McWhorter v. Com.

• Decision Date: 15 January 1951
• Docket Number: No. 3748,3748
• Citation: 191 Va. 857,63 S.E.2d 20
• Parties: , 28 L.R.R.M. (BNA) 2087, 20 Lab.Cas. P 66,359 GRACE MCWHORTER v. COMMONWEALTH OF VIRGINIA. Record
• Court: Virginia Supreme Court

Page 20

63 S.E.2d 20

191 Va. 857, 28 L.R.R.M. (BNA) 2087, 20 Lab.Cas. P 66,359

GRACE MCWHORTER v. COMMONWEALTH OF VIRGINIA.

Record No. 3748.

Supreme Court of Appeals of Virginia

January 15, 1951.

James P. Hart, Jr. and T. Keister Greer, for the plaintiff in error.

J. Lindsay Almond, Jr., Attorney General, and Henry T. Wickham, Assistant Attorney General, for the Commonwealth.

JUDGE: EGGLESTON

EGGLESTON, J., delivered the opinion of the court.

Grace McWhorter, hereinafter called the defendant, was arrested on May 20, 1949, in the city of Roanoke, on a warrant which charged her with unlawfully interfering and attempting to interfere, by the use of insulting and threatening language, with Pauline Fleenor in the exercise of the latter's right to work at a local establishment. Upon conviction in the police court the defendant appealed to the Hustings Court where she was tried by a jury, convicted, and her punishment fixed at three months imprisonment and a fine of $250. To review the judgment entered upon that verdict the present writ of error has been allowed.

The prosecution is based upon section 1 of chapter 229 of the Acts of 1946, which is printed in full in the margin, ¹ and now embodied in the Code of 1950 as section 40-64.

The circumstances out of which the prosecution arose are these: In April, 1949, there was a strike of certain female employees of the Roanoke Garment Company, a textile manufacturing concern located in that city. The company employed approximately one hundred women, and six employees who were members of the International Ladies Garment Workers Union went on strike. On April 18 the defendant, Grace McWhorter, was sent by union officials to the Roanoke plant to seek employment and to determine working conditions there. She worked on April 19 and 20, and on the 27th, as a union organizer, joined the pickets who were walking to and fro along the sidewalk in front of the plant.

The gist of the Commonwealth's case is that on May 20, and at other times prior thereto during the strike, the defendant and other pickets had, in front of the doorway of the plant and in the presence of Pauline Fleenor, a female employee of the company who had not struck, sung songs embracing obscene and insulting words, and had directed such language and other insulting and threatening words toward this employee for the purpose of inducing or attempting to induce her to quit her employment; and that such conduct so unnerved and upset Mrs. Fleenor as to cause her to faint, with the result that she was forced to quit her employment, at least temporarily, on May 20, the day of the defendant's arrest.

Whether the evidence was sufficient to warrant a finding by the jury that it constituted a breach of the statute will be discussed later. Preliminary to that discussion we must dispose of the defendant's contention that the statute, as construed and applied in the present prosecution, constituted an abridgment of the right of freedom of speech guaranteed to her under the First and Fourteenth Amendments to the Federal Constitution. Chaplinsky v. New Hampshire, 315 U.S. 568, 570, 571, 62 S.Ct. 766, 768, 769, 86 L.ed. 1031, and cases there cited.

The position of the defendant is thus stated in her brief: 'One of the basic purposes of picketing, of course, is to communicate the fact of the existence of a strike, and to render it effective by inducing or attempting to induce others to quit their employment or to refrain from seeking employment at the struck store or factory. On its face this statute contravenes that form of free speech which manifests itself as the 'picket line.' ' Indeed, she says, the statute was 'designed to end the practice' of picketing.

Again, she says: 'Insulting language on a picket line was protected by' the Supreme Court of the United States in Cafeteria Employees Union v. Angelos, 320 U.S. 293, 64 S.Ct. 126, 88 L.ed. 58.

With respect to the last contention, we do not interpret the decision in the Cafeteria Case, supra, or any other of the Supreme Court, as supporting the view that 'insulting language on a picket line' is 'protected' by the right of freedom of speech.

