857 F.2d 422 (8th Cir. 1988), 87-2251, United Food and Commercial Workers Intern. Union, AFL-CIO, CLC v. IBP, Inc.

Docket Nº:87-2251.
Citation:857 F.2d 422
Party Name:UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, CLC, United Food and Commercial Workers Union, Local 222, AFL-CIO, CLC, Unincorporated Associations; William Schmitz, Frank Cassidy, Sally Sanchez, Leroy Bergin, Individuals; Millwright, Machinery & Erectors Local 1463, An Unincorporated Association, Appellees, v. IBP, INC., a Delawar
Case Date:September 08, 1988
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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857 F.2d 422 (8th Cir. 1988)


AFL-CIO, CLC, United Food and Commercial Workers Union,

Local 222, AFL-CIO, CLC, Unincorporated Associations;

William Schmitz, Frank Cassidy, Sally Sanchez, Leroy Bergin,

Individuals; Millwright, Machinery & Erectors Local 1463,

An Unincorporated Association, Appellees,


IBP, INC., a Delaware Corporation, K.A. Orr, Governor of the

State of Nebraska; Robert Spire, Attorney General; Colonel

Harold LeGrande, Superintendent of the State Patrol;

Raymond Brown, Commander of the Nebraska State Patrol for

the area encompassing Dakota City; James Carmona, Adjutant

General of the Nebraska National Guard, Appellants,

Kurt A. Hohenstein, Dakota County Attorney.

No. 87-2251.

United States Court of Appeals, Eighth Circuit

September 8, 1988

Submitted May 10, 1988.

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[Copyrighted Material Omitted]

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Douglas Peterson, Asst. Atty. Gen., Lincoln, Neb., for appellants.

Renee L. Bowser, Washington, D.C., for appellees.

Before McMILLIAN, Circuit Judge, ROSS, Senior Circuit Judge, and LARSON, [*] Senior District Judge.

LARSON, Senior District Judge.

Three unions and union officials from one of the unions brought this declaratory judgment action challenging the validity of two Nebraska picketing statutes. The district court found a justiciable controversy was presented and ruled both statutes were unconstitutional. The court held the "numbers/distance provision" of Neb.Rev.Stat. Sec. 28-1318(1)-(3) constituted a content-neutral regulation of pure speech that was facially overbroad. The court further held the "communications provision" of Neb.Rev.Stat. Sec. 28-1317(1)(a) was a content-based regulation not limited to "fighting words" which violated the First and Fourteenth Amendments.

On appeal, defendant state officials 1 claim there is no case or controversy sufficient to establish jurisdiction and further that limiting constructions are available which would render both statutes constitutional. We find, for the reasons discussed below, that the case is properly before us for decision. We agree with the district court that the numbers/distance provision and the second clause of the communications provision are facially overbroad. We find, however, that the first clause of the communications provision prohibiting "threatening language" is readily subject to a narrowing construction limiting its application to "fighting words." Accordingly, we uphold the "threatening" clause of section 28-1317(1)(a).


Plaintiffs United Food and Commercial Workers International Union and United Food and Commercial Workers Local 222 ("the union") have represented workers at the IBP, Inc., beef processing plant in Dakota City, Nebraska, for many years. In 1982, union members went out on strike after negotiators were unable to reach agreement on a contract with IBP officials. During the strike, the Dakota County Attorney specifically informed the union that Nebraska's mass picketing law would be enforced. Violence erupted, and numerous arrests were made. Some picketers were charged with violating the numbers/distance provision of Neb.Rev.Stat. Sec. 28-1318(1)-(3), which prohibits "any form of picketing in which there are more than two pickets at any one time within either fifty feet of any entrance to the premises being picketed or within fifty feet of any other picket or pickets." 2

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At the end of 1986, the union again engaged in a labor dispute with IBP. Prior to the expiration of the collective bargaining agreement in December, 1986, union representatives met with state law enforcement officials to discuss strike procedures in the event of another strike. Union representatives expressed their view that the provisions of the Nebraska mass picketing law were unconstitutional, based upon a federal district court decision striking down similar provisions of Texas law. 3 The Dakota County Attorney told the union that until the Nebraska law was found unconstitutional or the law was changed, he would have to enforce it. Officials from the Nebraska State Patrol said nothing to contradict the county attorney's position regarding the statutes, and specifically did not disavow an intention to enforce the law during the ensuing labor dispute.

