Boyle v. Landry – Oral Reargument – April 29, 1970

Media for Boyle v. Landry

Audio Transcription for Oral Argument – March 24, 1969 in Boyle v. Landry
Audio Transcription for Oral Reargument – November 16, 1970 in Boyle v. Landry

Audio Transcription for Oral Reargument – April 29, 1970 in Boyle v. Landry

Warren E. Burger:

We’ll hear the arguments in number 6, Boyle against Landry.

Mr. Bilton, you may proceed whenever you’re ready.

Dean H. Bilton:

Mr. Chief Justice and may it please the Court.

This is an appeal from the entry of interlocutory injunction by a three-judge court after that three-judge court found one subsection of the Illinois intimidation statute unconstitutional on its face.

That court said that the statue was over broad.

The statute is part of the Illinois Criminal Code, Chapter 38, Section 12-6 (a) (3) and it’s a rather short statute and may I just read it to you.

It says that a person commits intimidation when with the intent to cause another to perform or to omit the performance of any act, he communicates to another a threat to perform without lawful authority any of the following acts, and the part that we are involved with today is a threat to commit any criminal offense.

I was quite shocked this morning when I opened up the Washington Post and found out that this was supposed to be a case that dealt with violence and some kind of mob action and for a year and so in the Law Week they ascribe this is some kind of a statute that prohibits threats.

This statute does not prohibit threats, it is not a public order statute.

This statute is a crime against a person and it’s so codified in Illinois.

This is an extortion statute, an extortion is a robbery.

The only difference between extortion and robbery — robbery is, “give me your money or I’ll do something to you right now” and extortion is, “give me your money or I’ll do something to you in a short while or a little bit later.”

And I see that this morning we are joined here with the Younger case which is the Criminal Syndicalism case and the Samuels’ case and Fernando’s, all of them involving anarchy and public order.

The gun case coming up tomorrow is disorderly conduct case, Dyson and Karalexis are obscenity cases.

This case is quite, quite different.

This is a crime against a person and the object of protection here is the person and his right to keep his money in his pocket and we think that threats to take that man’s money away or threats being used as weapons to remove that money are never considered free speech and for that reason of course, we feel that very initially this statute is just not unconstitutional, it’s being a violation of the First Amendment.

We may have misled this Court in reaching these conclusions about this being a statute that prohibits threats when we set out our question presented on page 4 of our brief.

Our question presented said that this statute is an extortion statute that deals with threats to commit crimes.

A more accurate statement would be that this was a statute that prohibits one from taking or attempting to take the property or to protect the rights of another through the use of threats to commit crimes.

And we think it’s in that light that this statute ought be viewed.

The very first issue in this case is one of standing.

The plaintiffs here were seven subclasses of black people in Chicago, all claiming to be black activists and all under certain pending state charges and the defendants here were all, who are the appellants in this case, all members of the official dome of the City of Chicago in the County of Cook who were charged with the prosecution of the appellees.

None of the appellees were charged with this intimidation statute at anytime and there are no pending state charges against the appellees.

The appellees in their complaint stated that all the statutes involved and there were five of them including violence, resisting arrest, aggravated assault, aggravated battery and intimidation were all being used by the defendants in furtherance of a bad-faith conspiracy to keep these appellees from exercising their First Amendment rights and they used the Dombrowski allegations of a chilling effect and bad-faith conspiracy and they say these words.

There was an answer filed denying the existence of this conspiracy and a three-judge court sat and heard the threshold question of the constitutionality of this statute on its face.

By the way, there never has been a trial and onto the merits of this complaint there has be no proof of any bad-faith conspiracy existing among these appellants, defendants below to do the acts of which they were accused in the complaint.

Would the three-judge court (Inaudible)

Dean H. Bilton:

The three-judge court issued a declaratory judgment and then it issued pursuant to that declaration that this subsection of the Intimidation Act was unconstitutional.

It then issued a blanket injunction stopping state attorney’s office of Cook County for prosecuting anybody under this particular intimidation subsection.

It didn’t —

(Inaudible)

Dean H. Bilton:

Right, there are never was any prosecution of any plaintiff here under the section at all.

Warren E. Burger:

It was a declaratory judgment in the broadest advisory sense, was it not?

Dean H. Bilton:

In a very pure broad abstract sense, that’s correct.

