League of United Latin American Citizens (LULAC) v. Mattox Brief for the United States as Amicus Curiae on Remand

    'O ffice - Supreme Court, 'J. S.
F I L E D

O C T  2 21849 -

CHARLES ELMGRL CROPLEY
S U P R E M E  C OU R T  OF T H E  U N I T E D  S T A T E S

OCTOBER TERM, 1949

No. 61

JOHN HUGHES a n d  LOUIS RICHARDSON,
Petitioners,

vs.

SUPERIOR COURT OF THE STATE OF CALIFOR­
NIA, IN AND FOR THE COUNTY OF CONTRA 
COSTA,

Respondent

ON WRIT OR CERTIORARI TO THE SUPREME COURT OP THE STATE
OP CALIFORNIA

OPENING BRIEF FOR PETITIONERS

. B ertram E dises, 
Counsel for Petitioners.

R obert L . C ondon ,
Of Counsel.

A-t'C Cm f ^ 1



INDEX
Page

Opinions below ..........................................................  1
Jurisdiction ................................................................  1
Statement of the case.................................................  2
Questions presented .................................................  7
Argument .................................................................... 7

I. Introduction ...............................................  7
II. The picketing in the instant case was purely 

an expression of speech, without any 
“ non-speech” aspects, and hence is within 
the area of communication of ideas pro­
tected by the First and Fourteenth Amend­
ments .......................................................  8

III. Petitioners ’ motive for picketing was proper 
and the picketing was not for an unlawful 
objective ...................................................  10

A. The depressed condition of the
Negro people ...............................  10

B. The absence of any attempt to in­
duce breach of contract.................. 14

C. The propriety of the demand for hir­
ing Negroes in proportion to 
patronage ....................................  16

IY. Peaceful picketing is not withdrawn from 
constitutional protection because its ob­
ject is deemed by the State Court to be 
contrary to public policy, although not
violative of any statute............................  20

V. The principles of the New Negro Alliance 
case are applicable and should be con­
trolling ....................................................... 23

Conclusion....................................................................  25

T able of A u th o r ities  C ited

Cases:
A. S. Beck Shoe Corp. v. V. Johnson, 153 Misc. 363,

274 N. Y. Supp. 946 ...............................................  14
American Fed. of Labor v. Swing, 312 U. S. 321.......  7
Anora Amusement Corp. v. Doe, 171 Misc. 279, 12 

N. Y. Supp. (2d) 400...............................................  14
—4760



11 INDEX
Page

Bakery Wagon Drivers v. Wohl, 315 U. S. 769......... 7
Bridges v. Calif., 314 U. S. 252................................... 22
Cafeteria Workers v. Angelos, 320 U. S. 293............  8
Carlson v. Calif., 310 U. S. 106..................................  7
Carpenters Union v. Ritter’s Cafe, 315 U. S. 722. ... 7
Craig v. Harvey, 331 U. S, 367..................................  22
Duplex Printing Co. v. Deering, 254 U. S. 443........... 21, 22
Giboney v. Empire Storage & Ice Co., — IT. S. —, 69

Sup. Ct. 684 .........................................................  7, 21, 22
Green v. Samuels on, 168 Md. 421 178 Atl. 109............. 14
Imperial Ice Co. v. Rossier, 18 Cal. (2d) 33, 112 P. 2d

631 ...........................................................................  15
James v. Marinship Corp., 25 Cal. (2d) 721..............  19
Lifshitsv. Straughn, 261 App. Div. 757, 27 N. Y. Supp.

(2d) 193..............................................................  14
Magill Bros. v. Building Service Union, 20 Cal. (2d)

506 ...........................................................................  8
Milk Wagon Drivers Union v. Meadowmoor Dairies,

312 U. S. 287 ............................................................  7, 8
New Negro Alliance v. Sanitary Grocery Co., 303

U. S. 552...................................................................  14,23
Quong Wing v. Kirkendall, 223 IT. S. 59.................... 19
Sewn v. Tile Layers Protective Union, 301 IT. S. 468. . 24
Shelley v. Kraemer, 334 I .  S. 1..................................  11,19
Smith v. Allwright, 321 IT. S. 649............................... 11
Steele v. Louisville <fb Nashville R. Co., 323 IT. S. 192. . 11
Stevens v. West Philadelphia Youth Civic League,

34 Pa. D. & C., 612...................................................  14
Terminiello v. City Chicago, — IT. S. —•, 93 L. Ed.

(Adv. Op.) 865 ........................................................  10,22
Texas Motion Picture & Vitaphone Operators Union 

v. Galveston Motion Picture Operators Local, 132
S. W. (2d) 299 (Tex. Civ. App. 1939).................... 14

Thompsons. Moore Drydock Co., 27 Cal. (2d) 595. . . 19
Thornhill v. Alabama, 310 IT. 8. 88...........................  7
Turnstall v. Brotherhood of L. F. & E., 323 IT. S.

210 ........................................................................... 11
West Coast Hotel Co. v. Parrish, 300 U. S. 379......... 18
Williams v. International, etc., of Boilermakers, 27

Cal. (2d) 586 ..........................................................  19
Willis v. Local No. 106, 26 Ohio N.P. (N.S..) 435.......  19



INDEX 111

Statutes:
Executive Order No. 8802, June 25, 1941. 
Executive Order No. 8823, July 18, 1941. 
Executive Order No. 9111, March 25, 1942
First Amdt. to U. S. Const.......................
Fourteenth Amdt. to U. S. Const..............
Norris-LaGuardia Act .............................

Page
11
11
11

2.7
2.7 
23

Miscellaneous:
Armstrong, “ Where Are We Going With Picketing”

36 Cal. L. Rev. 1 ......................................................  8, 23
Dodd, “ Picketing & Free Speech, a Dissent” 56

Harv. L. Rev. 513 ...................................................  8
Fair Employment Practices Comm., First Report,

1943-44, Cha.pt. V .....................................................  11
McWilliams, “ Race Discrimination and the Law,” 9

Science & Society, p. 1 .............................................  11
Maslow, F.E.P.C., A Case History, 13 Univ. of Chi.

