Taggart v. Weinacker’s, Inc.

PETITIONER:Taggart
RESPONDENT:Weinacker’s, Inc.
LOCATION:Vale Residence

DOCKET NO.: 74
DECIDED BY: Burger Court (1969-1970)
LOWER COURT:

CITATION: 397 US 223 (1970)
ARGUED: Jan 12, 1970
DECIDED: Mar 09, 1970

Facts of the case

Question

Audio Transcription for Oral Argument – January 12, 1970 in Taggart v. Weinacker’s, Inc.

Warren E. Burger:

Number 74, Taggart against Weinacker’s Incorporated.

Mr. Dunau, you may proceed whenever you’re ready.

Bernard Dunau:

Mr. Chief Justice, may it please the Court.

This case can be put in a nutshell.

Picketing takes place in front of a store to support a strike by that store’s employees to obtain a satisfactory collective bargaining agreement.

The picketing is prohibited by a state injunction as a trespass because it takes place on a sidewalk which is publicly used, is privately owned.

We have three questions.

First, does the prohibition violate the First Amendment?

Second, is the controversy outside the jurisdiction of a state court because the subject matter is preempted by the National Labor Relations Board?

Third, if the state court has subject matter jurisdiction, does the prohibition conflict with the federally protected right guaranteed by Section 7 of the Act to engage — of a National Labor Relations Act, to engage in concerted activity for mutual aid or protection?

William O. Douglas:

It’s a pretty large nutshell.

Bernard Dunau:

The situation is in a nutshell, the questions proliferate.

Warren E. Burger:

I suppose what you may have in mind is that it’s a nutshell we’ve looked at before too.

Bernard Dunau:

I think sir our primary position is that this controversy is controlled by this Court’s decision in Logan Valley.

Hugo L. Black:

In which one?

Bernard Dunau:

Logan Valley Your Honor, Amalgamated Food Employees v. Logan Valley Plaza.

The store which was picketed is located in Mobile, Alabama.

It sold dry goods, groceries, drugs, other merchandise.

The store building is surrounded by a private sidewalk publicly used.

The sidewalk is surrounded by a parking lot privately owned, but publicly used.

The parking lot is surrounded by public streets.

There are seven automobile entrances into this parking lot.

The distance from the nearest automobile entrance to the picketed area is a 115 feet.

Potter Stewart:

You say this parking lot is privately owned but publicly used.

Bernard Dunau:

Yes sir.

Potter Stewart:

That this is open to all members of the public to park there free?

Bernard Dunau:

That is correct sir.

Potter Stewart:

Park there free?

Bernard Dunau:

I can’t say.

The record does not — those who enter park free, there is no showing that there’s any charge for parking on that lot.

Potter Stewart:

And there’s no showing that it’s restricted in any way the customers of this or any other enterprise?

Bernard Dunau:

That’s correct.

There is no showing of restriction to any element of the public.

Warren E. Burger:

Suppose a group of people wanted to have a demonstration let us say in favor of the Vietnam war —

Bernard Dunau:

We do not —

Warren E. Burger:

Could they hold it there?

Bernard Dunau:

We do not have in this case the question whether when you have a public situs, you may have picketing or other demonstrations or other exercise of free speech with respect to a matter not connected with that situs.

In our case, we have a situation in which the protesters related to the operation of a shopping center and therefore we do not have to and we should not reach in this case the question whether when the situs is public, but the protest relates to a matter other than the situs, whether the locus is appropriate for the expression of pre-amendment rights.

The Second Circuit has decided that it was.

I believe the California Supreme Court has also decided that it makes no difference, but we do not have that question in this case.

The story here begins on December 19, 1963.

The Union filed a petition with the National Labor Relations Board to be certified as the representative of the store’s employees.

On April 16, 1964 the Union was certified as the representative.

In August and September of 1964, an unfair labor practice complaint issued alleging massive unfair labor practices including nine discriminatory discharges of a group of 40 or 50 employees and the refusal to bargain in good faith.

On June 25, 1965, the NLRB issued a decision affirming, sustaining the complaint in full.

On January 28, 1966, the Court of Appeals for the Fifth Circuit summarily enforced the NLRB’s order.

Meanwhile, on December 12, 1964, a strike of a store employees was begun.

Negotiations for a new agreement had broken down.

On January 22, 1965, an ex parte injunction was sought and obtained, restraining the picketing, enjoining the picketing in front of the store as a trespass.

That ex parte injunction was continued on March 26, 1965 after a non-evidentiary hearing.

On April 9, an appeal was taken, in 1965 on November 10, the appeal was argued and submitted.

On September 19, 1968, three-and-a-half years after the appeal was taken and three years after it was argued, the Alabama Supreme Court decided that the injunction should be affirmed.

It said that the controversy was not preempted to the Labor Board.

The injunction did not prohibit Section 7 rights and it did not violate the First Amendment.

Hugo L. Black:

Does the record show it might have situs case?

Bernard Dunau:

No sir.

The record is silent with respect to the reason for the delay.

Meanwhile, on May 20, 1968, four months before the Alabama Supreme Court decided this case, this Court decided Amalgamated Food Employees v. Logan Valley Plaza.

This Court held in that case that peaceful picketing and handbilling could not be prohibited within a shopping center on the ground that the shopping center grounds were owned privately.

We think there is no distinction between Logan Valley and this case.

Potter Stewart:

Is there anything but a temporary injunction issued in this case?

Bernard Dunau:

The only two orders was the ex parte injunction and the —

Potter Stewart:

What kind of injunction was that, temporary or permanent?

Bernard Dunau:

At that time, it was a temporary injunction.

Then on — two months later, it was continued until further modification in accordance with due process of law.

In other words, from the non-evidentiary hearing, two months later, the injunction was to continue indefinitely unless terminated or modified by the court.

Potter Stewart:

And that was still by its terms a temporary injunction, wasn’t it?

Bernard Dunau:

I don’t know how one would characterize an injunction which is to continue indefinitely.

Potter Stewart:

How did the Court characterize it?

Bernard Dunau:

Sir?

Potter Stewart:

How did the Court characterize it?

Bernard Dunau:

It did not.

It’s the identical injunction that was before this Court in Logan Valley.

It terminated all federal questions.