In December, 1986, IBP locked out the Dakota City employees, and the union went on strike. During the strike, the county attorney notified the union both orally and in writing of his power and responsibility to enforce the mass picketing law. He informed the union that he would not literally enforce the law unless there were "problems," and, acting in cooperation with the Nebraska State Patrol, he determined the allowable parameters of the union's picketing activity. At times, he denied the union access to the side of the plant where employees would exit after work. Other times, he allowed technical violations of the law to occur. For example, he located the union's picket shacks closer than fifty feet to each other, and he permitted 25 to 26 demonstrations to occur, subject to guidelines he had imposed.

All of the union's picketing activity was subject to his approval, however, and because of their fear of arrest, union members picketed within the confines of the county attorney's directions. No arrests or prosecutions under the challenged statutes occurred, and the dispute between the union and IBP was eventually resolved.

In April, 1987, plaintiff Millwright, Machinery & Erectors Local 1463 conducted an area standards picket protesting the payment of less than union scale wages at the United Parcel building in Omaha, Nebraska. The union and its picketers were aware of the Nebraska mass picketing statutes and picketed within the restrictions imposed by the numbers/distance provision. The company marked fifty foot intervals at the site and a police officer reviewed the location of the pickets during the strike. No arrests or threats of arrest were made. Approximately one week after commencing picketing, the union discontinued its activities because it perceived that picketing within the statutory restrictions was ineffective. A union official testified that picketing would be resumed in furtherance of the union's area standards message were it not for the limitations imposed by the numbers/distance provision.


Pursuant to the Declaratory Judgment Act, 28 U.S.C. Sec. 2201, plaintiffs sought a declaration from the district court that both the numbers/distance and the communications 4 provisions of the Nebraska mass

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picketing law were unconstitutional. Relief under the Declaratory Judgment Act is available only when an "actual controversy" is presented. 5 This statutory limitation is equivalent to the constitutional limitation that federal courts may exercise jurisdiction only over actual "cases or controversies." U.S. Const. art. III, Sec. 2 cl. 1; Steffel v. Thompson, 415 U.S. 452, 458, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974); Blatnik Co. v. Ketola, 587 F.2d 379, 381 (8th Cir.1978).

A "case or controversy" is presented when the "conflicting contentions of the parties ... present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract." Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979) (citing Railway Mail Ass'n v. Corsi, 326 U.S. 88, 93, 65 S.Ct. 1483, 1487, 89 L.Ed. 2072 (1945)). The difference between an abstract question and a "case or controversy" is necessarily one of degree and must be determined by a review of the facts presented in each case. Babbitt, 442 U.S. at 297, 99 S.Ct. at 2308; Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941).

After considering the circumstances presented in this case, the district court held there was a justiciable case or controversy because plaintiff unions 6 possessed the requisite standing and the issues were not moot. The doctrines of standing and mootness are distinct but related aspects of justiciability under Article III.

The doctrine of standing focuses on whether the plaintiff before the court is the proper party to request adjudication of a particular issue. Flast v. Cohen, 392 U.S. 83, 99-100, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968); Defenders of Wildlife v. Hodel, 851 F.2d 1035, 1038 (8th Cir.1988). The purpose of the standing requirement is to ensure the parties have "such a stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962); McLain v. Meier, 851 F.2d 1045, 1048 (8th Cir.1988). In order to establish they have standing to sue, plaintiffs must show they have suffered "some actual or threatened injury" fairly traceable to the challenged conduct of the defendants that is likely to be redressed by a favorable decision. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982); Defenders of Wildlife, at 1039; McLain, at 1048.

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Plaintiffs must possess the requisite injury with respect to each of the statutes they wish to challenge. See Babbitt, 442 U.S. at 292, 99 S.Ct. at 2305. 7 Defendants argue there is no actual or threatened injury in this case because no picketers were arrested, prosecuted, or threatened with prosecution during the United Food and Commercial Workers' most recent picketing activities, even though violations of the numbers/distance provision occurred at the IBP site. This argument misapprehends the nature of the injury in fact requirement....

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