Law Rev. 407 ..........................................................  11
Myrda, “ An American Dilemma,” Chapt. 1 ............  11
Restatement, Torts, Sec. 767......................................  15
Restatement, Torts, Sec. 767-774 ...............................  16
Teller, “ Picketing & Free Speech,” 56 Harv. L. Rev.

180.............................................................................  8,9
Teller, ‘‘ Picketing & Free Speech, ’ ’ A Reply, 56 Harv.

L. Rev. 532................................................................ 8



S U P R E M E  E O U R T  OF T H E  U N I T E D  S T A T E S
OCTOBER TERM, 1949

No. 61

JOHN HUGHES and LOUIS RICHARDSON,
Petitioners,

vs.

SUPERIOR COURT OF THE STATE OF CALIFOR­
NIA, IN AND FOR THE COUNTY OF CONTRA 
COSTA,

Respondent

OPENING BRIEF FOR PETITIONERS

Opinions Below

The opinion of the Supreme Court of the State of Califor­
nia (R. 90) below is reported in 32 Cal. (2d) 850. The 
opinion of the District Court of Appeal, First Appellate 
District, Division One, State of California (R. 61) was not 
officially reported but can be found in 82 A.C.A. 491, 
186P(2d) 756.

Jurisdiction

The judgment of the Supreme Court of the State of Cali­
fornia was entered November 1, 1948, and rehearing was



2

denied November 29, 1948. Jurisdiction of this Court is 
invoked under § 28 U. S. Code Section 1257. The decision 
below decided an important question of Constitutional law 
involving freedom of expression and is a case “ where 
any title, right, privilege, or immunity is specially set 
up or claimed by either party under the Constitution . . . 
of . . . the United States.”

The Federal question—whether the First and Fourteenth 
Amendments guaranteed petitioners the right to engage in 
peaceful picketing under the circumstances of this case— 
was raised below as follows: (a) in the trial court (The 
Superior Court of the State of California in and for the 
County of Contra Costa) by petitioners’ opposition to the 
preliminary injunction (R. 21-24) ; (b) in the trial court 
at the time the judgments of contempt were entered, as 
appears from the admissions and denials in the State of 
California, District Court of Appeal (R. 40, 52); and (c) in 
the California District Court of Appeal, by petitioners ’ peti­
tion for writ of certiorari (R. 39, 40). The respondent was 
the losing party in the District Court of Appeal, and peti­
tioned the Supreme Court of California for a hearing, 
which was granted. The Supreme Court decided the con­
stitutional issue against petitioners, two judges dissenting 
(R. 98-111). The issue wms again raised by Petition for 
Rehearing (R. 112), which was denied (R. 120).

Statement of the Case

On May 20, 1947, Lucky Stores, Incorporated, herein 
called Lucky, filed in the Superior Court of the State of 
California, for the County of Contra. Costa, herein called 
respondent, a verified complaint for injunction naming 
various organizations and individuals as defendants (R. 
1-18). So far as here material, the complaint alleged that 
there existed a collective bargaining contract between



3

Lucky and Retail Clerks Union, Local No. 1179 (AFL), 
under which the Union was the sole collective bargaining 
agent for all its employees; a copy of which contract was 
attached to the complaint (R. 8-18); that the contract pro­
vided that Lucky employ only members of the union, unless 
the union was unable to supply satisfactory employees, 
in which event Lucky might employ non-union employees, 
who, however, must join the union within a specified time 
(R. 8-9); that the defendants demanded that Lucky “ agree 
to hire Negro clerks, such hiring to be based upon the 
proportion of white and Negro customers patronizing plain­
tiff’s stores” (R. 4); that this demand was refused by 
plaintiff (R. 4); that compliance with the demand would 
violate the contract between Lucky and the union (R. 4); 
that by reason of the refusal of Lucky to comply with their 
demands, defendants picketed Lucky’s Canal Street Store 
in the City of Richmond, State of California (R. 5) j1 that 
unless this picketing were restrained Lucky would suffer 
irreparable damage and be forced to close the store in 
question (R. 5); that such picketing was an infringement 
on Lucky’s right to do business and would require Lucky 
to violate the contract with the union above mentioned (R. 
6).2

On the same day, May 20, 1947, the above mentioned 
Superior Court issued a Temporary Restraining Order, 
restraining the defendants from, among other things, picket­
ing Lucky Stores for the purpose of compelling Lucky to 
engage in the selective hiring of Negro clerks in propor­
tion to Negro customers (R. 35).

1 Lucky is a chain store with many retail outlets; this controversy 
concerns only the Canal Street Store in Richmond, California.

2 The complaint and later the preliminary injunction also referred 
to certain demands with respect to the arrest of an alleged shoplifter. 
Since the picketing did not touch this question, both appellate courts be­
low did not consider this aspect and it will not be dealt with herein.



4

On May 26, 1947, petitioners Richardson and Hnghes 
filed counter-affidavits in support of a motion to dissolve 
the temporary restraining order and to deny the preliminary 
injunction (R. 26, 29). The affidavit of Richardson was in 
substance as follows: That he was the president of the 
National Association for the Advancement of Colored 
People, Richmond Chapter, herein called NAACP, one of 
the defendant organizations; that on May 17, 1947, he and 
others had met with officials of Lucky, requesting it, among 
other things, gradually to hire Negro clerks until the pro­
portion of Negro to white clerks approximated the propor­
tion of Negro and white customers; that he asked that such 
increase in the proportion of Negro clerks take place as 
white clerks quit or were transferred by Lucky; that he and 
other members of the delegation explicitly stated that they 
were not requesting the discharge of any of the present 
employees of Lucky but were only requesting that vacancies 
be filled with Negroes until the approximate proportion 
was reached; that representatives of Lucky refused to dis­
cuss the proposal and the discussion ended (R. 29-30) ; that 
at the time of the discussion he had no knowledge of the 
above mentioned contract between Lucky and the Clerks 
Union; that the union had unemployed Negro members 
and could supply qualified Negro clerks if Lucky requested 
such help; that the NAACP had unemployed Negro members 
who were qualified clerks and could supply such persons 
to the Union and Lucky and that such NAACP members 
would join the Union (R. 31) ; that picketing of Lucky’s 
store took place on May 19, 1947, and continued until May 
21, 1947, when the picketing ceased; that the picketing was 
peaceful and without violence or misrepresentation of any 
sort; that there were never more than six pickets patrolling 
an area more than one hundred feet in extent; that the em­
ployees and customers of Lucky had free ingress and egress 
to and from the store without molestation; that the pickets



