Concerned Consumers League v. O'NEILL, Civ. A. No. 71-C-601.

• Decision Date: 25 February 1974
• Docket Number: Civ. A. No. 71-C-601.
• Citation: 371 F. Supp. 644
• Parties: CONCERNED CONSUMERS LEAGUE, an incorporated association, on behalf of itself and its members, et al., Plaintiffs, v. William I. O'NEILL, Individually and as Circuit Court Judge for Milwaukee County, and Packer Sales Corp., d/b/a Park Furniture Mfg., Inc., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

371 F. Supp. 644

CONCERNED CONSUMERS LEAGUE, an incorporated association, on behalf of itself and its members, et al., Plaintiffs, v. William I. O'NEILL, Individually and as Circuit Court Judge for Milwaukee County, and Packer Sales Corp., d/b/a Park Furniture Mfg., Inc., Defendants.

Civ. A. No. 71-C-601.

United States District Court, E. D. Wisconsin.

February 25, 1974.

Mark E. Wilson and David R. Taxin, Milwaukee, Wis., for plaintiffs.

Patrick J. Foster, Asst. Corp. Counsel, Milwaukee, Wis., for defendant William I. O'Neill.

Barnett W. Franks, Milwaukee, Wis., for defendant Packer Sales Corp., d/b/a Park Furniture Mfg., Inc.

OPINION AND ORDER

REYNOLDS, Chief Judge.

This suit arises out of a consumer dispute between the plaintiffs Virginia J. Bloomberg and Mahlon D. Bloomberg and the defendant Packer Sales Corp., doing business as Park Furniture Mfg., Inc. (hereinafter "Park Furniture"). During the summer of 1971 the Bloombergs delivered to said defendant certain pieces of furniture to be reupholstered. They were dissatisfied with the manner in which the furniture was reupholstered and, being unable to resolve their conflict with Park Furniture, sought the assistance of the plaintiff Concerned Consumers League (hereinafter "League").

Plaintiffs allege that in October 1971, the League advised Park Furniture of the nature of the Bloomberg's complaint as well as other complaints they had received from customers of the company. Being dissatisfied with the response, members of the League began picketing Park Furniture and distributing leaflets (Appendix A) which detailed the Bloombergs' complaint. The plaintiffs' activities were peaceful, and the store's entrances and exists were not blocked.

Park Furniture then initiated a suit in the Circuit Court of Milwaukee County entitled "Packer Sales Corp., d/b/a Park Furniture Mfg., Inc. v. Mr. & Mrs. Mahon D. Bloomberg and Susan Hester and John Doe and Jane Doe, One through Twenty-five, operating in the name and style of Concerned Consumers League," seeking monetary damages and an injunction prohibiting the defendants in that action from engaging further in the activities complained of. Honorable Robert C. Cannon, Judge of the Circuit Court for Milwaukee County, temporarily restrained those defendants in an ex parte proceeding "from disseminating any materials or picketing the premises of the plaintiff, Packer Sales Corp. d/b/a Park Furniture Mfg. Inc." The plaintiffs moved for a change of judge, and on November 22 and 23, 1971, Honorable William I. O'Neill, also a Judge of the Circuit Court for Milwaukee County, conducted hearings on the matter. Findings of fact, conclusions of law, and an order (Appendix B) were issued restraining plaintiffs as Park Furniture had requested. Neither Judge Cannon nor Judge O'Neill found the plaintiff's activities to be nonpeaceful. Judge O'Neill did find, however, that the League newsletter was protected by the First Amendment.

The plaintiffs initiated this present action to have the defendants enjoined from interfering with their right to peacefully picket and disseminate information. They allege that these rights are protected by the First and Fourteenth Amendments to the United States Constitution. Jurisdiction arises under 28 U.S.C. § 1343 and 42 U.S.C. § 1983. The matter is before me now on plaintiffs' motion for a preliminary injunction. Since this action was initiated under the Federal Civil Rights Act (42 U.S.C. § 1983); the rights allegedly being violated are clearly federal in nature; no state law can control the outcome, and there is no tangle of state laws involved which requires interpretation by state courts; the plaintiffs need not exhaust available state remedies. Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Stradley v. Andersen, 456 F.2d 1063 (8th Cir. 1972). Nor is this court restricted from enjoining the enforcement of a state court's injunction by the federal "anti-injunction" statute, 28 U.S.C. § 2283. Actions initiated under § 1983 are excepted from that limiting statute. Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972).

