Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc.

PETITIONER:Amalgamated Food Employees Union Local 590
RESPONDENT:Logan Valley Plaza, Inc.
LOCATION:Formerly Sam’s Stationery and Luncheonette

DOCKET NO.: 478
DECIDED BY: Warren Court (1967-1969)
LOWER COURT:

CITATION: 391 US 308 (1968)
ARGUED: Mar 14, 1968
DECIDED: May 20, 1968

Facts of the case

Question

Audio Transcription for Oral Argument – March 14, 1968 in Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc.

Earl Warren:

Number 478, Amalgamated Food Employees Union Local Number 590 et al., petitioners versus Logan Valley Plaza Incorporated and Weis Markets Incorporated.

Mr. Dunau.

Bernard Dunau:

Mr. Chief Justice and may it please the Court.

A state court injunction prohibits as trespass on private property, peaceful picketing by union men and women in front of a supermarket located within a shopping center, informing the public that the store is nonunion.

These employees are not receiving union wages or other union benefits.

We have three questions.

One, is this prohibition of peaceful picketing within the shopping center an abridgment of First Amendment rights?

Two, is the conduct within the sole governance of the National Labor Relations Board so that the state court has no power to deal with it at all and three, if the state court is empowered to deal with the conduct, does the injunction prohibit the federally protected right conferred by the National Labor Relations Act to engage in peaceful picketing.

Now these questions arise in this setting.

Logan Valley Mall is a shopping center.

At the time of the events in this case, it was newly opened.

It’s a pretty big shopping center.

It expands a perimeter of about 1.1 miles.

It is located at the intersection of two public highways.

The highways are separated from the shopping center by what are called earthen berms which is an earthen embankment with a ditch.

The highways are separated from the shopping center by earthen berms, B E R M S embankments, they’re just — it’s just dirt road and that’s about all I can see that it means there’s a ditch along this berm.

This is unbroken except for five paved entrances which provide ingress and egress to the shopping center.

The paved entrances are about 20-feet in width, the berms vary from 12 to 15 feet in width.

Now, from the entrances to the shopping center and the Weis Supermarket which is the store involved in this case, entrances one and two are about 350 feet distant.

Entrance three a little further and entrance four and five are about 450 to 500 feet from the highway entrance to the Weis Supermarket.

William J. Brennan, Jr.:

The entrance is on the parking area?

Bernard Dunau:

Yes.

What separates the buildings from the highway are parking areas and pedestrian ways.

The usual set up of a shopping center of places where you park your cars, roads so that you can maneuver your cars within the shopping center and sidewalks where shoppers can go.

Now when this shopping center opened for —

William J. Brennan, Jr.:

Are there fences around it?

Bernard Dunau:

No sir, I don’t believe there’s a fence around it.

When this shopping center opened for business, the two occupants were Weis Markets which is a supermarket selling food and other household articles and Sears, Roebuck and Company which operated a department store and which operates an automotive service station.

There are now 15 additional tenants.

There’s JC Penney, the shopping center now performs all of the usual retail services associated with the shopping center.

Bernard Dunau:

Now, when —

Potter Stewart:

This is in a suburban Altona, that space?

Bernard Dunau:

Yes sir, it is.

It’s a short distance from Altona, it’s something called Logan Township which I gather is a suburban area, yes Your Honor.

When Logan Valley opened for business on December 8, 1965, it employed only nonunion people.

A few days later after it opened, it posted its property with a sign which said, No trespassing or soliciting is allowed on Weis Market porch or parking lot by anyone except Weis employees without the consent of the management.

On December 17th, picketing began.The average numbers of pickets were five, six or seven.

They were men and women.

They were members of the Amalgamated Meat Cutters Union.

They work for other neighboring stores Acme, ANP, Quaker and they volunteer to picket on their own time.

And they picketed with signs which said, The store is nonunion, the employees are not receiving union wages or other union benefits.

Thurgood Marshall:

But it sometimes involved in that, weren’t they 14 in one time?

Bernard Dunau:

On one night, there were 13 pickets and the witness testifying as to their conduct said, they walk, two have rest and sometimes three and four.

Now with respect, perhaps I should say immediately at this point.

There is a claim in the respondent’s brief that this picketing was physical obstructive.

The finding is to the contrary.

The finding is in both courts below were emphatic that the picketing was entirely peaceful in nature.

The —

Byron R. White:

Well what companies did the state court involved 5, 6 and 7.

(Inaudible)

Bernard Dunau:

There is no question that the picketing which was conducted at and in the pick up zone which is in front of the sidewalk.

William J. Brennan, Jr.:

That’s the place where one was pulling his car to put his package.

Bernard Dunau:

That’s correct Your Honor.

William J. Brennan, Jr.:

Now isn’t that an activity somewhat obstructive?

Bernard Dunau:

Well, the best way I can reach that Your Honor is to —

Byron R. White:

Well, the fact that it’s not violent, it doesn’t mean it isn’t obstructive.

Bernard Dunau:

No, I’m not suggesting that the word peaceful excludes the obstruction.

Now, with respect to that, however, I would like to read the specific finding of the court below on the subject.

Byron R. White:

Where is that?

Bernard Dunau:

That’s of — we have it on page 6 of our reply brief.

Bernard Dunau:

It’s at page 89 to 90 of the record.

The Court first recites that small groups of men and women wearing placards, Weis Markets is nonunion, these employees are not receiving union wages or other union benefits work back and forth in front of the Weis Supermarket more particularly in the pickup zone adjacent to the covered porch.

Occasional picketing as above described has taken place on the covered porch itself and this I think is the critical finding while such picketing has been persisted in and may have, not did, may have infrequently caused temporary congestion near the so — supermarket entrances or sporadic stoppage of the flow of vehicles in the pickup zone.

And while the pickets refused a request by the assistant general superintendent for Weis Markets to move off the mall proper, the picketing has been peaceful and unaccompanied by either oral threats or actual violence.

Now, even the introductory qualification does not say that there was an obstruction of the pickup zone.It says there may have been, not that there was, and if there was, it was infrequent, temporary, sporadic.

We do —

Abe Fortas:

You may have covered this and if you did, I’m sorry but I was unable to get clearly in my mind either from the text of the briefs or the drawings whether the pickets were on the little walk there in front of the store or in the driveway or both.

Which one — how did they —

Bernard Dunau:

They were primarily in the pickup zone which is on the street in front of the sidewalk.

They were very occasionally on the sidewalk itself.

Abe Fortas:

Let me — let me be very clear about that.

You are saying they there were in the street, that little driveway —

Bernard Dunau:

Yes.

Abe Fortas:

Then, there’s a curb and a wall.

Bernard Dunau:

Let me — let me try to put it this way.

Potter Stewart:

There is a picture of this somewhere —

Bernard Dunau:

There’s a pretty good diagram of it at page 4 of the respondent’s brief.

Potter Stewart:

Thank you.

Abe Fortas:

What I want to know is whether they were picketing in a way that ould — that might disturb vehicular traffic or just pedestrian traffic or both.

Bernard Dunau:

I would have to say that the picketing at the pickup zone had a possibility of interfering with the traffic flow in and out of the picket zone — pickup zone, and therefore, I would say that the ideal place for those pickets to have been would have been on the sidewalk and not in the pickup zone, and we would be perfectly content to have them on the sidewalk and not in the picket zone —

Abe Fortas:

But they were.

Bernard Dunau:

— in reasonable numbers.

Abe Fortas:

But as a matter of fact, they were in both places.

Bernard Dunau:

As a matter of fact, they were primarily in the pickup zone and occasionally on the sidewalk, but they were in both places, yes.

Abe Fortas:

Thank you.

Bernard Dunau:

As a matter of fact, however, the case does not turn on whether they were in the pickup zone or on the sidewalk because what both courts below found is that they shouldn’t have been any place in the vicinity of the store.

They should have been at the highway entrances.

So is that in terms of the reason for the injunction in this case, that injunction would stand whether you have one old lady with one picket sign in front of one — in front of one entrance or exit to the store on the sidewalk.

William J. Brennan, Jr.:

Well does that —

Bernard Dunau:

Sir?

Byron R. White:

Does that follow?

Even assuming that the courts are wrong in saying they should have been out at the entrances, they could not picket where they did.

You’re assuming we were wrong about that.

It could still be a question whether they could have joined the picketing which interfered with the automobile traffic at the picket — at the pickup zone, wouldn’t it?

And if the court was rightful all about that and your preemption point follows up, would that require an affirmance?

Bernard Dunau:

No sir, because that is not the basis for the injunction.

The — perhaps I missed —

Byron R. White:

Why didn’t you just say no that the injunction was too broad?

Bernard Dunau:

No.

I am not — well, we are saying it’s too —

Byron R. White:

Well, would you say that — would you say this procession was bad if it banned only the picketing on the sidewalk within the pickup zone?

Bernard Dunau:

And — and remitted picketing to where, Your Honor.

Byron R. White:

Well, all it then was that, do not picket in the — on the sidewalk or in the pickup zone.

Bernard Dunau:

Yes, sir.

We would take the position —

Byron R. White:

That that was bad?

Bernard Dunau:

That that was bad, yes sir, because we would take the position, one of two positions —

Byron R. White:

For a state — the state court has no power to — to stop picketing there if it interferes the vehicular traffic in front of the store.

Bernard Dunau:

No, that’s not what we’re saying.

We’re saying that they have no power to stop picketing in front of a supermarket within a shopping center.

They may regulate that picketing in front of a supermarket.

They may say you may have only one or you may have two.

You must stay off the pickups altogether —

William J. Brennan, Jr.:

But do you think — so you also say you may have one or may have two, but they may not picket, they may not walk either one or two in the pickup zone?

Bernard Dunau:

I would be willing to keep these people off the pickup zone, let them stay on the sidewalk and we would be content.

All —

Abe Fortas:

When you say pickup zone, you mean — you’re talking about what I talk about as the driveway where the vehicles —

Bernard Dunau:

The driveway —

Abe Fortas:

So you’re willing — you — you would be willing to throw the court to say that you’ve got to stay out — stay out of the way of vehicular traffic?

