Thornhill v. State of Alabama, No. 514

CourtUnited States Supreme Court
Writing for the CourtMURPHY
PartiesTHORNHILL v. STATE OF ALABAMA
Decision Date22 April 1940
Docket NumberNo. 514

310 U.S. 88
60 S.Ct. 736
84 L.Ed. 1093
THORNHILL

v.

STATE OF ALABAMA.

No. 514.
Argued Feb. 29, 1940.
Decided April 22, 1940.

[Argument of Counsel from pages 88-90 intentionally omitted]

Page 90

Messrs. James J. Mayfield, of Tuscaloosa, Ala., and Joseph A. Padway, of Washington, D.C., for petitioner.

Mr. William H. Loeb, of Montgomery, Ala., for respondent.

[Arguments of Counsel from pages 90-91 intentionally omitted]

Page 91

Mr. Justice MURPHY delivered the opinion of the Court.

Petitioner, Byron Thornhill, was convicted in the Circuit Court of Tuscaloosa County, Alabama, of the violation of Section 3448 of the State Code of 1923. 1 The Code Section reads as follows: '§ 3448. Loitering or picketing forbidden.—Any person or persons, who, without a just cause or legal excuse therefor, go near to or loiter about the premises or place of business of any other person, firm, corporation, or association of people, engaged in a lawful business, for the purpose, or with intent of influencing, or inducing other persons not to trade with, buy from, sell to, have business dealings with, or be employed by such persons, firm, corporation, or association, or who picket the works or place of business of such other persons, firms, corporations, or associations of persons, for the purpose of hindering, delaying, or interfering with or injuring any lawful business or enterprise of another, shall be guilty of a

Page 92

misdemeanor; but nothing herein shall prevent any person from soliciting trade or business for a competitive business.'

The complaint against petitioner, which is set out in the margin,2 is phrased substantially in the very words of the statute. The first and second counts charge that petitioner, without just cause or legal excuse, did 'go near to or loiter about the premises' of the Brown Wood Preserving Company with the intent or purpose of influencing others to adopt one of enumerated courses of conduct. In the third count, the charge is that petitioner 'did picket' the works of the Company 'for the purpose of hindering, delaying or interfering with or injuring (its) lawful business'. Petitioner demurred to the complaint on the grounds, among others, that Section 3448 was repugnant to the Constitution of the United States (Amendment 1) in

Page 93

that it deprived him of 'the right of peaceful assemblage', 'the right of freedom of speech', and 'the right to petition for redress'. The demurrer, so far as the record shows, was not ruled upon, and petitioner pleaded not guilty. The Circuit Court then proceeded to try the case without a jury, one not being asked for or demanded. At the close of the case for the State, petitioner moved to exclude all the testimony taken at the trial on the ground that Section 3448 was violative of the Constitution of the United States.3 The Circuit Court overruled the motion, found petitioner 'guilty of Loitering and Picketing as charged in the complaint', and entered judgment accordingly. The judgment was affirmed by the Court of Appeals, which considered the constitutional question and sustained the section on the authority of two previous decisions in the Alabama courts. 4 O'Rourke v. City of Birmingham, 27 Ala.App. 133, 168 So. 206, certiorari denied, 232 Ala. 355, 168 So. 209; Hardie-Tynes Mfg. Co. v. Cruise, 189 Ala. 66, 66 So. 657. A petition for certiorari was denied by the Supreme Court of the State. The case is here on certiorari granted because of the importance of the questions presented. 308 U.S. 547, 60 S.Ct. 296, 84 L.Ed. —-. December 11, 1939.

The proofs consist of the testimony of two witnesses for the prosecution.5 It appears that petitioner on the morn-

Page 94

ing of his arrest was seen 'in company with six or eight other men' 'on the picket line' at the plant of the Brown Wood Preserving Company. Some weeks previously a strike order had been issued by a Union, apparently affiliated with The American Federation of Labor, which had as members all but four of the approximately one hundred employees of the plant. Since that time a picket line with two picket posts of six to eight men each had been maintained around the plant twenty-four hours a day. The picket posts appear to have been on Company property, 'on a private entrance for employees, and not on any public road.' One witness explained that practically all of the employees live on Company property and get their mail from a post office on Company property and that the Union holds its meetings on Company property. No demand was ever made upon the men not to come on the property. There is no testimony indicating the nature of the dispute between the Union and the Preserving Company, or the course of events which led to the issuance of the strike order, or the nature of the efforts for conciliation.