There is nothing that meet and can go back to the Alabama Supreme Court with respect to any federal question, in addition since there is a substantial question of preemption presented in this case whether or not the injunction would be termed final within this Court’s meaning of that term, would not make any difference because with respect to a preempted question, we can get here on a temporary as well as a permanent injunction, but for the purposes of this Court’s jurisdiction, this injunction is final.

Potter Stewart:

You say that when the question is one of preemption that the rule, there must be a final judgment in the state court?

Bernard Dunau:

No sir.

I don’t say that the rule that there must be a final judgment as eliminated, but the final judgment rule is satisfied in a case of preemption by an order which is in the form of temporary.

That meets the final judgment rule in the Court of Appeals.

Potter Stewart:

What’s your authority for that?

Well, never mind, it’s in your brief.

Bernard Dunau:

Yes, it’s in the brief Your Honor.

It’s —

Potter Stewart:

I can find it then.

Don’t take time.

What’s deprived to the situation now for all this delay?

Did the labor underlying on every dispute and dispose that?

Bernard Dunau:

The underlying labor dispute has long been there Your Honor.

What remains now is that the injunction still is operative to preclude any picketing on those grounds whether in furtherance of a primary strike of the stores which are presently operating or in furtherance of organizational picketing.

So the fact of this case is a temporary case and another labor dispute arises?

Bernard Dunau:

That’s correct Your Honor.

The particular labor dispute which gave rise to this controversy is —

Argument here in this position (Inaudible)

Bernard Dunau:

No sir.

The particular controversy is that the injunction is very much alive and is available at any time that the union or another labor organization or employees would seek to resume picketing within the grounds of this store.

Is the same labor union still represent these employees?

Bernard Dunau:

The same — well, there has been since the certification a change in ownership so that the store which was originally involved has now instead of operating the store has leased its premises to two others.

Whether that lease of the premises and the change of ownership has affected the NLRB certification is itself a substantial question, but the labor organization has stuck — it still exists and it still represents employees in this general locale and is still certainly available to resume organization or other picketing with respect to the stores which are now within that shopping center.

Warren E. Burger:

Well now, you say in the general locale.

How about right within the particular store that was the subject to this controversy?

Bernard Dunau:

They are available at any time to start organizing the employees within the two stores that are now occupying these premises and the injunction as it presently operates would preclude entry upon those premises in order to picket in furtherance of any dispute with those two stores.

So that the injunction continues at the present time to be fully operative to bar the union or representatives of the union or employees from picketing at the entrance of either of the stores which are presently occupying the premises.

The injunction reads flatly, prohibits trespassing upon Weinacker’s property.

It remains Weinacker’s property.

There are stores functioning on Weinacker’s property at any time when it becomes appropriate to picket those stores or to handbill those stores, this injunction precludes entry into the property for that purpose, so we have a — continue to have a live controversy.

I said that in our view, Logan Valley Controls this case.

The essence of Logan Valley as we see it is that when an employer opens his property to the public, to customers in order to come to this store to buy, to others in the community in order to operate his store that employer cannot close that property to employees and seek to publicize the store’s disfavored labor policy.

The only difference between Logan Valley and this case is that the real estate here is smaller than it was in Logan Valley.

In Logan Valley, the distances from the public entrances to the picketed area were from 350 feet to 400 and 500 feet.

In this case, the distances are 115 feet to 385 feet.

In a case decided by the Supreme Court of California in which following Logan Valley, the Court said — the California Supreme Court said with respect to a single shop owner that Logan Valley requires that picketing — that handbilling be permitted on the private sidewalk serving that individual store owner because the sidewalk was publicly used.

The distances were 150 feet to 280 feet.

We do not think that the appropriateness of the property as a place for the expression of First Amendment rights with respect to a dispute which relates to the operation on that property can be sized by whether it’s 350 feet, 400, 500 feet, 150 feet, 280 feet or whatever the distances may be.

To us, it seems that the only viable standard can be the openness of a property to a public entry.

Once it’s open, it does not matter whether the distances which are open are 115 feet or 400 to 500 feet.

Potter Stewart:

The Supreme Court of Alabama seem to think that Logan Valley involved a “shopping center” and that this case does not involve a shopping center?

Bernard Dunau:

Well, it seem to say not that this case does not involve a shopping center, but that it involves a smaller shopping center.

At the time, it affirmed the injunction, it had only one store operating.

So that there is of course a clear distinction between a one store operation and a shopping center which has more than one store, but that doesn’t seem to us to have any relevance at any time whether one owner opens a property or several owners opened the property could hardly make a difference.

At the present time, there are in fact two stores operating on that property so we have a shopping center in almost the most colloquial notion of that term.

Potter Stewart:

— present time as you say, the petitioner doesn’t itself operate a store, it rents space?

Bernard Dunau:

Yes sir.

But we need to remember that insofar as that aspect of the case is concerned, in Logan Valley, the action was brought both by the lessor and by the store operator and no one ever suggested that the lessor did not have an adequate interest to preclude entry upon that property.

Potter Stewart:

Where is this located, in downtown Mobile or in suburban?

Bernard Dunau:

It’s not suburban, it’s downtown Mobile Your Honor.

Potter Stewart:

Downtown.

Bernard Dunau:

Yes sir.

Warren E. Burger:

Would you — I suppose you would not contend that the right of picketing extended to the inside of the store?

Bernard Dunau:

No sir.

We make no such claim.

The right of picketing extends as it would where the store to front on a public street, to the immediate entrance to that store leaving ample room for ingress and egress to the store.

We make no claim that we are entitled to be inside the store.

Warren E. Burger:

What if instead of using the open area as a parking lot, the store undertook as they do in some parts of the world to setup booths and shops and tables out through the parking area and had an open air shop?

Would you then think the parking area had become like you — as you now concede the inside of the store is?

Bernard Dunau:

Well, assuming you have stands which are open rather than stores which have cover on them, I see no difference.

There have to be public ways to get to those places within the shopping area.

So long as they’re all public ways and there is a public way in front of a particular stand that you have a dispute with, it would be our position that you would be entitled to go in front of that open stand so long as it is open property.

And it would necessarily have to be because there is no other way for a customer to reach that stand to buy it.

Warren E. Burger:

Do you see any difference in the standing invitation to the public to use the parking lot and the sidewalks or the standing invitation of the public to come in and look around and shop?

Bernard Dunau:

No, I think they’re all part of the same package with respect to a shopping center Your Honor.