Bernard Dunau:

Yes, sir.

Abe Fortas:

But — and then you think that that would remit them to what I call the sidewalk.

Bernard Dunau:

Right.

Abe Fortas:

And then you’d further be willing for the Court to hand her an order that would be a reasonable regulation of number, etcetera.

Bernard Dunau:

That’s correct, sir.

What we are getting down to say, you want them off the pickup zone, keep them off the pickup zone.

Then give them a place on the sidewalk with reasonable numbers which will not interfere with access to the store or exit from but will still permit them to picket.

Now, the injunctions below are — so the injunction in this case is not at all framed in those terms.

It does not go to the regulation of the number of pickets or the place in front of the store at which they may picket.

It says you cannot come into the shopping center at all, and that is why this case is here.

Now, when the injunction was issued in this case, picketing went on until December 27.

An ex parte injunction was issued on that day in joining trespassing and picketing on the shopping center.

The consequence was to take these people away from in front of the supermarket and put them at the highway entrances.

They continue to picket at the highway entrances in numbers of one or two, except that one entrance which served only the Sears, Roebuck Automotive Station and there, they didn’t picket at all.

At the same time, they began to distribute leaflets at the points of the picketing.

The leaflet said, We appeal to our friends and members of organized labor not to patronize this nonunion market.

Please patronize union markets ANP, Quaker, Acme.

We still retain the right to ask the public not to patronize nonunion markets and the public has the right not to patronize nonunion markets.

On January 4, 1966, the union moved to dissolve the injunction and it made substantially two points.

One that picketing within the shopping center in front of the supermarket premises was an exercise of the right of free speech; and two, that the state court by reason of the National Labor Relations Act had no power to deal with the controversy.

An evidentiary hearing was held.

The injunction was made permanent and on February 14, 1966 and the injunction prohibited in so far as it is material to the question we want to bring here, trespassing and picketing on the shopping center premises.

And the court — the Court of Common Plea supported that injunction on two grounds.

One, it said this was private property.

It has been opened only to that part of the public which will make a profit for the shopping center.

It has not been opened to that part of the public with a labor message which will cause the store within the shopping center to lose money.

And the court said secondly — this is the Court of Common Pleas — that the object of the picketing was to coerce the employer to force Weis’ employees to belong to the union.

Now, if the injunction were to stand on that premise, it would be clearly preempted.

It would be clearly a matter within the control solely of the Labor Board.

But the Pennsylvania Supreme Court in affirming did not rest on the ground of coercion of union membership.

It said it need not reach that ground.

Bernard Dunau:

It supported the injunction solely on the ground that this was a trespass and like the Court of Common Pleas, it said the shopping center has invited to this place only those who will benefit it economically and has not made its invitation to all of the world, particularly not to those who would be on economic disadvantage to the stores.

There was a dissent with the divided court four to three.

The dissent made two points.One, this was an exercise of free speech.

You cannot open the shopping center to part of the community and close it to the rest of the community.

And two, there were irreconcilable conflicts between the injunction and rights conferred by the National Labor Relations Act.

That brings us to our First Amendment point.

Free speech or picketing rather, peaceful picketing is the working man means of communication.

It is the way in conventional labor disputes that the public is told the facts of the labor dispute from the working man’s point of view.

Why then can it be prohibited in this case?

The Pennsylvania Supreme Court gives us one answer, it says, it’s private property.

The title to the property belongs to a private holder.

And to that, we think the short answer is the property is private but the use is public.

This shopping center is open to the shopper and the would be shopper, to the employee and the would be employee, to teamsters delivering goods to the stores and the salesmen trying to sell to the stores, to the garbage collector, the policemen, the postmen, to everybody in the community that makes this center function.

Its whole reason for being is its openness to the public.

It’s a public marketplace and on our view, when you open your property to the public in that fashion, you cannot pick and choose among that part of the public which you were let in and that part which you will exclude.

Hugo L. Black:

Suppose it was just inside the store?

Bernard Dunau:

Picketing within the store, sir?

Hugo L. Black:

Yes.

Bernard Dunau:

No sir, we would not claim that we have any right to picket within the store.

Hugo L. Black:

I understood you to say that they cannot divide up and say that some could come and some may not.

But —

Bernard Dunau:

No because —

Hugo L. Black:

If that’s true, why would that not also apply inside?

Bernard Dunau:

Because we think that there is a functional difference between the shopping center premises outside the store where everyone is parking these cars, where no one needs any leap to walk its streets, and the store function proper itself which is we believe devoted to selling and buying, and which that it is inappropriate in that place to conduct peaceful picketing or indeed to distribute handbills.

Hugo L. Black:

Do you think the —

Bernard Dunau:

We —

Hugo L. Black:

— owner of the store couldn’t provide a parking place and say, ?for customers for this store only”?

Bernard Dunau:

No, because when he says ?for customers of this store only?, he is opening that parking lot to the public and therefore, it seems to us —

Hugo L. Black:

But he’s not opening.

He doesn’t intend to open to the public.

Hugo L. Black:

He intends to open it only to the customer.

Bernard Dunau:

Oh, that’s correct, sir.

We are not making any claim here that the shopping center intended to open this shopping center to pickets.

We are saying when you open it to as much of the public as a shopping center has opened to as a matter of constitutional law and federal right under the National Labor Relations Act, you cannot close it to the remainder of the public.

Hugo L. Black:

In other words, the owner cannot provide that he wants his parking lot to be used only by those who buy goods from his store.

Bernard Dunau:

That’s correct, sir, with respect at least to the entry of working people for the purposes of expressing a labor message connected with that store.

There may be others.

I may not —

Abe Fortas:

Well, do you really — do you really mean that or do you differentiate between the sort of case that Justice Black was talking about in the parking area and the shopping center?

That is to say let’s take on the one hand a single store, a department store or a grocery store that has its own shopping — that has its own parking area.

Now, do you think the same rule — would you apply the same rule to that that you would to the parking area for a shopping center?

Bernard Dunau:

Yes.

We have an easier case because we have a shopping center.

But I would suggest that the same rule applies to a single parking lot associated with a single store.

Our point with respect to that was stated at page 35 by a trial examiner.

The decision was adopted by the Board without exceptions to it, so it is not a decision by the Board, but our point with respect to that is well expressed by that case.

Respondent’s parking lot was open to and used by the public, as well as by its employees.In fact, it was intended primarily for public use as an adjunct to the store having made the parking lot available to the public.

Respondent may not interfere with its employees’ organizational activities but unreasonably denying access to it by union —

Abe Fortas:

Why would you think the shopping center case is easier for you?

Is there anything — any difference in theory or principle?

Bernard Dunau:

I cannot draw a difference in theory or principle other than that —

Abe Fortas:

In other words, you say — you say you have — you really have to defend your position with respect to both of them, both the individual store parking lot and the shopping center.

Bernard Dunau:

The only distinction that I can see would be one based on the degree of openness to the public.

That one can draw that line and say that certainly, a shopping center is open to that degree that we can decide that kind of a case and reserve whether the lesser openness, if there is a lesser openness, as a single parking lot attached to a single store makes a difference.

Now, the court below said, Yes, it’s open but it’s open only to those who will make a profit for the center, and we have not opened it to anybody else, or the shopping center has not opened it to anybody else.

Now, what we get involved at in that kind of a distinction is this.

If this supermarket were fronting on a municipally owned street, no one could claim that picketing in reasonable numbers allowing access to the store is not constitutionally protected.

Hugo L. Black:

Why do you say no one can claim that?

Bernard Dunau:

Because I think this Court has decided that question.

Hugo L. Black:

In what case?

Bernard Dunau:

This Court I think has decided that in Thornhill v. Alabama.

Hugo L. Black:

No, it did not.

This case knocked out Thornhill on the ambiguity of the statute.

Bernard Dunau:

Yes sir, but I think that the rationale of Thornhill against Alabama is not limited solely to the ambiguity of the statute.

At least my understanding of Thornhill against Alabama and what a majority of this Court has held in other cases is that in so far as peaceful picketing, public demonstrations or the distribution of literature on publicly-owned property open to the public, that constitutes a constitutionally protected right and may not be prohibited.

I understand of course that Your Honor has a different view.

Hugo L. Black:

Well, in later cases that explained Thornhill as having a different view to that what you say it had.

Bernard Dunau:

I know of no later case, Your Honor, which would explain the way Thornhill to the point of —

Hugo L. Black:

It doesn’t explain it that way, it’s just explain it was talking about it in ambiguous statute.

Bernard Dunau:

Sir, I cannot quarrel with a view that peaceful picketing because it has aspects of conduct, as well as speech, has been suggested by Your Honor to the totally prohibitable as a matter of constitutional law with the sole differentiation being that a government cannot discriminate and allow some peaceful picketing to some and prohibited to others.

I can say with respect to that distinction solely that I do not think this Court has embraced it and I should hope that it would not embrace it in this case.

Now, if we are right, if we are right that this peaceful picketing cannot be prohibited, if it is conducted on a street which faces on a publicly or municipally owned street, then the sole distinction we have is who owns the title to the property.

If you have title in the municipality, it’s constitutionally protected.

If you have title in a private holder, it is not.

And we suggest that the test is not who owns the property, the municipality or a private owner, but whether that property, whoever owns it, has been opened to public use.

And in our view, this is a very small extension, if indeed and extension at all, to what this Court said in Marsh v. Alabama where it said, The more ownership does not always mean absolute dominion, the more an owner for his advantage opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of others.

We think here when a shopping center opens its doors to the public-wide, it cannot shut out that part of the public which has a labor dispute with the store within the shopping center and confine it to engaging in peaceful picketing more than a football business field away from the place where the dispute exists.

Now, the court below says well, these were never employees.

The pickets were never employees of Weis.

We have no quarrels with our own employees.

We have quarrels with other employees.

We have no quarrels with our own.

These are strangers to us.

And for that reason, the injunction is prohibitable.

But this Court settled that question a very long time ago.

