Wilson v. Loew's/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

By demurrer to petitioners' complaint, the respondents in this case admitted that they agreed with each other to exclude from employment all persons who refused, on the grounds of the Fifth Amendment, to answer questions concerning their political associations and beliefs put by the Un-American Activities Committee of the House of Representatives.

The complaint alleged, and the demurrer thereby conceded, that petitioners had considerable experience in the motion-picture industry; and that respondents directly or indirectly controlled all motion-picture production and distribution in the United States and all employment opportunities therein. The California court sustained the demurrer on the ground that petitioners had not 'alleged that but for defendants' alleged interference any one of plaintiffs would, or even probably or possibly would, have been employed in the industry.' 142 Cal.App.2d 183, 195, 298 P.2d 152, 160.

This ruling on California law should result in a reversal of this judgment.

This is a case of alleged interference with the pursuit of an occupation, not an alleged interference with a particular contract or business relationship. The California cases on interference with the 'right to work' are broad in scope. In James v. Marinship Corp., 25 Cal.2d 721, 155 P.2d 329, 160 A.L.R. 900, the California Supreme Court held that a union could not exclude Negroes from membership in the union when at the same time there was a closed shop in the industry. The Marinship case was later followed in Williams v. International Brotherhood, 27 Cal.2d 586, 165 P.2d 903, where some of the plaintiffs were former employees. No showing of the possibility of employment was made. In Williams the court emphasized that a 'closed shop agreement with a single employer is in itslef a form of monopoly'; and it condemned attempts by a union 'to control by arbitrary selection the fundamental right to work.' 27 Cal.2d, at page 591, 165 P.2d at page 906. Here on the pleadings the respondents comprise a nation-wide monopoly over the industry and arbitrarily place petitioners on a 'black list.'

Dotson v. International Alliance, 34 Cal.2d 362, 210 P.2d 5, held that out-of-state workers, qualified for union membership, could recover damages for 'wrongful interference with their right to work' against the union which denied membership. 34 Cal.2d at page 374, 210 P.2d at page 12. No showing of a likelihood of employment was made in that monopoly situation.

Surely then, the failure of these petitioners to allege a particular job opportunity does not mean they did not state a cause of action within the meaning of those California cases. Their pleadings seem to bring them squarely within those decisions. The fact that damages may be uncertain is no barrier to enforcement of the right to work. See Harris v. National Union of Cooks and Stewards, 98 Cal.App.2d 733, 738, 221 P.2d 136, 139.

I, therefore, conclude that the lower court, in not mentioning these cases nor differentiating them, and drawing almost entirely on decisions from other jurisdictions, has fashioned a different rule for this case. I can see no difference where the 'right to work' is denied because of race and where, as here, because the citizen has exercised Fifth Amendment rights. To draw such a line is to discriminate against the assertion of a particular federal constitutional right. That a State may not do consistently with the Equal Protection Clause of the Fourteenth Amendment. Williams v. Georgia, 349 U.S. 375, 75 S.Ct. 814, 99 L.Ed. 1161.