U.S. Supreme Court
THOMAS v. COLLINS, 323 U.S. 516 (1945)
323 U.S. 516
Reargued Oct. 11, 1944.
Decided Jan. 8, 1945.
Rehearing Denied Jan. 29, 1945
See 323 U.S. 819 , 65 S.Ct. 557.
Appeal from the Supreme Court of Texas. [323 U.S. 516, 517] Mr. Lee Pressman, of Washington, D.C., and Ernest Goodman, of Detroit, Mich., for appellant.
Mr. Fagan Dickson, of Austin, Tex., for appellee.
Mr. Alvin J. Rockwell, of Washington, D.C., for the United States, amicus curiae, by special leave of Court.
[323 U.S. 516, 518]
Mr. Justice RUTLEDGE delivered the opinion of the Court.
The appeal is from a decision of the Supreme Court of Texas which denied appellant's petition for a writ of habeas corpus and remanded him to the custody of appellee, as sheriff of Travis County. 141 Tex. 591, 174 S.W.2d 958. In so deciding the court upheld, as against constitutional and other objections, appellant's commitment for contempt for violating a temporary restraining order issued by the District Court of Travis County. The order was issued ex parte and in terms restrained appellant, while in Texas, from soliciting members for or memberships in specified labor unions and others affiliated with the Congress of Industrial Organizations, without first obtaining an organizer's card as required by House Bill No. 100, c. 104, General and Special Laws of Texas, Regular Session, 48th Legislature 1943, Vernon's Ann.Civ.St. art. 5154a. After the order was served appellant addressed a mass meeting of workers and at the end of his speech asked persons present to join a union. For this he was held in contempt, fined and sentenced to a short imprisonment.
The case has been twice argued here. Each time appellant has insisted, as he did in the state courts, that the statute as it has been applied to him is in contravention of the Fourteenth Amendment, as it incorporates the First, imposing a previous restraint upon the rights of freedom of speech and free assembly, and denying him the equal protection of the laws. He urges also that the application made of the statute is inconsistent with the provisions of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. 151 et seq., and other objections which need not be considered. For reasons to be stated we think the statute as it was applied in this case imposed previous restraint upon appellant's rights of free speech and free assembly and the judgment must be reversed. [323 U.S. 516, 519] The pertinent statutory provisions, Sections 5 and 12, are part of Texas' comprehensive scheme for regulating labor unions and their activities. They are set forth in the margin. 1 [323 U.S. 516, 520] I.
The facts are substantially undisputed. The appellant, Thomas, is the president of the International Union U.A.W. (United Automobile, Aircraft and Agricultural Implements Workers) and a vice president of the C.I.O. His duties are manifold, but in addition to executive functions they include giving aid and direction in organizing campaigns and by his own statement soliciting members, generally or in particular instances, for his organizations and their affiliated unions. He receives a fixed annual salary as president of the U.A.W., resides in Detroit, and travels widely through the nation in performing his work.
O.W.I.U. (Oil Workers Industrial Union), a C.I.O. affiliate, is the parent organization of many local unions in Texas, having its principal office in Fort Worth. One of these is Local No. 1002, with offices in Harris County and membership consisting largely of employees of the Humble Oil & Refining Company's plant at Bay Town, Texas, not far from Houston. During and prior to September, 1943, C.I.O. and O.W.I.U. were engaged in a campaign to organize the employees at this plant into Local No. 1002, after an order previously made by the National Labor Relations Board for the holding of an election. As part of the campaign a mass meeting was arranged for the evening of September 23, under the [323 U.S. 516, 521] auspices of O.W.I.U., at the city hall in Pelly, Harris County, near the Bay Town plant. Wide publicity was given to the meeting beforehand. Arrangements were made for Thomas to come to Texas to address it and wide notice was given to his announced intention of doing so.
Thomas arrived in Houston the evening of September 21. He testified without contradiction that his only object in coming to Houston was to address this meeting, that he did not intend to remain there afterward and that he had return rail reservations for leaving the state within two days. At about 2:30 o'clock on the afternoon of Thursday, September 23, only some six hours before he was scheduled to speak, Thomas was served with the restraining order and a copy of the fiat.