It said that you cannot, given the economic interdependence of industry today draw your circle of economic competition so tight as to contain only an employer and his employees.

And then, an injunction of peaceful picketing cannot be sustained if it is based simply on the absence of an employer-employee relationship.

This idea keeps cropping up from year to year.

It’s about as hard an idea to kill in this field as exists, but it’s dead, it was killed in AFL v. Swing by this Court, it is killed by the Congress and the National Labor Relations Act, it has been killed by this Court in preemption cases.

When you resurrect this idea, you simply indicate how retrogressive in this area this decision is.

Bernard Dunau:

Now, we’re told by the Court of Common Pleas at least and by respondents in this case where you can picket out there at the highway entrances.

You don’t have to come in to our parking lot.

William J. Brennan, Jr.:

Mr. Dunau, does your argument go this far?

I suppose you have some of the large insurance companies has a — an office on the 22nd floor of an office building and the Clerk’s Union that are trying to organize it, and they put a picket or two in the common hallway in the 22nd floor of the building.

The say — saying pretty much the same thing that these signs are — would the First Amendment protect that?

Bernard Dunau:

I again have the same problem with that question as I have with the single parking lot —

William J. Brennan, Jr.:

Well, this is why I asked.

Bernard Dunau:

— to what degree has it been open to the public.

I can see —

Byron R. White:

Well, as you know, it’s an ordinary large office building and the Prudential say happens to have half of the 22nd floor and they have the usual common hallways and access to the common hallway by elevators, and one or two pickets just march up and down in front of the Prudential —

Bernard Dunau:

In my view, these pickets should have a right to be on the 22nd floor —

Byron R. White:

This is under the First Amendment?

Bernard Dunau:

This is under the First Amendment.

Byron R. White:

Have you have to really rely on the First Amendment in this case?

Bernard Dunau:

No.

We think we have as good an argument under the preemption that —

Byron R. White:

And if you do, I don’t suppose that you would suggest reaching the First Amendment?

Bernard Dunau:

I have to leave it to the Court as to which ground it wants to place its decision.

From our point of view, the injunction is going to be equally invalid and we’re going to be in as good a position whether we get it under preemption or under the —

Abe Fortas:

Well, do you understand that preemption defines a state of — state court of jurisdiction to do something about violence?

Bernard Dunau:

No, sir.

Abe Fortas:

Well then, do you understand that preemption prohibits the state from doing something if an aspect of the otherwise immune picketing is the disruption of traffic?

Bernard Dunau:

No, sir.

Abe Fortas:

So that the preemption were not necessarily disposed of this case if — if there is a finding that — and we don’t disturb it, that the vehicular traffic and pedestrian traffic here were unreasonably disrupted.

Bernard Dunau:

That would be our same problem, whether the decision is grounded on the First Amendment or on preemption.

Neither ground will allow us to engage in obstructive picketing.

Abe Fortas:

And the state would still have —

Bernard Dunau:

And the state would still have power whether it’s under the First Amendment or on a preemption assignment —

Abe Fortas:

Perhaps I misunderstood you.

I thought you made the opposite answer.

Bernard Dunau:

No, sir.

Abe Fortas:

Sorry.

Bernard Dunau:

We have no claim that the state cannot, no matter how this injunction has upset either on the First Amendment or preemption, the state has power to reach and control obstructive picketing.

But we’re told here that the state can enjoin the picketing in front of the supermarket and unobstructive picketing is all we’re making a claim for here in front of the supermarket because you can picket a high — a more than a football field away at the distant highway entrances.

And to that our — to that argument, our answer is the question is not whether we can picket elsewhere; the question is not whether there are alternative means by which we can express our message.

The question is whether this is an appropriate place to picket in front of the supermarket.

If this is an inappropriate place, it makes no difference that there are other appropriate places.

And this is an appropriate place for two reasons.

One, this is where the labor dispute is in front of the supermarket or at the supermarket premises, not out there at the shopping center which embraces the whole of it.

And this is the audience we want to reach, those who are all going into that supermarket, the Weis Supermarket, not everybody who’s going in to the shopping center.

Byron R. White:

Well, Mr. Dunau, in — on the First Amendment ground though, you wouldn’t really distinguish between labor pickets and other pickets —

Bernard Dunau:

No, sir.

Byron R. White:

You — and anyone who wants to communicate a message to the — that kind of a public should have the right to picket wherever you can.

Bernard Dunau:

Sir, I think —

Byron R. White:

You’re treating any place of business that’s open to the public or any other property that’s open to the public like a public park.

Your view is, I gather, that — and anybody who wants to picket and communicate in — on that property can picket and communicate —

Bernard Dunau:

That —

Byron R. White:

— as long as he doesn’t obstruct.

Bernard Dunau:

That would be our view, sir.

I would like to make it easier for us in this case because we have picketing here which is not only appropriate because this is the place where you reach the audience, but it’s additionally appropriate because this is the place where the dispute exists.

Now, when you have both, you surely have an appropriate place to picket.

Abe Fortas:

And it’s also the fresh air that makes it a little easier for you, didn’t it?

Bernard Dunau:

Well, I suppose there’s just as fresh air at the highway entrance to that shopping center.

Abe Fortas:

Well, it’s a little fresher than it is on the 22nd floor of an office building.

Bernard Dunau:

Yes, except on a humid day where the air conditioned building might be a better place to picket.

Byron R. White:

And how about the apartment house?

Bernard Dunau:

No, that gets closer to where, in my view —

Byron R. White:

And this is too private?

Bernard Dunau:

We get to where I think it becomes an interference with a person’s right to be free from any annoyance at all, where it is his virtually his own home.

If his own home happens to be —

Byron R. White:

Well, it’s open — delivery — it’s open to the delivery man, it’s open to all —

Bernard Dunau:

Sir, I am —

Byron R. White:

— a lot of people —

Bernard Dunau:

I am not suggesting an argument here which is an absolute as one.

I don’t think this kind of a question can be driven by soligisms into either one or the other camp.

I think an apartment house where people live is a different place than a business building, an office building, and I think an office building is different from a shopping center and I think there may be a difference between a single parking lot and a lot of parking lots, but I’m not prepared to concede that there is.

But I’m not about to say that every place is an appropriate place at which to picket or distribute leaflets.

Hugo L. Black:

But rather that there’s no — you indicated that you didn’t feel like the Constitution for that state protect a man from picketing at his home.

Bernard Dunau:

That would be my own information, yes, Your Honor.

There are decisions going both ways on that particular question, but I certainly don’t want to be arguing that case here today.

Now, with respect to the appropriateness of the place, there was a decision which came down on March 1, 1968, this — just this last week by the Court of Appeals for the Second Circuit which we have reprinted verbatim in a supplemental brief.

Now, at page 14-A, the Court of Appeals for the Second Circuit touches precisely on this question.

This was a case in which people who wanted to protest the Vietnam policy of the administration wanted to come into the bus terminal in New York City because this was the place they could most appropriately reach the people they wanted to reach, and they didn’t want to stand outside on the streets.

And the Court of Appeals said this bus terminal is virtually the equivalent of an open thoroughfare and that the people had a right to be within the bus terminal in order to convey their message, and they said this specifically with respect to the kind of question which has just been asked.

The defendant, the bus — the Port of New York Authority argues that the inappropriateness of the place is demonstrated by the fact that Walden’s message, the fellow who wanted to propagandize against the Vietnam policy, there’s no special relation to the operations of the terminal.

The propriety of a place for use as a public forum does turn on the relevance of the premises to the protest.

But this relationship may be found in two ways.

In some situations, the place represents the object of protest, the seat of authority against which the protest is directed.

In other situations, the place is where the relevant audience may be found.

So for the Court of Appeals for the Second Circuit in either situation would make it an appropriate place in this — and what they saw in the Second Circuit case was to picket to distribute handbills and to set up a table at which they could distribute literature.

Now, for the Court of Appeals for the Second Circuit and for us, either would be enough to establish that it is an appropriate place to picket but we have much the easier of that case because on either test, this — the premises of a supermarket is an appropriate place to picket.

Now, we’re told that picketing is more than speech.

And of course, it is more than speech in the sense that picketing does involve a patrol.

But to say that it is more than speech is not to say that it is not speech at all.

To say that it is more than speech under this Court’s decision so far as I understand that means it can be prohibited if it serves a valid governmental interest.

Now, the sole valid governmental interest suggested in this case is one the fair title to the property which we think is invalid because it ignores the distinction of the openness of the shopping center to the public, and secondly, the absence of an employer-employee relationship which we believe is invalid as well in the circumstances of our times and on the basis of this Court’s decisions.

So we have no way of supporting the injunction in this case upon the basis of it being in furtherance or the prohibition of picketing being in furtherance of a valid governmental interest.

Now — yes sir.

Potter Stewart:

When you say that you can see that picketing is more than speech, what precisely do you mean?

In what way is it more than speech?

Bernard Dunau:

When we say picketing is more than speech, we mean only that part of the way in which one communicates his message is to either stand with a placard or walk up and down with a placard, and when it is that aspect of it which we concede is regulable, we think you can restrict the number of persons who can walk and the places at which they can walk so as not to obstruct access, and that is all we concede when we say that picketing is more than speech, that that part of it which is more than speech is regulable but that part of — a part of it which is speech, that it is speech —

Potter Stewart:

You don’t concede that it’s more than speech in that it is a distinct message to certain members of the public just not to go into that store.

That prohibits them from going into that store.

Bernard Dunau:

There is nothing in this record which — which show a prohibition as a result of the picket line.

We are not about to say that speech is not speech simply because it is directed at a specific audience with a specific orientation —

Potter Stewart:

Or that it’s —

Bernard Dunau:

— or that they will, when they see that picket line, not cross because they’ve been taught since childhood not to cross a picket line.

It is not for our purposes, that is speech and it is as much speech because it evokes an automatic response as a result of the message than if it evokes a reason of response.

We do not think that speech can be turned on that kind of criteria.

All we concede by way of that is that on the basis of this Court’s decisions, if there is a valid governmental interest, it can be prohibited.

We find no valid governmental interest in this case.