0

made no comments to customers or employees and the 
placards they carried were truthful (E. 31). Eichardson. 
also alleged that the NAACP had as its primary purpose 
to promote the social and economic advancement of Negroes, 
to assist them in finding employment and to encourage in 
business and industry their full and fair employment; 
that the NAACP had a number of unemployed members 
in the area, including qualified Negro clerks; that the 
NAACP was concerned with finding jobs for and prevent­
ing discrimination against unemployed Neg*ro citizens; 
that the NAACP had approximately 500 members, 98 
per cent of whom were Negro (E. 29). The counter­
affidavit of Hughes was similar to that of Eichardson (E. 
26-28). Hughes alleged that approximately 50 per cent 
of the customers at Lucky’s Canal Street store were Negroes 
(E. 27).

On May 26, 1947, after a hearing on an Order to Show 
Cause, the matter was submitted to the respondent Superior 
Court on the complaint, counter-affidavits of Hughes and 
Eichardson, points and authorities, and argument. No 
affidavits were filed by Lucky, and the counter-affidavits of 
Eichardson and Hughes are uncontroverted.3 The same 
day, May 26, 1947, the court determined that Lucky was 
entitled to a preliminary injunction (E. 34) and on June 
5, 1947, issued its formal order granting the preliminary 
injunction, restraining, among other acts, picketing to com­
pel “ The selective hiring of Negro clerks, such hiring 
to be based on the proportion of white and Negro cus­
tomers” of Lucky (E. 35).

3 Lucky attempted to file certain affidavits in the District Court of Ap­
peal, below, but was denied this right under state practice (R. 67-68). 
The State Supreme Court did not pass on this question. These affidavits 
are printed as part of the record herein (R. 45-50), but, as stated, the 
appellate courts in California refused to consider them on the ground 
that they were not properly before the court.



6

On June 21, 1947, citations were issued and served upon 
petitioners ordering them to show cause why they should not 
be punished for contempt for violating the preliminary 
injunction. I t was stipulated between the parties that on 
June 21, 1947, the two petitioners picketed the Canal Store 
of Lucky carrying a placard reading: “ Lucky won’t hire 
Negro clerks in proportion to Negro trade, don’t patro­
nize.” (R. 38, 43). On June 23, 1947, petitioners moved 
to vacate the preliminary injunction, which motion was 
denied. The court found petitioners guilty of contempt 
and adjudged that they be imprisoned for two days and 
pay a fine of Twenty Dollars. A ten-day stay of execution 
was granted (R. 35-36). On June 23, 1947 a petition for a 
writ of certiorari was filed in the District Court of Appeal, 
First District, Division One, State of California (R. 36-41). 
The writ was granted (R. 41-43).

On November 20, 1947, the District Court of Appeal, all 
three justices concurring, held that the preliminary injunc­
tion was in excess of the jurisdiction of the trial court since 
it violated petitioners ’ rights under the First and Four­
teenth Amendments, and annulled the judgment of con­
tempt (R. 61-83).

Respondent Superior Court thereafter petitioned the 
Supreme Court of the State of California for hearing, which 
petition was granted. On November 1, 1948, the California 
Supreme Court reversed the decision of the District Court 
of Appeal and affirmed the judgment of contempt (R. 90- 
120). Four justices concurred in the majority opinion and 
two justices dissented. On November 29, 1948 petition for 
rehearing was denied, two justices dissenting (R. 120).

Certiorari was granted by this Court on May 2, 1949, 
336 U. S. 966.



7

Questions Presented and Errors of the Supreme Court of 
California Specified

The question before this Court is whether the California 
Supreme Court erred in holding that peaceful picketing of 
a retail store in a Negro neighborhood for the purpose of 
inducing the operators of the store in the course of per­
sonnel changes to hire Negro employees in proportion to 
Negro customers, is not within the protection of the First 
and Fourteenth Amendments to the Constitution.

ARGUMENT

I. Introduction

The Constitutional principles applicable in picketing 
cases have been evolved by this Court in the dozen years 
that have elapsed between the Serin4 case and the most 
recent utterance of the Court on the subject, Giboney v.
Empire Storage and, Ice Co.,----- U. S. ------ , 69 Sup. Ct.
684. I t was the celebrated dictum of Mr. Justice Brandeis 
in the Sewn case, which first intimated that picketing was 
a form of free speech. The identification of picketing with 
free speech became a holding of the Court in Thornhill 
v. Alabama, 310 U. S. 88, Carlson v. California, 310 U. S. 
106, and American Federation of Labor v. Swing, 312 U. S. 
321.

Following the Thornhill and Swing cases, various deci­
sions have indicated that the constitutional right to picket 
is not absolute and have pointed out some of the limitations. 
Carpenters Union v. Ritter’s Cafe, 315 U. S. 722; Bakery 
Wagon Drivers v. Wohl, 315 U. S. 769; Milk Wagon Drivers’ 
Union v. Meadowmoor Dairies, 312 U. S. 287; Giboney v. 
Empire Storage a/nd Ice Co., supra. Indeed, some com­
mentators have expressed the view that the qualifications

4 Senn V. Tile Layers Protective Union, 301 U. S. 468.



8

on the right to picket have tended to obscure its Constitu­
tional origin.5

Whatever may be the appropriate limits of the right to 
picket, we earnestly believe that the instant ease presents 
the strongest factual justification for constitutional protec­
tion. of any picketing case considered by this Court since 
the Thornhill decision in 1937. If the picketing here was 
improper, it may well be necessary to revise the conception 
that picketing can be sheltered by the First and Fourteenth 
Amendments.

II. The Picketing in the Instant Case Was Purely An 
Expression of Speech, Without Any “Non-Speech” 
Aspects, and Hence Is Within the Area of Communi­
cation of Ideas Protected by the First and Fourteenth 
Amendments.