These had been issued ex parte by the District Court of Travis County ( which sits at Austin, the state capital, located about 170 miles from Houston) on the afternoon of September 22, in a proceeding instituted pursuant to Section 12 by the State's attorney general. The petition for the order shows on its face it was filed in anticipation of Thomas' scheduled speech. 2 And the terms of the order show that it was issued in anticipation of the meeting and the speech. 3 [323 U.S. 516, 522] Upon receiving service, Thomas consulted his attorneys and determined to go ahead with the meeting as planned. He did so because he regarded the law and the citation as a restraint upon free speech and free assembly in so far as they prevented his making a speech or asking someone to join a union without having a license or organizer's card at the time.
Accordingly, Thomas went to the meeting, arriving about 8:00 p.m., and, with other speakers, including Massengale and Crossland, both union representatives, addressed an audience of some 300 persons. The meeting was orderly and peaceful. Thomas, in view of the unusual circumstances, had prepared a manuscript originally intended, according to his statement, to embody his entire address. He read the manuscript to the audience. It discussed, among other things, the State's effort, as Thomas conceived it, to interfere with his right to speak and closed with a general invitation to persons present not members of a labor union to join Local No. 1002 and thereby support the labor movement throughout the country. As written, the speech did not address the invitation to any specific individual by name or otherwise. 4 But Thomas testified that he added, at the conclusion of the written speech, an oral solicitation of one Pat [323 U.S. 516, 523] O'Sullivan, a nonunion man in the audience whom he previously had never seen. 5
After the meeting Thomas, with two of the other union speakers, was arrested and taken before a justice of the peace. Complaints were filed in criminal proceedings, presumably pursuant to Section 11. Thomas was released on bond, returned to his hotel, and the next morning left for Dallas. There he learned an attachment for his arrest had been issued at Austin by the Travis County District Court, pursuant to the attorney general's motion filed that morning in contempt proceedings for violation of the temporary restraining order. 6
On the evening of September 24, Thomas went to Austin for the hearing upon the temporary injunction set for the morning of the 25th. At this time he appeared and moved for dismissal of the complaint, for dissolution of the temporary restraining order, and to quash the contempt proceeding. The motions were denied and, after hearing, the court ordered the temporary injunction to issue. It also rendered judgment holding Thomas in contempt for vio- [323 U.S. 516, 524] lating the restraining order and fixed the penalty at three days in jail and a fine of $100. Process for commitment thereupon issued and was executed. Application to the supreme court for the writ of habeas corpus was made and granted, the cause was set for hearing in October, and Thomas was released on bond, all on September 25. Thereafter, an amended application in habeas corpus was filed, hearing on the cause was had, judgment was rendered sustaining the commitment, a motion for rehearing was overruled, and the present appeal was perfected. Argument followed here at the close of the last term, with reargument at the beginning of the present one to consider questions upon which we desired further discussion.
The Supreme Court of Texas, deeming habeas corpus an appropriate method for challenging the validity of the statute as applied,7 sustained the Act as a valid exercise of the State's police power, taken 'for the protection of the general welfare of the public, and particularly the laboring class,' (141 Tex. 591, 174 S.W.2d 961) with special reference to safeguarding laborers from imposture when approached by an alleged organizer. The provision, it was said, 'affects only the right of one to engage in the business as a paid organizer, and not the mere right of an individual to express his views on the merits of the union.' The court declared the act 'does not require a paid organizer to secure a license,' but makes mandatory the issuance of the card 'to all who come within the provisions of the Act upon their [323 U.S. 516, 525] good-faith compliance therewith.' Accordingly it held that the regulation was not unreasonable.
The court conceded however that the Act 'interferes to a certain extent with the right of the organizer to speak as the paid representative of the union.' Nevertheless, it said, 'such interferences are not necessarily prohibited by the Constitution. The State under its police power may enact laws which interfere indirectly and to a limited extent with the right of speech or the liberty of the people where they are reasonably necessary for the protection of the general public.' Accordingly, it likened the instant prohibition to various other ones imposed by state or federal legislation upon 'the right of one to operate or speak as the agent of another,' including securities salesmen, insurance agents, real estate brokers, etc. And various decisions of this Court and others8 were thought to support the conclusion that the Act 'imposes no previous general restraint upon the right of free speech. ... It merely requires paid organizers to register with the Secretary of State before beginning to operate as such.'
