Hughes v. Superior Court of California in Contra Costa County Brief Amicus Curiae

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IN THE

Supreme Court of tjje Untteb £§>tatea
OCTOBER TERM, 1949

No. 61

JOHN HUGHES and LOUIS RICHARDSON,
Petitioners,

vs.

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

Respondent.

BRIEF FOR THE CONGRESS OF INDUSTRIAL 
ORGANIZATIONS AS AMICUS CURIAE

ARTHUR J. GOLDBERG,
General Counsel

Congress of Industrial Organizations 
718 Jackson Place, N. W. 

Washington 6, D. C.



1

IN THE

Supreme Court of tfte 33mteb States
OCTOBER TERM, 1949

No. 61

JOHN HUGHES and LOUIS RICHARDSON,
Petitioners,

vs.

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

Respondent.

BRIEF FOR THE CONGRESS OF INDUSTRIAL 
ORGANIZATIONS AS AMICUS CURIAE

The members of the Congress of Industrial Organizations 
have a two-fold interest in this case. The case involves, first, 
the right of Negro organizations, not affiliated with any labor 
movement, to combat discriminatory employment practices by 
publicizing the fact that certain employers do not hire Negro 
labor in proportion to their Negro patronage. Second, it in­
volves the right of any organizations, including labor organiza­
tions, to publicize the facts of a dispute by walking in front 
of an establishment carrying placards which truthfully state 
those facts, i.e., to picket.

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We support wholeheartedly the petitioners’ contention that 

the picketing which lead to their conviction for contempt was 
entirely lawful and proper and contravened no canons of pub­
lic policy. Indeed, we urge most strongly that the endeavor 
to combat discrimination against Negroes by picketing those 
establishments in Negro areas which refuse to hire qualified



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Negroes is one which is laudable and deserves the strongest 
support.

It is perhaps true that the employment of Negroes in pro­
portion to Negro trade is not the ideal solution to the problem 
of discrimination against Negroes in retail employment. The 
ideal would be the employment of qualified persons without 
regard to color. A Fair Employment Practice Act, making 
it unlawful for employers to discriminate on the basis of race 
or color, if rigorously enforced, is undoubtedly a more satis­
factory solution to the problem of discrimination than the one 
attempted by the petitioners here, and the CIO vigorously 
supports the enactment of such laws.

But ideals are not facts. California has no Fair Employ­
ment Practice Act and the Federal government has none. In 
the absence of such legislation, employers are free to choose 
their employees on the basis of color and the overwhelming fact 
is that they use this freedom to deny employment to qualified 
Negro personnel and thus perpetuate the economic handicap 
which retards the Negro race from attaining equality in all 
spheres of life.

The campaigns by Negro organizations to obtain the em­
ployment in retail stores of a percentage of Negro help equal 
to the percentage of Negro patronage is a campaign to restrict 
the effects of discrimination by obtaining a certain limited 
number of employment opportunities for Negroes. The anti­
dote thus striven for is not the perfect remedy. But it is the 
only practicable remedy available to Negro organizations in 
the absence of Fair Employment Practices legislation, since 
discrimination is not illegal and non-discrimination cannot be 
policed by private organizations without sanction of law. 
Certainly, this court, in New Negro Alliance v. Sanitary 
Grocery, 303 U. S. 552, recognized that the demand for 
proportionate hiring was a legitimate weapon in the struggle 
against discrimination.

The California Supreme Court, however, assumed the ideal 
and ignored the facts. It ignored the broad pattern of existing 
discrimination against Negroes and found that the counter­
measure here involved was an improper one because it did 
not set up an ideal standard. The California Supreme Court



had previously held that it was against public policy to 
enforce a closed shop contract when the union holding the 
contract was closed to qualified Negroes. James V. Marin- 
ship Corp., 25 Cal. 2d 721. In the present case, the Court 
said that the Negro race was the same thing as a union 
which refused admission to qualified persons because of their 
color. And it held that the petitioners, by seeking the em­
ployment of a fixed percentage of Negroes, were seeking to 
impose a partial “closed shop” for their “closed union.” And 
this, said the California Court, was an “unlawful purpose.”

As the petitioners have pointed out, this application of logic, 
devoid of any recognition of the factual background involved, 
is plainly erroneous. It is a mechanical application of formula 
which “treats society as though it consisted of bloodless cate­
gories.” It ignores the overwhelming fact that in society, as 
it exists, discrimination against Negroes in retail employment 
is the rule rather than the exception. In condemning the 
efforts of Negro organizations to supply an antidote for this 
discrimination because it involved a theoretical possibility of 
discrimination against whites, the court let its logic obscure 
the facts of life. Its condemnation, which might make sense 
if there were in fact no discrimination against Negroes, or if 
there were a law forbidding such discrimination, makes no 
sense in the face of the discrimination which does exist and 
which, unfortunately, is permitted under existing law.

n

The California court thus gave what we believe to be an 
erroneous answer to the question it asked: was the objective 
of the petitioners’ picketing a proper one? We think it erred 
even more seriously in even asking tha t question.