The decisions which have upheld the limitation of speech 
in picketing cases have in all instances involved substantial 
“ non-speech” elements. Thus the States have been per­
mitted to enjoin picketing enmeshed with a pattern of 
violence. Milk Wagon Drivers’ Union v. Meadowmoor 
Dairies, 312 U. S. 287. In contrast, the picketing here was 
admittedly peaceful, there was no obstruction of ingress or 
egress, and Lucky’s customers and employees were not 
hindered in any way (R. 28, 31).

The facts of the dispute herein were tersely but fully 
stated in the placards carried by Petitioners. There were 
no misstatements of fact or false representations. Cf. 
Magill Bros. v. Building Service Union, 20 Cal. (2d) 506; 
Cafeteria Workers v. Angelos, 320 U. S. 293.

The picketing was conducted at the point of dispute and

5 Armstrong, Where Are We Going With Picketing? 36 Cal. L. Rev. 
1. See Teller, Picketing and Free Speech, 56 Harv. L. Rev. 180; Dodd, 
Picketing and Free Speech: A Dissent, 56 Harv. L. Rev. 513; Teller, 
Picketing and Free Speech: A Reply, 56 Harv. L. Rev. 532.



9

had no elements of secondary boycott. There was hence 
no “ conscription of neutrals”, as in Ritter’s Cafe, supra, 
315 U. S. 722.

Moreover, the pickets were representatives of small, 
relatively weak citizens’ groups concerned with the promo­
tion of the economic and social advancement of the Negro 
people. The uncontroverted affidavit of the Petitioner 
Richardson discloses . . . “ There are approximately
five hundred members of the Richmond Branch of the 
NAACP, including a number of unemployed members.” 
(R. 29).

Here was no strong labor union able to command sym­
pathy and support from union members regardless of the 
merit of the dispute. Truck drivers and other haulers of 
supplies had no formal or tacit understanding, as sometimes 
is the case in trade union disputes, to observe the picket 
lines and cease deliveries. Petitioners lacked the united 
strength, financial and otherwise, of thousands of dues 
paying members to assist them in their efforts. (See 
Teller, Picketing and Free Speech, 56 Harv. L. Rev. 180, 
201, quoted by Justice Traynor in his dissent below). 
There was no “ powerful transportation combination” , 
with “ patrolling, and . . . formation of a picket line
warning union men not to cross at the peril of their union 
membership”, adverted to by Mr. Justice Black in the
Giboney decision, supra, ----- U. S. -——, 69 Sup. Ct. 684,
as one of the reasons for upholding the injunction in that 
case.

On the contrary, all that the Petitioners did was to publi­
cize their grievance against Lucky for the brief space of 
a few hours by means of placards. Petitioners doubtless 
could have used newspapers or handbills to inform the 
public of their dispute, in which event the picketing aspect 
would have been absent and there would probably have 
been no injunction. But as they are here in forma pauperis.



1 0

it is understandable that they chose to use placards, which 
are par excellence the poor man’s means of publicizing 
grievances. Petitioners, and others in such situations, 
should not be afforded any lesser degree of constitutional 
immunity than those who are able to employ the traditional 
means of communication. Terminiello v. City of Chicago, 
-----U. S .------ , 93 L. Ed. (Adv. Op.) 865.
III. Petitioners’ Motive for Picketing Was Proper and 

the Picketing Was Not for an “Unlawful Ob­
jective.

A. The Depressed Condition of the Negro People.
Assuming, without conceding, that the extension to peace­

ful picketing of constitutional sanction depends upon the 
motives of the picketers, we submit that a demand for the 
hiring of Negroes in proportion to their patronage is not 
unlawful, and that picketing in support of such a demand 
is directed to a lawful objective. Properly to evaluate the 
justification of the demand requires some understanding 
of the economic difficulties faced by the Negro in the United 
States.

In his dissenting opinion below (E. 106), Justice Carter 
stated:

“ It must be admitted by every thinking person that 
Negroes are, and have been, constantly discriminated 
against. They are considered by some people as being fit 
for only the most menial positions. It was even found 
necessary for the Legislature of the various states to pass 
laws that they might obtain shelter and food on an equal 
basis with members of the white race. The abolition of 
slavery did not free the Negro from the chains his color 
imposes on him.”

Justice Carter’s observations are borne out by numerous 
sociological treatises on the subordinate role in the economy



1 1

to which the Negro has been condemned since Emancipa­
tion.6 The files and reports of the President’s Fair Employ­
ment Practices Committee show a depressing picture of the 
economic discrimination that has confronted the Negro at­
tempting to find employment. They show beyond cavil that 
the Negro for the most part finds employment opportunities 
only in the most menial capacities, and that he is invariably 
“ the last to be hired and the first to be fired,” 7

This Court has had frequent occasion to note the obstacles 
thrown in the path of the Negro people in their struggle 
against economic discrimination.8 The Court has not 
merely noted such discrimination: it has stood as a firm 
champion of the oppressed Negro people. As Justice 
Murphy stated in Steele v. Louisville £  Nashville R. Co., 
323 U. S .192:

“ The Constitution voices its disapproval whenever 
economic discrimination is applied under authority of 
law against any race, creed or color. A sound democ­
racy cannot allow such discrimination to go unchal­
lenged.

“ Racism is far too virulent today to permit the 
slightest refusal, in the light of a Constitution that

6 No attempt will be made to collect this data herein, but the Court’s 
attention is directed to Myrdal, An American Dilemma, Chapter 1; 
McWilliams, Race Discrimination and the Daw, 9 Science & Society, p. 1; 
Murray, Right of Equal Opportunity in Employment, 33 California Law 
Rev. 388.

7 See the First Report of the Fair Employment Practices Committee, 
1943-1944, Chapter V and tables. The Fair Employment Practices 
Committee, generally known as the F.E.P.C., was established by Executive 
Order No. 8802 on June 25, 1941. Its powers were further defined by 
Exec. Orders No. 8823, July 18, 1941 and No. 9111, March 25, 1942. See 
Maslow, FEPG—A Case History, 13 Univ. of Chicago Law Rev. 407. 
See also To Secure These Rights, Report of President’s Committee on 
Civil Rights, 1947.
■ 8 See, for example, Smith v . Allwright, 321 U. S. 649; Tunstall V. Brother­

hood of L. F. <& E., 323 U. S. 210; Shelly v . Kraemer, 334 U. S. 1.



