Thornhill v. Alabama (1940)

Summary

Byron Thornhill was the president of a local labor union.  As part of a labor strike, Thornhill picketed his employer.  He was later arrested and convicted for violating an Alabama law that banned labor picketing.  In an 8-to-1 decision, the Supreme Court struck down the Alabama law, concluding that the First Amendment protected this form of expression.  In his majority opinion for the Court, Justice Murphy offered a powerful account of the connection between the First Amendment and democracy—setting the stage for robust defenses of free speech by later Justices.  Building on Justice Brandeis, Murphy argued that for democracy to work, the American people must believe that their government is responsive to public opinion.  On this view, the American people must be free to shape the views of their fellow Americans, and the government itself must respond to public opinion over time.  As a result, the First Amendment must protect forms of communication—like labor picketing—that are necessary to inform public opinion.

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Excerpt: Majority Opinion, Justice Frank Murphy

The complaint against petitioner [Byron Thornhill] . . . charge[s] that [he], 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 [“not to trade with, buy from, sell to, have business dealings with, or be employed by such persons, firm, corporation, or association”] . . . . 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 [the Alabama law] was repugnant to the Constitution of the United States in that it deprived him of “the right of peaceful assemblage,” “the right of freedom of speech,” and “the right to petition for redress.” . . . 

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. 

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. . . . Mere legislative preference for one, rather than another, means for combatting substantive evils therefore may well prove an inadequate 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. . . .

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. . . . [T]he 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. 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 of discussion. . . . One who might have had a license for the asking may therefore call into question the whole scheme of licensing when he is prosecuted for failure to procure it. . . . A like threat is inherent in a penal statute, like that in question here, which does not aim specifically at evils within the allowable area of state control but, on the contrary, sweeps within its ambit other activities that, in ordinary circumstances, constitute an exercise of freedom of speech or of the press. 

The existence of such a statute, which readily lends itself to harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure, results in a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within its purview. It is not any less effective, or, if the restraint is not permissible, less pernicious, than the restraint on freedom of discussion imposed by the threat of censorship. An accused, after arrest and conviction under such a statute, does not have to sustain the burden of demonstrating that the State could not constitutionally have written a different and specific statute covering his activities as disclosed by the charge and the evidence introduced against him. . . . Where regulations of the liberty of free discussion are concerned, there are special reasons for observing the rule that it is the statute, and not the accusation or the evidence under it, which prescribes the limits of permissible conduct and warns against transgression. . . .

[The Alabama law] has been applied by the state court so as to prohibit a single individual from walking slowly and peacefully back and forth on the public sidewalk in front of the premises of an employer, without speaking to anyone, carrying a sign or placard on a staff above his head stating only the fact that the employer did not employ union men affiliated with the American Federation of Labor; the purpose of the described activity was concededly to advise customers and prospective customers of the relationship existing between the employer and its employees, and thereby to induce such customers not to patronize the employer. . . . The statute, as thus authoritatively construed and applied, leaves room for no exceptions based upon either the number of persons engaged in the proscribed activity, the peaceful character of their demeanor, the nature of their dispute with an employer, or the restrained character and the accurateness of the terminology used in notifying the public of the facts of the dispute. . . .

In sum, whatever the means used to publicize the facts of a labor dispute, whether by printed sign, by pamphlet, by word of mouth, or otherwise, all such activity, without exception, is within the inclusive prohibition of the statute so long as it occurs in the vicinity of the scene of the dispute. . . .

We think that [the Alabama law] is invalid on its face.

The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern, without previous restraint or fear of subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times. The Continental Congress, in its letter sent to the Inhabitants of Quebec . . . , referred to the “five great rights,” and said: “The last right we shall mention regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them whereby oppressive officers are ashamed or intimidated into more honourable and just modes of conducting affairs.” . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.

In the circumstances of our times, the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution. . . . It is recognized now that satisfactory hours and wages and working conditions in industry and a bargaining position which makes these possible have an importance which is not less than the interests of those in the business or industry directly concerned. The health of the present generation and of those as yet unborn may depend on these matters, and the practices in a single factory may have economic repercussions upon a whole region and affect widespread systems of marketing. The merest glance at state and federal legislation on the subject demonstrates the force of the argument that labor relations are not matters of mere local or private concern. Free discussion concerning the conditions in industry and the causes of labor disputes appears to us indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of modern industrial society. . . .

It is true that the rights of employers and employees to conduct their economic affairs and to compete with others for a share in the products of industry are subject to modification or qualification in the interests of the society in which they exist. This is but an instance of the power of the State to set the limits of permissible contest open to industrial combatants. . . . It does not follow that the State, in dealing with the evils arising from industrial disputes, may impair the effective exercise of the right to discuss freely industrial relations which are matters of public concern. A contrary conclusion could be used to support abridgment of freedom of speech and of the press concerning almost every matter of importance to society.

The range of activities proscribed by [the Alabama law], whether characterized as picketing, or loitering, or otherwise, embraces nearly every practicable, effective means whereby those interested – including the employees directly affected – may enlighten the public on the nature and causes of a labor dispute. The safeguarding of these means is essential to the securing of an informed and educated public opinion with respect to a matter which is of public concern. It may be that effective exercise of the means of advancing public knowledge may persuade some of those reached to refrain from entering into advantageous relations with the business establishment which is the scene of the dispute. Every expression of opinion on matters that are important has the potentiality of inducing action in the interests of one, rather than another, group in society. But the group in power at any moment may not impose penal sanctions on peaceful and truthful discussion of matters of public interest merely on a showing that others may thereby be persuaded to take action inconsistent with its interests. Abridgment of the liberty of such discussion can be justified only where the clear danger of substantive evils arises under circumstances affording no opportunity to test the merits of ideas by competition for acceptance in the market of public opinion. We hold that the danger of injury to an industrial concern is neither so serious nor so imminent as to justify the sweeping proscription of freedom of discussion embodied in [the Alabama law].
 

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