The window shopper is a potential customer and you would just soon have them in there taking to look at what you have in your windows and ultimately, he’s going to get into that store.

It’s the openness of the property.

The very fact as the federation in its amicus brief put it with respect to the character of all stores which have private property on which they front but that private property is intended for use to enable the customer to come.

It put it this way in its amicus brief.

Smaller, such retail establishments have in common with large shopping centers, a desire to maximize the accessibility of the public to their premises.

It is an integral component of every retail business that it be freely open to the public.

And therefore, our position that whether the open property happens to be smaller or larger cannot by the criterion so long as it’s open, then it has to be open to employees to publicize that this labor policy of a particular employer operating within that real estate.

Now, in this case, I think this is particularly plain because here, we have employees of that very store who want to picket or handbill and are barred from those very premises.

Now, when they’re working for that store, they are parking their car on that parking lot.

They’re using those walkways and they’re entering the same entrance in order to get to work.

Bernard Dunau:

Now, it doesn’t seem to us that those employees when they are dissatisfied with the employment terms become trespassers instead of invitees when they park their car on that same parking lot, walk those same walkways, but this time picket in front of the store.

You don’t become an — or trespasser rather than an invitee when you change from a working employee to a striking employee.

Now, we’re told by the Alabama Supreme Court that picketing is more than speech.

Sure, it’s more than speech, but it was more than speech in Logan Valley as well.

And more than speech means only that the patrol in front of the store may be regulated with respect to the number of pickets.

If there are too many there or if they are too close to the doorway and interfere with ingress and egress, then you tell them to get away from the doorway and picket on the far side of the sidewalk, that’s what we mean by regulation of the plus aspect of picketing.

We do not mean that you can ban it all together from an otherwise appropriate open place.

It’s suggested in this case that there was actually obstructed picketing.

We’ll pass the question whether on this record, it is possible for anyone to say there was obstructed picketing.

There was six identically worded affidavits which said there was obstructed picketing.

There was an answer filed by the union which said there was no obstructed picketing sworn to by two officers of the union.

I do not know how as between six paper swearers on the one side and two paper swearers on the other one can ever find a fact one way or the other.

You need an evidentiary hearing.

But suppose, suppose there was obstructive picketing in this case, all that that would authorize would be the elimination of the obstruction and not the elimination of picketing and that’s the point of this case here.

The Court says the Alabama Supreme Court, it doesn’t look to us as if the picketing at the entrance to the parking lot would a materially less effective than the picketing in front of the store.

Our fundamental answer is that’s the wrong question.

If a place is otherwise appropriate for the exercise of free speech rights, that place does not become inappropriate because there are other places as well that one can exercise free speech rights.

But if one is to look to comparative effectiveness, it’s perfectly clear that the picketing and handbilling cannot possibly be nearly as effective at the entrance to the parking lot as it is in front of a store.

First of all, with respect to handbilling; I don’t care how slowly a car moves from a public street through an entrance into a parking lot, it’s still moving and you cannot very well distribute handbills to a moving vehicle and you sure can’t distribute handbills to a moving vehicle on a cold day when those windows are uptight and no one is lowering windows to receive handbills on a cold day and once those people are in the parking lot, you can’t get to them to distribute handbills.

So handbill distribution is very much enfeebled by this kind of an injunction.

Take picketing itself; again, when you’re driving a car through an entrance into a parking lot, you’re not paying much attention to pickets or what’s said on the sign.

When you park that car and you’re moving to the store, those pickets are on back of you.

When you get to the entrance, there is no message.

We want the message at the place that means something — at the entrance to the store.

Now, it’s perfectly clear, the union strenuously wants to get into these premises.

The employer strenuously wants to keep us out.

Neither the union nor the employer are engaging in abstractions with respect to the philosophical reach of free speech.

We want in because that’s where the picketing and handbilling is effective and the employer wants us out for the same reason and that seems to me to be perfectly obvious.

Hugo L. Black:

Mr. Dunau, is a map of the premises any way in the record?

Bernard Dunau:

Yes — well, not in the record sir but as an appendix to our brief, we have appended a diagram of the property and there are like diagrams in the appendices to the respondent’s brief.

Hugo L. Black:

And they agreed?

Bernard Dunau:

I beg your pardon?

Hugo L. Black:

They’re in agreement?

Bernard Dunau:

Yes sir, there is no difference with respect to the diagrams.

Potter Stewart:

I thought the respondent’s brief must be the task for your diagrams?

Bernard Dunau:

Well, they say ours is indecipherable.

I think theirs is, but I don’t think either of us claim that the others are inaccurate and there is a slight difference with respect to how many feet from the picketing area to the entrance.

But that depends on where you are measuring prominent, what terminal point.

There is no difference in the accuracy of either diagram.

Hugo L. Black:

Well, do you mind telling me just where on the premises the picketing was taking place?

Bernard Dunau:

Yes sir.

The picketing was in front of the main entrance to the store.

Hugo L. Black:

Did that have a shelter in front of it?

Bernard Dunau:

There may or I’m not sure now whether the record shows whether there was an overhanging porch.

There may or may not have been.

Hugo L. Black:

Was that right immediately where the customers drive up?

Bernard Dunau:

No sir.

Hugo L. Black:

To get their packages?

Bernard Dunau:

They are — in this shopping center, there is no showing on this record that there is a particular pickup zone.

So far as it appears, the customer still simply walks out of the store and goes to wherever he has parked his car.

There is no showing of a pick up zone in this case.

Hugo L. Black:

But the picketing was right there where they walk down or?

Bernard Dunau:

The picketing was in front of the entrance to the store.

According to one set of affidavits, it was so close to the store entrance that it obstructed ingress and egress.

According to our version of it, it was sufficiently removed so it did not obstruct ingress and egress.

We would take the position with respect to that matter that the side — there was an available sidewalk in front of the store and we were surely entitled to picket on the far edge of that sidewalk leaving ample access for — ample room for ingress and egress to the store.

Hugo L. Black:

But there are no findings on that or no map?

Bernard Dunau:

Not in the record sir, no sir.

We think that this case and Logan Valley come down to the same thing.

On the one side, we have property which is open to the public.

Bernard Dunau:

We have employees who seek to make a labor appeal.

They want to make it on that open property and they want to make it at the natural and effective place.

And on the other side, you have nothing again, but naked title.