12

abhors it, to expose and condemn it whenever it ap­
pears in the course of a statutory interpretation.”

The Negro people’s struggle for equality is made more 
difficult by the varied forms which discrimination takes. It 
may consist of an openly acknowledged exclusion of Negroes 
from membership in a social or professional organization. 
Or, on the other hand, such exclusion may be accompanied 
by denial of a discriminatory policy. Discrimination may 
be enforced through the medium of segregation, which re­
sults in unequal facilities for the Negro minority in edu­
cation, travel, and in many other activities. It may take 
the form of “ quotas,” by which arbitrary limits are set 
on the participation of Negroes in many of the pursuits es­
sential to a full life. Whatever the form, the effect on the 
Negro members of the community is the same: the denial of 
the right to be judged, and to participate fully in the mani­
fold activities of American life, on the basis of individual 
merit rather than on the basis of skin coloration.

It is in the field of employment opportunities that the 
virus of race discrimination has its most destructive effects, 
on the Negro people and the nation as a whole.9 While 
the goal of equal opportunity in employment for Negroes 
has become part of our national public policy, candor re­
quires the admission that very little has been done to imple­
ment the goal, as witness the unhappy fate of Fair Employ­
ment Practices legislation in Congress. Nevertheless, eco­
nomic equality for the Negro must continue to be sought 
through every possible means, not only because justice and 
reason require it, but because, as is widely recognized, the 
existence in our nation of a large, depressed economic group 
is incompatible with the healthy functioning of our economic 
system.

9 “To Secure These Rights”, Sec. II, Subdivision 4, Report of the Presi­
dent’s Committee on Civil Rights, 1947.



13

Faced with discrimination in every phase of their strug­
gle for livelihood, the Negro people' have learned that their 
problems cannot be solved by mere wishing, or by denuncia­
tions of discrimination in general. Experience has taught 
them that progress is made by the application of their 
energies, together with those of others who are in accord 
with their aims, to the correction of specific evils. The 
means adopted to meet the problems of discrimination in 
employment may be national, state-wide, or local in scope. 
They may take the form of encouraging remedial legisla­
tion. They may be expressed in fund-raising efforts to pro­
vide for the higher education of Negro youth. They may 
involve community-wide educational campaigns. They may 
take the form of court action, as in the restrictive covenant 
suits. Or they may take the form which the Petitioners 
adopted in the present case: negotiations with a business 
establishment in an effort to obtain jobs for Negro people 
and protest through peaceful picketing when the officials 
of the establishment refuse to give fair consideration to the 
problem.

It cannot be argued that the organizations Petitioners 
represented did not have a legitimate economic interest to 
advance. Their members, some of them qualified clerks, 
were unemployed. They attempted, by negotiation, to win 
employment for their members at a store where their appeal 
could be effective because of the substantial Negro composi­
tion of the neighborhood. They sought not the discharge 
of any one then employed, but only a share of future vacan­
cies. It is submitted that when Lucky summarily rejected 
their requests, they were entitled to make the facts known 
to Lucky’s customers by the method of peaceful picketing.

Nor is the foregoing conclusion altered by the fact that 
Petitioners were acting on behalf of a racial group rather 
than in connection with a purely trade union dispute. Pick-



14

eting, as protected free speech, cannot be limited to trade 
unions. Indeed, the implication of New Negro Alliance v. 
Sanitary Grocery Co., 303 U. 8. 552, is that the right of 
Negroes to seek to enhance their employment opportunities 
may be more substantial than the rights of union members, 
since the discrimination against Negroes is so much greater.

State Courts have sometimes afforded protection to racial 
pickets (Lifshitz v. Strau.ghn, 261 App. Div. 757, 27 N. Y. 
Supp. (2d) 193; Anora Amusement Corp. v. Doe, 171 Mi sc. 
279, 12 N. Y. Supp. (2d) 400; Stevens v. West Philadelphia 
Youth Civic League, 34 Pa. D. & C. 612) and sometimes have 
enjoined such picketing (A. S. Beck Shoe Corp. v. V. Johnson, 
153 Misc. 363, 274 N. Y. Supp. 946; Green v. Samuelson, 
168 Md. 421, 178 Atl. 109; Texas Motion Picture and Vita- 
phone Operators Union v. Galveston Motion Picture Oper­
ators Local, 132 S. W. (2d) 299 (Tex. Civ. App. 1939)). 
Both the Green and Beck cases were decided before the Semi 
case; neither case discussed the applicability of the First 
and Fourteenth Amendements.

We submit that in the light of the considerations dis­
cussed above, Petitioners’ demand for jobs for Negroes, 
far from having an “ Unlawful objective,” was calculated 
to alleviate a tremendous social evil and was in furtherance 
of one of the highest aims of American democracy—equality 
of economic opportunity for all, regardless of race or color.

B. The Absence of Any Attempt To Induce Breach of 
Contract.

Lucky’s original complaint was based primarily on the 
theory that the defendants were attempting to induce a 
breach of contract between Lucky and the Retail Clerks 
Union. Neither Lucky nor respondent pressed the hy­
pothesis very strongly in the Appellate Courts of California 
and presumably have abandoned it. Nevertheless, on the



15

strength of the possibility the respondents may revive the 
contention, we shall quote the effective answer given by 
Justice Peters in the District Court of Appeal (R. 68-70), 
as follows:

“ In the first place, there are no facts pleaded that demon­
strate that petitioners’ actions in picketing to secure the 
proportional hiring of Negro clerks wTould necessarily re­
sult in a breach of contract between the union and Lucky 
Stores. The picketing Negroes did not demand the dis­
charge of any existing employees, except the employee who 
had fired the shot in arresting Jackson, and the picketing 
was not directed at this last-mentioned objective. The de­
mand was that, as. white help quit or was transferred, they 
be replaced with Negroes. The evidence shows that the 
union is willing to accept Negro clerks, and that, in fact, 
at all times here pertinent, it had qualified Negro clerks in 
the union who were unemployed.