The only other way it can be reached by government is if the manner in which it has been conducted is obstructive or unpeaceful, and then we concede that the excess can be regulated.

You can make it peaceful if it is violent.

You can reduce it to reasonable numbers.

You can require that it take place at particular locations so as not to interfere with access to the premises or entrance — entrance or access, but we do not concede for one moment that because it is more than speech that it can be prohibited in total.

Now, the reason I think specifically in this case that the rationale adopted by the court below is totally vulnerable is if that rationale were sound, it would prohibit not only peaceful picketing.

It would prohibit the distribution of leaflets within the shopping center at the premises of the supermarket as well because in terms of whether the fellow was a trespasser, he’s a trespasser just as much as if he’s in there carrying a placard or if he’s in there distributing leaflets.

If being a trespasser is what is enough to prohibit the dissemination of information within this shopping center, you can stop leaflet distribution and you can stop picketing and you stop it by the same argument and there can be no distinction in terms of whether this is private property as to whether you entered to picket or you entered to distribute leaflets.

In our view therefore, this picketing must be permitted under the First Amendment.

In the circumstances of our times when you have literally millions of people shopping in shopping centers and literally millions of workers who work within shopping centers, to say in the year 1968 that those workers and that public may not be reachable at the premises of the store within the shopping center is at odds with the way this world works today.

We reach our preemption argument.

To a very great degree, our preemption argument with respect to the arguably protective aspect of the activity is a duplicate of our First Amendment argument.

Conduct is preempted generally speaking if it is arguably protected or arguably prohibited by the National Labor Relations Act.

Byron R. White:

But how can we ever find out that?

Bernard Dunau:

By filing a charge with the Labor Board, Your Honor.

Byron R. White:

Well, you can’t file a charge to the Labor Board in order to say (Inaudible).

I would say that this (Inaudible), is your answer to (Inaudible)

Bernard Dunau:

No.

I think we reached that much more directly.

Suppose for example in this very case, the pickets were told by the shopping center owner to get off his property in front of the store and to go out and picket at the highway entrances.

Bernard Dunau:

At that point, that fellow who was told to get off the premises of the shopping center — of the store could have filed a charge with the Labor Board claiming —

Byron R. White:

(Inaudible)

Bernard Dunau:

No.

What he’s claiming is that — well, I’m sorry.

If he — if the Board finds it is not an unfair labor practice, then it is not protected activity.

Byron R. White:

Do you think that’s a different Congress, so that’s really sort of a surplus —

Bernard Dunau:

No, no, no.

Not at all.

Byron R. White:

But you said it is if it is the charge then it is a violation.

If it is a violation.

If it isn’t, it’s what?

Bernard Dunau:

In order to determine whether the union picket has a right to be at the premises of the shopping center, the board will decide is his conduct within the protection of Section 7 of the Act.

If it finds that the employee’s conduct is within the protection of Section 7 of the Act, then it will find that the employer has violated Section 8 (a) (1) by prohibiting into exercising that Section 7 right.

Byron R. White:

You mean this board will decide whether it violates 8 (a) (1).

Bernard Dunau:

But that turns out whether it’s protected by Section 7.

Byron R. White:

(Inaudible)

Bernard Dunau:

Yes, sir, almost — well, yes sir.

It has to turn out whether it’s protected by Section 7.

There is no escape from that.

When the Board decides that the employer’s conduct interferes with restraints or coerces employees in the exercise of their rights guaranteed by this Act, what it has to go back to is Section 7.

And so that when we talk about whether conduct is arguably protected, what we are talking about is whether it is within the safeguard of Section 7 of the Act, and that is a different proposition from whether it’s arguably prohibited, which means not that we have a right to be there because the National Labor Relations Act gives us that right, but because we have no right to be there.

In fact, we are violating the law by being there and that becomes your arguably prohibited facet of the activity.

In this —

Byron R. White:

But you just said that everything — anything that’s preempted is arguably prohibited.

If that’s all that was said —

Bernard Dunau:

No sir, it would not.

Byron R. White:

You file the charge and the charge is turned down.

Bernard Dunau:

Yes, sir.

Byron R. White:

Then, it’s not a protection.

Bernard Dunau:

That’s correct.

Bernard Dunau:

That doesn’t make a —

Byron R. White:

Then the charge is sustained.

Bernard Dunau:

Yes sir, but there are two separate concepts here.

It is not accurate to say that the only branch of this argument on the preemption whether the conduct was arguably prohibited that you would come out with the same results as you do when you have both branches of the argument.

They are two distinct lines of inquiry and they have to be kept separated.

Now, for our purposes here when we talk about arguably protected, what we ask is whether Section 7 in saying that employees may engage in concerted activity for a mutual aid or protection, when employees are guaranteed that right and engage in peaceful picketing, are they engaging in Section 7 rights.

Earl Warren:

We’ll recess now.

Mr. Dunau, you may continue your argument.

Bernard Dunau:

May it please the court.

In our view, the kind of peaceful picketing which was conducted in this case is safeguarded by Section 7 as concerted activity for mutual aid or protection.

Now, we know that this statute is even more explicit than the generality of Section 7 in indicating the protection that Congress intends to give to peaceful picketing.

For example, in prohibiting the secondary boycott, Congress explicitly accepts from the prohibition any primary strike or any primary picketing in regulating organizational or recognitional picketing with certain qualifications that explicitly allows any picketing or other publicity for the purpose of truthfully advising the public, including consumers, that an employer does not employ members of or have a contract with a labor organization.

Surely then, this is arguably protected and the only answer or the only question really with respect to does it retain its arguably protective character is does it make a difference whether the picketing is conducted on the open but private property of the person with whom you had your dispute.

Now, the Board day in and day out resolves clashes between a worker’s claim that his concerted activity is protected and an employer’s claim that it unduly interferes with his property rights.

So this kind of a clash is part of the board’s administrative routine, the handling of it.

I think I need go no further than the Marshall Field case.

As you all — as the court of courts knows, Marshall Field operates a big department store in Chicago.

Now, its building is bisected by a private street.

It owns that street.

But the customers use the street and the employees use the street.

And the Board said that street must be open to union solicitation on nonworking time in the Court of Appeals for the Seventh Circuit enforce that order saying while privately owned, this street partakes of the nature of a city street or words to that effect.

Potter Stewart:

Would the same rule necessarily apply to union solicitation as it would apply to picketing, you think, inevitably?

Bernard Dunau:

Only one would draw distinction between placarding and talking or distributing literature sir.

Potter Stewart:

In this case, it was not union solicitation or it was not —

Bernard Dunau:

No sir, in this case and so far as the activity conducted which was the object of the injunction, it was picketing.

I cannot now say that the Board has had a case which involved picketing as such but which from our point of view certainly say breaches the result, it is the Board’s business to say whether solicitation is different from picketing, whether different rules should apply and what should be done with it.

Whether the answer goes one way or the other, the idea of preemption is that the Board should give the first answer to the question and not a court — and not a state court.

Potter Stewart:

With union solicitation you have the obvious need to reach the employees and the only place you can reach them sometimes is that the entrance or the exit of the place where they work or the parking lot where they park their cars.

So you don’t have that peculiar need here since this was not solicitation of the employee.

Bernard Dunau:

No, this particular picketing and so far as the record discloses, what it was aimed at was to reach the customers to persuade them not to buy but in terms of reaching the customers to persuade them not to buy, you have the same need of getting as close to the place where they shop as you can, and for the board, you would then have the same sort of question in terms of exercising your concerted activity for mutual aid or protection should be allowed to get up to the premises of the store and to that degree, modify the employer’s pure property right saying his title to his property entitles into exclude everybody.

Bernard Dunau:

Now the Board has in this area, day in and day out.

It meets these questions as to whether time study engineers for example of the unions can come in to a plant.

A union organizes and get on to a vessel, may they get into a resort or hotel.

William J. Brennan, Jr.:

Did you say Mr. Dunau that the Board has not had occasion to deal with any kind of conduct on an area like this?

Bernard Dunau:

I have been unable to find a case certainly which deals with peaceful picketing on a shopping center.

William J. Brennan, Jr.:

Well, I meant any kind of activities the board dealt with —

Bernard Dunau:

On a shopping center as such.

The only case of which I know does not turn on the question of the arguably protected activity.

We do have a case which we treat quite extensively in or brief in which we point out what happens in terms of the — multiplying the risk of committing a secondary boycott when instead of allowing the picketing to take place at the premises of the store within the shopping center, you require that it take place at the perimeter of the shopping center with the necessary result that in that instance whether you like it or not and no matter how circumscribe your picketing is, it reaches employees with whom you do not have a dispute.

William J. Brennan, Jr.:

Now the Board in that –I should remember but I don’t.

Where was the — it was picketing I think in (Inaudible), where was that.

Was that on the sidewalk?

Bernard Dunau:

I’m told it was at the stores but I have no recollection of the specific facts at the moment, Your Honor.

I don’t believe one that had a case which confronts it precisely with this kind of a problem.

Now, I was making the point with respect to secondary boycotts because it has have that kind of a case where the picketing is conducted for example in one case because the police say, you cannot come in to the shopping center.

So per force, the union has to stay outside and then the union gets involved in the risks of circumscribing its picketing so as to confine its impact as much as possible to the employer within the shopping center with whom it has its dispute and not to touch other employers with whom it does not have this dispute.

It multiplies risk for the unions because no matter how circumspect you are, you sometimes even unwittingly cross the lines and you get yourself involved in a secondary boycott violation.

It involves risk for the other employers within the shopping center because no matter how circumscribed and proper your activity is at the perimeter, some overflow, there necessarily has to be to other employers.

The consequence is that, in this kind of a situation where you keep the picketing outside the shopping center, you are reaching many more employers than you have any reason or any desire to reach.

It creates secondary situations.

If you allow the picketing to be where it should in our view be in front of the store with whom the union has its dispute or your secondary boycott complications fall out.

In our view therefore, the rule adopted by the court below upsets the secondary and primary adjustment which underlies the scheme here.

