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

    IN  T H E

Supreme Court of the United States
October Term* 1949

No. 61

JOHN HUGHES AND LOUIS RICHARDSON, 
PETITIONERS,

vs.

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

ON WBIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE
OF CALIFORNIA

BRIEF OF THE NATIONAL ASSOCIATION FOR 
ADVANCEMENT OF COLORED PEOPLE 

AS AMICUS CURIAE.

R obert L. Carter,
T hurgood M arshall,
Attorneys for the National Associa­

tion for Advancement of Colored 
People as Amicus Curiae.

J ack Greenberg,
C onstance B. M otley,

Of Counsel.





IN  T H E

Supreme Court of the United States
O cto b e r T erm , 1949

No. 61

J o h n  H ughes  and L ouis R ichardson , 
P etitio ners ,

vs.
S uperior  C ourt op t h e  S tate op California  

IN AND FOR THE COUNTY OP CONTRA CoSTA

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

BRIEF OF THE NATIONAL ASSOCIATION FOR 
ADVANCEMENT OF COLORED PEOPLE 

AS AMICUS CURIAE.

Statement of Interest of the National Association for 
the Advancement of Colored People.

The National Association for the Advancement of 
Colored People is an organization which for the past forty 
years has devoted its efforts and energies toward the im­
provement of conditions affecting Negroes in the United 
States and throughout the world. It has worked unceasingly 
towards the eradication of racial discrimination which has 
kept the Negro from obtaining full citizenship.

One of the main factors which has kept the Negro in a 
status of unequality, is the wholesale discrimination in the 
economic field which has severely limited his opportunities 
to earn a decent livelihood. The National Association for



2

the Advancement of Colored People has consistently sought 
to eliminate these practices and has been in the forefront 
of the fight for state and federal fair employment practice 
legislation.

Although we are opposed to what has been alleged to be 
the ultimate objective of the petitioners in this action—- 
proportional or quota hiring of Negroes—we believe that 
the controlling and primary issue here is whether the right 
to peacefully picket in order to improve the economic oppor­
tunities for Negroes is a right which has the protection of 
the Federal Constitution. This, we submit, is the basic issue 
which this case presents, and it is for this reason that we are 
filing this brief as amicus curiae.

Permission has been secured from all parties for the 
filing of this brief, and letters granting permission have been 
filed in the Clerk’s office.

Statement of the Case.
On May 20,1947, Lucky Stores, Incorporated, filed in the 

Superior Court of the State of California, in and for the 
County of Contra Costa, a verified complaint for injunction 
naming petitioners as defendants (R. 1). The petitioners 
demanded that the corporation “ agree to hire Negro clerks, 
such hiring to be based upon the proportion of white and 
Negro customers patronizing its stores” (R. 4). Be­
cause of the refusal of respondent to comply with their 
demand, petitioners picketed “ Lucky’s” Canal Street 
Store in the City of Richmond, State of California. 
“ Lucky” alleged that unless this picketing was restrained 
respondent would suffer irreparable damage and be forced 
to close the store in question and that such picketing was 
an infringement on its right to do business and required 
“ Lucky” to violate a contract with a designated Clerk’s



3

Union with which it had an exclusive collective bargaining 
contract.

On the same day, May 20, 1947, the Superior Court is­
sued a temporary restraining order restraining, among 
other things, petitioners from picketing Lucky Stores for 
the purpose of compelling it to hire a number of Negro 
clerks proportionate to the number of Negro customers 
(ft. 34).

On May 26, 1947, a hearing was had on an order to show 
cause and the matter was submitted to the judge of the re­
spondent Superior Court. The Court determined that 
“ Lucky” was entitled to a preliminary injunction, and on 
June 5, 1947, the trial court made and issued its formal 
order granting the preliminary injunction in substantially 
the same language as the temporary restraining order 
(E. 34).

On June 21, 1947, citations issued from the trial court 
to petitioners ordering them to show cause why they should 
not be punished for contempt for violating the preliminary 
injunction. On June 23, 1947 the Court found the two peti­
tioners guilty of contempt and adjudged that they be im­
prisoned for two days and pay a fine of twenty dollars. A 
ten day stay of execution was granted (B. 35-36). On the 
same day-—June 23,1947—-a petition for certiorari was filed 
in the District Court of Appeals, First District, Division 
One, State of California (R. 36), and the writ of certiorari 
was granted (R. 43).

On November 20,1947, the District Court of Appeals, all 
three justices concurring, issued judgment holding that the 
preliminary injunction was beyond the jurisdiction of the 
trial court since it violated petitioners ’ constitutional rights 
and the judgment of contempt was annulled (R. 61).



