312 U.S. 321 (1941), 56, American Federation of Labor v. Swing

Docket Nº:No. 56
Citation:312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855
Party Name:American Federation of Labor v. Swing
Case Date:February 10, 1941
Court:United States Supreme Court

Page 321

312 U.S. 321 (1941)

61 S.Ct. 568, 85 L.Ed. 855

American Federation of Labor



No. 56

United States Supreme Court

Feb. 10, 1941

Argued December 13, 1940



The constitutional guarantee of freedom of discussion is infringed by the common law policy of a State limiting peaceful picketing by labor unions to cases in which the controversy is between the employer and his own employees. Pp. 323, 325.

372 Ill. 91, 22 N.E.2d 857, reversed.

Certiorari, 310 U.S. 620, to review the affirmance of a decree of the Appellate Court of Illinois, 298 Ill.App. 63, 18 N.E.2d 258, which directed an injunction against picketing of a beauty shop by a labor union. The plaintiffs were the proprietor Swing and his employees.

Page 323

FRANKFURTER, J., lead opinion

[61 S.Ct. 569] MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

In Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., ante, p. 287, we held that acts of picketing, when blended with violence, may have a significance which neutralizes the constitutional immunity which such acts would have in isolation. When we took this case, 310 U.S. 620, it seemed to present a similar problem. More thorough study of the record and full argument have reduced the issue to this: is the constitutional guarantee of freedom of discussion infringed by the common law policy of a state forbidding resort to peaceful persuasion through picketing merely because there is no immediate employer-employee dispute?

A union of those engaged in what the record describes as beauty work unsuccessfully tried to unionize Swing's beauty parlor. Picketing of the shop followed. To enjoin this interference with his business and with the freedom of his workers not to join a union, Swing and his employees began the present suit. In addition, they charged the use of false placards in picketing and forcible behavior towards Swing's customers. A preliminary injunction was granted. Answers were then filed denying violence, as well as falsity of the placards. The union also moved to strike the complaint, and the trial court, finding the complaint wanting in equity, granted the motion and dissolved the preliminary injunction. The appellate court, one of Illinois' intermediate courts of review, held that the trial court was in error. 298 Ill.App. 63, 18 N.E.2d 258. This action of the appellate court was affirmed by the state supreme court. 372 Ill. 91, 22 N.E.2d 857. It found that the complaint properly invoked equity for three reasons: (1) there was no dispute

Page 324

between the employer and his immediate employees; (2) the placards were libelous; (3) there were acts of violence. Inasmuch as the supreme court affirmed the issuance merely of a preliminary injunction, we denied certiorari for want of a final judgment. 309 U.S. 659. Thereupon, although, as we have seen, issue had been formally joined on the claims of libel and violence, the appellate court, by a procedure unrevealed by the record and without opinion, entered a permanent injunction ranging from peaceful persuasion to acts of violence. The decree recited

that this Court and the Supreme Court of this State have held in this case that, under the law of this State, peaceful picketing or peaceful persuasion are unlawful when conducted by strangers to the employer (i.e., where there is not a proximate relation of employees and employer), and that appellants are entitled in this case to relief by injunction against the threat of such peaceful picketing or persuasion by appellees.

The union sought review of this decree in the supreme court by writ of error. Swing and his employees moved to dismiss the writ because, in seeking to obtain it, the union had conceded that "all issues of the case have been settled on prior appeal, and that the decree entered by the appellate court is in conformity with the mandate issued" to the appellate court. The writ was dismissed.

Such is the case as we extract it from a none-too-clear record. It thus appears that, in passing upon the temporary injunction, the supreme court of Illinois sustained it in part because of allegations of violence and libel. But our concern is with the final decree of the appellate court. On its face, the permanent injunction in that decree rested on the explicit avowal that "peaceful persuasion" was forbidden in this case because those who were enjoined were not in Swing's employ. Moreover,

Page 325

as we have seen, the supreme court of Illinois dismissed proceedings before it to review that decree on representations that the decree was in accordance with its mandate on the temporary injunction.

Since the case clearly presents a substantial claim of the right to free discussion, and since, as we have frequently indicated, that right is to be guarded with a jealous eye, Herndon v. Lowry, 301 U.S. 242, 258; Schneider v. State, 308 U.S. 147, 161; United States v. Carolene Products Co., 304 U.S. 144, 152 n., it would be improper to dispose of the case otherwise than on the...

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