Byron R. White:

If the picketting has appeared, was then that a pick up on the street, would you still contend the state court in accordance to regulate that this (Inaudible)?

Bernard Dunau:

No sir.

None of our argument whether it goes to preemption or First Amendment touches the power of the state to regulate the number of people to allow unimpeded access.

All we are asking for is a place in reasonable numbers in front of the premises of the store at which to picket.

We concede the power of the state whether the picketing is otherwise preempted or otherwise protected by the First Amendment.

We concede the power of the state to regulate the number and the places.

What we do not concede and what is at the heart of this case is can you throw us out of the shopping center all together.

If you come with the conclusion that this reading supports, obstructive picketing even though the case was not rationalized which the state tort preemption, would you still search for remedy?

Bernard Dunau:

We would say there is preemption with respect to the question whether the picketing can be wholly ousted from the shopping center.

We do not say that there is preemption with respect to whether picketing in front of the premises maybe regulated.

We make no such claims.

So your argument is based on the kind of an opinion of the State Supreme Court.

Bernard Dunau:

No sir, I don’t believe it is.

Now, I think perhaps I can clarify that by just looking at the injunction that was entered and that appears in several places but pages 2 to 3.

What we are after in this case of the record is that part of the injunction A and B which prohibits blatantly picketing and trespassing upon the private property of plaintiff Weis Markets and picketing and trespassing upon the private property of plaintiff Logan Valley Plaza.

Well I’m (Voice Overlap) —

Bernard Dunau:

We are —

— Mr. Justice White asked you earlier in the argument (Inaudible) injunction.

Bernard Dunau:

Well, perhaps that is what it comes down to because if the record were to support C, D, E and F of the injunction which is related to obstructive picketing, we have no quarrel with the power of the state to enter C, D, E and F and if our quarrel is with the power of the state enter A and B and why we brought this case here is to challenge the power of the court to enter A and B.

William J. Brennan, Jr.:

Both A and B would have to have — we would have to have added to it something to the effect except that there maybe one or two of this case maybe, is that it?

That they show picket only on the sidewalk and there shall be number within two and there will be so many phases —

Bernard Dunau:

We have no quarrel with that —

William J. Brennan, Jr.:

But that’s what you would say.

It would be an appropriate injunction.

If A and B so far is a complete blanket —

Bernard Dunau:

It’s a complete blanket.

Now, if we would have no quarrel with the injunction which says, You may picket at the premises in front of the supermarket so long as you do not let us say picket with more than two or four pickets at a new station there at certain spots on the sidewalk.

We have no quarrel with that kind of an injunction.

Byron R. White:

How about the rest of the parking lot to do now?

Bernard Dunau:

We don’t want to picket on the rest of the parking lot.

That is not in this case, Your Honor.

This — all we want is an opportunity to picket in front of the supermarket.

Byron R. White:

How about preventing you from picketing at the entrance of the parking lot?

Bernard Dunau:

We don’t want to be at the entrance of the parking lot.

In fact, if we were allowed to be in front of the premises —

Byron R. White:

But you say you wanted to be and they prevented you.

Bernard Dunau:

I was about to say, Your Honor, if we were allowed to be in front of the premises of the store within the shopping center, if we then picketed at the entrances to the shopping center, we would be engaging in a secondary boycott in violation of Section 8 (b) (4) (b) of the Act, we would be prohibited from doing that.

The only reason we’re allowed to be there at all is because we’re told you have to be there and there’s no other place to picket so that we — all of this case comes down to as can we picket peacefully in front of the premises of the supermarket.

Earl Warren:

Mr. Lewis.

Robert Lewis:

Mr. Chief Justice, honorable members of this Court.

The respondent, Logan Valley Plaza is a shopping plaza as you know.

The respondent Weis Market is a small supermarket chain of 60 stores located mostly within Pennsylvania.

In 1965, Weis owned land on which it constructed a store.

Subsequently; it sold the land around it to Logan Valley which then developed a shopping center.

The issue before this Court as we see it is whether a retailer who builds his own store on his own land must also provide a place for his competitors, employees to picket stated in other way under the facts of this case should a state court be prohibited from reasonable regulation of picketing which takes place within a shopping center during the colluquy with Mr. Dunau.

Byron R. White:

You mean the question is not whether the state court may prevent any picketing in the shopping center?

Robert Lewis:

Well, I’m saying that the question is whether there should be reasonable regulation, I submit sir that that’s what was done here.

William J. Brennan, Jr.:

You mean at this instance, total prohibition was indeed reasonable regulation?

Is that it?

Robert Lewis:

In this instance Your Honor, this was not a total prohibition.

Byron R. White:

Except that you mean — they permitted to go on either side of the entrance?

Robert Lewis:

That is right.

At four entrances of the shopping center.

Byron R. White:

It wasn’t then the shopping center property at all.

Robert Lewis:

Yes, it was.

It was on the berm.

Byron R. White:

Do you think — do you think that that — in the terms on the — according to the terms of the injunction that that picketing was permitted or did it just go on and it wasn’t –?

Robert Lewis:

Oh no.

That picketing was sought by us.

We requested that the Court permit picketing to take place on the berm at each of the four entrances to the shopping center and as a result, the union continued to picket there for 18 months —

Abe Fortas:

Well then, do you concede — I beg your pardon.

Robert Lewis:

I beg your pardon.

Abe Fortas:

You concede then that the fact that this is — that it’s a private property, the picketing takes place on private property that is to say the shopping center property does not make the picketing unlawful.

Robert Lewis:

I don’t like to put it that I concede anything Your Honor but I don’t —

Abe Fortas:

Well, that’s what I’m asking you.

Robert Lewis:

Yes.

I know Your Honor.

I don’t feel that that’s the total answer to this problem.

Abe Fortas:

Well, I would like your answer because you say, I understood from the adversary’s argument that the basic issue in this case was whether shopping center property was private property in the respect and with the result that picketing thereon was not permissible.

Now if you say that picketing on the berm was permissible, then the question is inevitable.Do you concede that picketing on the private property of the shopping center is permissible, it is not unlawful?

Robert Lewis:

Under certain circumstances, yes.

Abe Fortas:

And those circumstances are what?

Do they relate to obstruction of traffic or do they relate to numbers?

Robert Lewis:

That’s right.

That is right, Your Honor.

Abe Fortas:

So you do con — I don’t want to press you to take a position that is not yours but I think it’s very important for us to know whether there is an issue here as to whether the mere fact that the picketing takes place on property of the shopping center makes that picketing unlawful.

Robert Lewis:

I do not take that position.

And at times, I might say, I felt that I was arguing on the same side as Mr. Dunau or vice versa.

Potter Stewart:

Well that meant, I gather, so that all that’s before us is whether this constituted appropriate regulation.

Robert Lewis:

Yes sir.

Potter Stewart:

In all the circumstances of this case.

Robert Lewis:

That is right as you put it sir — exactly without any qualification.

Byron R. White:

Well, it seems to me that the injunction says picket — forbids picketing and trespassing upon the private property of plaintiff Logan Valley Plaza, Inc. including the parking area and all entrances and exits leading to said parking area.

Robert Lewis:

Right.

Byron R. White:

I don’t see any — any reservation of the right to picket on the berms.

Robert Lewis:

If you will —

Byron R. White:

It maybe that you just didn’t apply this injunction to it.

Maybe the union picketed on the berms but in terms on the — according to the terms of it, it forbid picketing and trespassing upon the private property of plaintiff.

Robert Lewis:

No —

Byron R. White:

That’s what it says.

Isn’t that what it said?

Robert Lewis:

It said that.

You read it correctly and this was private property.

If I may respond Your Honor, the complaint, as we drew it sought to permit picketing on the berms if I may just look at it in a moment.

I will call your attention to the paragraph.

William J. Brennan, Jr.:

It’s 1-B of prayer, is it?

Robert Lewis:

Thank you.

Well, it’s in the complaint I believe.

William J. Brennan, Jr.:

I’m looking at the prayer.

Robert Lewis:

Yeah, I think its page 10 of the appendix, paragraph 13.

Upon information of belief, the plaintiff’s revert that the defendants intend to continue with illegal trespassing notwithstanding that well developed berms on public surface available on two sides of plaintiff’s premises which maybe used by the said defense for a reasonable and lawful picketing, so we sought and we asked the Court and that’s on page 10 of the appendix.

Hugo L. Black:

What appendix?

Robert Lewis:

Oh, the appendix of this case — I mean the record.

William J. Brennan, Jr.:

Mr. Lewis, may I ask you.

Robert Lewis:

Yes.

William J. Brennan, Jr.:

It used to be in my day at practice, if you want an injunction like this, you draft it and the Court signs it.

Is that what happened here?

Robert Lewis:

Yes.

Thurgood Marshall:

Well then, does this prohibit picketing on the berm on that?

Robert Lewis:

Prohibit or forbid on that.

Thurgood Marshall:

Prohibit.

Robert Lewis:

Picketing on a berm?

No sir, in no respect.

Thurgood Marshall:

It says — well, is the berm owned by Logan Valley?

Robert Lewis:

I believe — I’m not sure whether berm is part of the —

Byron R. White:

You said so a while ago that it was —

Robert Lewis:

Yes, I responded to you and then as I read this complaint in paragraph 13, I notice that it says, private —

Byron R. White:

Well, I don’t think the — I would understand — I thought it was part of the right of way of the road.

Robert Lewis:

Yes sir.

Byron R. White:

So why do you say that what this amounted to is a total prohibition of picketing on private property because the only picketing you wanted to reserve was on the berm which is on private property.

Robert Lewis:

Okay, if that’s the way the question was raised before to me, you’re right.

I didn’t catch the significance of the terms private property.

I thought it was a total prohibition of picketing and this is not a total prohibition of picketing.

We specifically requested that the picketing be continued.

William J. Brennan, Jr.:

Well, let me see is it your position that all picketing from a private property is unlawful?

Robert Lewis:

No.

I think you framed — if I may sir.

You framed the question before that I would —

William J. Brennan, Jr.:

I framed it on the premise that the berms were part of the private property.