By the way the one subsection of the intimidation said statute that was said out in the complaint was a section that refers to intimidation by public officials.

It wouldn’t have applied to the plaintiff’s at all.

It was intimidations by a public official in withholding his own action or doing something that he shouldn’t have done.

So truly, when we went to our hearing before the three-judge court, no one under — really understood what was the problem with the intimidation statute?

It wasn’t until after the three-judge court opinion that we find out and discover that the court thought that this one subsection is over broad.

Now, looking at standing, the court said that the plaintiffs had standing because they were not charged with any of the offenses here and that therefore they came under the right of the Dombrowski case and the Zwickler case to give such people declaratory judgments when they claim that their First Amendment rights are being infringed upon.

We submit to this Court that both Dombrowski and Zwickler are quite distinguishable.

In both Dombrowski and Zwickler, the plaintiffs there had a history in Louisiana and in New York of having the statutes that they complained about being used against them.

Mr. Dombrowski held up his organization in Louisiana and he was arrested and he was charged with violating a Louisiana sedition statute and then a motion of quash stopped that prosecution against Mr. Dombrowski.

He then went into the federal district court and sought relief to stop future prosecutions under that over broad statute.

So, we had a history of facts that he could point to and said, “Look, are they going to do that to me again.”

And in fact, the State of Louisiana (Inaudible) Mr. Dombrowski by rating him shortly after he filed his complaint in the District Court and indicted him for the sedition statute.

And in Zwickler case, a New York man who was distributing handbills anonymously, he was arrested and he was found guilty under a New York statute that said, “You can’t distribute election campaign literature anonymously in quantity.”

His conviction was later overturned by the New York Supreme Court on the criminal elements but didn’t reach the constitutional points.

Zwickler, then went to the US District Court, filed his complaint for declaratory judgment and said, “I’m going to do the same thing in the next election and they’re going to apply the statute to me again in the next election.”

So, he too had some facts that he could point to justify his conclusions that the state was going to apply this over broad statute against him.

Now, in our case none of the 15 or so named plaintiffs nor the Organization Act or any of the plaintiffs that joined in later on or ever were charged with this intimidation statute.

They didn’t even set it out in their complaint.

So, we don’t believe that a person has the right to come in to the District Court and to say the magic words, to say that my First Amendment rights are being chilled and that gives him an automatic right to get a declaratory judgment of any statute that he still chooses and that’s what happened in this case.

So, for those reasons we do not believe that the plaintiffs here in the first place had standing to challenge the act that they did.

I will admit however that both Dombrowski and Zwickler do give the federal courts jurisdiction to sit in declaratory judgments when a person is not charged with a pending state case.

Now, looking at the statute itself or on its merits, we do not believe the statute is unconstitutional and our brief from pages 13 to page 20, we have a compilation of the First Amendment cases as best we could and we drew two conclusions and that is one, that First Amendment cases are treated on a case by case basis.

The rule of law seems to be that to balance the interest of the speaker against whatever state interest is involved.

Well, in this statute the interest of the speaker is that of a thief.

He is attempting to take something from another person by the use of threats and the protected interest involved is the states’ right to protect individuals in their person and in their safety and in their possessions.

We don’t think there’s any — there’s no contest here.

Dean H. Bilton:

On those — on that test alone, the statute should be considered a valid exercise of the states’ power and not over broad statute.

I believe that the three-judge court misunderstood the statute because it said that the statute was over broad because it prohibited threats of insubstantial evil.

Well, this is incorrect in two ways.

First of all, the statute doesn’t prohibit threats.

It prohibits extortion by threats, it prohibits robbery by threats, but it doesn’t prohibit threats in the abstract.

People can get up and speak about advocating crime.

They can get up and threaten all they want.

If there is no extortion element present, this statute doesn’t prohibit that kind of conduct.

Warren E. Burger:

Would kidnapping with a demand for ransom come under the statute?

Dean H. Bilton:

“Give me your money or I will commit a kidnapping,” yes.

Warren E. Burger:

Or “Give me your money because I have your child.”

Dean H. Bilton:

Well, give me your money because —

Warren E. Burger:

Because this overlap with the kidnapping statutes?

Dean H. Bilton:

It probably be — in that sense, it probably would overlap with kidnapping and certainly overlaps with robbery because it’s at the same kind of statute depending how close the intimidating factor is.

