The majority opinion, following the modern current of authority upon which it relies, proceeds upon the theory that "peaceful picketing" is a manifestation of free speech guaranteed by the first and fourteenth amendments to the Federal constitution. The concurring opinion seemingly is in accord with that view. Upon that theory, both opinions reach the conclusion that it is beyond the power of the courts to enjoin a labor union from picketing an industrial plant whose employees are members of a rival union, where the purpose of such picketing is to induce the rival union to accept and adopt the policies of the picketing union with reference to strikes and wage demands. The dissenting opinion by Judge Beals also accepts as settled law the modern idea that, as a general proposition, picketing is a lawful exercise of the right of free speech, but, upon the peculiar facts involved in the two instant cases, concludes that the activities of A.F. of L., the picketing union, transcended the permissible ambit of "peaceful picketing" and therefore are not within the protection of the constitutional guaranty.
I concede that, upon an unhesitating acceptance of the premise on which it is founded, the majority opinion finds ample justification in a series of latter-day decisions of the United States supreme court and of this court as well. Those same decisions, however, can also be read in a way to furnish logical support for the aforementioned dissenting opinion, and were it not that it accepted the expressed premise I would readily join in that dissent. But my unwillingness to accept the adopted premise compels me not only to dissent from the majority opinion, but also to withhold my unqualified concurrence with the dissenting opinion.
I have long entertained the view, and the precedent decisions above mentioned have only served to solidify that *Page 344 view into a fixed opinion, that picketing, whether "peaceful" or otherwise, is not a manifestation of free speech, but, on the contrary, is nothing less than economic pressure, economic coercion, or economic warfare, whichever of those terms may be the most suitable to the particular occasion. Futhermore, as I observe the unremitting trend of those decisions and note the consequences which have inevitably followed, I think that the pronouncement of this modern concept has been the harbinger of the industrial chaos which now stares us in the face from all around. If there is a single person, or group of persons, in these United States today who does not fully comprehend, or at least does not clearly sense, the nature, purpose, and effect of "picketing," such person, or group of persons, must surely be found among the wearers of the judicial robe.
I do not believe that those wise and strong-willed men who labored long and painstakingly to fashion that immortal document known as the United States constitution, and made provision for the Bill of Rights, later incorporated therein in the form of amendments, ever conceived, much less intended, that their ideal of "freedom of speech" should become a Baal, before whom all the inalienable rights of life, liberty, and the pursuit of happiness must ever bow down. Note the premise from which those men proceeded, as expressed in the preamble to the organic document:
"We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America."
Well might that preamble be here italicized as containing the heart and soul of the supreme law of the land as then and there formulated.
The men who chiselled out that monument of the law knew well the fiber of the people whom they represented and knew also the evils from which such people were resolved to be forever free. Their knowledge of history *Page 345 reached back to the Reformation, the Renaissance, and the English Bill of Rights, and they were immeasurably imbued with the spirit that gave birth to the Declaration of Independence. They were cognizant of the many forms of oppression to which the peoples of preceding centuries had been subjected by kings, princes, and potentates of those eras, and they were determined that the people of this new nation should forever have the right to voice their opinions and their grievances against those whom they should select, from time to time, to govern them.
Historically, freedom of speech, which was given a place upon the same pedestal as were freedom of religion, freedom of the press, and freedom of the people peaceably to assemble and to petition the government for redress of grievances, guaranteed to the people the unabridged right to the free expression of opinion concerning political subjects and matters of general public interest. During all of a period covering approximately two hundred fifty years from the date of pronouncement of that guaranty, it was never thought that freedom of speech was a vehicle for conducting economic warfare by private groups, one against another. During all, or most, of that period also it was generally understood and accepted that the several states, and not the Federal government, had jurisdiction to determine the legality of labor activities. Since strikes, picketing, and boycotts interfered with a free market, such activities were considered by some courts to be common-law torts per se, without any legal justification, and by other courts as primafacie common-law torts permissible only when legal justification therefor was shown.
It has been only within the last decade that the identification of "peaceful picketing" with the right to freedom of speech has come into vogue. This modern concept seems to have had its first intimation in a dictum expressed in the case of Senn v. TileLayers Protective Union, 301 U.S. 468, 81 L. Ed. 1229,57 S. Ct. 857, wherein the court made this statement:
"Members of a union might, without special statutory authorization by a State, make known the facts of a labor *Page 346 dispute, for freedom of speech is guaranteed by the Federal Constitution."
The modern idea did not come into full flower, however, until the period between 1940 and 1942, during which time the United States supreme court handed down its decisions in the cases ofThornhill v. Alabama, 310 U.S. 88, 84 L. Ed. 1093, 60 S. Ct. 736;Carlson v. California, 310 U.S. 106, 84 L. Ed. 1104,60 S. Ct. 746; American Federation of Labor v. Swing, 312 U.S. 321,85 L. Ed. 855, 61 S. Ct. 568; and Bakery Drivers Helpers Local 802v. Wohl, 315 U.S. 769, 86 L. Ed. 1178, 62 S. Ct. 816.
By those decisions and others which followed in their wake, including a number from our own state, picketing has been judicially identified with free speech, under the protecting aegis of the Federal constitution.