Part of the shopping center parking lot.

Now you suggested that maybe they’re not, that the berms of the parking lot are public property.

Robert Lewis:

They’re adjacent to the private property.

William J. Brennan, Jr.:

Adjacent to but are they within the property line?

Robert Lewis:

No.

Well, I would say they’re probably on the other side of the property line.

It’s a question how we frame the complaint.

William J. Brennan, Jr.:

Well, the picture here at page 83 is that a berm?

Robert Lewis:

Eighty three.

That’s a berm and —

William J. Brennan, Jr.:

Now —

Robert Lewis:

Yeah.

Well —

William J. Brennan, Jr.:

There’s a ditch there —

Robert Lewis:

The berm as you see it is right end side.

William J. Brennan, Jr.:

It’s between the ditch and the —

Robert Lewis:

That is right.

William J. Brennan, Jr.:

And whose property is that?

Robert Lewis:

We alleged it to be a public property.

I do not in fact — no.

I don’t feel that that is significant in our discussions.

The point of it is we did request the picketing to go there.

It measures 12 to 15 feet.

The picketing took place there and continued there for 18 months after the injunction, the two pickets at each of the entrances, eight pickets in total.

Abe Fortas:

I still have to know that after all of these whether it’s your position that all of the property owned by your client, the shopping center is in such status by reason of private ownership that it’s unlawful to picket on it.

Robert Lewis:

Our position —

Abe Fortas:

I don’t want to know what you said in your complaint but I want to know what your submission is to this Court.

Is it or is it not that you take the position of the entire property of the shopping center, privately owned property of the shopping center is such as to make picketing unlawful?

Robert Lewis:

In the circumstances of this case, yes.

Abe Fortas:

In the what?

Robert Lewis:

Circumstances of this case.

Abe Fortas:

What does that mean?

Robert Lewis:

Meaning that the lower court is affirmed by the state court of Pennsylvania was correct in enjoining all picketing, in view of what happened.

Now, today, it’s very significant to deal with the facts of course and today, I heard Mr. Dunau stating that they would have no objection to picketing on the porch.

If the Court only restricted picketing to that little area, they have no objection to this but that wasn’t before the Court when I was there trying this case.

There’s a question of insisting that they have the right to have 13 pickets in that puzzled pickup zone doing what they were doing.

That was the issue.

Now the issue may have changed.

Thurgood Marshall:

Well according to your Court, it said you cannot have 13 pickets in that area doing what they’re doing rather than the sweeping language have used.

Robert Lewis:

The Court could have said, We will restrict the number of picketing, and the Court could have said We will restrict the place.

Thurgood Marshall:

Right.

Robert Lewis:

The Court in effect did this Your Honor.

They restricted the place.

Thurgood Marshall:

The Court in effect, — I well, they restricted the number in front of that building to zero.

Robert Lewis:

That’s right.

Thurgood Marshall:

That is not restricting, wouldn’t you agree?

Robert Lewis:

Yes, I would agree.

Thurgood Marshall:

They said, Get out of that area.

Robert Lewis:

That’s what they said.

Thurgood Marshall:

And get off of all of the private property owned by this company.

Robert Lewis:

That’s what they said in view of what took place and in view of the union’s position.

Thurgood Marshall:

So that they — but you agree that they could have limited the picketing?

Robert Lewis:

That’s right.

Thurgood Marshall:

And said don’t obstruct?

Robert Lewis:

That’s right.

They could have.

Thurgood Marshall:

But they didn’t.

Robert Lewis:

That’s right.

Thurgood Marshall:

So you’re talking about what we have before you is not the only thing that we have before us, this broad sweeping language in this order.

Robert Lewis:

Except — yes sir.

Except that I don’t consider broad sweeping.Broad sweeping language as used by this Court is total prohibition of picketing — in total.

That is not the case here.

Picketing was permitted to be continued.

I see a definite distinction.

If the purpose of picketing is to communicate with the public and that was the avowed purpose here and if the lower court so expressed itself in terms of the injunction to permit that attempt to communicate to continue, that’s not prohibition.

I like to call your Court — your —

Earl Warren:

You’re speaking of the issue that was drawn and I read your complaint, you sought to have all picketing of every kind, removed from the property of the respondent.

Robert Lewis:

That’s correct.

Earl Warren:

On the ground that it was private property and they were not entitled to it and not entitled to do so.

And your representation to the Court was that the picketing be placed upon the public thoroughfare and you defined these berms as public thoroughfare did you not?

Robert Lewis:

Yes.

Earl Warren:

And the issue is really whether or not there can be any kind of picketing on your private property.

Robert Lewis:

Yes.

Now, if I may respond to you, the previous question has two parts.

You spoke about the complaint in our allegation of private property.

Earl Warren:

And public property.

Robert Lewis:

Yes, surely we alleged this question.

We also alleged obstruction and interference with all operations.

That’s a significant factor Your Honor in this case.

Earl Warren:

But you have to defend the whole injunction don’t you?

Robert Lewis:

Yes.

I don’t see any problem doing that.

Earl Warren:

Also that which says that it cannot be done on the private property of these people any picketing.

Robert Lewis:

Yes, I have to defend that.

Now, I think it’s defensible under the rules of this Court.

Earl Warren:

Yes, I just want to know where —

Robert Lewis:

Alright, thank you.

I’d like to call your attention in a moment to the diagram which appears in our brief at page 5 which Mr. Dunau characterizes as a pretty good representation.

I think it might help us, it’s that law, it follows page 4 and it’s a pull out.

Robert Lewis:

Now, as I understand the — Mr. Dunau’s argument today, he would take as an alternative area to the puzzled pickup zone, picketing on the sidewalk as he terms it or as porch which we consider it to be.

Now, if you would just consider this position in a moment, I’m sure you’ll see that it’s an unreasonable one if you were to move those 13 pickets to the corner of the store, what kind of obstruction you would have.

I might say to help the Court there’s a tree in the picture and immediately to the left of the tree is the entrance to the store.

There are three posts and then comes the entrance.

It’s in the corner — the right hand corner of the store.

Can you imagine 13 pickets standing on that sidewalk —

Earl Warren:

He doesn’t say that they’re entitled with the 13 pickets.

He said that they have two or three or four that the Court wanted to limit it to that and the Court had a right to do it.

Robert Lewis:

Oh, I misunderstood him.

I see.

I think that’s possibly so in view of — he brought this up in two different points.

Earl Warren:

Yeah.

Robert Lewis:

I think that’s probably so and I might say Your Honor that if there’s just one picket standing there, not obstructing anybody in anyway, we feel that that’s a significant consideration that the state court should take into account in deciding whether or not to issue an injunction here.

One picket by himself can communicate and if he doesn’t interfere with traffic and if he doesn’t interfere with the customers, that’s not such a serious consideration.

Thurgood Marshall:

But what need be in violation of this injunction, the one picket?

Robert Lewis:

Oh surely at this point —

Thurgood Marshall:

So he couldn’t do it, could he?

The union couldn’t put one picket there for 15 minutes a day without violating this injunction.

Robert Lewis:

No, but they could have asked the court for a permission to do that.

I agree.

Thurgood Marshall:

As of now.

Robert Lewis:

As it’s now.

Thurgood Marshall:

And that’s what we have before us.

Robert Lewis:

Yes.

We’ll stick with the facts of this case, Your Honor and I’ll rest my case on these facts.

That’s right.

Thurgood Marshall:

That solely because it’s privately owned street.

Robert Lewis:

I think there’s more to it Your Honor and I hope to develop that.

Thurgood Marshall:

I’ll wait with great interest.

Robert Lewis:

In fact, I would like to underscore certain facts appearing in this case which are not denied.

Robert Lewis:

There were 13 pickets.

They did picket for abreast.

This picketing took place at the point where customers entered with their cars and were Weis employees worked, thus employees, customers, pickets and cars intermingled resulting in confusion and congestion and that’s a fact and it’s in the record.

This is considered by the Court.

Now, the avowed purpose of the picketing was to inform the public that Weis employees were not members of the picketing union.

The trial court after a full hearing continued a preliminary injunction and permitted these pickets to continue out on the berm.

I might just call your attention to page 102 of the record where the Supreme Court of Pennsylvania noted this question that you were asking me a while ago concerning the effect of this injunction in footnote 4, the Court points out that the practical effect was to restrict picketing to the berm areas.

I mean this doesn’t add anything to our colloquy.

I just thought I call your attention to it.

Now, as a result of this picketing out on the berm areas and I might say Your Honors that the berm areas as you can see from the picture, was a leveled area.

It was easy to picket on there.

It was wide and there was no danger to the pickets and so the Court found.

And as a result, not a single person entering the shopping center could be unaware of the union’s message, the trial court so found.

The union argues initially that the state court had no power to regulate the picketing because it infringes on freedom of speech.

But as Your Honors have said, picketing is more than speech.

Picketing is conduct and that’s the problem.

It’s the conduct of the picketing here.

The 13 pickets marching for abreast, interfering with traffic and customers which gave occasion to the regulation among other factors, it was the presence of the pickets marching up and down which led this Court to its conclusion.

The congestion, the hindrance of customers and the disruption of normal business, these were the considerations which resulted in a reasonable regulation with which we are involved.

Now, the union says that all at once is to communicate.

If this is so, why would 13 pickets necessary.

Wouldn’t one picket with some wood signs on front and back have been sufficient.

Thurgood Marshall:

Mr. Lewis, does the record show how many times they had 13?

Robert Lewis:

Yes, one afternoon and one evening.

Thurgood Marshall:

Right.

Robert Lewis:

Which caused us to immediately go into Court.

We didn’t want to wait much longer.

We then reached the crux of the matter.

The union claims freedom of speech.

The state claims a duty to regulate on behalf of its citizens.

Robert Lewis:

The state strikes a balance.

The question is should this Court disturb the balance struck.

It wouldn’t struck the balance by not letting the picketing because as I understand the thrust of your argument — of the nature of this picketing, which let’s assume it was justifiably normal, do you struck towards (Inaudible) the picket is gone.

That was your argument.