If I hold a gun in your head and say, “Give me your money or I’ll kill you in five minutes,” I might be committing extortion or I might be committing robbery, depending on whether or not the incidence of violence is immediate or delayed.

Extortion is that statute which picks up where robbery leaves off.

Yes, I believe that there is an overlapping here with other state statutes.

Secondly, that the court in that one statement about the statute prohibiting threats of insubstantial evil, this idea of insubstantial evil was a question that even victim has to answer.

What might be a very small weapon to a court might be a very major weapon to the victim.

So, when the court said that there are little crimes which might not be too scary to a person they did not — the court didn’t place itself in the shoes of that victim.

He might be just the kind of a person that would be intimidated by a small offense.

Now, the point that the court I believe did loss sight of the object of the protection of the statute and thought that this was a public order statute, I’d like to just point to the opinion that’s set out in page 94 of our appendix and may I just read these two sentences here or three sentences.

The court said, “Indeed, the phrase, commit any criminal offense is so broad as to include threats to commit misdemeanors punishable by fine only.

These evils are not so substantial that the state’s interest in prohibiting the threat of them outweighs the public interest in giving legitimate political discussion a wide birth.

Since the language of subparagraph a (3) is an over broad restriction and the freedom of speech is invalid, obviously however, if the threat is carried out, the persons who violate the criminal law by their acts are subject to punishment.”

Well, this notion that it is better to let man threaten and speak to preserve the First Amendment and then arrest him when he commits action is a good notion for statutes that protect public order, but if I say to you, “Give me your money or I will break your windows later on” and you give me your money, I never carry out the threat.

So, the action here, the threat here is a weapon and the weapon —

Warren E. Burger:

So, are you saying that the insubstantiality of the Criminal Act threaten is irrelevant?

Dean H. Bilton:

Of course, just as the caliber of the weapon used in a robbery is irrelevant.

I presume you could commit a robbery with a gun or a pea shooter.

Dean H. Bilton:

The pea shooter doesn’t seem to be very dangerous, but when held up next to someone’s eye might be just enough to make the man part with his wallet and you can commit a robbery by not pulling the trigger of the gun.

You can hold the gun and say, “Here I have a gun, give me your money.”

You pay the man your money and he does not shoot you.

So, this notion in First Amendment cases that we can wait until the threat or act doesn’t apply to cases involved in protection of the individual because —

And it has a little chilling effect on the victim?

Dean H. Bilton:

Oh!

Yes, it has a chilling effect on the victim, yes [Attempt to Laughter].

So, for that reason we believed that court was misconstruing this statute in such away so that that they believe it was a public order statute.

When I talked about legitimate political discussion to this day, I fail to see how intimidating a person to either take his vote by threatening crimes against him or intimidating a public official by taking away his freedom of speech by threatening crimes against him can be considered legitimate political discussion.

Telling a congressman, Mr. Congressman vote for my program or advocate my program or I will commit an act of violence or I will kill you.

This certainly is pretty powerful lobbying and I don’t believe that this ought to be protected free speech.

The court said in holding the statute unconstitutional that the statute was not vague, but it was over broad because it had little crimes included in the threats of the criminal conduct.

The definition of what is and what is not over broad was set out by this Court in the Zwickler case and this Court said that over breadth is that which is the constitutional principle that a governmental purpose to control or prevent activities causing subject to state regulation may not be achieved by means where a sweep unnecessarily broadly and thereby invade the area of protected freedoms.

There seems to be two factors in this concept of over breath; one is this wide sweep and one is the invasion of the area of protected freedoms.

Initially, we do not think that the thief has any protected freedom to try to take property from another by threatening crimes.

An as far as this wide sweep is concerns, we have said out in our brief a comparison of this statute with the federal extortion statutes and all the state extortion statutes.

Thurgood Marshall:

Mr. Bilton, suppose a man walks into a stores and says, “If you don’t hire Negroes, I will see to it that you get no more profits.”

Dean H. Bilton:

It does not violate this section.

Thurgood Marshall:

Why not?

Dean H. Bilton:

I’ll see to it that you get no more profits is not a crime (Voice Overlaps) —

Thurgood Marshall:

Well, if he walks in his dog and says, “Either you give me some money or I’m going to shoot you,” that takes his profit.