Appellant first urges that the application of the statute amounted to the requirement of a license 'for the simple act of delivering an address to a group of workers.' He says the act penalized 'was simply and solely the act of addressing the workers on the ... benefits of unionism, and concluding the address with a plea to the audience generally and to a named worker in the audience to join a union.' He points out that he did not parade on the streets, did not solicit or receive funds, did not 'sign up' [323 U.S. 516, 526] workers,9 engaged in no disturbance or breach of the peace, and that his sole purpose in going to Texas and his sole activity there were to make the address including the invitations which he extended at the end. There is no evidence that he solicited memberships or members for a union at any other time or occasion or intended to do so. His position necessarily maintains that the right to make the speech includes the right to ask members of the audience, both generally and by name, to join the union.
Appellant also urges more broadly that the statute is an invalid restraint upon free expression in penalizing the mere asking a worker to join a union, without having procured the card, whether the asking takes place in a public assembly or privately.
Texas, on the other hand, asserts no issue of free speech or free assembly is presented. With the state court, it says the statute is directed at business practices, like selling insurance, dealing in securities, acting as commission merchant, pawnbroking, etc., and was adopted 'in recognition of the fact that something more is done by a labor organizer than talking.' 10
Alternatively, the State says, Section 5 would be valid if it were framed to include voluntary, unpaid organizers and if no element of business were involved in the union's activity. The statute 'is a registration statute and nothing more,' and confers only 'ministerial and not discretionary powers' upon the Secretary of State. The requirement accordingly is regarded as one merely for previous identification, valid within the rule of City of Manchester v. [323 U.S. 516, 527] Leiby, 1 Cir., 117 F.2d 661, and the dictum of Cantwell v. Connecticut, 310 U.S. 296, 306 , 60 S.Ct. 900, 904, 128 A.L.R. 1352.11
In accordance with their different conceptions of the nature of the issues, the parties would apply different standards for determining them. Appellant relies on the rule which requires a showing of clear and present danger to sustain a restriction upon free speech or free assembly. 12 Texas, consistently with its 'business practice' theory, says the appropriate standard is that applied under the commerce clause to sustain the applications of State statutes regulating transportation made in Hendrick v. Maryland, 235 U.S. 610 , 35 S.Ct. 140; Clark v. Paul Gray, Inc., 306 U.S. 583 , 59 S.Ct. 744; and State of California v. Thompson, 313 U.S. 109 , 61 S.Ct. 930.13 In short, the State would apply a 'rational basis' test, [323 U.S. 516, 528] appellant one requiring a showing of 'clear and present danger.'
Finally, as the case is presented here, Texas apparently would rest the validity of the judgment exclusively upon the specific individual solicitation of O'Sullivan, and would throw out of account the general invitation, made at the same time, to all nonunion workers in the audience. 14 However, the case cannot be disposed of on such a basis. The Texas Supreme Court made no distinction between the general and the specific invitations. 15 Nor did the District Court. The record shows that the restraining order was issued in explicit anticipation of the speech and to restrain Thomas from uttering in its course any language which could be taken as solicitation. 16 The motion for the fiat in contempt was filed and the fiat itself was is- [323 U.S. 516, 529] sued on account of both invitations. 17 The order adjudging Thomas in contempt was in general terms, finding that he had violated the restraining order, without distinction between the solicitations set forth in the petition and proved as violations. 18 The sentence was a single penalty. In this state of the record it must be taken that the order followed the prayer of the motion and the fiat's recital, and that the penalty was imposed on account of both invitations. The judgment therefore must be affirmed as to both or as to neither. Cf. Williams v. North Carolina, 317 U.S. 287, 292 , 63 S.Ct. 207, 210, 143 A.L.R. 1273; Stromberg v. California, 283 U.S. 359, 368 , 51 S.Ct. 532, 535, 73 A.L.R. 1484. And it follows that the statute, as it was applied, restrained and punished Thomas for uttering, in the course of his address, the general as well as the specific invitation.
The case confronts us again with the duty our system places on this Court to say where the individual's freedom ends and the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the [323 U.S. 516, 530] usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment. Cf. Schneider v. State of New Jersey, 308 U.S. 147 , 60 S.Ct. 146; Cantwell v. Connecticut, 310 U.S. 296 , 60 S.Ct. 900, 128 A.L.R. 1352; Prince v. Massachusetts, 321 U.S. 158 , 64 S.Ct. 438. That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions. And it is the character of the right, not of the limitation, which determines what standard governs the choice. Compare United States v. Carolene Products Co., 304 U.S. 144, 152 , 153 S., 58 S.Ct. 778, 783, 784.