The Cafeteria Case, supra, involved the validity of an injunction restraining picketing which, though peaceful, was accompanied by statements that the establishment was 'unfair to organized labor,' and that those who patronized it 'were aiding the cause of Fascism,' which statements the lower court held were knowingly false. The Supreme Court held that the use of such 'loose language or undefined slogans' did not constitute such a falsification of the facts as to make peaceful picketing unlawful and subject to injunction.

In Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.ed. 1131, also relied on by the defendant, a conviction on a charge that an address delivered in an auditorium tended to a 'breach of the peace' in violation of a local ordinance, was reversed in a five-to-four decision on the ground that the ordinance, as construed by the court in its instruction to the jury, permitted a conviction by a general verdict, not only for the use of language which constituted a 'breach of the peace' and which might be prohibited, but also for the use of language which 'stirred people to anger, invited public dispute, or brought about a condition of unrest,' which latter, as the court said, was within the protected area of free speech.

The Supreme Court has repeatedly held that the right or privilege of free speech has its limitations. In Chaplinsky v. New Hampshire, supra, it held that the constitutional right of free speech is not violated by a state statute which makes it a crime to address any offensive, derisive, or annoying word to any person lawfully in a public place, or to call him by an offensive or derisive name, which has a direct tendency to cause acts of violence by the person to whom individually the remark is addressed. In the course of the unanimous opinion this was said:

'Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words -- those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outsweighed by the social interest in order and morality. * * *'

See also, Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.ed. 1213, 128 A.L.R. 1352.

To adopt the contention of the defendant and hold that those on the picket line, in the exercise of free speech, are 'protected' in the use of insulting language would be to grant to such persons a privilege and immunity not accorded other citizens. It would mean that they were exempt from actions for libel or slander or from criminal prosecutions for the violation of statutes prohibiting such conduct.

We see nothing in the section of the statute here under review which supports the assertion of the defendant that it was 'designed to end the practice, common to labor disputes, known as 'picketing.' ' It does not prohibit 'peaceful picketing or peaceful persuasion' in connection with labor disputes which are protected under the constitutional guaranty of freedom of speech. American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.ed. 855.

The section is not aimed at the use of 'insulting' words or language as such. It does not prohibit or punish the use of offensive words by one picket toward another picket, or toward one not connected with the particular industrial plant concerned in a labor dispute. Nor does it, as the defendant argues, confine those on the picket line to language suitable only to the 'drawing room' or the 'parlor car.'

Its prohibition is within a narrow scope. It condemns as unlawful 'the use of force, threats of violence or intimidation,' or 'the use of insulting or threatening language' to 'induce' one who desires to work to 'quit his employment or refrain from seeking employment. ' Its plain purpose is to protect the inherent right to work from the 'clear and present danger' of destruction by those who, by the use of force, threats, violence, intimidation, or insulting words, would prevent the exercise of that right.

Our concept of 'liberty,' as that word is used in the Constitution of the United States and the Constitution of Virginia, embraces the right to work and earn a living as well as the right to speak freely. See Young v. Commonwealth, 101 Va. 853, 862, 863, 45 S.E. 327; Finney v. Hawkins, 189 Va. 878, 884, 54 S.E. (2d) 872, 875. Each of these fundamental rights has its limitations, and the abuse of each is subject to legislative restraint under the State's police power.

We hold that the prohibition in this section of the statute against the interference with the right to work by the use of force, threats, violence, intimidation, or insulting words, acts which are inherently wrong and liable to bring about an immediate breach of the peace, is within the police power of the State and does not trespass upon the constitutional right of freedom of speech.

Similar statutes making it a criminal offense to interfere with a person's right to work by threats, intimidation, or otherwise, are found in other States. Some of these are collected in the annotation found in 123 A.L.R., p. 316. For later cases construing such statutes, see Gurein v. State, 209 Ark. 1082, 193 S.W. (2d) 997; Commonwealth v. Ramey, 279 Ky. 810, 132 S.W. (2d) 342; State v....