On that equation, this Court in Logan Valley said the First Amendment Right prevails and I think it prevails in this case too.

Now with respect to this preemption question in this case, this Court said in its Horn Buffalo at the present time when an activity is arguably subject to Section 7 or Section 8 of the Act, the state says as well as the Federal Courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.

Not clearly we have in this case conduct which is surely arguably protective by the National Labor Relations Act.

Primary picketing in support of a primary strike is arguably protected.

Indeed, it cannot be arguably said to be anything but protected.

Now, does it make a difference with respect to the preempted character of a controversy that it can — it takes place on private but open property, the Board day in and day out must decide and does decide just these very questions when does private property yield to the realization of a Section 7 right.

It seems to us that the conflict — the very conflict that Garmon seeks to avoid can no better be illustrated by reading to you what the order of the Board was in a case called Fashion Fair Inc. which is on page 253 of our reply brief.

Employees were discharged by an employer.

They picketed in front of his premises.

His premises were located in a shopping center with two or three other stores.

The employer evicted those employees from the premises and the NLRB said that was an (8) (a) (1) violation and this is the order it entered.

Cease and desist from ordering employees to leave public or quasi public areas where they are lawfully engaged in peaceful picketing of the employer’s premises or in other lawful concerted activity.

The power —

Byron R. White:

How was that the employer ever gets a question before the Board except by eviction?

Bernard Dunau:

We have no complaint with respect to his getting the question before the Board.

He could get it before the Board for example simply by asking those pickets to leave.

That is enough for us to file an unfair labor practice charge with the Board and to get the controversy there.

We have no objection to raising the question in that fashion —

Byron R. White:

Would you raise it if he just asked you to leave and — would you then file the complaint?

Bernard Dunau:

Well, if he asked us to leave and nothing else was done and we still were that, presumably —

Byron R. White:

Would you leave?

I gather you wouldn’t?

Bernard Dunau:

That depends on individual situations.

If you got — if you want to avoid a physical encounter, you leave obviously.

Byron R. White:

But if he really wanted to find out if the Board — if this was protected, if this arguably protected, I’d like to find out what it is about.

The only way to really cure that I suppose would be to evict you from the premises —

Bernard Dunau:

Must take action adverse to our exercise of handbilling —

Byron R. White:

So indeed must use self help better than the courts in order to insure duty —

Bernard Dunau:

Sir —

Byron R. White:

— before the board.

Bernard Dunau:

In no case does anyone ever go to a court until he first asks the people to get off his premises.

In fact that the requirement that you get off with the condition precedent to any state trespass suit.

Byron R. White:

That isn’t my point though would have — then you don’t leave.

Bernard Dunau:

Yes.

Byron R. White:

Then you don’t leave, what does he do then?

He must evict you in order to be —

Bernard Dunau:

Alright, and he does.

Byron R. White:

— that the question gets before the board.

Bernard Dunau:

Yes.

But that’s the way these questions get before all the time.

This is no isolated case.

Byron R. White:

Alright, I was just wondering as to —

Bernard Dunau:

Sir, that’s the way the question gets before the board — activity by the employer adverse to a Section 7 right which makes it possible complain there’s an interference, yes sir and therefore, there’s got to be some overt activity.

For us, it’s sufficient over an activity to be asked to leave the public place.

Thank you.

Warren E. Burger:

Thank you Mr. Dunau.

Mr. Fox.

Shayle P. Fox:

Mr. Chief Justice and may it please the Court.

In answer to petitioner’s argument, I would like to briefly go into few of the salient facts which have not been emphasized to discuss further from these facts.

They indicate that the character and nature of this property is private and not public.

Hugo L. Black:

What does the store sell?

Shayle P. Fox:

The store sells groceries and drugs.

Hugo L. Black:

Only?

Shayle P. Fox:

Yes, Your Honor.

I think at the time of the hearing there were small hardware department as well, but it was in a traditional style of today’s supermarket, including groceries and drugs.

Thurgood Marshall:

How long is the –?

Shayle P. Fox:

I don’t know the square feet involved.

Shayle P. Fox:

There is a picture of the store building as an appendix to respondent’s brief.

Thurgood Marshall:

— good sized grocery?

Shayle P. Fox:

Yes, it was a good sized grocery store, very large sized supermarket grocery store.

Going on from the argument that this property was private rather than public under any concept of this Court, it is our contention that even if the property were to be held quasi public under the previous decisions of this Court that the State of Alabama did no more than reasonably regulate the First Amendment rights of the petitioners.

And finally that in doing so, the Alabama Court exercised its proper jurisdiction in accordance with its traditional rights to remedy a wrong against property and persons within its jurisdiction and subject to its protection.

Now the facts in this case that we discussed a moment ago, the building is set back from the street.

This is a supermarket with a parking lot, it is large.

The parking lot is large as well.

However, the major portion of the parking lot is not between this public street and the store.

The parking lot surrounds the store.

At the front of the store, there is room for two rows of parking.

One facing the store, one facing the street and an isle between them for cars to maneuver within the parking lot, directly adjacent to this parking lot is a broad public sidewalk running the full length of the street, the public street upon which the store faces.

Potter Stewart:

Mr. Fox, among the various exhibits attached in the appendix to your brief or your fellow counsel’s brief, which in your opinion gives us the best picture of what you’re trying to describe now?

Shayle P. Fox:

I think the plat on 40, if you would like a diagram of the property.

Potter Stewart:

A40?

Shayle P. Fox:

A40.

Potter Stewart:

Yes, of your brief?

Shayle P. Fox:

Yes, Your Honor.

A40 shows the store and diagrams the distances between the store and the public street.

I think the best picture of the premises is probably A7 which is a photograph indicating exactly what I’m discussing now, the two rows of parking and the public street.

Hugo L. Black:

Where did the picketing take place?

Shayle P. Fox:

Pardon me?

Hugo L. Black:

Where did the picketing take place that the Alabama Court enjoined?

Shayle P. Fox:

As far as I’m able to ascertain from the opinions of the Court and the record, it took place on the sidewalk — the public sidewalk first then at various places in the parking lot as well as the sidewalk directly in front of the main entrance to the store building.

According to the Supreme Court of Alabama in affirming the lower court, they found that the pickets were in the way of people coming in and out of the store, so presumably they must —

Hugo L. Black:

On the sidewalk?