For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. 19 The rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation. It is therefore in our tradition to allow the widest room for discussion, the narrowest range for its restriction, particularly when this right is exercised in conjunction with peaceable assembly. It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable. They are cognate rights, cf. De Jonge v. Oregon, 299 U.S. 353, 364 , 57 S.Ct. 255, 259, and therefore are united in the First Article's assurance. Cf. 1 Annals of Congress 759-760. [323 U.S. 516, 531] This conjunction of liberties is not peculiar to religious activity and institutions alone. The First Amendment gives freedom of mind the same security as freedom of conscience. Cf. Pierce v. Society of Sisters, 268 U.S. 510 , 45 S.Ct. 571, 39 A.L.R. 468; Meyer v. Nebraska, 262 U.S. 390 , 43 S.Ct. 625, 29 A.L.R. 1446; Prince v. Massachusetts, 321 U.S. 158 , 64 S.Ct. 438. Great secular causes, with small ones, are guarded. The grievances for redress of which the right of petition was insured, and with it the right of assembly, are not solely religious or political ones. And the rights of free speech and a free press are not confined to any field of human interest.
The idea is not sound therefore that the First Amendment's safeguards are wholly inapplicable to business or economic activity. And it does not resolve where the line shall be drawn in a particular case merely to urge, as Texas does, that an organization for which the rights of free speech and free assembly are claimed is one 'engaged in business activities' or that the individual who leads it in exercising these rights receives compensation for doing so. Nor, on the other hand, is the answer given, whether what is done is an exercise of those rights and the restriction a forbidden impairment, by ignoring the organization's economic function, because those interests of workingmen are involved or because they have the general liberties of the citizen, as appellant would do.
These comparisons are at once too simple, too general, and too inaccurate to be determinative. Where the line shall be placed in a particular application rests, not on such generalities, but on the concrete clash of particular interests and the community's relative evaluation both of them and of how the one will be affected by the specific restriction, the other by its absence. That judgment in the first instance is for the legislative body. But in our system where the line can constitutionally be placed presents a question this Court cannot escape answering independently, whatever the legislative judgment, in the [323 U.S. 516, 532] light of our constitutional tradition. Schneider v. State of New Jersey, 308 U.S. 147, 161 , 60 S.Ct. 146, 150. And the answer, under that tradition, can be affirmative, to support an intrusion upon this domain, only if grave and impending public danger requires this.
That the State has power to regulate labor unions with a view to protecting the public interest is, as the Texas court said, hardly to be doubted. They cannot claim special immunity from regulation. Such regulation however, whether aimed at fraud or other abuses, must not trespass upon the domain set apart for free speech and free assembly. This Court has recognized that 'in the circumstances of our times the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution. ... Free discussion concerning the conditions in industry and the causes of labor disputes appears to us indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of modern industrial society.' Thornhill v. Alabama, 310 U.S. 88, 102 , 103 S., 60 S.Ct. 736, 744; Senn v. Tile Layers Protective Union, 301 U.S. 468, 478 , 57 S.Ct. 857, 862. The right thus to discuss, and inform people concerning, the advantages and disadvantages of unions and joining them is protected not only as part of free speech, but as part of free assembly. Hague v. Committee for Industrial Organization, 307 U.S. 496 , 59 S.Ct. 954. The Texas court, in its disposition of the cause, did not give sufficient weight to this consideration, more particularly by its failure to take account of the blanketing effect of the prohibition's present application upon public discussion and also of the bearing of the clear and present danger test in these circumstances.
In applying these principles to the facts of this case we put aside the broader contentions both parties have made and confine our decision to the narrow question [323 U.S. 516, 533] whether the application made of Section 5 in this case contravenes the First Amendment.
The present application does not involve the solicitation of funds or property. Neither Section 5 nor the restraining order purports to prohibit or regulate solicitation of funds, receipt of money, its management, distribution, or any other financial matter. Other sections of the Act deal with such things. 20 And on the record Thomas neither asked nor accepted funds or property for the union at the time of his address or while he was in Texas. Neither did he 'take applications' for membership, though he offered to do so 'if it was necessary'; or ask anyone to join a union at any other time than the occasion of the Pelly mass meeting and in the course of his address.
