The courts of this state have never held that a picket who carries a banner or engages in speech is protected by the Constitutional guarantee of freedom of speech and of the press. Since the street upon which he paces to and fro is owned by the public, and since its use is subject *Page 217 to municipal and state regulation, the picket's rights have never been deemed by the Oregon courts free from legislative control. Ordinarily, a right subject to such limitations is not deemed within the purview of the first section of the Bill of Rights. Hence, the activities of a picket have never been spoken of by the courts of this state as the exercise of the Constitutional right of freedom of speech.
Only within the last three years has the Federal Supreme Court declared that the act of making known the facts of a labor dispute is the exercise of the Constitutional right of freedom of speech, and it was not until six months ago that it said that a picket's use of a printed banner is protected by the Constitutional guarantee of freedom of speech. Two years ago the nation celebrated the sesquicentennial of its Constitution. In the century and a half that passed since the Constitution was written the Supreme Court never recognized picketing as the exercise of freedom of speech, although in that period of time it determined many controversies in which pickets were involved. As recently as 1905 a federal court said:
"There is, and can be, no such thing as peaceful picketing, any more than there can be chaste vulgarity, or peaceful mobbing, or lawful lynching." Aitchison Railway Co. v. Gee, 139 Fed. 582.
In 1919 the same attitude towards picketing was voiced in California (Moore v. Cooks' etc. Union, 39 Cal.App. 538,179 P. 417). In that same 150 years Congress never recognized picketing as freedom of speech. Had picketing been deemed the exercise of a Constitutional right, the Clayton Act, the Wagner Act, the Norris-LaGuardia Act, and similar enactments would have been wholly unnecessary. *Page 218 It is significant that in the two articles printed in the Voters' Pamphlet, in opposition to the picketing bill, at the time of its submission to the people (November 8, 1938), no mention was made of freedom of speech. One of those opposition articles was written by the Oregon State Federation of Labor.
The above is not written in disapproval of the new interpretation, but to make it clear that the recognition of picketing as the exercise of the Constitutional right of freedom of speech is not only recent, but also in sharp contrast with all that was done and said in the first 150 years of the Republic's development of its Constitutional law. It is not inappropriate to add that the new point of view has been subjected to criticism as unsound. See September, 1940, edition of the American Bar Association Journal, page 709.
It may be well to pause for a moment and consider the nature of the Constitutional right of freedom of speech. If picketing is deemed the exercise of that Constitutional privilege, we may have to revise our conception of that right; for otherwise we shall possibly subject some employers, who refuse to yield to picketers' demands, to conditions which may be ruinous. Freedom of speech grants greater rights than the privilege of placing in front of an establishment a couple of pickets with modest placards in their hands. Freedom of speech as developed in a century and a half of American Constitutional law is by no means a vain thing. To the contrary, it is intended to be a means of getting things done, and, in order to give to it effectiveness, the law subjects numerous other rights to its superior potency. Recognition of the right of freedom of speech has in the past been confined almost exclusively to the field of governmental problems, *Page 219 and, in order that those problems may be solved without resort to arms, the law gives to freedom of speech the great potency just mentioned; thus making it one of the Brahmans of the law.
Mr. Justice Brandeis, in Whitney v. California, 274 U.S. 357, gave to us the conception of freedom of speech which has found the most favor. He said:
"* * * To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. * * * To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. * * * The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the State."
In Thornhill v. Alabama, 60 Sup. Ct. 736, 84 L.Ed. 659, in which it was held directly that the promulgating of information by means of a picket is protected by the guarantee of freedom of speech, the court endorsed the views of which notice has just been taken, twice saying that before suppression can be resorted to, the danger threatened by speech must be not only imminent, but also of a "serious" character. Mind you, *Page 220 the danger must be to the State — the employer's peril is immaterial.
It is worthy of repetition that in a democracy freedom of speech is essential. And it is essential that a wide range of latitude be given to the speaker. In no other way can democratic institutions survive. When sound principles of government are the issue in a democracy, argument, debate, heated controversy, ill-considered threats, and even some violence, must be expected and must be tolerated. Generally, they occur in some public meeting place and, hence, no one individual is injured more than the others. But, when incidents of that kind occur at the entryway of some business establishment which has declined to meet the pickets' demands, the situation may be disastrous for the employer.
In the past at least, wages were said to be the result of the operation of the law of supply and demand. Today we resort to collective bargaining. Free speech, if resorted to at the entryway of an employer's place of business, seems more compatible with popular referendum than with a determination of wage scales under the economic principle just mentioned. In Sennv. Tile Layers Union, 301 U.S. 468, in which the court for the first time mentioned freedom of speech while disposing of a cause involving a labor dispute, it likened the allowable union activity to the "advertisements" which a merchant employs. Advertisements, circulars and window displays are a restricted form of publicity. When employed for purely commercial purposes, they possibly are not protected by the First Amendment. Be that as it may, the use of that form of publicity is compatible with collective bargaining as the basis of a wage scale. *Page 221
The purpose of the above is not to express my views concerning the new interpretation of a picketer's rights. Whether the new interpretation has opened a Pandora's Box from which vexatious troubles of a new and novel character will escape, or whether it is, in truth, a reopening from which hope, after its long confinement, has at last been released, are problems upon which I am not called upon to express an opinion. The above review of the nature of freedom of speech is offered to justify a statement that state judges — they not being the authors of the new interpretation of a picketer's privileges — ought to apply the new rights cautiously. The rights are new and powerful. That circumstance suggests that we ought to be sure that we understand the new interpretation before we expand it. It may be that the employer-employee relationship, which has gained for itself a special classification in our jurisprudence, will receive the benefit of the First Amendment only in a modified or restricted form. Possibly something of that kind is what Mr. Justice Brandeis had in mind when in the Senn case he likened labor's appeal for public preference to a merchant's efforts, through advertising, to find a market for his goods. It will be recalled that he spoke of "advertisements in the press, * * * circulars, * * * window displays." In the Thornhill and the Carlson cases Mr. Justice Murphy more than once spoke of "the publicizing of the facts of a labor dispute" — a phrase not substantially different from Mr. Justice Brandeis'. In none of the three cases just mentioned did the court, as it was using those words, associate them with the clamor, violence and disturbances sometimes attendant upon the exercise of free speech. To the contrary, all three decisions so many times described as peaceful the *Page 222 activities of the pickets involved in those cases that they implied a different result would have been required had the attendant circumstances been otherwise. Further, the approval in the Thornhill decision of American Foundries v. Tri-CityCouncil, 257 U.S. 184, strongly suggests that a picketer is not to be allowed the full benefit of freedom of speech. The opinion of the majority, it seems to me, goes beyond the new decisions — not in its result, but in its statement of the controlling principles.
Not every picket is engaged in the exercise of freedom of speech or of the press. He may be merely a lookout or engaged in patrol duty only. To be within the Constitutional protection, it is essential that he give forth information; or, in the words of the Supreme Court, "publicize the facts of a labor dispute."
The new decisions of the Federal Supreme Court, which held that the act of a picket who proclaims the facts of a labor dispute is within the protection of the First Amendment as extended by the Fourteenth, leave no room for any conclusion except that our statute is invalid.
Subject to the above limitations, I concur in the opinion of the majority.