GOMPERS v. BUCK's STOVE & RANGE COMPANY 221 U.S. 418 (1911)

In a decision that presaged the clayton act, a unanimous Supreme Court held that an advertisement encouraging a secondary boycott was unlawful and not protected by the freedom of speech or of the press. To support a local affiliate, the American Federation of Labor had run a notice in its magazine, the American Federationist, which transformed a local dispute into a national boycott by including the firm in a "We Don't Patronize" list. Prompted by a local strike, the company obtained an injunction prohibiting the AFL, its officers, and the local from obstructing sales or furthering any boycott, including use of the firm's name on the "We Don't Patronize" list. When Samuel Gompers and other union leaders ignored the injunction, they were jailed for contempt. Their appeal to the Court maintained that they could lawfully ignore the injunction because it abridged their rights of free speech and press.

Speaking for the Court, Justice joseph r. lamar dismissed the free speech claim. Publication might provide a means of continuing an illegal boycott because the printing of words in an unlawful conspiracy might foster actions, thereby "exceeding any possible right of speech which a single individual might have." The resultant "verbal acts" would necessarily be subject to injunction. In this case, the publicity destroyed business and illegally restrained commerce. Here Lamar introduced the analogy of a sherman antitrust act violation, an analogy that has misled many authorities to believe that the case found such a violation—which it did not, for the company had not sought such relief. Declaring that the decision in loewe v. lawlor (1908) extended to any unlawful method of restraint, Lamar asserted that a failure to "hold that the restraint of trade under the Sherman anti-trust act, or on general principles of law, could be enjoined … would be to render the law impotent." This was no more than an analogy. Because the boycott constituted an illegal conspiracy, the Court had the power and the duty to sustain the injunction.

With the effectiveness of the boycott reduced by this decision, labor turned to politics to influence elections and legislation. In a well-intentioned, if ambiguous, attempt to eliminate the confusion over labor's rights and obligations under the Sherman Act, Congress passed the Clayton Act in 1914. Section 20 of this act, ostensibly addressed to the Gompers issue, prohibited the issuance of injunctions restraining unions from maintaining secondary boycotts or "from recommending, advising, or persuading others by peaceful and lawful means so to do." Although the Court would virtually divest this section of meaning in duplex printing press company v. deering (1921), Congress had the last word, passing the norris-laguardia act in 1932.

David Gordon
(1986)

Bibliography

Berman, Edward (1930) 1969 Labor and the Sherman Act. New York: Russell & Russell.