Thomas went to Texas for one purpose and one only-to make the speech in question. Its whole object was publicly to proclaim the advantages of workers' organization and to persuade workmen to join Local No. 1002 as part of a campaign for members. These also were the sole objects of the meeting. The campaign, and the meeting, were incidents of an impending election for collective bargaining agent, previously ordered by national authority pursuant to the guaranties of national law. Those guaranties include the workers' right to organize freely for collective bargaining. And this comprehends whatever may be appropriate and lawful to accomplish and maintain such organization. It included, in this case, the right to designate Local No. 1002 or any other union or agency as [323 U.S. 516, 534] the employees' representative. It included their right fully and freely to discuss and be informed concerning this choice, privately or in public assembly. Necessarily correlative was the right of the union, its members and officials, whether residents or nonresidents of Texas and, if the latter, whether there for a single occasion or sojourning longer, to discuss with and inform the employees concerning matters involved in their choice. These rights of assembly and discussion are protected by the First Amendment. Whatever would restrict them, without sufficient occasion, would infringe its safeguards. The occasion was clearly protected. The speech was an essential part of the occasion, unless all meaning and purpose were to be taken from it. And the invitations, both general and particular, were parts of the speech, inseparable incidents of the occasion and of all that was said or done.
That there was restriction upon Thomas' right to speak and the rights of the workers to hear what he had to say, there can be no doubt. The threat of the restraining order, backed by the power of contempt, and of arrest for crime, hung over every word. A speaker in such circumstances could avoid the words 'solicit,' 'invite,' 'join.' It would be impossible to avoid the idea. The statute requires no specific formula. It is not contended that only the use of the word 'solicit' would violate the prohibition. Without such a limitation, the statute forbids any language which conveys, or reasonably could be found to convey, the meaning of invitation. That Thomas chose to meet the issue squarely, not to hide in ambiguous phrasing, does not counteract this fact. General words create different and often particular impressions on different minds. No speaker, however careful, can convey exactly his meaning, or the same meaning, to the different members of an audience. How one might 'laud unionism,' as the State and the State Supreme Court concede Thomas was free to do, yet in these circumstances not imply an invitation, [323 U.S. 516, 535] is hard to conceive. This is the nub of the case, which the State fails to meet because it cannot do so. Workingmen do not lack capacity for making rational connections. They would understand, or some would, that the president of U.A.W. and vice president of C.I.O., addressing an organization meeting, was not urging merely a philosophic attachment to abstract principles of unionism, disconnected from the business immediately at hand. The feat would be incredible for a national leader, addressing such a meeting, lauding unions and their principles, urging adherence to union philosophy, not also and thereby to suggest attachment to the union by becoming a member.
Furthermore, whether words intended and designed to fall short of invitation would miss that mark is a question both of intent and of effect. No speaker, in such circumstances, safely could assume that anything he might say upon the general subject would not be understood by some as an invitation. In short, the supposedly clear-cut distinction between discussion, laudation, general advocacy, and solicitation puts the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning.
Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim. He must take care in every word to create no impression that he means, in advocating unionism's most central principle, namely, that workingmen should unite for collective bargaining, to urge those present to do so. The vice is not merely that invitation, in the circumstances shown here, is speech. It is also that its prohibition forbids or restrains discussion which is not or may not be invitation. The sharp line cannot be drawn surely or securely. The effort to observe it could not be free speech, free press, [323 U.S. 516, 536] or free assembly, in any sense of free advocacy of principle or cause. The restriction's effect, as applied, in a very practical sense was to prohibit Thomas not only to solicit members and memberships, but also to speak in advocacy of the cause of trade unionism in Texas, without having first procured the card. Thomas knew this and faced the alternatives it presented. When served with the order he had three choices: (1) To stand on his right and speak freely; (2) to quit, refusing entirely to speak; (3) to trim, and even thus to risk the penalty. He chose the first alternative. We think he was within his rights in doing so.