Shayle P. Fox:

Right on the sidewalk in front of the front door.

They did not come in to the store.

Hugo L. Black:

They did not come in to the store?

Shayle P. Fox:

No, they did not come in to the store.

Thurgood Marshall:

If I understand the petition, they say there’s no basis for that finding?

Shayle P. Fox:

I think that I’d have difficulty either quarreling with it or accepting it in this Court.

It was based upon affidavits and support of a petition for a temporary injunction.

Thurgood Marshall:

Which said they want to be — they were obstructing.

Shayle P. Fox:

That said obstructing (Voice Overlap) that was the word.

Thurgood Marshall:

What that does mean?

Shayle P. Fox:

It could mean that their presence was in the way of those — their physical presence was in the way of those coming in and out of the —

Thurgood Marshall:

Couldn’t you say that if they walked in the street, they were obstructive?

Couldn’t you say if they were half a block down the street, they were obstructing?

Shayle P. Fox:

I suppose they could have.

It would be a fair construction that anywhere on the lot they may have been obstructing the conduct of respondent’s business.

However, I don’t think the burden is on me to substantiate that finding in this Court when two occasions in the lower courts, petitioners failed to avail themselves in statutory provisions for supplying counter affidavits.

They could’ve had their hearing if they wanted it then, they just —

Thurgood Marshall:

Was there any provision for live testimony?

Shayle P. Fox:

I do not think there is, unless the court wants it.

I think that is a discretionary matter, but I do know that under two sections of the Alabama Code, they could have filed counter affidavits and did not do so.

Thurgood Marshall:

But they could’ve had the hearing too, couldn’t they?

Shayle P. Fox:

They had a hearing.

They had a hearing based upon the record in front of the Court at that time —

Thurgood Marshall:

Which consisted of five affidavits?

Shayle P. Fox:

The affidavits of the respondent only.

Thurgood Marshall:

That’s a hearing?

Shayle P. Fox:

That’s a hearing.

Thurgood Marshall:

Sufficient for permanent injunction?

Shayle P. Fox:

It’s sufficient for permanent injunction under Alabama Law.

Thurgood Marshall:

Under Alabama Law?

Shayle P. Fox:

Yes, it hasn’t been challenged in this Court as a failure to grant petitioners due process of law under the United States Constitution.

That has not been challenged in this Court.

Hugo L. Black:

Were they offered an opportunity to file counter affidavit?

Shayle P. Fox:

Two separate provisions of the Alabama Code give them that right.

Hugo L. Black:

What did the judge do about it?

Shayle P. Fox:

The judge accepted the evidence before him, which were the affidavits of respondent alone.

Hugo L. Black:

Did he suggest or ask about any affidavit?

Shayle P. Fox:

The record does not indicate.

Hugo L. Black:

Did the lawyers ask for the right to offer any counter affidavit?

Shayle P. Fox:

It is not so indicated in the record.

It appears from the record that the only argument raised by petitioners in the lower court was not a factual argument.

They quarreled with the jurisdiction of the Court and that was their sole contention before the court below.

Hugo L. Black:

What are you claiming here that the court had a right to enjoin?

Shayle P. Fox:

Well, I claim it on —

Hugo L. Black:

At what claim?

Shayle P. Fox:

I claim it that the court in precluding the pickets from coming on to this limited property were within their jurisdiction and acted properly and that they had the right to move the pickets, in effect, 100 feet away by moving them on to a public sidewalk, a safe and proximate place to stand only 100 feet from the front door of the respondent’s premises.

Hugo L. Black:

I understood you to say that the court enjoined picketing —

Shayle P. Fox:

No.

Hugo L. Black:

— on the public sidewalk.

Shayle P. Fox:

No, I did not make myself clear.

Hugo L. Black:

I thought that’s what you said.

Shayle P. Fox:

The Court did not enjoin picketing per se.

The Court said “There will be no picketing allowed on the premises of the respondent only”.

What the effect —

Hugo L. Black:

Is that the only injunction?

Shayle P. Fox:

That’s the only injunction.

The pickets —

Hugo L. Black:

It did not enjoin picketing on the sidewalk?

Shayle P. Fox:

Not at all.

The pickets have every right today to go out to the public sidewalk 100 feet from the front door of the respondent’s property and picket.

Hugo L. Black:

You construe that as a meaning enjoined in being anywhere — picketing anywhere in the parking lot?

Shayle P. Fox:

Anywhere in the parking lot at all.

Anywhere within the lot lines of —

Hugo L. Black:

And where did it actually take place according to the record?

Shayle P. Fox:

Within that parking lot and on the petitioner’s walk directly in front of the front door of its premises.

The picketing took place right at the store.

The public sidewalk open to the pickets now is 100 feet away from the front door.

They are moved 100 feet by this injunction that is presently pending.

Now, our contention is that this is private property by virtue of the fact that unlike petitioner’s claim, we do not believe that openness to the public is the only viable standard.

That principle brings us smack into a dichotomy with their position on no claim to coming into the store itself.

The same standard being applied in the two circumstances, the store and the parking lot would allow the pickets into the store.

This was not a reasonable standard and this is not in our opinion, what the Court meant in its decision in Logan Valley, calling private property quasi public or available for public use or open to the public.

In that case, as well as in the case of Marge versus Alabama, it wasn’t the openness to the public which was the sole standard.

It was the use by the public in a particular way.

The public used the property in these previous cases as a sidewalk, as a part, as a thorough fair to go from one place to another, or as the Court said in Logan Valley, “Freely open to the public in the area and those passing through.”

The parking lot in this store is not freely open to the public and those passing through.

Nobody passes through this parking that is not going into the Weinacker’s store building.

Thurgood Marshall:

The difficulty is it’s not in the record, isn’t it?

Shayle P. Fox:

Oh, yes.

Oh!

There is no statement in the record that the general public does not use this property.

The only statement in the record is that it is private property, and as private property, without an indication that it is used as a public thorough fair, the fact that there is a public thorough fair directly adjacent to it, a public sidewalk directly adjacent to it would indicate that there’s no need for this private property to be used as public property.

Thurgood Marshall:

Would these employees have been excluded if they had not had the picket sign?

Shayle P. Fox:

They would not.

They would be allowed to walk into the store.

Thurgood Marshall:

That’s make it public, doesn’t it?

Shayle P. Fox:

No, because any store then is public.