4

Respondent Superior Court thereafter petitioned the 
Supreme Court of the State of California for hearing, and 
such petition was granted. On November 1, 1948, the Su­
preme Court of the State of California issued its opinion 
and made its decision that the judgment of contempt be af­
firmed. Four justices concurred in the majority opinion 
and two justices dissented (R. 90-111). Petitioners peti­
tioned for a rehearing by the State Supreme Court, and on 
November 29, 1948, the petition for rehearing was denied, 
again with two justices dissenting (R. 111).

The Question Presented.
M ay P ic k e tin g  to  S ecu re  G re a te r  E conom ic A d v a n ta g e s  fo r 
N egroes b e  E n jo in ed  B ecause th e  O b jec tiv e  is C on sid ered  
Illeg a l in  th e  A b sen ce  o f a  S how ing  o f a  C lea r a n d  P re se n t 
D a n g e r  o f S u b stan tiv e  H a rm  W h ich  th e  S ta te  is E n title d  to

P ro h ib it.

A R G U M E N T .

I.

The action of the Court results in an unconstitu­
tional suppression of free speech.

Freedom of speech and freedom of the press are among 
the indispensable characteristics of a democratic form of 
government and are rightly considered the most precious 
and cherished freedoms of our society, the sine qua non of 
our way of life. Palko v. Connecticut, 302 U. S. 319, 327; 
Thomas v. Collins, 323 U. S. 516. Since Thornhill v. Ala­
bama, 310 U. S. 88, there has been no question but that 
peaceful picketing was an exercise of the right to freedom 
of speech and as such was secure against governmental



5

prohibition. Thus interference with petitioners’ actions in 
this case was a violation of the guarantee of freedom of 
speech contained in the Fourteenth Amendment to the Fed­
eral Constitution.

Courts have no power to make a substantive examina­
tion of the pickets’ purposes and decide, as a result of such 
examination, whether the picketing is permissible or must 
be restrained. See Thornhill v. Alabama, supra; New Negro 
Alliance v. Sanitary Grocery Go., 303 U. S. 552. Courts may 
merely determine whether the picketing is protected under 
the First or Fourteenth Amendments, not whether it is 
proper or meritorious. Almost without exception, as long 
as the picketing is peaceful, it is protected under the Con­
stitution to the same extent as any other exercise of free 
speech. Thornhill v. Alabama, supra; Carlson v. California, 
310 U. S. 106; American Federation of Labor v. Swing, 312 
U. S. 321; Cafeteria Employees Union v. Angelos, 320 U. S. 
293. Even such cases as Carpenters & Joiners Union v. 
Ritter Cafe, 315 U. S. 722, held that peaceful picketing may 
not be prevented so long as the “ sphere of communication” 
is “ directly related to the dispute.” No such question 
arises here. The picketing was at the premises directly in­
volved in the dispute. Neither has any question been raised 
concerning the truth of the signs the pickets carried, nor 
whether the picketing was in fact peaceful which was the 
problem in Milk Wagon Drivers Union v. Meadowmoor 
Dairies, Inc., 316 U. S. 287.

The clear and present danger concept is the most palat­
able limitation upon freedom of speech. It has been 
variously defined. However, no matter what interpretation 
of the doctrine we employ, petitioners’ actions were not 
such as to warrant the restriction herein imposed.

1. The record demonstrates that there was neither a 
clear nor present danger of public disturbance.



6

2. The Court did not even imply that there was either 
a clear or present danger of petitioners instituting hiring 
practices inimical of the public welfare.

3. Even if such legislation were constitutional, there 
was no legislative finding that petitioners were creating a 
substantive evil which the state has a right to prevent. 
Cf. Dunne v. United States, 138 F. (2d) 137, 145 (C. C. A. 
8th, 1943).

Thus, whether the proscribed area be defined in any of 
the three ways described above or in any reasonable man­
ner that comes to mind, petitioners’ expressions still stand 
under the constitutional protection guaranteeing freedom 
of speech.

II.
Assuming that such a consideration were relevant, 

petitioners were not advocating an unlawful result.

The purposes for which the picketing was conducted 
were lawful. The picketing took place in the City of Rich­
mond, County of Contra Costa, which has a Negro popu­
lation of more than ten thousand. As elsewhere in the 
United States, employment opportunities for Negroes in 
Contra Costa are seriously circumscribed by tradition and 
prejudice, a situation which promises to become more acute 
in any possible economic recession which we may face in the 
future. Already, in Richmond, unemployment among the 
Negro population is greatly disproportionate to unemploy­
ment among the whites.

