Opinion of the Court.

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Such a

stance of the causes of his detention,' judicial inquiry involves the reception of testimony, as the language of the statute shows.

The Government properly concedes that if the petition, the return, and the traverse raise substantial issues of fact it is the petitioner's right to have those issues heard and determined in the manner the statute prescribes.

Third. Did the pleadings present any material issue of fact? The Government says they did not. It urges that, construed most favorably to petitioner, the allegations of the petition and the traverse do not show that he was in apparent or actual need of counsel's aid; and do disclose that he voluntarily waived the right to counsel.

Without repeating the allegations of the petition and traverse, which have been summarized above, we think it clear that, taken together, they overcome the presumption of regularity which the record of the trial imports and that, if the facts alleged were established by testimony to the satisfaction of the judge, they would support a conclusion that the petitioner desired the aid of counsel, and so informed the District Attorney, was ignorant of his right to such aid, was not interrogated as to his desire or informed of his right, and did not knowingly waive that right, and that, by the conduct of the District Attorney, he was deceived and coerced into pleading guilty when his real desire was to plead not guilty or at least to be advised by counsel as to his course. If he did not voluntarily waive his right to counsel, or if he was deceived or coerced by the prosecutor into entering a guilty plea," he was deprived of a constitutional right. On a hearing he would have the burden of sustaining his allegations by a preponderance of evidence. It is true that they are denied in the affidavits filed with the return

13 Johnson v. Zerbst, 304 U. S. 458. "Mooney v. Holohan, 294 U. S. 103.

13

to the rule, but the denials only serve to make the issues which must be resolved by evidence taken in the usual way. They can have no other office. The witnesses who made them must be subjected to examination ore tenus or by deposition as are all other witnesses. Not by the pleadings and the affidavits, but by the whole of the testimony, must it be determined whether the petitioner has carried his burden of proof and shown his right to a discharge. The Government's contention that his allegations are improbable and unbelievable cannot serve to deny him an opportunity to support them by evidence. On this record it is his right to be heard.

The judgment is reversed and the cause remanded to the District Court for further proceedings in conformity with this opinion.

Reversed.

MILK WAGON DRIVERS UNION OF CHICAGO, LOCAL 753, ET AL. v. MEADOWMOOR DAIRIES, INC.

CERTIORARI TO THE SUPREME COURT OF ILLINOIS.

No. 1. Argued December 13, 16, 1940.-Decided February 10, 1941. 1. A State is at liberty under the Fourteenth Amendment to use injunctive powers vested in its courts for the prevention of violence by labor unions in industrial disputes. P. 292.

2. And where the controversy is attended by peaceful picketing and by acts of violence, and the violence has been such that continuation of the picketing will operate coercively by exciting fear that violence will be resumed, an injunction by a state court forbidding the picketing as well as the violence does not infringe the Fourteenth Amendment. P. 294.

3. The master in the state court found "intimidation of the customers. . . by the commission of the acts of violence," and the supreme court of the State justified its injunction against picketing because picketing, "in connection with or following a series

Argument for Petitioners.

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of assaults or destruction of property, could not help but have the effect of intimidating the persons in front of whose premises such picketing occurred and of causing them to believe that noncompliance would possibly be followed by acts of an unlawful character." Held that it is not for this Court to make an independent valuation of the testimony before the master or to substitute its judgment for that of the state court resolving conflicts in the testimony or its interpretation. P. 294. 4. In determining whether acts of violence accompanying an industrial controversy were attributable to a labor union rather than to irresponsible outsiders, a state court is not confined to the technicalities of the laws of agency. P. 295.

5. The present decision does not bar resort to the state court for a modification of the terms of the injunction should that court find that the passage of time has deprived the picketing of its coercive influence. P. 298.

6. Thornhill v. Alabama, 310 U. S. 88, and Carlson v. California, 310 U. S. 106, distinguished. P. 297.

371 Ill. 377; 21 N. E. 2d 308, affirmed.

CERTIORARI, 310 U. S. 655, to review a decree directing a permanent injunction against acts of violence and picketing by a labor union.

Mr. Abraham W. Brussell, with whom Messrs. Joseph A. Padway and David A. Riskind were on the brief, for petitioners. Mr. Myron D. Alexander entered an appearance.

The due process clause of the Fourteenth Amendment protects all persons against action by a state judiciary that tends to deprive them of their constitutional right to free speech. Brinkerhof Trust Co. v. Hall, 281 U. S. 673; Ex parte Virginia, 100 U. S. 339, 347; Gelpcke v. Dubuque, 1 Wall. 175, 207; Muhlker v. New York & Harlem Railroad Co., 197 U. S. 544, 570; Hovey v. Elliott, 167 U. S. 409, 419, 444; Murray v. Hoboken Land, 18 How. 272, 276; Powell v. Alabama, 287 U. S. 45.

