Hughes v. Superior Court of California in Contra Costa County Brief Amicus Curiae in Support of Petition for Certiorari

    Supreme Court of the United States
October T erm , 1948.

IN  T H E

Mo. 4 0 8  IVSIsc.

JOHN HUGHES and LOUIS RICHARDSON,
Petitioners,

vs.

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

Respondent.

BRIEF FOR THE CONGRESS OF INDUSTRIAL ORGAN­
IZATIONS AS AMICUS CURIAE IN SUPPORT OF 
PETITION FOR CERTIORARI.

A r t h u r  J. G oldberg,
General Counsel.

T homas E. H arris,
Assistant General Counsel.

THEGUNTHORP-WARREN PRINTING COMPANY, 210 WEST JACKSON, CHICAGO



IN  T H E

Supreme Court of tlie United States
O ctober T erm , 1948.

No. 408 Misc.

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 ORGAN­
IZATIONS AS AMICUS CURIAE IN SUPPORT OF 
PETITION FOR CERTIORARI.

The Congress of Industrial Organizations files the with­
in memorandum on behalf of its members because this case 
represents a dangerous encroachment on one of the basic 
rights of labor in this country—a right often recognized by 
this Court. The decision of the California Supreme Court 
attempts to place limitations on the right to picket peace­
fully far more stringent than those permitted by this 
Court’s interpretation of the Constitution,



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Question Presented by This Case.

1. This ease presents. squarely the question whether a 
state court can, merely by declaring that peaceful picket­
ing is for an “ unlawful purpose” , as defined by its own 
judicial decisions, confer upon itself power to enjoin such 
picketing despite the protection of the Fourteenth Amend­
ment.

This bootstrap-lifting technique, simply stated, involves, 
two premises: First, picketing which does not have a
“ legal purpose” is not within the scope of the United 
States Constitution. Second, it is the function of the state 
courts to define the term “ legal purpose.” Yet this tech­
nique, although clearly grounded on fallacious reasoning, 
involves perhaps the most serious of recent efforts to in­
fringe upon the right to picket.

This Court’s “Peaceful Picketing” Doctrine.

2. The judicially created “ illegal purpose” limitation on 
the right to picket has had a long history both in the 
state and in the federal courts. But until decisions like 
that of the court below began seeking the revival of the 
“ illegal purpose” theory, it had been supposed that Thorn- 
hill v. Alabama, 310 U. S. 88 (1940), and subsequent cases 
decided by this Court had laid that doctrine to rest. In the 
Thornhill decision this Court first held that the kinship be­
tween peaceful picketing and other forms of communica­
tion was such that the former, like the latter, was pro­
tected by the First and Fourteenth Amendments. The 
scope of the Thornhill doctrine was more clearly defined 
when later decisions emphasized the non-speech aspects 
of picketing to add restrictions not imposed by the “ clear 
and present danger” test alone. Thus, in Carpenters <fc 
Joiners Union v. Ritter’s Cafe, 315 U. S. 722 (1942), this



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Court affirmed the issuance of an injunction which limited 
picketing to the ‘ ‘ area of the industry in which a labor dis­
pute arises,” thus prohibiting the “ conscription of neu­
trals.” And in Giboney v. Empire Storage and Ice Com­
pany, 17 U. S. Law Week 4307 (April 4, 1949), a state 
court was permitted to enjoin picketing the purpose of 
Which was to compel an employer to violate the state anti­
trade restraint statutes. Even the Giboney case, however, 
may represent an application of the “ clear and present dan­
ger” doctrine, in light of Justice Black’s statement in his 
opinion that “ [tjhere was clear danger, imminent and im­
mediate, that unless restrained, appellants would succeed 
in making that policy a dead letter insofar as purchases 
by nonunion men were concerned.” 17 U. S. Law Week 
at 4310.

But every decision of this Court has clearly recognized 
that the constitutional status of picketing makes the limi­
tations on the right to picket, as well as the right itself, 
a federal question to be ascertained by reference to the Con­
stitution. State tort law definitions are not determinative 
of the right. True, a state court’s decision that “ the mo­
mentum of fear generated by past violence would survive 
even though future picketing might be wholly peaceful” 
could serve as a basis for enjoining such future picketing. 
Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 
312 U. S. 287 (1941). But this was no more than the 
state’s expression, through its courts, of a belief that a 
“ clear and present danger” existed—and this Court is 
the final arbiter of the weight to be given that expres­
sion.

Effect of the Giboney Decision.

3. In Giboney v. Empire Storage and Ice Company, 17 
U. S. Law Week 4307, 4309 (April 4, 1949), this Court’s 
most recent decision on the subject of picketing, Justice



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Brandeis’ opinion in Duplex Printing Co. v. Peering, 254 
U. 8. 443, 488 (1921), was quoted with approval:

‘ ‘ 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].”

Throughout its opinion, this Court emphasized the fact that 
the case involved not “ publicizing to be treated in isola­
tion” but “ peaceful picketing carried on as an essential 
and inseparable part of a course of a conduct which is in 
violation of the state law” :

“ Thus all of appellants’ activities—their powerful 
transportation combination, their patrolling, their 
formation of a picket line warning union men not to 
cross at peril of their union membership, their pub­
licizing—constituted a single and integrated course of 
conduct which was in violation of Missouri’s valid 
law. In this situation, the injunction did no more than 
enjoin an offense against Missouri law, a felony.