Robert Lewis:

Yes.

In the past —

Even though you would also say — have said I suppose, you have said previously that picketing had been non-obstructive issue then the Court would not (Inaudible).

Robert Lewis:

That’s correct and we would never have sought an injunction.

Earl Warren:

So for the purpose of our case, you would be satisfied if we held that they could picket on the property of Weis’ store as long as it was not excessive in number or in place or in obstructive manner.

Robert Lewis:

Your Honors, Mr. Chief Justice, I would be satisfied only within the premise of the state court of Pennsylvania.

Earl Warren:

You mean prohibiting all —

Robert Lewis:

Yes.

Earl Warren:

— picketing on private property.

Robert Lewis:

I have argued in response to colloquy in questions as to what I consider proper picketing of reasonable regulation but I submit Your Honor that under the circumstances of this case either this Court should affirm the State court’s actions here in view of what took place.

I’m not saying that in another case, the state could or act differently.

I’m saying that a state should be left to make this determination providing, it doesn’t prohibit picketing entirely.

Have I made myself clear?

Earl Warren:

I don’t think so to me.

Robert Lewis:

Well, I’ll try it again.

William J. Brennan, Jr.:

If you know something like this.

Had all that happened here was, the union had said a single picket to the path to walk up and down on the porch without obstructing anyone getting in or out of the store whether employees or customers, you would have thought you could not ask the state court for an injunction?

Robert Lewis:

There is no —

William J. Brennan, Jr.:

If that would have been whether you call it protected or activity which could not be restrained.

Robert Lewis:

That is correct.

William J. Brennan, Jr.:

But that isn’t what happened.

Robert Lewis:

That is correct.

William J. Brennan, Jr.:

Because what happened is what happened —

Robert Lewis:

Yes, Your Honor.

You put it very well.

Earl Warren:

Would that lead us into any secondary boycotting?

Robert Lewis:

No sir.

The conduct enjoined here was primary picketing.

Earl Warren:

How about — if you put it out on the berm there and in front of the entrance to all of the 14 stores on there, wouldn’t that be interfering with them?

Robert Lewis:

Not at least and I think the best evidence is that for the 18 months that they were picketing out there, nobody said a word including my client, Logan Valley.

Now, in the past, this Court — this Court has been reluctant to disturb state court’s injunctions in this area except of course where there is total coefficient of picketing.

This Court stated that a State court’s judgment is entitled to a waiting title of respect.

It is true that other states have balanced differently.

For example, California’s public policy is set forth by a specific exclusion from its trespass statute.

As a result, California’s public policy therefore is to permit labor union picketing within a shopping center.

Pennsylvania in a factual matrix of this case, through its judiciary declares conversely by affirming Pennsylvania, this Court does not upset California’s public policy.

These differences of public policy illustrate as this Court has recognized that states have different social and economic views and that each state must be free to determine its own views on this matter.

Of course, the injunction here as we see it was a narrow one and not enjoining all picketing.

It merely regulated the picketing to a particular place.

Thus, I submit, it accommodated all interest, the union’s interest in communication with potential customers was preserved as they continue to picket at the berms, right at the point where the customers entered, Weis’ property rights, whatever they were, were preserved.

The public’s right to trade without interference was maintained and the states right to maintain domestic peace was preserved.

It is submitted that this was a reasonable and proper balance.

But the union now argues that Pennsylvania was preempted.

From arriving at this reasonable accommodation, although we have argued this question in our brief, we submit that this Court need not reach it.

I might add that although the term sidewalk has been used here today and all other courts in this case have used the term porch, this is in fact a noncontiguous sidewalk.

When the case arose, it was just this one store with Sears off to the side and a lot of construction going on.

This is not the type of sidewalk that one visualizes either on a public thoroughfare or within a possible shopping center.

This Court — this porch didn’t go anywhere.

Now, as to the question of waiver, we submit that preemption is a claim of violation of the Supremacy Clause.

This Court has refused to entertain such a claim unless first presented to the highest state court.

The law of Pennsylvania is that it will not consider a question not presented to it according to its rules.

The question framed by the union for the Pennsylvania Supreme Court was, did the lower court err.

There was no reference to preemption or the Supremacy Clause in the question framed.

There was no reference to the National Labor Relations Board or to the National Labor Relations Act.

The union’s brief to the Pennsylvania Supreme Court argues reversal and gives reasons but preemption was not one of them.

Hugo L. Black:

Where are those objections on the record?

Robert Lewis:

Where were those objections?

Hugo L. Black:

Where can we find them in the record?

The contention before the Supreme Court?

Robert Lewis:

It wasn’t there.

They never made it.

Oh, let me refer you to the union’s question framed.

Hugo L. Black:

That’s what I want.

Robert Lewis:

I’m sorry, yes.

That brief is before this Court, it’s been lodged by us.

We’ve lodged I think ten copies with the clerk’s office.

I’m not sure whether you have it.

At any rate, you’ll find — if you do have it before you — it’s this color, if this helps and the Supreme Court of Pennsylvania brief for appellants and statement of question involved is on page 2.

This is the brief to the Supreme Court of Pennsylvania.

On page 2, they frame their question and that’s what I’m referring to.

What did it say?

Robert Lewis:

Shall I read it?

Is it too long.

Robert Lewis:

Yeah — well, not too long.

Did the lower court err in granting a preliminary injunction without hearing and thereafter denying and dismissing appellant’s motion to dissolve or modify said injunction and further continuing said preliminary injunction where in a suit in equity by the owner of a shopping center in one of its tenants, it is established that appellant union peacefully picketed near the tenant’s building within the confines of said shopping center that no picketing efforts were directed towards the shopping center or other tenants that picketing efforts were merely to inform the public of the labor dispute, negative by the court below and by the granting and continuance of a preliminary injunction which we strain appellant union from picketing within the entire limits of a shopping center area.

That’s the total question.

Hugo L. Black:

Was there anything argued in there about the National Labor Relations Act?

Robert Lewis:

You’ll not find it.

Hugo L. Black:

What you’re saying is there’s nothing presented to the Supreme Court of Pennsylvania on this issue?

Robert Lewis:

Yes sir.

Now we argued in our brief that the union has waived this defense.

The union argued against this contention.

We submit that a claim of preemption is a claim of violation of the Supremacy and Commerce Clause and that this Court has held in cases cited by us at page 29 of our brief that such a claim must be made to the highest state court and the union hasn’t —

Byron R. White:

(Voice Overlap) fictional question in the —

Robert Lewis:

That’s right.

William J. Brennan, Jr.:

What about the comment, I know it’s in the dissent but Justice Cohen at least said if the union activity involved herein did not amount to trespassing then there arises the question of federal preemption.

Robert Lewis:

That’s right.

William J. Brennan, Jr.:

So he reached it explicitly to the — they do this to the sua sponte?

Robert Lewis:

That’s right, sua sponte and to the extent that he — to the limit of the extent that he did.

Earl Warren:

Didn’t the defendant raise that question with the jurisdiction of the court in the trial court?

Robert Lewis:

Yes.

By the way of motion which is in the appendix.

I submit in the appendix at page —

Earl Warren:

Page 26 by reason that the Labor Management Relations Act your honorable court is without jurisdiction and so forth.

Robert Lewis:

That is right.

William J. Brennan, Jr.:

Wasn’t that raised in preemption?

Robert Lewis:

Not sufficiently under the Court’s rules.

The Pennsylvania court’s rules, it must be in the question presented and it must be argued in the brief.

Hugo L. Black:

Where is that rule that must be presented — on the question presented?

Robert Lewis:

Rule 59, Your Honor.

Hugo L. Black:

Where is it printed?

Robert Lewis:

Well, I pointed in my brief Your Honor.

I’ll call your attention to it.

Byron R. White:

Page 30.

Robert Lewis:

Page 30, thank you.

Yes.

Byron R. White:

Let’s assume for the moment that the union in this Court said, well, it’s quite true, we never raise the question at all in the state courts at anytime that we would like to raise it here because it is — it thus go to the jurisdiction of the state court to enter any judgment at all.

What would be your answer to that?

Robert Lewis:

I submit under the decisions of this Court that it must be raised and that this Court is held that claims of violation of the Supremacy Clause, Equal Protection, Due Process Clause our waive unless it were raised before the higher state court.

The cases that I cite on page 29 of our brief.

Byron R. White:

But none of them is a preemption case, is it?

Robert Lewis:

This one, CIO versus McAdory.

Now the other cases are Supremacy Clause cases and if preemption is a claim of violation to the Supremacy Clause —

Byron R. White:

That’s right but none of them was — none of them has to do with the labor case and the jurisdiction of the labor board, does it?

Robert Lewis:

The jurisdiction of the state court versus the labor board?

Byron R. White:

Just that one?

Robert Lewis:

Just that one.

Byron R. White:

Yes.

William J. Brennan, Jr.:

What you say that when was —

Robert Lewis:

CIO versus McAdory.

It’s on page 32.

Well, if this Court disagrees however with this position and consideration, and I believe that this question of preemption should be decided nevertheless we submit that under the circumstances of this case, there is no preemption.

Initially, we submit that the case is not arguably subject to the Act.

Furthermore, we contend that even if the matter in issue were arguably subject, there is — excuse me.

There is no preemption because of Pennsylvania’s deeply rooted interest in protecting the privacy, the property and the peace of its citizens.

We turn first to the two sections cited by the union in support of its claim that unfair labor practices were arguably involved.

In response to the Chief Justice’s question awhile ago concerning secondary activity, I responded that it’s the conduct enjoined and not the conduct permitted which is crucial in determining where the activities are arguably subject to the Act and I responded that nobody made any complaint.

Earl Warren:

But if we go that far then you’ve got the situation where the injunction provides that there shall be no picketing of any kind on this private property.

Robert Lewis:

Yes sir.

Earl Warren:

And you don’t contend that to be the rule.

Robert Lewis:

I’m sorry.

I don’t follow you.

Earl Warren:

Well, the issue is say if they had one picket or two pickets and no more on the private property, it would be alright.

Robert Lewis:

Yes.