Let there be no mistake as to the issue upon which both 
the Superior Court and the Supreme Court of California1

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1 Under the California practice, the granting of a hearing by, the 
Supreme Court nullifies the decision of the District Court of Appeal. 
The Supreme Court treats the case as an appeal from the Superior 
Court and either affirms or reverses that Court The Court of Appeal 
decision in effect disappears from the case. It is not reported In the 
official California reports.



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decided this case. There was no issue as to whether the peti­
tioners’ activity violated any California statute, either criminal 
or civil. It clearly did not. Nor was there any issue as to 
whether their objective, if achieved, would constitute a viola­
tion by the employer of any civil or criminal provision. It 
clearly would not. The sole question posed by the California 
courts was whether the objective was an “improper” one.

Thus, the Superior Court, whose opinion is quoted by the 
District Court of Appeal at R. 70-71, said:

“A balancing of advantages to the defendants as against 
the disadvantages to this plaintiff and to the social order 
as a whole clearly points to disapproval of the acts com­
plained of.

“As a matter of principle, based upon a sound public 
policy, the Court cannot lend its assistance to this move­
ment. It must protect not only this plaintiff but the com­
munity as a whole from the dangers which exist in con­
tinued activity along these lines.”

When the District Court of Appeal quite properly reversed 
this holding of the Superior Court, the respondent petitioned 
the Supreme Court for a hearing. In that petition, the re­
spondent said that three questions were raised by the case 
(R. 55). The first two concerned matters no longer in issue 
and not relevant here. The third was this:

“3—Whether the demand by defendants for proportional 
hiring of Negroes, based upon the number of Negro cus­
tomers patronizing Lucky’s Canal Street Store, was an 
improper objective, and can this demand properly be 
urged through the medium of a picket line where there 
is no labor dispute between the employer and the group 
or persons who are picketing?”

The respondent contended that the District Court of Appeal 
had erred in deciding this point because (R. 57) “The Objec­
tive of Employment of Negroes in Proportion to Negro Patron­
age Is an Improper One.” The California Supreme Court 
granted the respondent’s petition, and after hearing, it agreed 
that the purpose of the petitioners activity was improper.

The decisions of both of the California Courts rest upon an 
unstated premise that picketing is, a priori, a forbidden ac­
tivity and that it should be enjoined unless it affirmatively



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appears that its objective is a proper one. The California 
courts thus consider that by simply refusing to enjoin picket­
ing they are really taking affirmative action to aid it. The 
question is, then, whether the court should “lend its assistance 
to the movement” (R. 71) and the court will not so lend its 
assistance unless the objective of the picketers is a proper 
governmental objective.

This premise is, of course, an insupportable one. As this 
Court has repeatedly stated in the line of cases beginning with 
Scnn v. Tile Layers Union, 301 U. S. 468, peaceful and tru th ­
ful picketing is a form of communication which is entitled to 
the protection of the First and Fourteenth Amendments. It 
Ls not prima facie illegal. It is not permissible only where the 
courts approve of its objectives. To the contrary, unless there 
are pressing reasons of public policy, it may not be prohibited. 
The absence of a prohibition is no more an endorsement of 
the picketers’ purposes than is the absence of restraint on 
political advocacy an endorsement of the advocate’s objectives.

True, there are areas in which a state may limit the peace­
ful dissemination of information by the carrying of placards. 
The exact limitation of those areas is not yet clearly settled. 
Certain guide posts have been established. The Court has 
held that picketing by a union cannot be enjoined solely 
because the union does not represent the employees of the 
concern picketed. A. F . of L. v. Swing 312 U.S. 321; Cafeteria 
Employees v. Angelos, 320 U.S. 293. Nor can picketing be 
limited to state defined “labor disputes,” or to the particular 
employer involved in a dispute. Cafeteria Employees v. 
Angelos, supra; Bakery & Pastry Drivers v. Wohl, 315 U.S. 
769. Compare Casselman v. Idaho, 205 P. 2d 1131, certiorari 
applied for, No. 358, this Term.

On the other hand, the Court has, by a divided vote, ruled 
that peaceful picketing can be limited to the industrial area 
in which a labor dispute arises, so as to prevent the conscrip­
tion of neutrals. Carpenters & Joiners Union v. Ritter’s Cafe, 
315 U.S. 722. And it unanimously held, in Gibony v. Empire 
Storage & Ice Company, 336 U.S. 490, that picketing which 
was merely the use of speech is a part of a conspiracy to 
Induce a violation of a criminal statute could be enjoined.

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Only in the last named decision has the question of objective 
been deemed material by this Court. In the other cases, the 
issue was whether the circumstances in which the picketing 
took place constituted a sufficient basis for the state to limit or 
restrain it, even though it be regarded as a channel of com­
munication.3 In none of them did the Court indicate that the 
constitutional right to use placards to disseminate information 
depended on the objective for which the communication was 
made.