Dean H. Bilton:

But you didn’t include that last factor of committing a crime.

Your first example Mr. Justice Marshall, you said that if you do not hire more Negroes we will see to it that you receive no more profits.

They might boycott the store, people might not shop there, that isn’t a commission of a crime in Illinois.

Thurgood Marshall:

It’s positive.

They say that we will make sure that you don’t make a nickel.

Would that be covered by the statute?

Dean H. Bilton:

Well, if those — I believe you’re trying to drive that those words being threatening words to commit a physical violence on the man.

Subtly, are you going to be making that subtly, they are saying, “Either you hire Negroes or we will hurt you,” but they are saying that suddenly.

Thurgood Marshall:

He doesn’t say any, he says that “Either you hire Negroes or you will make any money.”

Dean H. Bilton:

It’s not covered by this section because this section only prohibits threats that commit crimes and since there is no threat there to commit a crime it would not be covered by this section.

Thurgood Marshall:

Well, I don’t know what the crime in Illinois (Inaudible)

Dean H. Bilton:

Well, I don’t think it’s a crime in Illinois to put another man out of business legally. [Attempt to Laughter]

Potter Stewart:

If the claim where — if the statement where if “you don’t hire a Negroes we’ll murder you?” that would clearly be under the statute —

Dean H. Bilton:

That’s correct.

Potter Stewart:

— threat to commit a crime.

If you don’t hire Negroes we’ll burglarize your store.

It would also come under.

Dean H. Bilton:

That’s correct.

Potter Stewart:

But if it’s simply if you don’t hire a Negro we’ll see to it that you don’t make a profit out of your store that would not come under this stage.

Dean H. Bilton:

It would not come on the stage.

Potter Stewart:

Because that would implicitly be a threat of no more than not to patronize the store.

I suppose in the reason when infringe could be drown, would that be right?

Dean H. Bilton:

That’s correct!

Absolutely correct!

The threat here must be a threat to commit a crime and that was a section that was held to be over broad.

Warren E. Burger:

Could a threat be brought within the statute by the innuendo, the implications or reasonable implications to be drown from the threat?

I recall for example, the cases back 20 some years ago in New York where the practice of the extortion in Brooklyn I think it was, was to go to storekeeper and say, You pay us $25.00 a week or you won’t be able to get play plus insurance anymore.?

Dean H. Bilton:

Yes, this —

Warren E. Burger:

And the innuendo there was indirect that you won’t be able to get the play plus insurance because there will be so much breakage that no one will ensure you, that was found to be something on which this conviction could be sustained.

Would it be sustained under the Illinois statute?

Dean H. Bilton:

Yes, it would.

The only problem there is a problem of the prosecutor proving up all the elements of this crime beyond unreasonable doubt.

So, he must convince that jury that the words used beyond a reasonable doubt carry that innuendo to have violence connected with this threat.

It’s true, it would cover direct threats and threats by innuendo.

We deal there though with problems of proof rather than the abstract cases that we have here.

Warren E. Burger:

But the statute would not be over broad in your view because it permits proof of the innuendo?

Dean H. Bilton:

No.

No, in that regard it — in a sense with every other extortion statute in this country you need not tell a man directly that you intend to do him violence if he gets the message by innuendo.

What we’re trying to protect is people from being relieved of their possessions if by force or by coercion.

Dean H. Bilton:

Now we have set forth a comparison in our brief of relevant federal statutes including the Hubs Act and other state statutes involving extortion and we believe that our statute in Illinois is far narrower than those acts which committed extortion under the Hubs Act.

I direct Your Honors’ attention to Nick versus the United States and US versus Campagna, both cited in our brief where a person committed extortion by threatening the movie industry to pull out the projection list unless he received an illegal payoff.

Well, here the act threatened were just to commit a tort or to commit an unfair labor of practice, an illegal strike.

In Illinois, of course we prohibit threats of crimes and to do a crime is do something which is far more narrower in scope than to commit torts.

Or they have said out the Communications Act in the federal government which prohibits extortion by telephoning a person and injuring the reputation, threatening to injure reputation of the person or another person either living or deceased which is certainly far broader in scope in the Illinois statute here.

Of course if you prevail on your Dombrowski point without (Inaudible)

Dean H. Bilton:

Well, if I prevail on my Dombrowski point that’s true.

