U.S. Supreme Court ASSOCIATED PRESS v. N.L.R.B., 301 U.S. 103 (1937)

[Page 301 U.S. 103, 124]

and of hearing thereon by the Board was given the petitioner but it failed to appear. Based upon the examiner's report the Board made findings of fact, stated its conclusions of law, and entered an order that the Associated Press cease and desist from discouraging membership in the American Newspaper Guild or any other labor organization of its employees, by discharging, threatening to discharge, or refusing to reinstate any of them for joining the Guild or any other labor organization of its employees, and from discriminating against any employee in respect of hire of tenure of employment or any term or condition of employment for joining the Guild or any other such organization, and from interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in section 7 of the act. It further enjoined the Associated Press to offer Watson reinstatement to his former position without prejudice to any rights and privileges previously enjoyed by him; to make him whole for any loss of pay suffered by reason of his discharge; to post notices in its New York office stating it would cease and desist from the enjoined practices, and to keep such notices posted for thirty days. [Footnote 2]

The petitioner refused to comply with the order, and the Board, pursuant to section 10(e) of the act (29 U.S.C.A. 160(e), petitioned the Circuit Court of Appeals for enforcement. The petitioner answered again setting up its contentions with respect to the constitutionality of the act as applied to it. After argument, the court made a decree enforcing the order. [Footnote 3]

[Page 301 U.S. 103, 128]

interstate commerce activities; and that labor disputes between petitioner and employees of his class and labor disturbances or strikes affecting that class of employees tend to hinder and impede interstate commerce. These conclusions are challenged by the petitioner.

Section 2(6) of the act defines the term 'commerce' as meaning 'trade, traffic, commerce, transportation, or communication among the several States, ... or between any foreign country and any State. ...' Subsection (7) provides: 'The term 'affecting commerce' means in commerce, or burdening or obstructing commerce or the free flow of commerce.' (29 U. S.C.A. 152(6, 7.)

The Associated Press is engaged in interstate commerce within the definition of the statute and the meaning of article 1, section 8, of the Constitution. It is an instrumentality set up by constituent members who are engaged in a commercial business for profit, and as such instrumentality acts as an exchange or clearing house of news as between the respective members and as a supplier to members of news gathered through its own domestic and foreign activities. These operations involve the constant use of channels of interstate and foreign communication. They amount to commercial intercourse and such intercourse is commerce within the meaning of the Constitution. [Footnote 4] Interstate communication of a business nature, whatever the means of such communication, is interstate commerce regulable by Congress under the Constitution. [Footnote 5] This conclusion is unaffected by the fact that the petitioner

[Page 301 U.S. 103, 129]

does not sell news and does not operate for profit,6 or that technically the title to the news remains in the petitioner during interstate transmission. [Footnote 7] Petitioner being so engaged in interstate commerce the Congress may adopt appropriate regulations of its activities for the protection and advancement and for the insurance of the safety of such commerce.

[Page 301 U.S. 103, 133]

lege to invade the rights and liberties of others. He must answer for libel. [Footnote 8] He may be punished for contempt of court. [Footnote 9] He is subject to the anti-trust laws. [Footnote 10] Like others he must pay equitable and nondiscriminatory taxes on his business. [Footnote 11] The regulation here in question has no relation whatever to the impartial distribution of news. The order of the Board in nowise circumscribes the full freedom and liberty of the petitioner to publish the news as it desires it published or to enforce policies of its own choosing with respect to the editing and rewriting of news for publication, and the petitioner is free at any time to discharge Watson or any editorial employee who fails to comply with the policies it may adopt.

[Page 301 U.S. 103, 141]

quiring the reinstatement of an editorial writer who had been discharged under these circumstances would abridge the freedom of the press guaranteed by the First Amendment?

And if that view of the amendment may be affirmed in the case of a publication issued for the purpose of advancing a particular cause, how can it be denied in the case of a press association organized to gather and edit the news fairly and without bias or distortion for the use of all causes? To hold that the press association must await a concrete instance of misinterpretation of the news before it can act is to compel it to emperiment with a doubt when it regards certainty as essential.

The concclusion that the First Amendment is here infringed does not challenge the right of employees to organize, to bargain collectively with their employers about wages and other matters respecting employment, or to refuse to work except upon conditions they are willing to accept. Nor, the First Amendment aside, does it challenge the act in so far as it is an allowable regulation of interstate commerce. All affirmations in respect of these matters may be fully conceded without prejudice to our very definite view that the application of the act here has resulted in an unconstitutional abridgment of the freedom of the press.

Do the people of this land-in the providence of God, favored, as they sometimes boast, above all others in the plenitude of their liberties- desire to preserve those so carefully protected by the First Amendment: liberty of religious worship, freedom of speech and of the press, and the right as freemen peaceably to assemble and petition their government for a redress of grievances? If so, let them withstand all beginnings of encroachment. For the saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time. Footnotes

Footnote 1 July 5, 1935, c. 372, 49 Stat. 449, U.S.C.Supp. I, tit. 29, 151 et seq. (29 U.S.C.A. 151 et seq.). The terms of the act, the procedure thereunder, and the relief which may be granted pursuant thereto are set forth in the opinion in National Labor Relations Board v. Jones & Laughlin Steel Corporation, , 57 S.Ct. 615, 81 L.Ed. --.

Footnote 2 1 N.L.R.B. 788.

Footnote 3 85 F.(2d) 56.

Footnote 4 Gibbons v. Ogden, 9 Wheat. 1, 189.

Footnote 5 Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U.S. 1, 9, 10 S.; Federal Radio Commission v. Nelson Bros. Bond & Mtg. Co., 289 U.S. 266, 279, 53 S.Ct. 627, 633; International Textbook Co. v. Pigg, 217 U.S. 91, 107, 30 S.Ct. 481, 27 L.R. A.(N.S.) 493, 18 Ann.Cas. 1103; Indiana Farmer's Guide Publishing Co. v. Prairie Farmer Publishing Co., 293 U.S. 268, 276, 55 S.Ct. 182, 184.

Footnote 6 United States v. Hill, , 39 S.Ct. 143; United States v. Simpson, 252 U.S. 465, 40 S.Ct. 364, 10 A.L. R. 510.

Footnote 7 The Pipe Line Cases, 234 U.S. 548, 560, 34 S.Ct. 956.

Footnote 8 Robertson v. Baldwin, 165 U.S. 275, 281, 17 S.Ct. 326.

Footnote 9 Toledo Newspaper Co. v. United States, , 38 S.Ct. 560.

Footnote 10 Indiana Farmer's Guide Publishing Co. v. Prairie Farmer Publishing Co., supra.

Footnote 11 Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449.