“ It rarely has been suggested that the constitutional 
freedom of speech and press extends its immunity to 
speech or writing used as an integral part of conduct 
in violation of a valid criminal statute. We reject 
the contention now.”

But the present case involves no question of legislative con­
trol over peaceful picketing. It represents an attempt by 
state judges to violate the principle enunciated by Justice 
Brandeis and approved by this Court. It is respectfully 
submitted that the Oihoney decision supports the conten­
tion of this amicus curiae that certiorari should be granted



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in the present case and that the decision of the California 
Supreme Court should be set aside.

Nature of Picketing Involved in Present Case.

4. In the present case, the picketing was admittedly 
peaceful—perhaps the most peaceful to come before this 
Court since the Thornhill case. Not only was there no 
suggestion of violence, but the picketing itself -was in its 
nature pure communication—-“ publicizing in isolation” 
without even an appeal to organized labor which might 
increase its success as a persuasive measure. The doctrine 
of the Meadowmoor case and Hotel S  Restaurant Em­
ployees International Alliance v. Wisconsin EBB, 315 IT. S. 
437 (1942), is therefore inapplicable. The picketing was 
carried on at the establishment of the employer directly 
involved, so that the “ conscription of neutrals” condemned 
in the Ritter case was absent. No violation of . state anti­
trust laws or other state statutes was charged, so that the 
situation in the Giboney case was not present. Yet the 
California Supreme Court, simply by stating that the 
picketing was for an “ unlawful” purpose as a California 
common-law tort, purported to withdraw the protection 
of the Constitution from that picketing.

State Courts’ Usurpation of This Court’s Powers.

. 5.. An acceptance of the decision of the California 
Supreme Court in this case will involve an abdication by 
this Court of its position as ultimate interpreter of the 
Constitution. The consequences of allowing state court 
declarations of “ legality” to give content to a constitu­
tional guaranty are well illustrated by this case. The 
California Supreme Court stated that picketing to urge 
an employer to hire a number of Negro clerks “ based



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on the proportion of white and Negro customers patron­
izing [its]. stores” is picketing for an “ unlawful” objec­
tive. The court assumed without deciding that “ picketing 
to protest [discrimination against Negroes in employing 
clerks] would not be for an unlawful purpose.” But if 
certiorari is denied merely because picketing was ‘ ‘ unlaw­
ful” by California judicial standards, the same court, 
merely by making the opposite assumption, could im­
mediately shrink the scope of protection afforded by the 
Fourteenth Amendment. And, by the same token, a state 
decision that picketing was for an unlawful objective 
if no “ labor dispute” existed under state law would fur­
ther contract the constitutional guaranty. Yet the latter 
contention, basically no different than that of respondent 
in the present case, has already been met and rejected by 
this Court in AFL  v. Swing, 312 U. S. 321 (1941), and in 
Cafeteria Employees Union v. Angelos, 320 U. S. 293, 
295-96 (1943).

Present Confusion in State Courts.

6. If state court notions of legality are to define the 
scope of constitutionally protected picketing, identical con­
duct will wear the mantle of constitutional immunity in one 
state while being subject to “ government by injunction” 
in another. The anomalous result of such uncertainty in 
an area where certainty is essential is strikingly illustrated 
by two Texas Supreme Court opinions handed down on 
March 23, 1949. In International Union of Operating 
Engineers v. Cox, 16 CCH Labor Cases ff 65,053 (1949), 
the Texas court invoked this Court’s peaceful picketing- 
cases to invalidate a statute which effectively limited 
picketing to “ labor disputes”—defined by the legislature 
as. requiring a controversy between an employer and a 
majority of bis employees. Yet the same court felt free,



in Dickson y . North East Texas Motor Lines, Inc., 16 CCH 
Labor Cases If 65,054 (1949), to adopt its own definition 
of “ labor dispute” in order to affirm a trial court’s injunc­
tion prohibiting admittedly peaceful picketing.

Such decisions may" represent confusion on the part of 
the Texas court as to the full scope of the constitutional 
guaranty announced in this Court’s decisions. ' But they 
may instead be the most recent manifestations of the seem­
ing reluctance of many state courts to accept peaceful 
picketing as an exercise of free speech. See 5 Wash, & 
Lee L. Rev. 259 (1948). In either event, it should be made 
crystal-clear to such courts that the non-enjoinability of 
picketing is to be determined not by state tort law but 
by United States constitutional law. Dodd, Picketing and 
Free Speech: A Dissent, 56 Harv. L. Rev. 513, 528-30 
(1943). Only a clear statement by this Court of the full 
extent to which peaceful picketing is immune from state 
judicial action can prevent decisions like those in the 
Dickson case and the present case.

Conclusion.

The picketing enjoined by the court below was wholly 
peaceful in its nature and subject to none of the limita­
tions imposed on the right to picket by this Court’s inter­
pretation of the Constitution. To deny certiorari in this 
ease would be to subject labor once again to “ government 
by injunction”—a control limited only by state judicial 
notions of “ unlawful” purposes of picketing. The judg­
ment below should be reversed.

Respectfully submitted,

A rth u r  J. G oldberg,
General Counsel, 

T homas E. H arris,
Assistant General Counsel.

V