We’re left then in the Illinois with unconstitutional declaration of a statute with the case reversed on other grounds.

Our statute as it sits right now, it has been declared by a three-judge court to be unconstitutional.

In all honesty, Mr. Zwickler was not under a pending state charge when he went into the court and neither was Mr. Dombrowski and for that reason the District Court in Illinois knowing full well that these people were not charged with the statute but seeing their complaint where they said that they were threatened by the application of the statute by a bad faith conspiracy said that they’re still in the same position that Mr. Zwickler did.

Potter Stewart:

Well, the issuance of an injunction is what gives this Court appellate jurisdiction under Section 1253.

Dean H. Bilton:

That’s correct.

Potter Stewart:

And now, having jurisdiction of the case it would be nothing in the way of the Court holding and it was improper for the District Court not only to grant the injunction but also to issue a declaratory judgment under these circumstances and that’s not here, the whole case is here.

Dean H. Bilton:

I agree, yes.

And do you think the District Court’s opinion on the declaratory feature might chill the state courts?

Dean H. Bilton:

Well, the opinion on the declaratory feature of course for all practical purposes takes away this particular statute from using Illinois.

It is however amiable statute, we have several other sections and we’re not completely devoid of an extortion law in Illinois.

But this is a very important section though because it is the one that allows us to cope with new and inventive crooks.

The other subsections are ones that are the traditional extortion elements, the blackmail elements, the threats in the reputations.

This section is the one that allows us not to sit back and let a person commit extortion that isn’t covered by the other section and if he commits, if he threatens a crime then we move in.

Warren E. Burger:

Let me go back to your responds to Mr. Justice Stewart’s question if by whatever process it is determined that the injunction that there was no jurisdiction issue an injunction here in the three-judge court then, there is nothing here on the declaratory judgment because that would not be here, would it?

Dean H. Bilton:

Well, if this Court did rule that the appellants — appellees had no standing to bring their complaint to the District Court —

Warren E. Burger:

But they know you can’t get a three-judge court for declaratory judgment standing alone, can you?

Dean H. Bilton:

I beg your pardon, I didn’t quite understand.

Warren E. Burger:

You can’t get a three-judge court case for a declaratory judgment alone?

Dean H. Bilton:

No, you have to seek injunction which every declaratory judgment does, seeks the injunction.

Warren E. Burger:

So, that the injunction falls everything falls with it?

Dean H. Bilton:

Well, if the standing to bring the case to Court falls everything seems to fall with it, but for the fact that there are other people who will do the same thing again and might be charged with intimidation and we’re back again to where we started, trying to support statute that’s alleged to be over broad and we have holding in Illinois that the statute is over broad and the case was first on the grounds.

It would not help the appellants in this case at all.

Getting back to our comparison, we did compare this statute with all the other states.

Dean H. Bilton:

We found 40 other states having broader threats than ours do and especially states such as Utah which prohibit coercion or extortion by threats of any nature.

We think our statute is quite narrowly drawn when compared to the statutes in the rest of the states and the statutes of the federal government.

Whatever time I have left, I’d like to reserve for rebuttal.

Thank you.

Warren E. Burger:

Thank you Mr. Bilton.

Ellis E. Reid:

Mr. Chief Justice —

Warren E. Burger:

Mr. Reid.

Ellis E. Reid:

— may it please the Court.

I’d like to first address myself to the standing issue and then to the issue on the merits of whether or not for an analysis of the statute it was over broad and deterred First Amendment freedoms.

First of all, I think Mr. Bilton got himself into a problem with the standing issue.

You see in this particular case, the history of this case is such that it’s here only on one particle of a broad problem that was brought to court below.

This case grew out of a situation in 1967 where there were five mass arrest situations.

A committee of 22 lawyers of the local bar and some from out of town got together basically a Dombrowski complaint, taking from some of these mass arrest situations, sometimes there had been 55 people arrested and as many as 100 in other occasions and making them members or representatives of the class.

We have here seven subclasses of the total class.

One subclass was arrested as a group on August 01, 1967 charged with mini crimes, mob action and disorderly conduct being the main ones.

Another group was arrested on May 21th, 1967 also charged with mob action and disorderly conduct and resisting arrest and a few other charges.

September 14th, 1967, another group was arrested and charged with mob action, disorderly conduct and resisting arrest.

