TRAVI CARE CORPORATION v. HOSPITAL AND INSTITUTIONAL WORKERS UNION LOCAL 250 AFL CIO

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Court of Appeal, First District, Division 3, California.

TRAVI–CARE CORPORATION, Plaintiff and Respondent, v. HOSPITAL AND INSTITUTIONAL WORKERS' UNION, LOCAL 250, AFL–CIO, et al., Defendants and Appellants.

A023427.

Decided: February 13, 1985

Van Bourg, Allen, Weinberg & Roger by Stewart Weinberg, San Francisco, for defendants and appellants. Jerrold C. Schaefer, Mary Lu Christie, Corbett, Kane, Berk & Barton, P.C., San Francisco, for plaintiff and respondent.

Appellants Hospital and Institutional Workers' Union, Local 250, AFL–CIO, Timothy Twomey, John Ring, Willie Price, and Heristeen Andrews are engaged in a strike against respondent Travi-Care Corporation, doing business as Suisun Valley Manor Convalescent Hospital.   On June 17, 1983, respondent obtained a preliminary injunction restraining picketing by appellants.

The preliminary injunction, in part, prohibits appellants “[f]rom engaging in threats or intimidation or using threatening, insulting, offensive, rude, coercive, or obscene language against any of [respondent's] officers, agents, employees, suppliers, patients, patients' visitors, invitees, or others wishing to do business with or to perform work for [respondent];  ․”  Appellants now appeal from that order, asking that it be reversed with directions to delete the words “insulting,” “offensive,” “rude,” and “obscene” from the order.   Appellant contends that the language is overbroad and unconstitutionally prohibits the exercise of protected First Amendment rights.

 The freedom of speech guaranteed by the Constitution protects at least the right to discuss publicly all matters of public concern without prior restraint or fear of subsequent punishment.  (Thornhill v. Alabama (1940) 310 U.S. 88, 101–102, 60 S.Ct. 736, 743–744, 84 L.Ed. 1093)  Peaceful picketing, that which transmits information to the public peacefully, through appropriate means, so that the public may know the picketers' grievance and elect to support it or reject it, is protected under that freedom of speech.   (Carlson v. California (1940) 310 U.S. 106, 113, 60 S.Ct. 746, 749, 84 L.Ed. 1104;  M Restaurants, Inc. v. San Francisco Local Joint Exec. Bd. Culinary etc. Union (1981) 124 Cal.App.3d 666, 683, 177 Cal.Rptr. 690.)   Also, an order affecting peaceful picketing activity “must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order.”  (Carroll v. Princess Anne (1968) 393 U.S. 175, 183, 89 S.Ct. 347, 352, 21 L.Ed.2d 325;  United Farm Workers of America v. Superior Court (1976) 16 Cal.3d 499, 504, 128 Cal.Rptr. 209, 546 P.2d 713.)

 However, the First Amendment was not intended to protect every utterance.  (Roth v. United States (1957) 354 U.S. 476, 483–484, 77 S.Ct. 1304, 1308–1309, 1 L.Ed.2d 1498)  It is well established that less constitutional protection is given to picketing activity than to the printed word because picketing has a dual nature and a certain coercive aspect, involving not only the dissemination of ideas, but also the patrol of a particular location.  (United Farm Workers Organizing Committee v. Superior Court (1971) 4 Cal.3d 556, 567–568, 94 Cal.Rptr. 263, 483 P.2d 1215, citing Hughes v. Superior Court (1949) 339 U.S. 460, 465, 70 S.Ct. 718, 721, 94 L.Ed. 985.)  “Labor has no sanctuary in any federal right when it departs from the bounds of peaceful persuasion and resorts to acts of violence, physical intimidation, or false statement.   Under such circumstances, picketing loses its character as an appeal to reason and becomes a weapon of illegal coercion.”  (Steiner v. Long Beach Local No. 128 (1942) 19 Cal.2d 676, 682, 123 P.2d 20.)

 In the instant case, the challenged provision of the preliminary injunction was apparently directed at certain conduct by appellants which attempted to intimidate workers and visitors into staying away from respondent's hospital.   The record contains declarations complaining of repeated verbal abuse, including shouts of “bitch,” “cocksucker,” “cunt,” “motherfucker,” “nigger,” and “whore.”   One employee attested to her humiliation and embarrassment at picketers yelling obscene accusations at her, including allusions to sexual acts between the employee and her daughter, her supervisor, and the security guards.   Similar obscene accusations were made to other female employees, and numerous racial slurs were made to black employees.

Such conduct is readily distinguishable from the political statement, “Fuck the Draft,” which was held to be constitutionally protected in Cohen v. California (1971) 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284.   In Cohen, the court distinguished between political statements which are protected whether they are couched in vulgar terms or not, and unprotected obscene expressions, those which deal with sex in a manner appealing to prurient interests.  (Id., at p. 20, 91 S.Ct. at 1785.)   Here, the language complained of had no political content.   It was deliberately obscene, offensive, and personally abusive, intending to provoke or intimidate the visitors and nonstriking employees.

It was this conduct which the respondents sought to have enjoined.   The language of the injunction was narrowly directed toward that permissible objective.   No provision of the injunction limited the right of the pickets to discuss strike issues.   These restrictions were not so severe that appellants were unable to communicate grievances to the public.  (See M Restaurants, Inc. v. San Francisco Local Joint Exec. Bd. Culinary etc. Union, supra, 124 Cal.App.3d at pp. 684–686, 177 Cal.Rptr. 690.)

Appellant contends that the injunction is not sufficiently precise as to give sufficient notice of what kind of speech is prohibited.   We disagree.

In Roth v. United States, supra, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, an obscenity statute was challenged on the grounds that the words were not sufficiently precise because they do not mean the same thing to all people, all the time, everywhere.  (Id., at p. 491, 77 S.Ct. at 1312.)   The court rejected that challenge, stating that all that is required is that the law provide adequate notice of what is prohibited “ ‘․ when measured by common understanding and practices․'  [Citation.]”  (Id., at pp. 491–492, 77 S.Ct. at pp. 1312–1313.)   Also, in Cohen v. California, supra, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284, the court held a statute forbidding “offensive conduct” to be unconstitutional because of the “absence of any language in the statute that would have put appellant on notice that certain kinds of otherwise permissible speech or conduct would nevertheless, under California law, not be tolerated in certain places.”  (Id., at p. 19, 91 S.Ct. at p. 1785.)

But in this instance, the injunction prohibits offensive, obscene, rude, or insulting language (which would be measured by common understanding and practices) in conjunction with a specific picketing situation, in a specific location, and only as used against certain persons.   This language satisfies the notice requirement enunciated in Roth and Cohen.

The judgment is affirmed.

SCOTT, Associate Justice.

White, P.J., and Anderson, J.* concur.

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