Any store —

Thurgood Marshall:

I am talking about the parking lot —

Shayle P. Fox:

What is the difference?

I see no difference between —

Thurgood Marshall:

So the only way that they become trespassers is when they pick up a sign?

Shayle P. Fox:

Is when they conduct their selves in of manner that is inimical to the conduct to the business on the premises.

Thurgood Marshall:

Which is carrying a picket sign?

Shayle P. Fox:

Carrying a picket sign, throwing a bomb.

Thurgood Marshall:

Well, it did not —

Shayle P. Fox:

Anything they do —

Thurgood Marshall:

Any bomb thrown in?

Shayle P. Fox:

No, no but anything they do —

Thurgood Marshall:

In this case, the only thing that made their action illegal was a picket sign?

Shayle P. Fox:

That’s correct.

The picket sign because of its effect of being inimical to the conduct to the business.

And we submit that petitioner is entitled to as much protection of his conduct of a business as the picket sign to come on and utilize their most effective economic weapon against the respondent.

Hugo L. Black:

Suppose there had been a fence around the place, or the guard fence?

Shayle P. Fox:

That would’ve tended to indicate that the property was less open to the public.

It wouldn’t be a usual manner of conducting a retail business.

We do concede this is a retail business open generally to the public to come on to the property and shop.

We wanted the public in our premises.

Hugo L. Black:

You mean general public?

Shayle P. Fox:

General public.

Hugo L. Black:

Including picket?

Shayle P. Fox:

No, because there the general public is conducting themselves detrimental to our conduct of our business.

They are interfering with our right to conduct the business.

They are not there to buy.

Assuming that we do —

Hugo L. Black:

But your contention here is that any part of that property was to be decreed by the law from people who did not come to buy goods from the store?

Shayle P. Fox:

There was no part of it being used by the general public other than the instance of the pickets or the people who came to buy in the store.

This was not — there is no evidence in the record that people walked across this property to go from one place to another.

There is no evidence that people came on to this property to park their car while they went to visit friends in the neighborhood.

This was just a grocery store and the only instance in the record of people using it other than the shop is the use by the pickets here.

How many pickets were there?

Shayle P. Fox:

I think they varied from time to time.

I don’t really know what the maximum number was.

I don’t submit to this Court that that is the contention here or that is an issue.

Shayle P. Fox:

We believe that we have the right to exclude every single one of them for two reasons.

One, that this is private property and the private property owner has the right to seek remedy from the presence of a person who is disrupting its business in any way.

And two that even if under the standards of this Court, this property because it is a retail business, parking lot, is held to be quasi public.

It’s still reserved to the lower court the right to reasonably regulate the exercise of First Amendment rights.

And it is our contention that moving the pickets 100 feet where they are still within sight and sound of the front door is a reasonable regulation.

Now, how do we differ this from — or distinguish this from Logan Valley?

Hugo L. Black:

Does no one have to agree with that argument of yours, to agree with you?

Shayle P. Fox:

No, you could find this as private property.

If this is private property, they could be excluded, that’s traditional.

A man who owns property can exclude anybody whose interests are opposed to himself.

Hugo L. Black:

Well I understood that you are arguing that the reason, so long as you hamper the rights to freedom of speech in a reasonable way you can hamper it?

Shayle P. Fox:

I agree.

That is —

Hugo L. Black:

That’s what you’re arguing?

Shayle P. Fox:

That’s the secondary contention.

Hugo L. Black:

One have to decide, but you decide on your — to be on your side to agree with you on that handicap to the excise of free speech?

Shayle P. Fox:

I think you can agree with me on my prior contention and come to the same result whether or not the regulation is reasonable, because —

Warren E. Burger:

You mean the private property asserts that?

Shayle P. Fox:

That’s right because the general public does not have free speech rights on private property.

There’s no free speech right.

Hugo L. Black:

Well, I’ll just say to you that there have to be something like that before I would agree with you, but I do not agree that the judges or the Congress can reasonably, according to their judgment on what’s reasonable, handicap the right of free speech?

Shayle P. Fox:

Handicap is right, I agree with that, but they could regulate the place at which free speech is to be conducted.

The place, the location of the free — as one as it may have been — one of the justices —

Hugo L. Black:

What you’re saying is that they don’t have the right to take side of free speech at any place and at any time in any way they choose, I can understand that argument.

Shayle P. Fox:

That’s exactly what I’m saying and I am saying that an injunction which merely moves people 100 feet with nothing intervening along that 100-foot distance to block the reading of a picket sign, or to listen to the sound of the voice coming from a hundred feet away, does not unreasonably interfere with the communication of ideas.

Hugo L. Black:

It’s alright for other members of the Court I presume, but I can get along better with my understanding, if I don’t have to bring in your word reasonably.

Shayle P. Fox:

Well, the —

Hugo L. Black:

If that’s — if it is a right to handicap free speech whether court thinks it reasonable then I don’t understand the First Amendment?

Shayle P. Fox:

No, I don’t say handicap, but I see no handicap for the exact channel of communication that’s being requested by the pickets is still open to them and all they are being told is to move a hundred feet.

That is not a handicap to communication.

Shayle P. Fox:

Petitioners are alleging that makes their communication less effective.

Hugo L. Black:

Well, it might be a handicap, but that doesn’t serve the purpose, doesn’t it?

It would be a handicap to keep people from coming into your home in day or night in order to argue with you on public question.

That would be a handicap, wouldn’t it?

Shayle P. Fox:

Well, it would be a handicap that this Court I’m sure would find so serious that they would be willing to then handicap free speech and preserve the rights in the home.

The idea when we have a conflicting constitutional right being claimed by two parties is that this Court and other courts have looked to the detriment to one by upholding the other.

In the case of a home, somebody coming into a home, I think it would be clear that the damage to the privacy of the home, a right guaranteed to the home owner would be so severe that the handicap to free speech would be ordered.

Hugo L. Black:

What’s you are saying in effect is, they wouldn’t have right to go into the home in order to exercise the right of free speech against their owner’s consent?

Shayle P. Fox:

They would be required to stand out public sidewalk in front of the home or the nearest area traditionally available for the exercise of First Amendment rights.

Warren E. Burger:

And if they were using a soundtrack as advertisers sometimes do, or candidates for political office sometimes do, they might not be free to do that at 3 o’clock in the morning?

