310 U.S. 88 (1940), 514, Thornhill v. Alabama

Docket NºNo. 514
Citation310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093
Party NameThornhill v. Alabama
Case DateApril 22, 1940
CourtUnited States Supreme Court

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310 U.S. 88 (1940)

60 S.Ct. 736, 84 L.Ed. 1093




No. 514

United States Supreme Court

April 22, 1940

Argued February 29, 1940



A statute of Alabama makes it unlawful for any person, "without a just cause or legal excuse," to go near to or "loiter" about any place of lawful business, for the purpose of, or with the intention of, influencing or inducing other persons not to buy from, deal with, or be employed at such place of business; or to "picket" a place of lawful business for the purpose of impeding, interfering with, or injuring such business. As construed by the courts of the State, the statute forbids the publicizing of facts concerning a labor dispute, whether by printed sign, by pamphlet, by word of mouth, or otherwise, in the vicinity of the business involved, and this without regard to the number of persons engaged in such activity, the peaceful character of their conduct, the nature of the dispute, or the accuracy or restraint of the language used in imparting the information. Upon a complaint substantially in the words of the statute, and upon evidence of activities related to picketing of a place of business in connection with a labor dispute, petitioner was convicted of "loitering and picketing as charged in the complaint." The statute was challenged as violative of freedom of speech and of the press.


1. Freedom of speech and of the press, secured by the First Amendment against abridgment by the United States, is secured to all persons by the Fourteenth Amendment against abridgment by the States. P. 95.

2. When abridgment of the effective exercise of the rights of freedom of speech and of the press is claimed, it is incumbent on the courts to "weigh the circumstances" and "appraise the substantiality of the reasons advanced" in support of the challenged regulations. P. 96.

3. The statute must be judged upon its face. P. 96.

(a) The charges were framed in the words of the statute, and the finding was general; it is not necessary to consider whether the evidence would have supported a conviction based upon different and more precise charges. P. 96.

(b) The very existence of a penal statute such as that here, which does not aim specifically at evils within the allowable area of state control, but sweeps within its ambit other activities that, in ordinary circumstances, constitute an exercise of freedom of

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speech or of the press, results in a continuous and pervasive restraint of all freedom of discussion that might reasonably be regarded as within its purview. One convicted under such a statute does not have to sustain the burden of showing that the State could not constitutionally have written a different and specific statute covering the particular activities in which he is shown to have been engaged. P. 97.

(c) Where regulations of the liberty of free discussion are concerned, there are special reasons for observing the rule that it is the statute, and not the accusation or the evidence under it, which prescribes the limits of permissible conduct and warns against transgression. P. 98.

4. The statute is invalid on its face. P. 101.

(a) Freedom of speech and of the press embraces, at the least, the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. P. 101.

(b) The dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion which is guaranteed by the Constitution. P. 102.

(c) Although the rights of employers and employees are subject to modification or qualification in the public interest, it does not follow that the State, in dealing with the evils arising from industrial disputes, may impair the effective exercise of the right to discuss freely industrial relations which are matters of public concern. P. 103.

(d) While the State may take adequate steps to preserve the peace and to protect the privacy, the lives, and the property of its people, yet no clear and present danger of destruction of life or property, or invasion of the right of privacy, can be thought to be inherent in the activities of every person who approaches the premises of an employer and publicizes the facts of a labor dispute. P. 105.

(e) There is not here involved any question of picketing, en masse or otherwise conducted, which might occasion such imminent and aggravated danger to the community interests as to justify a statute narrowly drawn to cover the precise situation out of which the danger arises. P. 105.

(f) That it applies only when the proscribed activities are engaged in at the scene of a labor dispute cannot justify the statute. P. 106.

28 Ala.App. 527; 189 So. 913, reversed.

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CERTIORARI, 308 U.S. 547, to review the affirmance of a conviction under a penal statute of Alabama. The state Supreme Court denied a petition for certiorari.

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MURPHY, J., lead opinion

MR. JUSTICE MURPHY delivered the opinion of the Court.