“ In the second place, and this is a complete answer to 
this contention, while it is now the law of California that, 
under certain circumstances, a deliberate and intentional 
interference with an existing contract is tortious and ac­
tionable (Imperial Ice Co. v. Rossier, 18 Cal. (2d) 33 (112 P. 
2d 631)), it is clearly the law that such interference may, 
in a proper case, be justified and therefore privileged. The 
Rossier case expressly recognizes that justification may 
exist for such an interference with the contract rights of 
others. It is there stated (18 Cal. 2d at p. 35) ‘Such justi­
fication exists when a person induces a breach of contract 
to protect an interest that has greater social value than 
insuring the stability of the contract. (Rest. Torts, § 767.) 
Thus, a person is justified in inducing the breach of a con­
tract, the enforcement of which would be injurious to health, 
safety, or good morals. (Citing two cases and the Restate­
ment of Torts, § 767 (d).) The interest of labor in improv-



16

mg working conditions is of sufficient social importance to 
justify peaceful labor tactics otherwise lawful, though they 
have the effect of inducing breaches of contracts between 
employer and employee or employer and customer. (Citing 
many cases.) In numerous other situations justification 
exists (see Rest. Torts, secs. 766 to 774), depending upon 
the importance of the interest protected.’ It should be 
noted that in the comment on clause (d) of section 767 of the 
Restatement of Torts, cited supra, which is the section that 
enumerates the interests that create the privilege, it is 
stated that attempts to prevent racial discrimination come 
within the privilege. That this is so would seem quite clear. 
The economic interest of Negroes in securing employment 
for members of their race, and in attempting to alleviate 
the results of a discriminatory employment policy, are of 
sufficient social importance to justify the interference with 
the type of contract here involved.”

We submit that no more need be said regarding Peti­
tioners ’ alleged attempt to induce breach of contract.

C. Propriety of the Demand for Hiring Negroes in Pro­
portion to Patronage.

The Court below assumed that the demand of Petitioners 
for “ proportionate” hiring had as its objective “ The dis­
criminatory hiring of a fixed proportion of Negroes, regard­
less of all other considerations” (R. 91) (emphasis 
added). This assumption that Petitioners demanded dis­
crimination in favor of Negroes is gratuitous and ignores 
the most important considerations presented by the record.

The store in question was located in a Negro neighbor­
hood with 50 per cent of the customers being Negroes. Quali­
fied Negro Clerks—members of the Retail Clerks Union— 
were available for employment. Yet there is no contention



17

that Lucky hired Negro clerks in numbers even approxi­
mating its Negro trade. Indeed, the record does not show 
that Lucky hired any Negro clerks at all.

If there is no discrimination against Negroes, one would 
expect to find them gainfully employed in various pursuits 
in approximately the same proportion that their population 
bears to the nation as a whole. Certainly, one would expect 
Negroes to be employed as salespersons in shops in the 
areas where they lived.

Whether or not one agrees with the wisdom of the de­
mand, it certainly cannot be deemed unreasonable to re­
quest that a retail store employ Negro clerks in numbers 
roughly approximating the proportion of the store’s Negro 
trade. Indeed, since Negroes are consistently excluded from 
many types of employment, an allocation of jobs on a pro­
portionate basis means in practice an increase in the num­
ber of jobs available to Negroes and the alleviation of the 
existing condition of discrimination.

In his dissent below, Justice Carter correctly analyzed 
the objective of Petitioners when he stated, (B. 105-106) 
“ Petitioners are seeking nondiscrimination, not discrimina­
tion. Discrimination is treatment which is not equal. It 
follows that nondiscrimination must be equal treatment. 
Petitioners are seeking just that, and nothing more. It has 
long been established in equity, that the court will look 
through form to substance. I t has also been said often and 
emphatically that in equity each case must be decided on its 
own facts, hence it might logically follow that in a neigh­
borhood predominately Chinese or Japanese, or on an In­
dian reservation that picketing for a proportional hiring 
of members of the particular race involved would be just, 
equitable and entirely in accord with sound public policy. 
It is not involved here. But involved here is a store situ­
ated in a district where the population is composed of a



18

large majority of members of the Negro race. These mem­
bers of the Negro race comprise at least 50 per cent of the 
customers of the store in question. The Petitioners by 
means of peaceful picketing and through the words printed 
on their placards were seeking to publicize their grievance to 
members of their race, and to members of the white race in 
sympathy with their long struggle for freedom, so that eco­
nomic pressure might be exerted to gain for them equality 
in the labor field. They requested only that a proportionate 
number of Negro clerks be hired as replacements where 
necessary. Not that any white person be fired that they 
might be hired . . . It has been said that Negroes may obtain 
equal opportunities with others for employment by organi­
zation, public meetings, propaganda and by personal soli­
citation. The effectiveness of these methods may well be 
doubted. Labor, as a whole, found that the only way it 
might attain its objectives of better working conditions, 
hours and pay was to exert economic pressure on employers. 
Nothing else was heeded. Is the Negro here to be denied his 
only effective means of communicating to the public the facts 
in connection with the discrimination against him, and the 
only effective method by which he may achieve nondiscrimi­
nation?”

Moreover, Petitioners’ conduct was not unlawful even 
if it be assumed that they were seeking preferential treat­
ment, that is, that they wanted more jobs for Negroes as 
clerks than would have been the case if Lucky had followed 
a non-discriminatory hiring policy. Equity, as Justice 
Carter pointed out, supra, is concerned with substance 
rather than form. Special consideration does not become 
“ discrimination” where its beneficiaries are a uniquely op­
pressed and exploited social group, such as women and 
children before the advent of minimum wage legislation. 
See West Coast Hotel Co. v. Parrish, 300 U. S. 379, 394-395.



19

To characterize the quest of Negroes for equal job oppor­
tunities as “ discrimination” against whites is to invoke the 
“ fictitious equality” which this Court condemned in Quong 
Wing v. Kirkendall, 223 U. S. 59, 63, and again in the Par­
rish case, svipra. Only if the shoe were on the other foot, 
and the dominant white group sought further to depress the 
Negro, would the concept of “ discrimination” become re­
levant and meaningful. See Willis v. Local No. 106, 26 
Ohio N. P. (N. S.) 435; compare Shelly v. Kraemer, 334 U. 
S. 1.