Now, — then again, on August 23rd, 1967, another group was arrested and charged with mob action, resisting arrest and disorderly conduct.

And then to round off this particular plus — also in August 4th, 1967, another group was arrested and charged with mob action, disorderly conduct and I believe also resisting arrest.

Now, we added also a group known as ACT which was an incorporated association which more or less advocated the confrontation of public issues in a forum of the streets.

We also added as members of the class individuals who had not been arrested and charged with anything, but merely were Negroes who wanted to speak out against what was happening in the City of Chicago at that time in 1967 and we put them in the class and alleged that their First Amendment rights were being chilled by this particular plan of action that was being perpetrated by the City of Chicago on people of arresting them with no hope of convictions, with high bonds and keeping them in jail.

Sometimes two weeks before we could go in on motions to reduce the bail or could get them out by raising the bail.

Now, this Court in the Golden v. Zwickler case set the following language with regard to issue of standing, although there probably they were addressing — you were addressing yourselves to the issue of mootness.

But you said the difference between an abstract question and a controversy contemplated by the Declaratory Judgment Act is necessarily one of degree and it would difficult if it would be possible to fashion a precise test for determining in every case whether there is such a controversy.

Basically, the question in each case is whether there is a substantial controversy between parties having adverse legal interest of sufficient eminence, immediacy and reality to warrant the issuance of a declaratory judgment and you cited in support of that the Maryland case and the company case.

Now, in this particular case, you have to know something about the City of Chicago in order to understand how the intimidation statute gets here.

The City of Chicago has a large corporation of counsel’s office which is charged with admitting instances among other things, the enforcement of the City’s ordinances.

And in 1967, a gentleman named Richard Elrod who later became a state legislator with who was at that time in the ordinance enforcement division of the corporation of counsel’s office was present at every major demonstration in the City of Chicago.

And he was the man on the scene charged with the duty of telling the Chicago police who they would arrest, when they would affect the arrest, and what charges would be brought against the alleged defendants.

Now, he was present at each and every one of these instances that I quoted to you in the complaint of the five groups of people that were arrested.

Ellis E. Reid:

Some 50 people sometimes and sometimes as many as a hundred people in these mass arrest situations.

Now, it was Richard Elrod who dreamed of the notion to later use the intimidation statute which didn’t carry just a year in jail and would carry five years in jail.

And when we as lawyers representing these people that were on this threat we beat him to the courthouse because we did not want anybody charged with a felony that carried five years for merely protesting in a peaceful way and trying to seek a readdress of their grievances.

Now, the reason that the standing issue was not raised in the jurisdictional statement and the reason it just came up in the brief of these particular appellants is that there were several groups of people below.

The state’s attorney’s office represented the defendants who were county officials and the corporation counsel’s office represented the defendants who were city officials.

And Richard Elrod of course was the corporation counsel, the assistant in-charge of defending the city officials and it was Richard Elrod I tell you who dreamed up the intimidation statute.

So, the issue never came up because when the lawyers who tried the case and I’m one of the last of the 22 that are stuck with this case, we’re in court with Mr. Elrod and with the other lawyers who represented the county officials, obviously, the issue never came up because we knew and everybody else knew that there was a substantial controversy about this intimidation statute that Mr. Elrod wanted to use it and we be in the court and the three-judge court agree that as the statute was perverted or could be read it was quite a chilling effect and had a chilling effect on First Amendment freedoms.

Now, Mr. Bilton has so appeared and told you about taking money from somebody.

I want to tell you how the statute was intended to be used and how you can read it and in plain English it would stick.

When you make a victim or a so-called a victim of that particular statute, a public official and then you read the statute that you will threaten him in order to get him to do something or to fail to do something by permitting a crime then I submit to you, you have to read the entire criminal code of the State of Illinois and also the ordinances of the City of Chicago and all of the other municipalities in the State of Illinois to determine whether or not they are threatening a crime.

For example, as the three-judge court said, if you say to a public official, either you will readdress our grievances or we will picket the city hall.

Now, if there is an ordinance in the City of Chicago that prohibits the picketing of the city hall, you have just put yourself in a five-year nuisance to stand trial for the intimidation statute.

And that is why we are here and that is why the three-judge court said clearly, this statute as read and it can be read that way is a quite a chilling statute so far as First Amendment freedoms are concerned.