The assembly was entirely peaceable, and had no other than a wholly lawful purpose. The statements forbidden were not in themselves unlawful, had no tendency to incite to unlawful action, involved no element of clear and present, grave and immediate danger to the public welfare. Moreover, the State has shown no justification for placing restrictions on the use of the word 'solicit.' We have here nothing comparable to the case where use of the word 'fire' in a crowded theater creates a clear and present danger which the State may undertake to avoid or against which it may protect. Schenck v. United States, 249 U.S. 47 , 39 S.Ct. 247. We cannot say that 'solicit' in this setting is such a dangerous word. So far as free speech alone is concerned, there can be no ban or restriction or burden placed on the use of such a word except on showing of exceptional circumstances where the public safety, morality or health is involved or some other substantial interest of the community is at stake.
If therefore use of the word or language equivalent in meaning was illegal here, it was so only because the statute and the order forbade the particular speaker to utter it. When legislation or its application can confine labor leaders on such occasions to innocuous and abstract discussion of the virtues of trade unions and so becloud even this [323 U.S. 516, 537] with doubt, uncertainty and the risk of penalty, freedom of speech for them will be at an end. A restriction so destructive of the right of public discussion, without greater or more imminent danger to the public interest than existed in this case, is incompatible with the freedoms secured by the First Amendment.
We do not mean to say there is not, in many circumstances, a difference between urging a course of action and merely giving and acquiring information. On the other hand, history has not been without periods when the search for knowledge alone was banned. Of this we may assume the men who wrote the Bill of Rights were aware. But the protection they sought was not solely for persons in intellectual pursuits. It extends to more than abstract discussion, unrelated to action. The First Amendment is a charter for government, not for an institution of learning. 'Free trade in ideas' means free trade in the opportunity to persuade to action, not merely to describe facts. Cf. Abrams v. United States, 250 U.S. 616, 624 , 40 S.Ct. 17, 20, and Gitlow v. New York, 268 U.S. 652, 672 , 45 S.Ct. 625, 632, dissenting opinions of Mr. Justice Holmes. Indeed, the whole history of the problem shows it is to the end of preventing action that repression is primarily directed and to preserving the right to urge it that the protections are given.
Accordingly, decision here has recognized that employers' attempts to persuade to action with respect to joining or not joining unions are within the First Amendment's guaranty. National Labor Relations Board v. Virginia Electric & Power Co., 314 U.S. 469 , 62 S.Ct. 344. Decisions of other courts have done likewise. 21 When to this persuasion other things are added which bring about coercion, or give it that character, the [323 U.S. 516, 538] limit of the right has been passed. 22 Cf. National Labor Relations Board v. Virginia Electric & Power Co., supra. But short of that limit the employer's freedom cannot be impaired. The Constitution protects no less the employees' converse right. Of course espousal of the cause of labor is entitled to no higher constitutional protection than the espousal of any other lawful cause. It is entitled to the same protection.
Apart from its 'business practice' theory, the State contends that Section 5 is not inconsistent with freedom of speech and assembly, since this is merely a previous identification requirement which, according to the State court's decision, gives the Secretary of State only 'ministerial, not discretionary' authority.
How far the State can require previous identification by one who undertakes to exercise the rights secured by the First Amendment has been largely undetermined. It has arisen here chiefly, though only tangentally, in connection with license requirements involving the solicitation of funds, Cantwell v. Connecticut, supra; cf. Schneider v. State, 308 U.S. 147 , 60 S.Ct. 146; Largent v. Texas, 318 U.S. 418 , 63 S.Ct. 667, and other activities upon the public streets or in public places, cf. Lovell v. Griffin, 303 U.S. 444 , 58 S.Ct. 666; Hague v. Committee for Industrial Organization, 307 U.S. 496 , 59 S.Ct. 954, or house-to-house canvassing, cf. Schneider v. State, supra. In these cases, however, the license requirements were for more than mere identification or previous registration and were held invalid because they vested discretion in the issuing authorities to censor the activity involved. Nevertheless, it was indicated by [323 U.S. 516, 539] dictum in Cantwell v. Connecticut, 310 U.S. 296, 306 , 60 S.Ct. 900, 904, 128 A.L.R. 1352,23 that a statute going no further than merely to require previous identification would be sustained in respect to the activities mentioned. Although those activities are not involved in this case, that dictum and the decision in People of State of New York ex rel. Bryant v. Zimmerman, 278 U.S. 63 , 49 S.Ct. 61, 62 A.L.R. 785, furnish perhaps the instances of pronouncement or decision here nearest this phase of the question now presented.
