful picketing which is used properly as an instrument of publicity has been held by this Court in Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Carlson v. People of State of California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104; American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855; Bakery & Pastry Drivers & Helpers Local 802 v. Wohl, 315 U.S. 769, 62 S.Ct. 816, 86 L.Ed. 1178; and Cafeteria Employees Union, Local 302, v. Angelos, 320 U.S. 293, 64 S.Ct. 126, 88 L.Ed. 58, to be protected by the Fourteenth Amendment. I do not understand that in the last three mentioned cases this Court, as the majority in its opinion says, 'held only that a State could not proscribe picketing merely by setting artificial bounds, unreal in the light of modern circumstances, to what constitutes an industrial relationship or a labor dispute.' If the states may set bounds, it is not for this Court to say where they shall be set, unless the setting violates some provision of the Federal Constitution. I understand the above cases to have found violations of the federal constitutional guarantee of freedom of speech, and the picketing could not be restrained because to do so would violate the right of free speech and publicity. This view is plainly stated by this Court in Cafeteria Employees Union, Local 302, v. Angelos, 320 U.S. at page 295, 64 S.Ct. at page 127: 'In Senn v. Tile Layers Protective Union, Local No. 5, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229, this Court ruled that members of a union might, 'without special statutory authorization by a state, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal Constitution.' 301 U.S. at page 478, 57 S.Ct. at page 862, 81 L.Ed. 1229. Later cases applied the Senn doctrine by enforcing the right of workers to state their case and to appeal for public support in an orderly and peaceful manner regardless of the area of immunity as defined by state policy. A.F. of L. v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855; Bakery and Pastry Drivers and Helpers Local 802 v. Wohl, 315 U.S. 769, 62 S.Ct. 816, 86 L.Ed. 1178.'

All the recent cases of this Court upholding picketing, from Thornhill to Angelos, have done so on the view that 'peaceful picketing and truthful publicity' (see 320 U.S. at page 295, 64 S.Ct. at page 127, 88 L.Ed. 58) is protected by the guaranty of free speech. This view stems from Mr. Justice Brandeis' statement in Senn that 'Members of a union might, without special statutory authorization by a state, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal Constitution.' 301 U.S. 468, 478, 57 S.Ct. 857, 862, 81 L.Ed. 1229. In that case Justice Brandeis was dealing with action of Wisconsin that permitted picketing by a labor union of a one-man shop. Of course, as long as Wisconsin allowed picketing, there was no interference with freedom of expression. By permitting picketing the State was allowing the expression found in 'peaceful picketing and truthful publicity.' There was in that posture of the case no question of conflict with the right of free speech. But because Wisconsin could permit picketing, and not thereby encroach upon freedom of speech, it does not follow that it could forbid like picketing; for that might involve conflict with the Fourteenth Amendment. It seems to me that Justice Brandeis, foreseeing the problem of the converse, made the statement above quoted in order to indicate that picketing could be protected by the free speech guaranty of the Federal Constitution. Whether or not that is what Justice Brandeis meant, I think this Court has accepted that view, from Thornhill to Angelos. It seems to me too late now to deny that those cases were rooted in the free speech doctrine. I think we should not decide the instant cases in a manner so alien to the basis of prior decisions.

The outlawing of picketing for all purposes is permitted the State of Washington by the upholding of these broad decrees. No distinction is made between what is legitimate picketing and what is abusive picketing. '(H)ere we have no attempt by the state through its courts to restrict conduct justifiably found to be an abusive exercise of the right to picket.' Angelos case, 320 U.S. at page 295, 64 S.Ct. at page 127, 88 L.Ed. 58.

Because the decrees here are not directed at any abuse of picketing but at all picketing, I think to sustain them is contrary to our prior holdings, founded as they are in the doctrine that 'peaceful picketing and truthful publicity' is protected by the constitutional guaranty of the right of free speech. I recognize that picketing is more than speech. That is why I think an abuse of picketing may lead to a forfeiture of the protection of free speech. Tested by the philosophy of prior decisions, no such forfeiture is justified here.

I would reverse the judgments in these two cases.