Majority Opinions Authored by Justice Robert Jackson

The petitioners are a labor union and certain of its officers. The union membership consists of truck drivers occupied in the distribution of baked goods. The respondents Wohl and Platzman are, and for some years have *770 been, peddlers of baked goods. They buy from bakeries and sell and deliver to small retailers, and keep the difference between cost and selling price, which in the case of Wohl is approximately thirty-two dollars a week, and in the case of Platzman, about thirty-five dollars a week. Out of this each must absorb credit losses and maintain a delivery truck which he owns — but has registered in the name of his wife. Both are men of family. Neither has any employee or assistant. Both work seven days a week, Wohl putting in something over thirty-three hours a week, and Platzman about sixty-five hours a week. It was found that neither has any contract with the bakeries from whom he buys, and it does not appear that either had a contract with any customer.

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In December 1945, 112 of the 117 employees of an oil company, including petitioners, went out on strike. About five o'clock one afternoon, petitioners, with several other strikers, assembled near the plant's entrance. Although a picket line was nearby, these men were not a part of it, and there is no suggestion that their acts were attributable either to the regular pickets or to the union representing them. As the five working employees left the plant for the day, the petitioner Jones called out to one named Williams to "wait a minute, he wanted to talk to him." When Williams replied that "he didn't have time, he was on his way home and he would see him another day," petitioner Jones gave a signal and said, "Come on, boys." Petitioner Cole, who was carrying a stick, told one of the other departing employees "to go ahead on, that they wasn't after me." Another striker named Campbell then attacked Williams and was killed in the ensuing struggle. It was further testified that these petitioners and others had that morning discussed talking to the men who were working "and they agreed that if they didn't talk right, they were going to whip them." While some of this was contradicted, such is the version which the jury could have found from the evidence.

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The ultimate question in these three cases is whether the United States constitutionally may deport a legally resident alien because of membership in the Communist Party which terminated before enactment of the Alien Registration Act, 1940.[1]Harisiades, a Greek national, accompanied his father to the United States in 1916, when thirteen years of age, and has resided here since. He has taken a wife and sired two children, all citizens. He joined the Communist Party in 1925, when it was known as the Workers Party, and served as an organizer, Branch Executive Committeeman, *582 secretary of its Greek Bureau, and editor of its paper "Empros." The party discontinued his membership, along with that of other aliens, in 1939, but he has continued association with members. He was familiar with the principles and philosophy of the Communist Party and says he still believes in them. He disclaims personal belief in use of force and violence and asserts that the party favored their use only in defense. A warrant for his deportation because of his membership was issued in 1930 but was not served until 1946. The delay was due to inability to locate him because of his use of a number of aliases. After hearings, he was ordered deported on the grounds that after entry he had been a member of an organization which advocates overthrow of the Government by force and violence and distributes printed matter so advocating. He sought release by habeas corpus, which was denied by the District Court.[2] The Court of Appeals for the Second Circuit affirmed.[3]Mascitti, a citizen of Italy, came to this country in 1920, at the age of sixteen. He married a resident alien and has one American-born child. He was a member of the Young Workers Party, the Workers Party and the Communist Party between 1923 and 1929. His testimony was that he knew the party advocated a proletarian dictatorship, to be established by force and violence if the capitalist class resisted. He heard some speakers advocate violence, in which he says he did not personally believe, and he was not clear as to the party policy. He resigned in 1929, apparently because he lost sympathy with or interest in the party. A warrant for his deportation issued and was served in 1946. After the usual administrative hearings he was ordered deported on the same grounds as Harisiades. He sought relief by declaratory *583 judgment, which was denied without opinion by a three-judge District Court for the District of Columbia. His case comes to this Court by direct appeal.

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The National Labor Relations Board entertained a complaint by the Textile Workers Union of America against respondent, Highland Park Manufacturing Company, and ordered respondent to bargain with that Union. At all times relevant to the proceedings, the Textile Workers Union was affiliated with the Congress of Industrial Organizations and, while the Textile Workers Union officers had filed the non-Communist affidavits pursuant to statute, the officers of the C. I. O. at that time had not. The statute provides that "No investigation shall be made by the Board . . ., no petition under subsection (e) (1) of this section shall be entertained, and no complaint shall be issued pursuant to a charge made by a labor organization under subsection (b) of section 160 of this title, unless there is on file with the Board an affidavit executed . . . by each officer of such labor organization and the officers of any national or international labor organization of which it is an affiliate or constituent unit that he is not a member of the Communist Party [etc.]." § 9 (h) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 61 Stat. 146, 29 U. S. C. (Supp. III) § 159 (h). (Italics added.) The order was challenged upon the grounds, among others, that the failure of the C. I. O. officers to file non-Communist *324 affidavits disabled its affiliate, the Textile Workers Union, and the Board could not entertain their complaint and enter the order.

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The West Virginia State Board of Education adopted a resolution ordering that saluting the flag become “a regular part of the program of activities in the public schools,” and that all teachers and pupils “shall be required to participate in the salute honoring the Nation represented by the Flag.” It also provided that “refusal to salute the Flag be regarded as an act of insubordination, and shall be dealt with accordingly.” Failure to conform was “insubordination,” dealt with by expulsion, and readmission was denied by statute until compliance. Meanwhile, the expelled child was “unlawfully absent,” and could be proceeded against as a delinquent. Parents or guardians were liable to prosecution, and, if convicted, were subject to fine not exceeding $50 and jail term not exceeding thirty days. The appellees, who identified as Jehovah’s Witnesses, brought suit in the United States District Court for an injunction to restrain enforcement of these laws and regulations. Jehovah’s Witnesses consider that the flag is a “graven image” within the meaning of the Biblical Second Commandment, and for that reason, they refuse to salute it.

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