Organization For Better Austin v. Keefe

Decision Date17 May 1971
Docket NumberNo. 135,135
PartiesORGANIZATION FOR A BETTER AUSTIN et al., Petitioners, v. Jerome M. KEEFE
CourtU.S. Supreme Court

Respondent real estate broker applied for and obtained from the Illinois courts an injunction enjoining petitioners from distributing any literature in the City of Westchester, on the ground that their leaflets, critical of respondent's alleged 'blockbusting' and 'panic peddling' activities in the Austin area of Chicago, invaded respondent's right of privacy, and were coercive and intimidating rather than informative, thus not being entitled to First Amendment protection. Held; Respondent has not met the heavy burden of justifying the imposition of the prior restraint of petitioners' peaceful distribution of informational literature of the nature disclosed by this record. Pp. 418—420.

115 Ill.App.2d 236, 253 N.E.2d 76, reversed.

David C. Long, Chicago, Ill., for petitioners.

Thomas W. McNamara, Chicago, Ill., for respondent.

Mr. Chief Justice BURGER delivered the opinion of the Court.

We granted the writ in this case to consider the claim that an order of the Circuit Court of Cook County, Illinois, enjoining petitioners from distributing leaflets anywhere in the town of Westchester, Illinois, violates petitioners' rights under the Federal Constitution.

Petitioner Organization for a Better Austin (OBA) is a racially integrated community organization in the Austin neighborhood of Chicago. Respondent is a real estate broker whose office and business activities are in the Austin neighborhood. He resides in Westchester, Illinois, a suburb of Chicago some seven miles from the Austin area.

OBA is an organization whose stated purpose is to 'stabilize' the racial ratio in the Austin area. For a number of years the boundary of the Negro segregated area of Chicago has moved progressively west to Austin. OBA, in its efforts to 'stabilize' the area—so it describes its program—has opposed and protested various real estate tactics and activities generally known as 'blockbusting' or 'panic peddling.'

It was the contention of OBA that respondent had been one of those who engaged in such tactics, specifically that he aroused the fears of the local white residents that Negroes were coming into the area and then, exploiting the reactions and emotions so aroused, was able to secure listings and sell homes to Negroes. OBA alleged that since 1961 respondent had from time to time actively promoted sales in this manner by means of flyers, phone calls, and personal visits to residents of the area in which his office is located, without regard to whether the persons solicited had expressed any desire to sell their homes. As the 'boundary' marking the furthest westward advance of Negroes moved into the Austin area, respondent is alleged to have moved his office along with it.

Community meetings were arranged with respondent to try to persuade him to change his real estate practices. Several other real estate agents were prevailed on to sign an agreement whereby they would not solicit property, by phone, flyer, or visit, in the Austin community. Respondent who has consistently denied that he is engaging in 'panic peddling' or 'blockbusting' refused to sign, contending that it was his right under Illinois law to solicit real estate business as he saw fit.

Thereafter, during September and October of 1967, members of petitioner organization distributed leaflets in Westchester describing respondent's activities. There was no evidence of picketing in Westchester. The challenged publications, now enjoined, were critical of respondent's real estate practices in the Austin neighborhood; one of the leaflets set out the business card respondent used to solicit listings, quoted him as saying 'I only sell to Negroes,' cited a Chicago Daily News article describing his real estate activities and accused him of being a 'panic peddler.' Another leaflet, of the same general order, stated that: 'When he signs the agreement, we stop coming to Westchester.' Two of the leaflets requested recipients to call respondent at his home phone number and urge him to sign the 'no solicitation' agreement. On several days leaflets were given to persons in a Westchester shopping center. On two other occasions leaflets were passed out to some parishioners on their way to or from respondent's church in Westchester. Leaflets were also left at the doors of his neighbors. The trial court found that petitioners' 'distribution of leaflets was on all occasions conducted in a peaceful and orderly manner, did not cause any disruption of pedestrian or vehicular traffic, and did not precipitate any fights, disturbances or other breaches of the peace.' One of the officers of OBA testified at trial that he hoped that respondent would be induced to sign the no-solicitation agreement by letting 'his neighbors know what he was doing to us.'

Respondent sought an injunction in the Circuit Court of Cook County, Illinois, on December 20, 1967. After an adversary hearing the trial court entered a temporary injunction enjoining petitioners 'from passing out pamphlets, leaflets or literature of any kind, and from picketing, anywhere in the City of Westchester, Illinois.'

On appeal to the Appellate Court of Illinois, First District, that court affirmed, 115 Ill.App.2d 236, 253 N.E.2d 76. It sustained the finding of fact that petitioners' activities in Westchester had invaded respondent's right of privacy, had caused irreparable harm, and were without adequate remedy at law. The Appellate Court appears to have viewed the alleged activities as coercive and intimidating, rather than informative and therefore as not entitled to First Amendment protection. The Appellate Court rested its holding on its belief that the public policy of the State of Illinois strongly favored protection of the privacy of home and family from encroachment of the nature of petitioners' activities.1

It is elementary, of course, that in a case of this kind the courts do not concern themselves with the truth or validity of the publication. Under Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), the injunction, so far as it imposes prior restraint on speech and publication, constitutes an impermissible restraint on First Amendment rights. Here, as in that case, the injunction operates, not to redress alleged private wrongs, but to suppress, on the basis of previous publications, distribution of literature 'of any kind' in a city of 18,000.

This Court has often recognized that the activity of peaceful pamphleteering is a form of communication protected by the First Amendment. E.g., Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943); Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939); Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938). In sustaining the injunction, however, the Appellate Court was apparently of the view that petitioners' purpose in distributing their literature was not to inform the public, but to 'force' respondent to sign a no-solicitation agreement. 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. See Schneider v. State, supra; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). 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.

Any prior restraint on expression comes to this Court with a 'heavy presumption' against its constitutional validity. Carroll v. President and Commissioners of Prinecess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 351, 21 L.Ed.2d 325 (1968); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963). Respondent thus carries a heavy burden of showing justification for the imposition of such a restraint. He has not met that burden. 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. Designating the conduct as an in- vasion of privacy, the apparent basis for the injunction here, is not sufficient to support an injunction against peaceful distribution of informational literature of the nature revealed by this record. Rowan v. United States Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970), relied on by respondent, is not in point; the right of privacy involved in that case is not shown here. Among other important distinctions, respondent is not attempting to stop the flow of information into his own household, but to the public. Accordingly, the injunction issued by the Illinois court must be vacated.


Mr. Justice HARLAN, dissenting.

In deciding this case on the merits, the Court, in my opinion, disregards the express limitation of our appellate jurisdiction to '(f)inal judgments or decrees,' 28 U.S.C. § 1257, and does so in a way which undermines the policies behind limiting our review to judgments 'rendered by the highest court of a State in which a decision could be had,' ibid., and interferes with Illinois' arrangements for the expeditious processing of litigation in its own state courts.

It is plain, and admitted by all, that the 'temporary' or 'preliminary' injunction entered by the Circuit Court of Cook County and affirmed by the Appellate Court, First District, is not a final judgment. Review of preliminary injunctions is a classic form of...

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