And the court itself went to several examples which I can quote if I can find the examples of people blocking an intersection with baby carriages or people deciding to do things which in and off themselves would be misdemeanors if carried through to fruition and because you’ve threatened to do a misdemeanor to bring a public official into the public forum to do what he should do then you are charged with a crime that carries with a five-year penalty.

And I say to you that this statute on its face is void because it is over broad and as Your Honors got into the question with Mr. Bilton, there are many other statutes in the State of Illinois and many other ordinances of the City of Chicago which deal with conduct that may be antisocial or may create harm to property or to persons.

I say to you this is not such a statute as it is presently drafted.

And another thing back on the standing issue, Mr. Elrod himself when he became a member of the legislature after the initial three judge opinion in this case entered into the state legislature and had passed a bill repealing this particular statute.

And I don’t know today whether or not the governor has signed that Repealer Bill, but I do know that a letter was sent to the governor’s office asking him to hold up on signing the repealer because it would moot the issues before the court today and I say to you that what we are doing here in this issue of statute —

Warren E. Burger:

Counsel, how do we know these facts Mr. Reid, where do they appeared in this record?

Ellis E. Reid:

They don’t appear in the record because the last time I was here to argue the case I didn’t know that.

I found out after the first argument of this case.

Warren E. Burger:

What is it that you want us to do with respect to this statute today?

Ellis E. Reid:

Well, I think we would stipulate to the Court that a Bill was introduced and passed by the Illinois legislature of course it’s a fact, repealing this section of the Intimidation Act of the State of Illinois.

Now, I don’t know today whether or not the Governor has signed that Bill.

But I’m saying the gentleman who dreamed up this idea, Richard Elrod introduced and passed and saw that the Bill was passed.

Byron R. White:

What are the evidences in the record that you’re arguing now?

Where is the evidence as —

Ellis E. Reid:

Well, there is basically I maybe —

Byron R. White:

Do you mean, Mr. Elrod is present in all of these proceedings?

Ellis E. Reid:

Mr. Elrod was the assistant corporation counsel.

Byron R. White:

Yes, I know.

Ellis E. Reid:

Oh, I understand.

Byron R. White:

Is that in the record?

Ellis E. Reid:

That is not in the record and other than the fact that if you read the record you may see that Mr. Eldrod was a party to this lawsuit so far as representing some of the defendants who are not here and they would be the city officials.

Byron R. White:

How do you know if Mr. Eldrod, doing thing we have that is for us, I think we was ever planning to use this statute against that (Voice Overlaps)?

Ellis E. Reid:

Only by our complaint and our complaint is that the threat was made and it’s a question of whether or not the word threat is a conclusion argued by counsel or whether it’s a fact.

And I’m saying to you that the threat as used in the complaint to paragraph, aid of the complaint and again I believe 24 of the complaint, 25 of the complaint, paragraph 34 of the complaint and paragraph 37 of the complaint where we also say in all these paragraphs that we have been threatened by the use of these statutes and the threatened used of other statutes that have not yet been used.

William J. Brennan, Jr.:

Yes Mr. Reid —

Ellis E. Reid:

But the question —

William J. Brennan, Jr.:

It was an absent by (Inaudible)

Ellis E. Reid:

That’s correct.

The only thing I’m saying to you is —

William J. Brennan, Jr.:

Where are the two statements?

Ellis E. Reid:

I’m saying that there is —

William J. Brennan, Jr.:

How many in the state?

Ellis E. Reid:

No, no and the reason is this question didn’t even come up in the jurisdictional statement in this Court in violation of your rule 15.1 (c) and I make that a point in my brief.

In my brief I say the question was not set forth from jurisdictional statement or fairly compliance therein as required by rule 15.1 (c) of this Court.

Then I go on to say the question was one decided by a single judge from whose decision an appeal must be taken to the Court of Appeals.

Now, they filed a motion to dismiss and that’s in the record.

That motion to dismiss was denied by Judge Will, sitting as one judge before he convened the three-judge court.

I’m saying that they at that point had a right to appeal that decision to the Court of Appeals for the Seventh Circuit.

They choose not to appeal and then when the three-judge court was convened, they went ahead and if the three-judge court decided that on the face of this particular statute it was over broad and therefore unconstitutional.

