Hughes v. v. 8212 1949

• Decision Date: 08 May 1950
• Docket Number: No. 61,61
• Citation: 70 S.Ct. 718,339 U.S. 460,94 L.Ed. 985
• Parties: HUGHES et al. v. . Argued Nov. 8—9, 1949
• Court: U.S. Supreme Court

339 U.S. 460

70 S.Ct. 718

94 L.Ed. 985

HUGHES et al.

v SUPERIOR COURT OF CALIFORNIA IN AND FOR COUNTY OF CONTRA COSTA.

No. 61.

Argued Nov. 8—9, 1949.

Decided May 8, 1950.

Mr. Bertram Edises, Oakland, Cal., for petitioner.

Mr. Frank S. Richards, San Francisco, Cal., for respondents.

Mr. Justice FRANKFURTER delivered the opinion of the Court.

Does the Fourteenth Amendment of the Constitution bar a State from use of the injunction to prohibit picketing of a place of business solely in order to secure compliance with a demand that its employees be in proportion to the racial origin of its then customers? Such is the broad question of this case.

The petitioners, acting on behalf of a group calling themselves Progressive Citizens of America, demanded of Lucky Stores, Inc., that it hire Negroes at its grocery store near the Canal Housing Project in Richmond, California, as white clerks quit or were transferred, until the proportion of Negro clerks to white clerks approximated the proportion of Negro to white customers. At the time in controversy about 50% of the customers of the Canal store were Negroes. Upon refusal of this demand and in order to compel compliance, the Canal store was systematically patrolled by pickets carrying placards stating that Lucky refused to hire Negro clerks in proportion to Negro customers.

Suit was begun by Lucky to enjoin the picketing on appropriate allegations for equitable relief. The Superior Court of Contra Costa County issued a preliminary injunction restraining petitioners and others from picketing any of Lucky's stores to compel 'the selective hiring of negro clerks, such hiring to be based on the proportion of white and negro customers who patronize plaintiff's stores.' In the face of this injunction, petitioners continued to picket the Canal store, carrying placards reading: 'Lucky Won't Hire Negro Clerks in Proportion to Negro Trade—Don't Patronize.' In conformity with State procedure, petitioners were found guilty of contempt for 'wilfully disregarding' the injunction and were sentenced to imprisonment for two days and fined $20 each. They defended their conduct by challenging the injunction as a deprivation of the liberty assured them by the Due Process Clause of the Fourteenth Amendment. The intermediate appellate court annulled the judgment of contempt, Cal.App., 186 P.2d 756, but it was reinstated on review by the Supreme Court of California. That court held that the conceded purpose of the picketing in this case—to compel the hiring of Negroes in proportion to Negro customers—was unlawful even though pursued in a peaceful manner. Having violated a valid injunction petitioners were properly punishable for contempt. 'The controlling points,' according to the decision of the Supreme Court of California, 'are that the injunction is limited to prohibiting picketing for a specific unlawful purpose and that the evidence justified the trial court in finding that such narrow prohibition was deliberately violated.' 32 Cal.2d 850, 856, 198 P.2d 885, 888. We brought the case here to consider claims of infringement of the right of freedom of speech as guaranteed by the Due Process Clause of the Fourteenth Amendment. 336 U.S. 966, 69 S.Ct. 930 First. Discrimination against Negroes in employment has brought a variety of legal issues before this Court in recent years. Graham v. Brotherhood of Locomotive Firemen and Enginemen, 338 U.S. 232, 70 S.Ct. 14; Railway Mail Ass'n v. Corsi, 326 U.S. 88, 65 S.Ct. 1483, 89 L.Ed. 2072; Steele v. Louisville & N.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173; Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187; New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552, 304 U.S. 542, 58 S.Ct. 703, 82 L.Ed. 1012. See also Myrdal, An American Dilemma cc. 13—14 (1944). Such discrimination raises sociological problems which in some aspects and within limits have received legal solutions. California has been sensitive to these problems and decisions of its Supreme Court have been hostile to discrimination on the basis of color. James v. Marinship Corp., 25 Cal.2d 721, 155 P.2d 329, 160 A.L.R. 900; Williams v. International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America, 27 Cal.2d 586, 165 P.2d 903. This background of California's legal policy is relevant to the conviction of its court that it would encourage discriminatory hiring to give constitutional protection to petitioners' efforts to subject the opportunity of getting a job to a quota system. The view of that court is best expressed in its own words:

'It was just such a situation—an arbitrary discrimination upon the basis of race and color alone, rather than a choice based solely upon individual qualification for the work to be done—which we condemned in the Marinship case, supra, (25 Cal.2d 721, 737, 745, 155 P.2d 329). The fact that those seeking such discrimination do not demand that it be practiced as to all employes of a particular employer diminishes in no respect the unlawfulness of their purpose; they would, to the extent of the fixed proportion, make the right to work for Lucky dependent not on fitness for the work nor on an equal right of all, regardless of race, to compete in an open market, but rather, on mem- bership in a particular race. If petitioners were upheld in their demand then other races, white, yellow, brown and red, would have equal rights to demand discriminatory hiring on a racial basis. Yet that is precisely the type of discrimination to which petitioners avowedly object.' 32 Cal.2d at 856, 198 P.2d at 889.

These considerations are most pertinent in regard to a population made up of so many diverse groups as ours. To deny to California the right to ban picketing in the circumstances of this case would mean that there could be no prohibition of the pressure of picketing to secure proportional employment on ancestral grounds of Hungarians in Cleveland, of Poles in Buffalo, of Germans in Milwaukee, of Portuguese in New Bedford, of Mexicans in San Antonio, of the numerous minority groups in New York, and so on through the whole gamut of racial and religious concentrations in various cities. States may well believe that such constitutional sheltering would inevitably encourage use of picketing to compel employment on the basis of racial discrimination. In disallowing such picketing States may act under the belief that otherwise community tensions and conflicts would be exacerbated. The differences in cultural traditions instead of adding flavor and variety to our common citizenry might well be hardened into hostilities by leave of law. The Constitution does not demand that the element of communication in picketing prevail over the mischief furthered by its use in these situations.

Second. '(T)he domain of liberty, withdrawn by the Fourteenth Amendment from encroachment by the states,' Palko v. State of Connecticut, 302 U.S. 319, 327, 58 S.Ct. 149, 153, 82 L.Ed. 288, no doubt includes liberty of thought and appropriate means for expressing it. But while picketing is a mode of communication it is inseparably something more and different. Industrial picketing 'is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated.' Mr. Justice Douglas, joined by Black and Murphy, JJ., concurring in Bakery & Pastry Drivers & Helpers Local 802 of International Brotherhood of Teamsters v. Wohl, 315 U.S. 769, 775, 776, 62 S.Ct. 816, 819, 86 L.Ed. 1178. Publication in a newspaper, or by distribution of circulars, may convey the same information or make the same charge as do those patrolling a picket line. But the very purpose of a picket line is to exert influences, and it produces consequences, different from other modes of communication. The loyalties and responses evoked and exacted by picket lines are unlike those flowing from appeals by printed word. See Gregory, Labor and the Law 346—48 (rev. ed. 1949); Teller, Picketing and Free Speech, 56 Harv.L.Rev. 180, 200 02 (1942); Dodd, Picketing and Free Speech: A Dissent, 56 Harv.L.Rev. 513, 517 (1943); Hellerstein, Picketing Legislation and the Courts, 10 N.C.L.Rev. 158, 186—87, n. 135 (1932).

Third. A State may constitutionally permit picketing despite the ingredients in it that differentiate it from speech in its ordinary context. Senn v. Tile Layers Protective Union, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229. And we have found that because of its element of communication picketing under some circumstances finds sanction in the Fourteenth Amendment. Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855; Bakery & Pastry Drivers & Helpers Local 802 of International Brotherhood of Teamsters v. Wohl, 315 U.S. 769, 62 S.Ct. 816, 86 L.Ed. 1178; Cafeteria Employees Union v. Angelos, 320 U.S. 293, 64 S.Ct. 126, 88 L.Ed. 58. However general or loose the language of opinions, the specific situations have controlled decision. It has been amply recognized that picketing, not being the equivalent of speech as a matter of fact, is not its inevitable legal equivalent. Picketing is not beyond the control of a State if the manner in which picketing is conducted or the purpose which it seeks to effectuate gives ground for its disallowance. See Dorchy v. State of Kansas, 272 U.S. 306, 47 S.Ct. 86, 71 L.Ed. 248; Milk Wagon Drivers Union of Chicago, Local 753 v. Meadowmoor Dairies, Inc., 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836, 132 A.L.R. 1200; Hotel and Restaurant Employees' International Alliance, Local No. 122 v. Wisconsin Employment Relations Board, 315 U.S. 437, 62 S.Ct. 706, 86 L.Ed. 946; Carpenters & Joiners Union of America, Local No. 213 v. Ritter's Cafe, 315 U.S. 722, 62 S.Ct. 807, 86 L.Ed....