Petitioner, Byron Thornhill, was convicted in the Circuit Court of Tuscaloosa County, Alabama, of the violation of § 3448 of the State Code of 1923.1 The Code section reads as follows:

Section 3448. Loitering or picketing forbidden. -- Any person or persons, who, without a just cause or legal excuse therefor, go near to or loiter about the premises or place of business of any other person, firm, corporation, or association of people, engaged in a lawful business, for the purpose, or with the intent of influencing, or inducing other persons not to trade with, buy from, sell to, have business dealings with, or be employed by such persons, firm, corporation, or association, or who picket the works or place of business of such other persons, firms, corporations, or associations of persons, for the purpose of hindering, delaying, or interfering with or injuring any lawful business or enterprise of another, shall be guilty of a

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misdemeanor; but nothing herein shall prevent any person from soliciting trade or business for a competitive business.

The complaint against petitioner, which is set out in the margin,2 is phrased substantially in the very words of the statute. The first and second counts charge that petitioner, without just cause or legal excuse, did "go near to or loiter about the premises" of the Brown Wood Preserving Company with the intent or purpose of influencing others to adopt one of enumerated courses of conduct. In the third count, the charge is that petitioner "did picket" the works of the Company "for the purpose of hindering, delaying or interfering with or injuring [its] lawful business." Petitioner demurred to the complaint on the grounds, among others, that § 3448 was repugnant to the Constitution of the United States in

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that it deprived him of "the right of peaceful assemblage," "the right of freedom of speech," and "the right to petition for redress." The demurrer, so far as the record shows, was not ruled upon, and petitioner pleaded not guilty. The Circuit Court then proceeded to try the case without a jury, one not being asked for or demanded. At the close of the case for the State, petitioner moved to exclude all the testimony taken at the trial on the ground that § 3448 was violative of the Constitution of the United States.3 The Circuit Court overruled the motion, found petitioner "guilty of Loitering and Picketing as charged in the complaint," and entered judgment accordingly. The judgment was affirmed by the Court of Appeals, which considered the constitutional question and sustained the section on the authority [60 S.Ct. 740] of two previous decisions in the Alabama courts.4 O'Rourke v. Birmingham, 27 Ala.App. 133; 168 So. 206, cert. denied, 232 Ala. 355; 168 So. 209; Hardie-Tynes Mfg.Co. v. Cruise, 189 Ala. 66; 66 So. 657. A petition for certiorari was denied by the Supreme Court of the State. The case is here on certiorari granted because of the importance of the questions presented. 308 U.S. 547.

The proofs consist of the testimony of two witnesses for the prosecution.5 It appears that petitioner, on the morning

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of his arrest, was seen "in company with six or eight other men" "on the picket line" at the plant of the Brown Wood Preserving Company. Some weeks previously, a strike order had been issued by a Union, apparently affiliated with the American Federation of Labor, which had as members all but four of the approximately one hundred employees of the plant. Since that time, a picket line with two picket posts of six to eight men each had been maintained around the plant twenty-four hours a day. The picket posts appear to have been on Company property, "on a private entrance for employees, and not on any public road." One witness explained that practically all of the employees live on Company property and get their mail from a post office on Company property, and that the Union holds its meetings on Company property. No demand was ever made upon the men not to come on the property. There is no testimony indicating the nature of the dispute between the Union and the Preserving Company, or the course of events which led to the issuance of the strike order, or the nature of the efforts for conciliation.

The Company scheduled a day for the plant to resume operations. One of the witnesses, Clarence Simpson, who was not a member of the Union, on reporting to the plant on the day indicated, was approached by petitioner, who told him that "they were on strike, and did not want anybody to go up there to work." None of the other employees said anything to Simpson, who testified:

Neither Mr. Thornhill nor any other employee threatened me on the occasion testified to. Mr. Thornhill approached me in a peaceful manner, and did not put me in fear; he did not appear to be mad.

"I then turned and went back to the...

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