Petitioners, motivated by the quite understandable de­
sire to improve their economic lot, undertook to picket, 
urging that respondent afford greater opportunity for em­



7

ployment to Negroes by abolishing discrimination based 
upon color in their hiring practices. They picketed, carry­
ing signs which stated:

LUCKY WON’T HIRE NEGRO CLERKS IN 
PROPORTION TO NEGRO TRADE—DON’T 

PATRONIZE

The Court, interpreting “ proportionate” as a math­
ematical word of art, concluded that petitioners were ad­
vocating employment of Negro clerks in strict ratio to 
whites, probably determined by a census of Richmond’s 
growing and variable population. In Cafeteria Employees’ 
Union etc. v. Angelos, supra, this Court adopted a more 
reasonable standard for interpreting the language of labor 
disputes. There it was stated:

“ To use loose language or undefined slogans that 
are part of the conventional give-and-take in our 
economic and political controversies—-like ‘unfair’ 
. . .  is not to falsify facts.”

Petitioners’ signs, seen against the background of facts, 
and in the light of this Court’s standard of interpretation 
takes on a meaning more hortatory and less artificial, which 
was the meaning undoubtedly conveyed to those living in 
the context of the controversy. They were simply interested 
in increasing employment opportunities for Negroes and 
eliminating discrimination against them, something quite in 
accord with the public policy of the State of California, 
Jam.es v. Marinship Corp., 25 Cal. (2d) 721, 155, p. 2(d) 
329 (1944) and Williams v. International etc. of B oiler- 
makers, 27 Cal. (2d) 586, 165 p. 2(d) 903 (1946), and of the 
United States, New Negro Alliance v. Sanitary Grocery 
Company, 303 U. S. 552.

The only objection to the picketing was the allegation 
that the pickets urged hiring of Negroes on a proportional



8

or quota basis and that such hiring would effect an inverse 
racial discrimination contrary to the policy of the State of 
California as determined in James v. Marinship Corp., supra. 
As stated at the outset, we, too, oppose a proportional or 
quota system of hiring and feel that persons must be given 
job opportunities in accordance with ability rather than in 
accordance with race or color. But the question is not whether 
petitioners’ aims were good aims (granting that the Court’s 
interpretation of the signs was correct), but whether the 
state’s action was constitutional. Except for the quota or 
proportional aspects of the case, the factual situation is 
similar to that presented in New Negro Alliance v. Sanitary 
Grocery Co., Inc., supra, where this Court stated at page 
561:

“ The desire for fair and equitable conditions of 
employment on the part of persons of any race, color, 
or persuasion, and the removal of discriminations 
against them by reason of their race or religious be­
liefs is quite important to those concerned as fair­
ness and equity in terms and conditions of employ­
ment 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 
unfair and less excusable against workers on the 
ground of union affiliation.”

III.
The cases upon which the Court relies are clearly 

distinguishable.

Both the Marinship ease and the Williams case, upon 
which the Court relies, are clearly distinguishable. James 
v. Marinship Corp., supra, concerned a union which refused 
to admit Negroes and which also had a monopoly of jobs 
in a certain area. The Court held that a union with closed



9

shop prerogatives may not maintain a closed, discrimina­
tory union. Williams v. International etc. of Boilermakers, 
supra, held similarly, however not limiting itself to the case 
of a monopoly of a geographical area. It held that a single 
closed shop was enough to justify the Court’s intervention 
against discrimination. Secondly, neither the question of a 
closed shop nor a closed union is here involved. The Court, 
still assuming that the petitioners desire to introduce an 
arbitrary system of hiring, unrealistically analogizes the 
Negro race to a closed union. To compare a racial group 
desirous of acquiring a fair share of jobs available on a 
non-discriminatory basis, to an association organized for 
economic purposes and capable of including members of 
all races, ignores the fundamental social inequities which 
precipitated this dispute.

Conclusion.
W h erefo re  fo r  th e  reasons herein  a b o ve  

m en tion ed  it  is re sp e c tfu lly  su b m itted  th a t th e  
ju d g m en t o f th e  S uprem e C ourt o f C alifornia  
sh ou ld  b e  reversed .

R obert L . Carter,
T hurgood M arshall,
Attorneys for the National Associa­

tion for Advancement of Colored 
People as Amicus Curiae.

J ack Greenberg,
C onstance B . M otley,

Of Counsel.



L awyers P ress, I nc., 165 William St., N. Y. C. 7; ’Phone: BEekman 3-2300