Some state courts have squarely decided that an injunction to restrain peaceful picketing, i. e., carrying of

287

Argument for Petitioners.

banners in an industrial controversy, violates the constitutional guaranties. Vulcan Detinning Co. v. St. Clair, 315 Ill. 40, 46-47; Illinois Malleable Iron Co. v. Michalek, 279 Ill. 221; Schuster v. International Assn. of Machinists, 293 Ill. App. 177, 193; Lietzman v. Broadcasting Station WCFL, 282 Ill. App. 203, 214, 218; cf. Beaton v. Tarrant, 102 Ill. App. 124, 129. See, also, Beckner, Labor Legislation in Illinois, p. 51 (1929); Ex parte Lyons, 27 Cal. App. 70.

Other cases holding that the constitutional guaranties of freedom of speech preclude a state court from enjoining "publication" or "utterances" by picketing in connection with an industrial controversy involving a strike or a boycott, are: Marx & H. Clothing Co. v. Watson, 168 Mo. 113; Ex parte Tucker, 110 Tex. 335; Truax v. Bisbee Local, 19 Ariz. 379; Re Heffron, 79 Mo. App. 639; Lindsay & Co. v. Montana Fed. Labor, 37 Mont. 264; Richter Bros. v. Journeymen Tailors' Union, 24 Ohio L. J. 189; Riggs v. Cincinnati Waiters' Alliance, 5 Ohio N. P. 386; 8 Ohio S. & C. P. § 565.

State courts have held ordinances or statutes prohibiting peaceful picketing, in terms like the prohibitions of the injunction in the case at bar, invalid as violative of free speech. People v. Harris, 104 Colo. 386; Reno v. Second Judicial Dist., 95 P. 2d 998; Denver Truck Lines v. Perry, 101 P. 2d 436, 444. Cf., Julie Baking Co. v. Graymard, 152 Misc. 946; 247 N. Y. S. 250, 251-252; Rossmar v. United Kosher Butchers, 163 Misc. 331; 298 N. Y. S. 343-344; Bernstein v. Retail Cleaners, 31 Ohio N. P. 433, 436; Individual Store Owners v. Pennsylvania Treaty Stores, 33 Pa. D. & C. 100, 101.

The decisions of this Court interpreting and applying the constitutional guaranties of free speech preclude a state court from enjoining labor union members and workmen from carrying on the public streets banners

301335°-41-19

Counsel for Respondent.

312 U.S.

or placards conveying to the public information concerning an industrial controversy in which they have a substantial economic interest. American Steel Foundries v. Tri-City Council, 257 U. S. 184; Senn v. Tile Layers Union, 301 U. S. 468; Lovell v. Griffin, 303 U. S. 444; Hague v. C. I. O., 307 U. S. 496; Schneider v. State, 307 U. S. 147; Thornhill v. Alabama, 310 U. S. 88; Carlson v. California, 310 U. S. 106.

See Grosjean v. American Press Co., 297 U. S. 233; Near v. Minnesota, 283 U. S. 697, 716.

The state court's attempted justification of the abridgment of the right of union members to speak freely and disseminate information concerning the controversy between the plaintiff and the union is inconsistent with the Thornhill case. Cf., Schenck v. United States, 249 U. S. 47; United States v. Carolene Products, 304 U. S. 144, 152; Schneider v. State, 308 U. S. 147, 161.

The constitutional right to free speech may not be abridged by the state court on the ground that the carrying of the banner has been preceded by acts of violence. American Steel Foundries v. Tri-City Council, 257 U. S. 184; Iron Molders Union v. Allis Chalmers Co., 166 F. 45; Fenske Brothers v. Upholsterers Union, 358 Ill. 239; People v. Young, 188 Ill. App. 208, 212, 213; Henrici Co. v. Alexander, 198 Ill. App. 568; Wise Shoe Co. v. Lowenthal, 266 N. Y. 264; Warner v. Lilly Co., 265 U. S. 526, 532; Borderland Coal Co. v. Gasway, 278 F. 56; Baillis v. Fuchs, 283 N. Y. 133; May's Furs v. Bauer, 282 N. Y. 331.

Petitioners' constitutional right to free speech can not be lost through "unlawful acts of violence" by irresponsible and unauthorized third persons. Johnson v. Zerbst, 304 U. S. 458, 464.

Messrs. Donald N. Schaffer and Roy Massena for respondent.