The California Supreme Court, in its majority holding 
reversing the unanimous decision of the District Court of 
Appeal relied on James v. Marinship Corp., 25 Cal. (2d) 
721, and two related California cases, Williams v. Interna­
tional etc. of Boilermakers, 27 Cal. (2d) 586 and Thompson 
v. Moore Drydock Co., 27 Cal. (2d) 595. In the Marinship 
case a Union had a closed shop agreement with an employer, 
providing that only members of the Union could be em­
ployed. The Union did not admit Negroes to full member­
ship ; they were required to pay union dues but were segre­
gated into separate lodges with fewer privileges than white 
members. Under these circumstances, the Court held that 
public policy forbade both a closed shop and a closed union. 
The Williams and Thompson cases held similarly.

Declaring that “ race and color are inherent qualities 
which no degree of striving or of other qualifications for a 
particular job could meet, those persons who are born with 
such qualities constitute, among themselves, a closed union 
which others cannot join” (R. 96), the court below con­
cluded that the instant situation was controlled by the Marin­
ship decision.

With due respect to the California Supreme Court, whose 
original decision in the Marinship case marked an epochal 
advance in the struggle of the Negro people against dis-



2 0

crimination, it is impossible to follow the logic which equates 
the Negro race with a “ closed union” . The latter remains 
“ closed” because of the voluntary action of its membership. 
If the public interest so requires it can be forced to open its 
ranks to persons of all races and colors. Should it decline to 
eliminate racial discrimination by action fully within its 
control, it is not unfair to deny judicial protection to its 
contractually established job monopoly.

The Negro people are in an entirely different category, if 
their ranks are “ closed” to non-Negroes, it is not because 
of choice but through the happenstance of birth. As Justice 
Traynor pointed out in his dissenting opinion below, the 
Negro people is a group “ helpless to open its ranks to all” 
(R. 108). Indeed, it may legitimately be doubted whether 
there are many who seek the privilege of incorporation into 
the racial ranks of Negro, since that “ privilege” is accom­
panied by political, social and economic disenfranchise­
ment. To compare such “ exclusiveness” with that of a 
union having a deliberate policy of racial discrimination, 
is to play with words and ignore realities.

IV. Peaceful Picketing Is Not Withdrawn from Constitu­
tional Protection Because Its Object Is Deemed by 
the State Court to Be Contrary to Public Policy, 
Although Not Violative of Any Statute.

We have previously stated our belief that the court below 
erred in concluding that the picketing was for an “ unlawful 
purpose.” The question arises, however, as to whether pe­
titioners had a constitutional right to picket even if the 
purpose was “ unlawful” , in the sense in which the lowrer 
court used the term. It must be noted that there is here no 
question of violating any law—federal, state or municipal. 
The “ illegality” , if such it be, resulted from the California



21

Supreme Court’s own conception of public policy, unaided 
by legislative determination.

Consequently, the instant case is sharply distinguishable 
from such decisions as Carpenters <& Joiners Union v. Rit­
ter’s Cafe, 315 U. S. 722, and Giboney v. Empire Storage & 
Ice Company, — IT. S. —, 69 S. Ct. 684,, where the picketing 
was in direct opposition to valid state legislative enact­
ments. In the instant case the picketing was not only en­
tirely peaceful, but it violated no law except the judge-made 
law formulated after the event.

The question is thus raised of whether a State court can, 
by resorting to its own conception of what constitutes an 
illegal purpose, define and circumscribe the area in which the 
constitutional guarantee of free speech shall operate.

It is, of course, obvious that different States may, and in 
fact do, have different conceptions of public policy. In 
some areas of the nation, particularly those areas charac­
terized by separate schools for colored and white children, 
segregated transportation, laws against miscegenation, etc., 
picketing for equal rights for Negroes may well be deemed 
subversive of public policy. In other States, such as Cali­
fornia, such picketing would in all probability be held to be 
for a lawful objective. Numerous other widely differing 
conceptions of public policy may readily be imagined. It 
would, we submit, lead to an intolerable situation if the fun­
damental right of free speech, unadulterated by extraneous 
elements of a non-speech character, were made to depend on 
the varying social concepts of the different judges who make 
up the courts of last resort in the forty-eight States of the 
Union. An acceptance of such an interpretation will in­
volve an abdication by this Court of its position as ulti­
mate interpreter of the Constitution.

We think that the controlling principle is that enunciated 
by Justice Brandeis in Duplex Printing Company v. Peering,



22

254 U. S. 443, 488, which was quoted with approval by this 
Court in its latest decision on picketing, Giboney v. Empire 
Storage and Ice Company, — U. S. —, 69 S. Ct. 684:

“ The conditions developed in industry may be such 
that those engaged in it cannot continue their struggle 
without danger to the community. But it is not for 
judges to determine whether such conditions exist, nor 
is it their function to set the limits of permissible con­
test and to declare the duties which the new situation 
demands. This is the function of the legislature which, 
while limiting individual and group rights of aggres­
sion and defense, may substitute processes of justice 
for the more primitive method of trial by combat (italics 
added).”

In view of the circumstances of the picketing in the pre­
sent case—its entirely peaceful character, the complete ab­
sence of threats or violence or other non-speech elements, 
the reliance on nothing except an appeal to the reason and 
sympathies of the public, without even an appeal to organ­
ized labor which might have enhanced the persuasive power 
of the picketing, and the fact that the Petitioners’ conduct 
violated no positive law—we submit that the proper test of 
whether the picketing trranscended the bounds of legality 
was that of “ clear and present danger” rather than that 
of “ unlawful objective” . Terminiello v. Chicago, — TJ. S. 
—, 93 L. Ed. (Ad. Op.) 865; Bridges v. California, 314 
U. S. 252; Craig v. Harvey, 331 TJ. S 367.