The Company scheduled a day for the plant to resume operations. One of the witnesses, Clarence Simpson, who was not a member of the Union, on reporting to the plant on the day indicated, was approached by petitioner who told him that 'they were on strike and did not want anybody to go up there to work.' None of the other employees said anything to Simpson, who testified: 'Neither Mr. Thornhill nor any other employee threatened me on the occasion testified to. Mr. Thornhill aproached me in a peaceful manner, and did not put me in fear; he did not appear to be mad.' 'I then turned and went back to the house, and did not go to work.' The other witness, J. M. Walden, testified: 'At the time Mr. Thornhill and Clarence Simpson were talking to each other, there was no one else present, and I heard no harsh words and saw

Page 95

nothing threatening in the manner of either man.'6 For engaging in some or all of these activities, petitioner was arrested, charged, and convicted as described.

First. The freedom of speech and of the press, which are secured by the First Amendment against abridgment by the United States, are among the fundamental personal rights and liberties which are secured to all persons by the Fourteenth Amendment against abridgment by a state.7

The safeguarding of these rights to the ends that men may speak as they think on matters vital to them and that falsehoods may be exposed through the processes of education and discussion is essential to free government. Those who won our independence had confidence in the power of free and fearless reasoning and communication of ideas to discover and spread political and economic truth. Noxious doctrines in those fields may be refuted and their evil averted by the courageous exercise of the right of free discussion. Abridgment of freedom of speech and of the press, however, impairs those opportunities for public education that are essential to effective exercise of the power of correcting error through the processes of popular government. Compare United States v. Carolene Products, 304 U.S. 144, 152, 153n, 58 S.Ct. 778, 783, 784, 82 L.Ed. 1234. Mere legislative preference for one rather than another means for combatting substantive evils, therefore, may well prove an inade-

Page 96

quate foundation on which to rest regulations which are aimed at or in their operation diminish the effective exercise of rights so necessary to the maintenance of democratic institutions. It is imperative that, when the effective exercise of these rights is claimed to be abridged, the courts should 'weigh the circumstances' and 'appraise the substantiality of the reasons advanced' in support of the challenged regulations. Schneider v. State, 308 U.S. 147, 161, 162, 60 S.Ct. 146, 150, 151, 84 L.Ed. 155.

Second. The section in question must be judged upon its face.

The finding against petitioner was a general one. It did not specify the testimony upon which it rested.8 The charges were framed in the words of the statute and so must be given a like construction. The courts below expressed no intention of narrowing the construction put upon the statute by prior State decisions.9 In these circumstances, there is no occasion to go behind the face of the statute or of the complaint for the purpose of determining whether the evidence, together with the permissible inferences to be drawn from it, could ever support a conviction founded upon different and more precise charges. 'Conviction upon a charge not made would be sheer denial of due process.' De Jonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 259, 81 L.Ed. 278; Stromberg v. California, 283 U.S. 359, 367, 368, 51 S.Ct. 532, 535, 75 L.Ed. 1117, 73 A.L.R. 1484. The State urges that petitioner may not complain of the deprivation of any rights but his own. It would not follow that on this record petitioner could not complain of the sweeping regulations here challenged.

Page 97

There is a further reason for testing the section on its face. Proof of an abuse of power in the particular case has never been deemed a requisite for attack on the constitutionality of a statute purporting to license the dissemination of ideas. Schneider v. State, 308 U.S. 147, 162—165, 60 S.Ct. 146, 151—152, 84 L.Ed. 155; Hague v. C.I.O., 307 U.S. 496, 516, 59 S.Ct. 954, 964, 83 L.Ed. 1423; Lovell v. Griffin, 303 U.S. 444, 451, 58 S.Ct. 666, 668, 82 L.Ed. 949. The cases when interpreted in the light of their facts indicate that the rule is not based upon any assumption that application for the license would be refused or would result in the imposition of other unlawful regulations.10 Rather it derives from an appreciation of the character of the evil inherent in a licensing system. The power of the licensor against which John Milton directed his assault by his 'Appeal for the Liberty of Unlicensed Printing' is pernicious not merely by reason of the censure of particular comments but by reason of the threat to censure comments on matters of public concern. It is not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence that constitutes the danger to freedom...