Shayle P. Fox:

They may not be free to do it at all.

This Court has upheld regulation of the use of soundtracks, even city streets.

Warren E. Burger:

I’m assuming a case where it’s permitted, it might not be permitted to 3 o’clock in the morning.

Shayle P. Fox:

No, and it maybe only permitted on certain streets and not others, and it always seems to occur in public streets.

Here, we’re taking them off the public street, even though a public street is right there for the use and seeking to put them on private property, or even quasi public property.

The idea in the previous cases of putting them on public property was for the — private property was the purpose of avoiding the substantial detriment to the exercise of free speech rights because of the unavailability of public property in the area.

That is the rationale, the underlying theme in Logan Valley.

We’ll let them on the shopping center premises because they can’t stand on the middle of the highway, and even if they were there, their message could not be brought to the people entering the store.

We don’t have this situation here.

The message could be brought.

It is not the duty of the property owner —

Thurgood Marshall:

What about those parking entrances that appear to be behind the building?

Shayle P. Fox:

There appear to be some there.

I don’t — there’ s a public sidewalk for that.

Thurgood Marshall:

You’d have to cover seven entrances.

Shayle P. Fox:

I think the pictures indicate that this premises and we have a picture of the back of the store too.

Thurgood Marshall:

I’m talking about the automobile entrance.

There’s seven, is that correct?

Shayle P. Fox:

Yes, and there are some in front and —

Thurgood Marshall:

So, you have to have pickets at seven entrances.

Shayle P. Fox:

Seven pickets to cover all them.

Thurgood Marshall:

And people driving the cars looked at the picket signs, what would happen while they were they driving?

Shayle P. Fox:

Well, they have to be looking in that direction in any how, they’re crossing a public sidewalk to get into the lot.

So they’re looking for pedestrians.

Thurgood Marshall:

Well, I’m talking about these are the driving in.

Shayle P. Fox:

Yes.

They have to cross the public sidewalk to drive in, which they do.

Thurgood Marshall:

And as they drive by the picket signs and they read the picket signs while driving what happens?

Shayle P. Fox:

Those who are sympathetic with the message being imparted to them will turn around and drive out and those who are not sympathetic —

Thurgood Marshall:

And hit down the one just looking?

Shayle P. Fox:

Pardon me?

Thurgood Marshall:

And hit down the one that’s just reading?

Shayle P. Fox:

No, I — this is what I called attention to in my brief as well.

In Logan Valley, they drove in across an earthen berm to a large shopping center.

There was no reason to assume they were slowing down substantially after leaving the highway.

In this physical situation, the car has to cross a public sidewalk, it goes up on to a driveway, crosses a public sidewalk and goes in to a —

Thurgood Marshall:

It stops and reads the signs.

Shayle P. Fox:

While slowing it’s certainly going slow enough to read the sign from there, but that is not the major contention.

Thurgood Marshall:

This is the down town area of Mobile.

Shayle P. Fox:

It’s — I believe a residential area near the center of town.

Thurgood Marshall:

It’s considerable traffic I will assume if you have seven entrances.

Shayle P. Fox:

No, according to the pictures in the record, it appears that most people use the front entrances, although —

Thurgood Marshall:

How does that appear from the picture?

Shayle P. Fox:

The pictures I have here, I’m not submitting this as a fact.

Thurgood Marshall:

Oh, I see, I see, I see.

Shayle P. Fox:

At the back of the store in exhibit A5 indicates that there’s no store windows, there’s no entrances to the major selling areas and it’s really the back end of the building.

Whereas the next in the several photographs indicate the front door which is the one probably used by most of the people, although it’s not clear in the record.

Hugo L. Black:

Do you know enough about Mobile than know just about (Inaudible)?

Shayle P. Fox:

No.

Hugo L. Black:

That was to the center of the town?

Shayle P. Fox:

No, but I —

Hugo L. Black:

(Inaudible) hotel?

Shayle P. Fox:

No, Your Honor I really don’t but what I have done is included diagrams of the City of Mobile, so that the store could be picked out off the map itself.

They’re not easy to read, I must confess and I’m not familiar with the city myself.

Well, the question has been raised and I must address myself to it as to whether or not the entire area of the conduct here has been preempted by the National Labor Relations Act, and therefore the National Labor Relations Board has exclusive jurisdiction to try this matter.

I do not have any excuse for not raising it as it was found in previous cases.

I think the issue is clearly before this Court.

The major contention in support of a finding that there was jurisdiction in the Alabama Supreme Court is that once they have concluded that there was no impairment of First Amendment rights and once the Court has concluded that the property rights of the respondent to conduct its lawful business are being jeopardized by the conduct of the petitioners, the court below has come to the conclusion that petitioners are engaging in an unlawful act.

Once that conclusion is reached and properly so if that a conclusion is properly so, it is the traditional right of the state courts to provide a remedy for that wrong.

The cause of action for remedying an unlawful trespassers are amongst the oldest in our law.

The state of Alabama below followed the test annunciated by this Court for the determination as to whether petitioners were validly exercising First Amendment rights.

They found that it would not interfere with the First Amendment rights of the petitioners to move them away 100 feet, and that it would seriously impair the operation of respondent to allow them on the property.

This is the balancing test earlier described.

They followed the law in that respect, and then they found that there was a trespasser, an unlawful interfering trespasser on the property.

Now to say that after such a finding, the Court would be powerless to act, would mean that there is no law if there is no enforcement of it here.

Petitioner’s argument, counsel and his argument says he doesn’t know whether they asked them to leave or how would get up before the board or not.

I think at least in this respect, the record is clear.

It’s stated in the Alabama Supreme Court decision.

Petitioners were asked to leave and refused.

Their failure to leave the premises left the employer — the property on here with nothing to do but to go to the Supreme Court of Alabama, short of self-help.

Byron R. White:

You could have removed them.

Shayle P. Fox:

I could’ve removed them and if they would’ve resisted them, I suppose I would’ve had a hire people to help me, or to get a gun and shoot them.

That would’ve been left, had they failed to leave — had the state court no jurisdiction under the circumstances.

All I could do was exert greater physical force than they were capable of resisting in order to get them off the property.

There is no procedure by which a property owner can apply to the National Labor Relations Board to have pickets removed.

And this would be true if they were in the middle of the store or sitting on the checkout counters with their signs and saying “Don’t shop here” or “Don’t pay for what you buy” or “we don’t like this.”

