Milk Wagon Drivers Union of Chicago Local 753 v. Meadowmoor Dairies/Dissent Reed
Mr. Justice REED dissenting.

My conclusion is that the injunction ordered by the Supreme Court of Illinois violates the constitutional rights of the Milk Wagon Drivers Union of Chicago, its officers and members. The Court reaches a contrary result on the ground that a state may 'authorize its courts to enjoin acts of picketing in themselves peaceful when they are enmeshed with contemporaneously violent conduct which is concededly outlawed.' Since this controversy, by virtue of the Court's opinion, centers around picketing as a phase of free speech rather than around the more general topic of freedom of expression, I desire to state for myself the reasons which lead me to the conviction that the judgment should be reversed. A principle is thus involved, as well as a dispute over the scope of a court injunction.

The record shows inexcusable acts of violence, committed at least in part by members of the union. For such conduct, the offenders are subject to punishment by the criminal laws of Illinois. The future conduct of the rioters is also subject to state control by injunction, exercised within the limits of the Constitution. The burden and the duty of maintaining law and order fall primarily on Illinois. Whether it chooses an injunction against violence alone or against violence and peaceful picketing, it must be assumed that its commands will be obeyed. It is a postulate of reasoned thinking that the judicial decrees will be faithfully carried out. This question then emerges. Is the right to picket peacefully an employer's place of business lost for any period of future time by past acts of violence? The trial court, in this very case, while prohibiting all violence, permitted by its injunction the continuance of efforts by the union, either singly or in concert, to peaceably persuade others by picketing or other lawful means to support its contentions.

Where nothing further appears, it is agreed that peaceful picketing, since it is an exercise of freedom of speech, may not be prohibited by injunction or by statute. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. --, No. 56, decided today. It is equally clear that the right to picket is not absolute. It may, if actually necessary, be limited, let us say, to two or three individuals at a time and their manner of expressing their views may be reasonably restricted to an orderly presentation. Thornhill v. Alabama, supra, 310 U.S. page 105, 60 S.Ct. 745, 84 L.Ed. 1093. From the standpoint of the state, industrial controversy may not overstep the bounds of an appeal to reason and sympathy.

The Court now determines that where there is a background of violence, and inferentially, I think it must be admitted, that where there is a reasonable fear of violence, the freedom of speech which is secured to all persons by the First and Fourteenth Amendments to the Constitution may be withdrawn. It finds its justification in the authority of Illinois to 'protect its storekeepers from being coerced by fear of window-smashings or burnings or bombings.' The momentum of fear from past violence, it is thought, would reach over into the peaceful picketing of the future. This goes much farther than the injunction approved by this Court in Hague v. C.I.O., 307 U.S. 496, 517, 59 S.Ct. 954, 964, 965, 83 L.Ed. 1423, which forbade interferences with the liberty of free speech but left to the guardians of public peace the right 'to enforce law and order by lawful search and seizure or by arrest and production before a judicial officer.' This authority of Illinois to protect its storekeepers must be exercised, however, within the framework of the Constitution. If Illinois were not a member of the United States, but a sovereign without exterior political or social obligations, it would be in a position to use whatever means it or its courts might decide would best put an end to labor disturbances. As a state of the Union it is subject to the restraints of the Constitution. If the fear engendered by past misconduct coerces storekeepers during peaceful picketing, the remedy lies in the maintenance of order, not in denial of free speech. Constitutional guarantees against oppression are of value only when needed to challenge attacks.

The right to picket peacefully in industrial disputes is a recognized means for the marshaling of public opinion on the side of the worker. There is no finding that violence was planned or encouraged by the union. To deny this right of peaceful picketing to thousands because of the violence of a few means the cutting off of one of the constitutionally protected ways in which orderly adjustments of economic disputes are brought about. I cannot see that the constitutional problem is 'totally different' because raised by a court decree rather than a statute. Constitutional guarantees are just as effective for the individual as they are for the general public. The principle contended for by petitioners is the right to tell their side of the story by peaceful picketing despite a state court's view that such picketing may project fear from past violence into the future. In the last analysis we must ask ourselves whether this protection against assumed fear of future coercion flowing from past violence is sufficient to justify the suspension of the constitutional guarantee of free speech. If picketing is prohibited here, the right maintained by Thornhill v. Alabama collapses on the first attack.

This nation relies upon public discussion as one of the indispensable means to attain correct solutions of problems of social welfare. Curtailment of free speech limits this open discussion. Our whole history teaches that adjustment of social relations through reason is possible while free speech is maintained. This Court has the solemn duty of determining when acts of legislation or decrees of courts infringe that right guaranteed to all citizens. Free speech may be absolutely prohibited only under the most pressing national emergencies. Those emergencies must be of the kind that justify the suspension of the writ of habeas corpus or the suppression of the right of trial by jury. Nothing approaching this situation exists in this record and, in my judgment, the action of the Supreme Court of Illinois in prohibiting peaceful picketing violates the constitutional rights of these petitioners. 

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