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1661 practice notes
  • Board of Trustees of State University of New York v. Fox, No. 87-2013
    • United States
    • United States Supreme Court
    • June 29, 1989
    ...commercial and noncommercial speech, or to narrow its scope to the perceived evil it was intended to address, see Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940), it sweeps within its reach far more protected expression than is tolerable under the First Amendm......
  • Federal Communications Commission v. League of Women Voters of California, No. 82-912
    • United States
    • United States Supreme Court
    • July 2, 1984
    ...1407, 1415-1416, 55 L.Ed.2d 707 (1978); Buckley v. Valeo, 424 U.S. 1, 14, 96 S.Ct. 612, 632, 46 L.Ed.2d 659 (1976); Thornhill v. Alabama, 310 U.S. 88, 101-102, 60 S.Ct. 736, 744, 84 L.Ed. 1093 (1940). Were a similar ban on editorializing applied to newspapers and magazines, we would not hes......
  • Finzer v. Barry, No. 84-5327
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 9, 1986
    ...a requisite for attack on the constitutionality of a statute purporting to license the dissemination of ideas." Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940); see also Hynes v. Mayor of Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976); Staub v. Ci......
  • 44 600 Bigelow v. Virginia 8212 1309, No. 73
    • United States
    • United States Supreme Court
    • June 16, 1975
    ...at 1690, 1691. (White, J., dissenting); NAACP v. Button, 371 U.S. 415, 432, 83 S.Ct. 328, 337, 9 L.Ed.2d 405 (1963); Thornhill v. Alabama, 310 U.S. 88, 97—98, 60 S.Ct. 736, 741—742, 84 L.Ed. 1093 (1940). The Supreme Court of Virginia itself recognized this principle when it recently stated ......
  • Request a trial to view additional results
1656 cases
  • Board of Trustees of State University of New York v. Fox, No. 87-2013
    • United States
    • United States Supreme Court
    • June 29, 1989
    ...commercial and noncommercial speech, or to narrow its scope to the perceived evil it was intended to address, see Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940), it sweeps within its reach far more protected expression than is tolerable under the First Amendm......
  • Federal Communications Commission v. League of Women Voters of California, No. 82-912
    • United States
    • United States Supreme Court
    • July 2, 1984
    ...1407, 1415-1416, 55 L.Ed.2d 707 (1978); Buckley v. Valeo, 424 U.S. 1, 14, 96 S.Ct. 612, 632, 46 L.Ed.2d 659 (1976); Thornhill v. Alabama, 310 U.S. 88, 101-102, 60 S.Ct. 736, 744, 84 L.Ed. 1093 (1940). Were a similar ban on editorializing applied to newspapers and magazines, we would not hes......
  • Finzer v. Barry, No. 84-5327
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 9, 1986
    ...a requisite for attack on the constitutionality of a statute purporting to license the dissemination of ideas." Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940); see also Hynes v. Mayor of Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976); Staub v. Ci......
  • 44 600 Bigelow v. Virginia 8212 1309, No. 73
    • United States
    • United States Supreme Court
    • June 16, 1975
    ...at 1690, 1691. (White, J., dissenting); NAACP v. Button, 371 U.S. 415, 432, 83 S.Ct. 328, 337, 9 L.Ed.2d 405 (1963); Thornhill v. Alabama, 310 U.S. 88, 97—98, 60 S.Ct. 736, 741—742, 84 L.Ed. 1093 (1940). The Supreme Court of Virginia itself recognized this principle when it recently stated ......
  • Request a trial to view additional results
5 books & journal articles
  • The Fiction of the First Freedom
    • United States
    • Political Research Quarterly Nbr. 6-2, June 1953
    • June 1, 1953
    ...In re Summers, 325 U.S. 561 (1945); Musser v. Utah, 333 U.S. 95 (1948). 4 Snyder v. Milwaukee, 308 U.S. 147 (1939); Thornhill v. Alabama, 310 U.S. 88 (1940); Carlson California, 310 U.S. 106 (1940); Milk Wagon Drivers Union of America v. Meadowmoor Dairies,312 U.S. 287 (1941); American Fede......
  • Political Nonexpenditures: 'Defunding Boycotts' as Pure Speech.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 45 Nbr. 2, July 2022
    • July 1, 2022
    ...Boycott Restrictions in Light of Citizens United and Sorrell, 90 WASH. U. L. REV. 237, 245-46 (2012). (16.) See id. at 245-48. (17.) 310 U.S. 88 (18.) See id. at 101; see also Am. Fed'n of Lab. V. Swing, 312 U.S. 321, 324-26 (1941) (holding unconstitutional Illinois's common law policy proh......
  • Race, Labor, and the Twentieth-Century American State
    • United States
    • Politics & Society Nbr. 32-4, December 2004
    • December 1, 2004
    ...FRYMER 499 ulations, and the Courts from Reconstruction to the New Deal (Durham, NC: DukeUniversity Press, 2001).39. 301 U.S. 1 (1937).40. 310 U.S. 88 (1940).41. Karl E. Klare, “Judicial Deradicalization of the WagnerAct and the Origins of Mod-ern Legal Consciousness,” Minnesota Law Review6......
  • Picketing: Its Use and Abuse
    • United States
    • ANNALS of the American Academy of Political and Social Science, The Nbr. 248-1, November 1946
    • November 1, 1946
    ...most bitter, Kaplan, 259 N. Y. 405 (1932). 7 312 dramatic, and costly strikes in the his- U. S. 219 (1941). See also Thornhill v. Alabama, 310 U. S. 88 (1940); Carlson tory of labor relations. The farseeing California, 310 U. S. 106 (1940); and Thomp- labor leaders have recognized its menac......
  • Request a trial to view additional results

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