There was no way to go the board to do this.

Now the board has —

Byron R. White:

And the picketing is not an unfair labor practice about the union, doesn’t it?

Shayle P. Fox:

It is not.

Byron R. White:

Whether it’s violent or otherwise?

Shayle P. Fox:

Well, now we get into an area where there is jurisdiction between the state courts and the board.

Byron R. White:

Well I know would do.

Shayle P. Fox:

It could be, yes.

In cases of —

Byron R. White:

What if there was mass picketing or obstructive picketing?

Does the employer have a remedy before the board?

Shayle P. Fox:

If it has an affect on other employees, you would be able to bring a charge under 8 (b) (1).

If it was for some unlawful purpose specified in the act such as a secondary boycott, you could bring it.

But the mere fact that the mass picketing interfered with his business would not give the board jurisdiction of the matter, it’d have to be additional facts.

Byron R. White:

That’s right.

Shayle P. Fox:

Now, these facts are not in this record here, and we submit that once the Court finds an unlawful trespasser, it’s no different in unlawful interfering trespass, it’s no different than this Court has found before with regard to libel which would tend to provoke violence, mass picketing which would tend to provoke violence.

Threats — mere threats of imminent violence when it was reasonable to anticipate that violence would follow.

The Supreme Courts of several states have held that failure to remedy a trespass leads to imminent violence.

This is the traditional area for the exercise of state jurisdiction, absence such state jurisdiction, the property owner would find them remediless.

In conclusion, we submit that the Alabama Supreme Court followed the concepts annunciated by this Court in prior decisions in determining whether its removal of the pickets from this parking lot impaired the free speech rights of the petitioners, finding it did not, and finding that their presence on the premises of respondent was inimical to the conduct of respondent’s business they precluded them.

How do you distinguish this case from Logan Valley?

Shayle P. Fox:

The availability of proximate public area from which the message could be imparted to those walking in and out of the store for one thing.

And second, the fact that this property was not open to the general public to the extent of the Logan Valley Plaza because it did not replace a business district.

It was merely a store in a district set back from a public street.

Logan Valley, if you didn’t find the way you did, there would be no streets or sidewalks in the area from which people could exercise their First Amendment rights.

This is the traditional place to exercise First Amendment rights and the shopping center there, the size of it eliminated the traditional place for the exercise of the rights.

On the other hand here, the traditional place is available, it’s a hundred feet away.

You can see from there, you can hear from there.

There’s been no impairment whatsoever of communication, which is we submit the test of First Amendment rights, absent some protection being offered by jurisdiction of the state courts.

There would be absolutely no remedy, as Mr. Justice White points out, there would be a necessary resort to self-help and the concomitant threat to the public order.

Warren E. Burger:

You would concede, I take it, that the message gets through better in the private sidewalk right in front of the door?

Shayle P. Fox:

I certainly do, but I don’t think that —

Warren E. Burger:

And still better if it’s inside the store perhaps?

Shayle P. Fox:

Clearly, because there would be a greater interference with the business relationship which is what is intended, but that is not the obligation of preservation of First Amendment rights to do it in the most effective place merely to maintain a channel of communication.

Warren E. Burger:

Thank you Mr. Fox.

Mr. Dunau, you have two minutes.

Bernard Dunau:

Unless there are any questions, I have nothing further.

William J. Brennan, Jr.:

Yes, I have one.

If in fact we concluded on the issue of obstruction on this record, if we are, I take it you’d not be entitled to a reversal — a complete reversal of this injunction, would you?

Bernard Dunau:

Sir, the —

William J. Brennan, Jr.:

Now accept my premise, don’t argue with me to the —

Bernard Dunau:

No, I just want to address it to the specific injunction.

We would be entitled even on assumption of obstructive picketing to the elimination of that part of the injunction which prohibits trespassing upon the property of Weinacker’s, because the obstructive picketing would authorize only in an injunction reaching the obstruction, not the elimination of picketing.

Now there is a further provision in the injunction which says that “Interfering with Weinacher’s property and right of ingress and egress to the property and place of business.”

If that means physical obstruction, that part of the injunction would stand if the finding stands.

I am not sure how to read that part of the injunction.

It’s imprecise and I think fatally imprecise with respect to the regulation.

William J. Brennan, Jr.:

Well, at least then I gather you’d agree that it would have to be a leman or a tailoring of that provision —

Bernard Dunau:

For that —

William J. Brennan, Jr.:

— to deal with the issue of obstruction?

Bernard Dunau:

That’s correct sir.

So that we are taking the findings as they now are, that is that there was obstructive picketing.

If we are correct on our general proposition, trespassing upon property goes out and the injunction must be tailored to fit the obstructive picketing.

Hugo L. Black:

Mr. Dunau, you don’t live in Mobile?

Bernard Dunau:

No, sir I do not.

Hugo L. Black:

Maybe you couldn’t answer this question, but I know a little about Mobile and I was wondering as one on your side on Mobile that could place this, as far as I’m concerned, in relation to the center of the town where they have the hotel.

Bernard Dunau:

I have tried, Your Honor, with respect to the maps used which are in the petitioner’s or respondent’s brief to pinpoint where the property is.

Now, if you look on A38.

Hugo L. Black:

38?

Bernard Dunau:

A38 of respondent’s brief and at the top of that page, you will see Governmen Street running somewhat diagonally across that top of the page and there is a Number 246.

It’s within that area of 246 that the store appears, as you will note the Government Street, Catherine Street and 246.

Hugo L. Black:

What street?

Bernard Dunau:

Catherine Street and Government Street.

It’s 248 at the right margin of the page, if one works inward from 248 you’ll find the location of the store.

Hugo L. Black:

It’s along Government Street?

Bernard Dunau:

Sir?

Hugo L. Black:

Is it adjacent to Government Street?

Bernard Dunau:

That’s correct sir, it faces on Government Street and it — faces on Government and Catherine Streets, and it’s at the top of that page.

Potter Stewart:

And I think I understood you answer question in mind by saying that it is downtown, it’s not up on the suburb?

Bernard Dunau:

It’s not suburban, sir.

Potter Stewart:

It’s downtown, somewhat?

Bernard Dunau:

Yes, sir that’s correct.

Warren E. Burger:

Thank you Mr. Dunau.

Thank you for you submission.

The case is submitted.