As a matter of principle a requirement of registration in order to make a public speech would seem generally incompatible with an exercise of the rights of free speech and free assembly. Lawful public assemblies, involving no element of grave and immediate danger to an interest the state is entitled to protect, are not instruments of harm which require previous identification of the speakers. And the right either of workmen or of unions under these conditions to assemble and discuss their own affairs is as fully protected by the Constitution as the right of businessmen, farmers, educators, political party members or others to assemble and discuss their affairs and to enlist the support of others.
We think the controlling principle is stated in De Jonge v. Oregon, 299 U.S. 353, 365 , 57 S.Ct. 255, 260. In that case this Court held that 'consistently with the Federal Constitution, peaceable assembly for lawful discussion cannot be made a crime.' And 'those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects. If the persons assembling have committed crimes elsewhere, if they have formed or are [323 U.S. 516, 540] engaged in a conspiracy against the public peace and order, they may be prosecuted for their conspiracy or other violation of valid laws. But it is a different matter when the State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge.'
If the exercise of the rights of free speech and free assembly cannot be made a crime, we do not think this can be accomplished by the device of requiring previous registration as a condition for exercising them and making such a condition the foundation for restraining in advance their exercise and for imposing a penalty for violating such a restraining order. So long as no more is involved than exercise of the rights of free speech and free assembly, it is immune to such a restriction. If one who solicits support for the cause of labor may be required to register as a condition to the exercise of his right to make a public speech, so may he who seeks to rally support for any social, business, religious or political cause. We think a requirement that one must register before he undertakes to make a public speech to enlist support for a lawful movement is quite incompatible with the requirements of the First Amendment.
Once the speaker goes further, however, and engages in conduct which amounts to more than the right of free discussion comprehends, as when he undertakes the collection of funds or securing subscriptions, he enters a realm where a reasonable registration or identification requirement may be imposed. In that context such solicitation would be quite different from the solicitation involved here. It would be free speech plus conduct akin to the activities which were present, and which it was said the State might regulate, in Schneider v. State, supra, and Cantwell v. Connecticut, supra. That however must be [323 U.S. 516, 541] done, and the restriction applied, in such a manner as not to intrude upon the rights of free speech and free assembly. In this case the separation was not maintained. If what Thomas did, in soliciting Pat O'Sullivan, was subject to such a restriction, as to which we express no opinion, that act was intertwined with the speech and the general invitation in the penalty which was imposed for violating the restraining order. Since the penalty must be taken to have rested as much on the speech and the general invitation as on the specific one, and the former clearly were immune, the judgment cannot stand.
As we think the requirement of registration, in the present circumstances, was in itself an invalid restriction, we have no occasion to consider whether the restraint as imposed goes beyond merely requiring previous identification or registration. 24 Nor do we undertake to determine [323 U.S. 516, 542] the validity of Section 5 in any other application than that made upon the facts of this case. Neither do we ground our decision upon other contentions advanced in the briefs and argument. Upon the reargument attention was given particularly to the questions whether and to what extent the prohibitions of Section 5, or their application in this case, are consistent with the provisions of the National Labor Relations Act. Both the parties and the Government, which has appeared as amicus curiae, have advanced contentions on this issue independent of those put forward upon the question of constitutionality. Since a majority of the Court do not agree that Section 5 or its present application conflicts with the National Labor Relations Act, our decision rests exclusively upon the grounds we have stated for finding that the statute as applied contravenes the Constitution. [323 U.S. 516, 543] The restraint is not small when it is considered what was restrained. The right is a national right, federally guaranteed. There is some modicum of freedom of thought, speech and assembly which all citizens of the Republic may exercise throughout its length and breadth, which no State, nor all together, nor the Nation itself, can prohibit, restrain or impede. If the restraint were smaller than it is, it is from petty tyrannies that large ones take root and grow. This fact can be no more plain than when they are imposed on the most basic rights of all. Seedlings planted in that soil grow great and, growing, break down the foundations of liberty.
In view of the disposition we make of the cause, it is unnecessary to rule upon the motion appellee has filed to require appellant to furnish security for his appearance to serve the sentence.
The judgment is
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