How has this sudden change in recent years come about? The technique by which it has been accomplished has been quite simple, yet utterly devastating of former conceptions, under which picketing was considered a species of civil wrong, classed at least as a prima facie common-law tort and permissible only upon a showing of legal justification. This complete transformation of thought has been consummated by the judicial linking of two conceptions: one taking the form of encomium and panegyric addressed to the constitutional guaranty of free speech — with which we can all sincerely agree; and the other, a characterization of picketing as being a means of disseminating information and enlightening the public with respect to matters which are of public concern and therefore a manifestation of free speech — with the implications of which I am unable to agree.
The full effect of this new doctrine may not have riveted one's attention upon a cursory reading of these recent decisions. Upon further consideration, however, one will discover that almost in the twinkling of a judicial eye the entire status of picketing and its relation to formerly accepted principles of law have been completely reversed. In the first place, picketing is no longer a tort, per se or prima facie, but is now clothed with the habiliments of a *Page 347 constitutional right; in the second place, the state courts have been virtually shorn of their power to enjoin or put limitations upon picketing activities, such as those involved in these two cases, and have been relegated to a position having but little more authority than a rubber stamp; and, finally, no legislative body can henceforth validly enact any law controlling the realm of picketing or placing any restrictions upon it, so long as picketing continues to be a manifestation of free speech. For if such activity be identified with freedom of speech, sanctified by the Federal constitution, then no court and no legislative body, whether it be a state legislature or the national Congress, can in any way whatever abridge the right to exert that propensity.
If picketing draws its sustenance and maintains its virility through some umbilical connection with free speech, then no court can sever that connection between parent and child. And when a picketing activity assumes to function of its own accord, no court can say, as many courts including our own have heretofore frequently said, that a picket line shall be limited to only five or ten men, for no individual can be deprived of his personal right to speak freely or be compelled to express his sentiments through the mouth of another. Nor can any court, in the face of such constitutional sanctification, fix, as many courts including our own have heretofore fixed, the limits within which a picket may patrol, for if the right of speech be free and unabridged, it may be exercised wheresoever in whatever manner one may select, whether on the platform, on a public street, or through the press.
This is not all. The constitutional guaranty is not to be limited to situations arising only out of labor activities. If, in the exercise of his right of free speech, a picket may carry a banner publicizing the merits of his cause and the demerits of his opponent's contentions, then a merchant or a group of merchants may institute a similar practice, parading with banners in the neighborhood of competitive establishments, extolling the superiority and cheapness of price of their own wares as compared with the inferiority *Page 348 and exhorbitant prices of the wares sold in the picketed establishment; and the picketing merchants may well justify such activities on the ground that in the economy of life the public is vitally concerned in securing the best goods obtainable at the lowest prices possible.
Many other illustrations could be cited, but, like those given above, they all demonstrate that it is a misnomer to say that picketing is a manifestation of free speech, and an anomaly to align the virtues of the one with the vices of the other. To regard picketing as an analogue of free speech, is like extolling the principle of freedom of travel on the high seas, then pointing to a balloon overhead and calling it a boat. Regardless of what the balloon be called, no one would take passage in it in the belief that he was about to enjoy a trip upon the water.
I believe that a serious mistake has been made in lifting picketing activities from their traditional category and giving them the label and connotations of free speech. I am of this opinion not only because I believe that this new concept does violence to the language and spirit of the Federal constitution, but also because it inaugurates a ratio decidendi which will lead on to an ever-increasing volume of industrial strife and chaos.
Picketing is not cast in the mold of freedom; it is economic warfare. Nor is it speech, in the sense that it is intended to convey legitimate information which the public seeks and desires to know. Members of the public do not approach a picket line to be educated, but, rather, endeavor to keep as far away from it as possible in order to avoid embarrassing situations.
The instant cases are striking illustrations of the perversion of freedom of speech. Members of the C.I.O. are deprived of their desire and freedom to work, under their existing contract, by a picket line which they dare not cross. To say that the purpose of the picket line is to inform and educate the members of C.I.O. concerning the rights and desires of labor generally is ridiculous. They already have as much education on that subject as have their informers. What those members seek, and what they are *Page 349 entitled to secure, is to be let alone in their endeavor to work for their employers, with whom they have no quarrel.
As shown by the majority opinion, this is strictly an altercation between two labor unions and their respective members. If that were the only significant thing involved in the present situation, those two bodies might well be left to work out their own differences. But the matter here has a larger and more serious aspect. The purpose of this particular picketing activity is to close the plant of the employer, to prevent access to a free market, and, for the time being, to deprive the public of those products which it sorely needs. The rights of the employer and the general citizenry are held in contempt, solely because a certain group of workmen insist upon exercising their so-called right of free speech through a form of picketing activity. The victims play the part of the "forgotten man."
For the reasons herein stated, I am of the opinion that picketing as conducted in this instance is a tort, not a constitutionally protected right; and that the circumstances demonstrate that it is not legally justified and, therefore, should be permanently enjoined. I therefore dissent from the majority opinion and concur only in the result of the preceding dissenting opinion. *Page 350