Nor, in the Giboney case, did the Court give the slightest 
basis for justification of the California approach. No doubt 
recognizing that a limitation on speech in terms of its purpose 
was dangerous doctrine, the Court quite carefully stated that 
the picketing there was enjoinable only because it was “an 
essential and inseparable part of a course of conduct which is 
in violation of the state law.” The picketing was, in fact, “an 
integral part of conduct in violation of a valid criminal 
statute” and was, therefore, enjoinable.

This is a far cry from the standard applied by the California 
courts in the present case. Here there is no “violation of a 
valid criminal statute.” Indeed, the petitioners’ objective—the 
proportionate hiring of Negroes—would not be a violation of 
any law, criminal or civil, judge-made or statutory.

The distinction between the Giboney case and the present 
case is thus not just a distinction between judge-made and 
statutory law, nor just a distinction between criminal and 
civil law. The distinction is a more important one. It is 
between a rule which regards picketing as prima facie pro­
tected, as are other forms of speech, and permits its restraint 
only where some serious violation of law affirmatively appears, 
-and an approach which regards picketing as an activity which 
may be tolerated only if its objectives are such that a court 
feels may properly be affirmatively supported by the court.

To make this distinction clear, we may assume a case in 
which the legislature by statute, criminal or civil, prohibited 
picketing for a closed shop. Such a statute, if stated as a limi­

* Cf. Kovacs v. Cooper, 336 U.S. 53, in which the Court permitted 
a state agency to forbid the “loud and raucous” use of a different form 
of communication.



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tation on the right to picket for certain purposes, would clearly 
be unconstitutional if the achievement of those purposes by 
other methods of speech was permissible.” The legislature, we 
submit, could not prohibit picketing to obtain a closed shop if it 
permitted employers to maintain closed shops and permitted 
employees to ask for a closed shop in other ways. The legis­
lative restraint in such a case would not be directed against 
the closed shop but would be a direct restraint on a particular 
form of advocacy for an objective in itself lawful.

On the other hand, if the legislature found that the closed 
shop was itself a bad thing and forbade employers to enter 
into closed shop agreements, then it might be argued that 
picketing which is part of a course of conduct designed to 
induce violation of that statute could be restrained, under the 
rule of the Giboney case. In such a situation, the legislative 
restraint would not be directed at picketing, or a t speech or 
advocacy, but at a practice of employers which the legislature 
found to be substantively undesirable. Picketing could be re­
strained, not because of any evil in itself, but because of its 
part in a conspiracy, all of which could be restrained, to 
achieve violation by the employer of a valid statutory prohibi­
tion.

The “unlawful purpose” doctrine of the California courts 
clearly is not a doctrine of the latter type. There is not even 
a suggestion that the course of conduct which the petitioners 
were seeking to induce the person picketed to adopt would 
itself be “unlawful”, either under the statutes or the judge- 
made common law of California. The opinion of the California 
Supreme Court in the present case does not purport to say 
that the practice of proportionate hiring is either criminal or 
enjoinable in California. The “unlawful purpose” doctrine, in. 
short, is not based on the assumed unlawfulness of the picket- 
ers’ purpose per se. To the contrary, the purpose is stated 
only to be one for which it is unlawful to picket. Between 
these two formulations there is a vast difference. The first 
derives from a limitation on the substantive conduct of em-

* U’c exclude, for purposes of this example, the case in which the 
wcUlature finds that certain types of picketing are likely to lead to 
whence, etc. >

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ployers. The second is solely a limitation on picketing as a 
form of speech and, as such, we submit, is unconstitutional.

The California doctrine is based on the assumption that, by 
permitting picketing in a particular case, the state is giving 
an affirmative sanction to its objectives. On that assumption, 
the only objectives for which one may lawfully picket are 
objectives which the court itself would enforce. Whatever 
limitations the court may impose on its own actions, either 
on policy or on constitutional grounds, are thus made applica­
ble to private advocacy by picketing.

This concept is not only at variance with every decision of 
this Court dealing with picketing, more importantly, it is a 
concept which ignores the basic difference between state ac­
tion and private action upon which so many of our constitu­
tional doctrines rest. See Shelley v. Kraemer, 334 U.S. 1; 
Civil Rights Cases, 109 U.S. 3. The limitations imposed by 
constitutional and policy concepts on state action cannot 
properly be imposed pari passu on the private advocacy of 
individual action. Freedom of speech, if it has any mean­
ing, must mean freedom to advocate that other individuals 
adopt policies and actions which the state itself might not 
adopt, so long, at least, as those actions do not themselves 
violate state law.

In failing to recognize the basic difference between state 
action and private action and by limiting picketing to the 
advocacy of those objectives which the policy of the state 
favors, the California courts, we submit, have imposed a 
clearly unconstitutional limitation on an activity which, in 
this case in particular, is clearly speech and nothing else.

Respectfully submitted,
ARTHUR J. GOLDBERG,

General Counsel
Congress of Industrial Organizations 

718 Jackson Place, N. W.
Washington 6, D. C.