This case is directly controlled by the Supreme Court's opinion in Organization For a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971). In Austin the petitioner was a racially integrated neighborhood organization whose stated purpose was to "stabilize" the racial ratio of an area of Chicago known as Austin. In furtherance of that goal, the Organization For a Better Austin (hereinafter "OBA") actively opposed the practices of some real estate brokers which they called "blockbusting" or "panic peddling." OBA felt that the respondent Keefe was engaging in these practices and asked him to sign an agreement not to solicit real estate business in Austin. Keefe refused to sign the agreement, and OBA members began distributing leaflets in the City of Westchester where Keefe lived. The leaflets, which were distributed at Keefe's neighbors' homes, in a Westchester shopping center, and at his church described his alleged "blockbusting" activities. Some of the leaflets stated that the leafleting would stop when Keefe signed the no solicitation agreement, and some asked the recipient to call the respondent at his home and urge him to sign the agreement.

Keefe began an action in a Cook County Court, and the trial court enjoined OBA from pamphleteering or picketing anywhere in Westchester. The injunction was upheld on appeal because the Illinois appellate court felt OBA was invading Keefe's right to privacy.

The United States Supreme Court reversed the Illinois Court and held that OBA's activities were protected by the First Amendment and that the state had failed to satisfy the heavy burden necessary to justify any prior restraint of petitioner's protected activities.

This case cannot be materially distinguished from Austin. The plaintiffs here are engaging in essentially the same behavior for essentially the same reasons as the petitioners in Austin and are entitled to the same degree of protection. In his findings, Judge O'Neill stressed what he felt was the plaintiff's coercive motivation. The Court in Austin specifically dealt with that issue:

"* * * The claim that the expressions were intended to exercise a coercive impact on respondent does not remove them from the reach of the First Amendment. Petitioners plainly intended to influence respondent's conduct by their activities; this is not fundamentally different from the function of a newspaper. Citations omitted. Petitioners were engaged openly and vigorously in making the public aware of respondent's real estate practices. Those practices were offensive to them, as the views and practices of petitioners are no doubt offensive to others. But so long as the means are peaceful, the communication need not meet standards of acceptability." 402 U.S. at 419, 91 S.Ct. at 1578.

Nor can the fact that business activities are at issue insulate the defendants from the First Amendment. While commercial speech, such as advertising, is generally not protected by the First Amendment, see Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942), informational picketing about business practices is protected. Organization For a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971).

"Any prior restraint on expression comes to this Court with a `heavy presumption' against its constitutional validity. * * * No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court. * * *" 402 U.S. at 419, 92 S.Ct. at 1578.

The case for an injunction by the state was stronger in Austin because the privacy of respondent's home was at stake. The right to be unassaulted in the privacy of one's home certainly stands on a higher plain than the right to engage in business activities. Cf. Stanley v. Georgia, 397 U.S. 577, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting).

Developing concepts of protected activities under the First Amendment prohibit the state from interfering with the plaintiffs' activities. Initially, there is a strong presumption of constitutional invalidity of any state action which places a prior restraint on protected means of expression. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L. Ed. 1357 (1931). The right to distribute pamphlets and leaflets is afforded constitutional protection. In Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938), the United States Supreme Court held as follows:

"The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. * * * The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion. * * *"

Picketing is also a protective form of expressive behavior. Police Department of Chicago v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972).

The state may under some circumstances place reasonable restrictions on protected modes of expression, but the restriction can never be justified by the content of the expression.

"* * * But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. * * *" Police Department of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290 (1972).

I find that the state court's injunction in this case was issued in response to the plaintiffs' message. The...