Earl Warren:

And if they did it in a place where it was not obstructing anything it would be alright.

But this injunction, this injunction proscribes any conduct of that kind.

Robert Lewis:

Yes.

Earl Warren:

Alright, well, why wouldn’t that be arguable — why wouldn’t that be arguable before the labor board?

Robert Lewis:

This injunction — well, I’m not sure that I’m following your thesis Your Honor but maybe I can answer it in this way.

The — there are two sections cited — you want to simplify it?

Yes sir.

Earl Warren:

You put in — you complained in your complaint that this was private property that they were trespassing on and that they have no right of any kind to picket on this private property.

Robert Lewis:

That’s right.

Earl Warren:

The injunction agreed with you and said that because it was private property that the union had no right of any kind to picket on that property.

Robert Lewis:

Yes.

Well, perhaps —

Earl Warren:

Now, why isn’t that issue arguable before the — as to whether it’s arguably protected or prohibited by the Labor Relation Act?

Robert Lewis:

Alright.

I think you have to analyze the section.

The Section 8 (b) (7) deals with picketing for the purposes of organizational purposes for the purposes of obtaining a contract, recognition purposes.

If neither was done here and it’s considered that neither was done here, there is no violation of 8 (b) (7) and there is no violation of any section of the Labor Management Relations Act.

Earl Warren:

How about Section 7?

Robert Lewis:

Okay, now on the question of Section 7, Mr. Justice White pursued that with Mr. Dunau and I’ll be frank to acknowledge that when this Court handed down its Garmon decision concerning protected activity, I was somewhat at a loss.

I wondered as Mr. Justice White apparently wondered how one could get a determination from the National Labor Relations Board that the matter is protected activity certainly if the union did not file a charge and no charge is filed here, there is no determination against myself.

Byron R. White:

File a charge against the union?

Robert Lewis:

And what would I allege?

Byron R. White:

Violation of 8 (b) (1) or (3) or (7) or —

Robert Lewis:

These are all well defined.

I wouldn’t file a charge that —

Byron R. White:

Well, you couldn’t file a charge that they’re engaging in conduct that is not protected by Section 7 and therefore it should be enjoined.

But you have to allege a violation in this.

Robert Lewis:

That’s right and I would be in a loss to know what to allege.

Byron R. White:

Well but, wouldn’t you say that — could you allege that this is a coercive activity as far as employees are concern?

Robert Lewis:

No, because there was no effort to influence employees whatsoever.

Byron R. White:

Well, if you file those — if you file the charges and the Board turns you down on all the charges you filed against the union?

Robert Lewis:

Yes.

Byron R. White:

It would then have decided that the conduct is not protected?

Robert Lewis:

No, because when the board turns down the charge —

Byron R. White:

Mr. Dunau answered me — I understood him anyway that the Board would have decided.

Robert Lewis:

I disagree.

I filed many charges and I’ve had many even turned down and the Board uses a stock phrase that it does not effectuate the purposes of the Act to issue a complaint.

There are many reasons why the Board turns down the charge and they don’t tell you.

They’re not required to.

But there’s more as far as this protected question and when if I may finish responding to you Your Honor, I’d like to call the Court’s attention to the fact that the National Labor Relations Board has advised this Court that picketing within the store is not protected activity and I think this bears on the question that you’re asking.

Earl Warren:

I think Mr. Dunau conceded that that it wouldn’t be protected —

Robert Lewis:

Alright, yes he did.

Earl Warren:

— inside the store.

Robert Lewis:

That’s correct and in view of that, it’s certainly now considered by all parties that there are — all situations of peaceful picketing which is not protected.

Our position in fact is that the picket’s interference with the merchandising operations just outside the door is as much a disruption of picketing and this is much a disruption of business as it wouldn’t happen if the picketing took place within the store.

It must be remembered Your Honors that our merchandising operation continued after the purchase of the merchandise have continued while the cars were driven up by the customers and the customers got out of the cars, the Weis employees left — they didn’t leave.

So they work there.

They work out on the puzzled pick up zone all day long and as the cars drove in, the customers got out, the employees assisted the loading of the merchandise.

Well, this is as much a merchandising operation as it took place within the store and we say that there is no distinction.

Furthermore, I would like to argue that even if the matter were arguably subject to the Act and I don’t see how it could be, the state was not preempted because the regulated conduct touch interest, deeply rooted in local feeling and responsibility.

The Supreme Court of Pennsylvania has expressed this as follows in this case, this Commonwealth has a duty to protect and preserve the property of its citizens from invasion by way of trespass.

The interest of the state is deeply rooted because of its responsibility to maintain peace.

It has a responsibility to prevent possible breaches of a peace which are likely to occur as a result of unauthorized entrance upon property of another.

The function of trespass actions in preventing violence has been long recognized, in People versus Peduto, the Supreme Court of Illinois succinctly stated that trespass can lead to violence.

The Court further stated that when a person refuses to leave another’s property after he has been ordered to do so, a threat of violence becomes imminent and this Court recently reaffirmed in Lynn that where there is such a possibility of violence, the states must be free to act.

Earl Warren:

Did the Court find that there is threat of violence?

Robert Lewis:

In our situation?

Earl Warren:

Yes.

Robert Lewis:

Not by explicit findings.

Earl Warren:

It defined who is not, didn’t it?

Robert Lewis:

A peace — that’s right.

It’s found that there was peaceful picketing and I wouldn’t say that the mere fact that there’s peaceful picketing today does not mean that there’s not a threat of violence or violence tomorrow.

I’d like to call your Court’s attention — Your Honor’s attention that although the thrust of the lower court’s decisions were premised on trespass, there’s more to this case than that as the fact show.

Earl Warren:

In the record?

Robert Lewis:

In the record, yes sir.

Thurgood Marshall:

Mr. Lewis on that point on page 106, your court said, These pickets even though engaged in picketing of a peaceful nature had no right or authority whatsoever to utilize a private property of Weis and of Logan for such picketing purposes.

Such use constituted in a trespass which was improperly was restrained.

Is that a noble opinion?

Robert Lewis:

Yes.

Thurgood Marshall:

Isn’t that just about all the court have that solely becuase it was private property, you could not have peaceful picketing in any place on private property under any circumstances any time.

Robert Lewis:

Now, you’ve said a little too bluntly if I may respectfully suggest.

I would agree with your first premise that that’s what they held.

Robert Lewis:

But they held it in the factual matrix of this case, they said it in the opinion, factual matrix.

They didn’t move.

Byron R. White:

Are there any cases that you know of in this Court and any other court which do uphold labor picketing on private property?

Robert Lewis:

Labor picketing — uphold labor picketing on private property?

Byron R. White:

On private property?

I didn’t hear Mr. Dunau.

He suggested that there weren’t any cases that he knew of which — shopping centers —

Robert Lewis:

I’m at a loss Your Honor.

Byron R. White:

Do you think this is the first time this question ever really come here that this is —

Robert Lewis:

Yes.

You know well that you reserve this question on the Fairlawn case.

And this is the first time since then that the question has been put to the court.

Thurgood Marshall:

But it has been in the First Amendment one, Marsh against Alabama which you gave just three lines in a footnote.

Robert Lewis:

I’m sorry Your Honor.

Thurgood Marshall:

What Marsh did say that First Amendment rights could exist on ?private property?.

Robert Lewis:

There is no question about it.

In handling leafleting situation which that court — which that case was directed to, there are different considerations.

Thurgood Marshall:

You mean that your court would have moved differently if they’ve been handed out hand bills instead of carrying a sign.

Robert Lewis:

Yes.

In fact, that would never have gone in for the injunction if there is only one handbill standing there.

Thurgood Marshall:

I didn’t say one.

I said handbillers.

Robert Lewis:

Well, if there were 13 handbillers —

Thurgood Marshall:

What’s the difference between handing handbills and carrying picket signs?

Robert Lewis:

Obstruction.

First of all — may I respond?

I don’t know if you want me to —

Thurgood Marshall:

That would be alright.

Robert Lewis:

Okay.

I’ve seen it.

Robert Lewis:

I’m sure as you have, pickets do act to the fact that they are physically present.

It’s their conduct, it’s their physical presence which constitutes a consideration in this Court’s distinguishing between pure speech and picketing.

Now, handbilling although a person naturally has to hand out a handbilling — a handbill, is a different matter.

A handbill as I see it is primarily speech.

Now, nevertheless, though they’re handbilling a speech, you can nevertheless have 13 handbillings which would constitute — handbillers which would constitute as much an obstruction as with 13 pickets.

If 13 handbillers stood in front of the door of this supermarket, that would be an obstruction.

If one did, that would not be and that would never gone into court with this injunction.

We conclude as we began 13 pickets did march at least one day for abreast and it seriously disrupted Weis’ business.

A threat of violence was imminent.

I submit Your Honors, I was there.

The threat was there.

It didn’t happen we move quickly.

Thus —

Earl Warren:

Did you put that in your complaint?

Robert Lewis:

It was unnecessary to allege it, no.

I don’t believe we did.

Thus, under these circumstances, the limited, narrow and reasonable regulation of the picketing by the courts of Pennsylvania should not be disturbed.

Thank you.

Bernard Dunau:

May it please the court.

The case we present today here is the identical case that was presented before the Court of Common Pleas.

These briefs before the Court of Common Pleas are lodged with the clerk of this Court.

In that court, what respondent sought they said, this is not a case in which the court has asked to prohibit defendant from picketing rather the plaintiffs request that the court control its location by directing that the picketing take place on the berm of the public thoroughfare and at the conclusion of its brief in the Court of Common Pleas.

The berms of the public thoroughfares provide a more than adequate area from which the defendant can picket and or distribute handbills.

They wanted us off the shopping center.

Now, this is what we said in our brief in the Court of Common Pleas at page 8.

Picketing should be allowed to continue near the Weis Market store area and the picket should not be restrained to picket only at the shopping center entrances.

The defendant union would be willing to negotiate with plaintiff Weis Markets as to the number of pickets to be utilized and the manner of such picketing near the Weis Market store area.