Clearly, peaceful, non-violent picketing by two individuals 
for a few hours, for the purpose of persuading a large em­
ployer to hire some Negro personnel, is not “ likely to pro­
duce a clear and present danger of a serious substantive 
evil that rises far above public inconvenience, annoyance, 
or unrest. ” Terminiello v. Chicago, supra, 93 L. Ed. (Adv. 
Op.) at 868. Even had the objective been accomplished, and 
Lucky thereby been induced to contribute slightly toward



23

the reduction of the disproportionately high incidence of 
Negro unemployment in the State of California, the result 
would not endanger the peace and welfare of the people of 
the State.

The restrictive decision of the court below signifies, we 
believe, a trend on the part of the State courts toward re­
jection of this Court’s decisions establishing peaceful pick­
eting as an exercise of free speech. See e. g., Armstrong: 
“ Where Are We Going with Picketing” 36 Calif. L. Rev. 1. 
Unless this trend is reversed by a clear statement by this 
Court of the extent to which peaceful picketing is immune 
from state judicial action, labor and the nation may again 
be subjected to the evil of “ government by injunction” . 
This case presents an opportunity to put a stop to this dan­
gerous trend.

V. The Principles of the New Negro Alliance Case Are 
Applicable and Should Be Controlling

The State Supreme Court, pointing out that New Negro 
Alliance v. Sanitary Grocery Co., 303 U. S. 552, was con­
cerned with the question “ whether the case made by the 
pleading involves or grows out of a labor dispute within the 
meaning of Section 13 of the Norris-LaGuardia Act” , con­
cluded that the case did not involve “ any controlling con­
stitutional principle ’ ’, and that it provided no precedent of 
value” in resolving any of the issues of the instant case (R. 
96). In other words, the Court below was of the view that 
the issue in the New Negro Alliance case was entirely pro­
cedural and that no questions of substantive law were in­
volved.

We do not understand that the New Negro Alliance case 
can be so limited. The legality of picketing cannot be de­
termined solely by the presence or absence of anti-injunction 
statutes, State or Federal. It is no longer open to question



24

that the right of peaceful picketing is protected by the First 
Amendment and that the right may be exercised “ without 
special statutory authorization by a state.” Senn v. Tile 
Layers Protective Organisation, 301 U. S. 468. New Negro 
Alliance seems to us to stand for the broad proposition 
that Negroes and their organizations have a legitimate 
economic interest in the question of the employment of 
Negroes, and that peaceful picketing is an appropriate 
means of communicating to the public their grievances con­
cerning this question.

The striking factual similarity of the New Negro Alliance 
case and the instant case is apparent from the following re­
cital, taken from the opinion of this Court (303 U. S. at 
559) :

“ The case, then, as it stood for judgment, was this: The 
petitioners requested the respondent to adopt a policy of 
employing Negro clerks in certain of its stores in the course 
of personnel changes; the respondent ignored the request 
and the petitioners caused one person to patrol in front 
of one of the respondent’s stores on one day carrying a plac­
ard Avhich said: ‘Do Your Part! Buy Where You Can Work! 
No Negroes Employed Here!’ and caused or threatened a 
similar patrol of two other stores of respondent. The in­
formation borne by the placard was true. The patrolling 
did not coerce or intimidate respondent’s customers; did 
not physically obstruct, interfere with, or harass persons 
desiring to enter the store, the picket acted in an orderly 
manner, and his conduct did not cause crowds to gather in 
front of the store.”

After deciding that the case involved a “ labor dispute” 
within the meaning of the Norris-LaGfuardia Act, the Court 
declared:



25

“ The desire for fair and equitable conditions of employ­
ment on the part of persons of any race, color, or persuasion, 
and the removal of discrimination against them by reason 
of their race or religious beliefs is quite as important to 
those concerned as fairness and equity in terms and condi­
tions of employment can be to trade or craft unions or any 
form of labor organization or association. Race discrimina­
tion by an employer may reasonably be deemed more un­
fair and less excusable than discrimination against workers 
on the ground of union affiliations. There is no justification 
in the apparent purposes or the express terms of the Act 
for limiting its definitions of labor disputes and cases 
arising therefrom by excluding those which arise with 
respect to discrimination in terms and conditions of em­
ployment based upon differences of race and color.”

Thus, the opinion demonstrates the belief of this Court 
that picketing to rectify racial discrimination is every whit 
as socially justifiable and important as labor picketing, 
which is constitutionally protected. The inference is ir­
resistible that this Court regards the former type of picket­
ing as equally within the constitutional guarantee.

Conclusion
This case is concerned with the concrete application of 

certain generally accepted abstractions. Thus, it can hardly 
be denied that the Negro people have been victims of 
economic discrimination. Most persons would also agree 
that they are entitled to seek to overcome this discrimina­
tion and obtain economic equality.10 Had Petitioners 
charged Lucky with discriminating against Negroes in hir­
ing clerks and demanded that such discrimination cease, 
an injunction doubtless would not have issued. (See 
majority opinion in the State Supreme Court, R. 95).

10 See Green v. Samuelson, 168 Md. 421.



26

Here, however, Petitioners went a step further. They 
sought not merely equality to compete on the open market 
for jobs, an equality shown by experience to be of dubious 
value to Negroes, but they requested that a definite per­
centage of Negroes be hired as vacancies occurred. We sub­
mit that the valuable right of peaceful picketing should 
not be made to depend on the distinction between a general 
demand for the ending of discrimination, and a concrete 
demand for a number of jobs roughly proportionate to 
Negro patronage.

A reversal of the decision below will help to stem the 
growing trend of the state courts toward curbing free 
speech deemed in conflict with the courts’ own conceptions 
of public policy, which differ widely from state to state; 
will enlarge the scope of effective action by Negroes in 
their fight to equality of economic opportunity; and will 
add another to the notable list of decisions of this Court 
which have aided the Negro people in their attempts to 
attain full citizenship.

Dated at Oakland, California, October 14, 1949.
Respectfully submitted,

J o h n  H u g hes  and Louis R ichardson ,
Petitioners,

By B ertram  E dises,
Counsel for Petitioners,

1440 Broadway, 
Oakland, California.

R obert L. C ondon,
Martinez, California, 

Of Counsel.

(4760)



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