Now, I’m saying that when you have a situation like this where standing was never raised and I did and I must apologize, though all aside of the record, maybe to force the record to give you the background of this thing, show you the reason, the explanation for this.

It was never raised in the District Court before Judge Will, an appeal was never taken on the issue to the Seventh Circuit and then when the statute was knocked out on its face, then for the first time in their brief, even after filing the jurisdictional statement as an afterthought, perhaps and this was before the Golden case, they decided that perhaps they would have shot at us before this Court because of standing because no one was ever charged actually with the violation of the intimidation statute.

What I’m saying to you as you said in the Golden case, you must look at the totality of all the circumstances before the Court.

You cannot just pull out one element of this case.

Thurgood Marshall:

Well, what totality do we have?

As I see it, we have several allegations that people had been threatened.

Ellis E. Reid:

That’s correct.

Thurgood Marshall:

And I could read those in the text of the whole complaint that they are threatened merely by the presence of the statute.

Ellis E. Reid:

Well, that maybe the way to read it.

The only thing I’m saying is —

Thurgood Marshall:

Well, what other way could I read it?

Ellis E. Reid:

The only thing I’m saying is —

Thurgood Marshall:

Without some — there’s no specificity here at all.

Ellis E. Reid:

Right.

Thurgood Marshall:

There are no facts in this record at all that anybody has been told that if you exercise your right of free speech, you will be charged with this crime.

There is not one word in the record.

Ellis E. Reid:

May I answer that this way Your Honor?

Thurgood Marshall:

Sure.

Ellis E. Reid:

That is whether or not you read the word “threat” as being an allegation of fact or as you read it as a conclusion by the pleader.

Now, I say to Your Honor, you have a perfect right to read that as a pleading of fact because it is a fact that we were threatened with the use of this statute and it is a pleading of a fact.

We were threatened by the use of this statute and there is a probably a problem in some matters as to whether or not you will understand the word as you hear a threat to be a conclusion.

Thurgood Marshall:

Well I mean, suppose a man in the sanitation department picking up garbage says, “If you don’t give me cleaner garbage, I’m going to have you convicted under the statute, would you consider that as a threat.”

Ellis E. Reid:

Well, there must be very clear and present danger and apparent ability to carry out a threat and I went through the record only to explain that the person who made the threat was present in court.

When I make a threat I have the apparent ability to carry out the threat and so I say —

Thurgood Marshall:

But my personal problem Mr. Reid is I have big difficulty in going outside of the record.

Ellis E. Reid:

I understand Your Honor, but may I say this, Your Honor does not have to go outside the record to deal with this case and I will show you Your Honors how you don’t have to do that.

In this particular case, the issue of whether or not there is standing is a factual issue.

And although it may result in a conclusion that may have jurisdictional effects, I’m still saying that initially it was a factual determination to be made initially by the district judge and I’m saying Your Honors that it was in fact made and that it was conceded and that either it was waived and I’m saying that Your Honors (Voice Overlaps) —

Thurgood Marshall:

I don’t agree — I don’t agree that this suggests a question of standing, it seems like a question of whether you got a case of controversy?

Ellis E. Reid:

That’s correct Your Honor but that of course is the ultimate for using the word (Voice Overlaps) —

Thurgood Marshall:

That’s not a problem.

Ellis E. Reid:

–whether or not there’s a sufficient case of controversy, but (Voice Overlaps) judgment and I’m only saying standing as a short pen method of saying that.

Well, I’m saying that —

Thurgood Marshall:

Well, what about your fifth class which is a class of all these people that they haven’t participated in anything yet?

Ellis E. Reid:

They were chilled and their First Amendment rights were — but whenever you do this Your Honor at the back I’m saying there is a distinct difference that this Court has recognized in this particular area between cases that deal with the First Amendment freedoms and all other classes of cases.

Now, and the reason for that is quite important.

If we don’t have an effective and quick method to effectively deal with and protect First Amendment freedoms —

Thurgood Marshall:

Well, then —

Ellis E. Reid:

— (Inaudible) will not — they’ll be dead when you get to this Court in the wrong way.

Thurgood Marshall:

I assume that anybody in Chicago could’ve filed this suit?

Ellis E. Reid:

No, Your Honor, this —

Thurgood Marshall:

But what difference is this group you mentioned?

Ellis E. Reid:

Well, they might be put in and you might even say that they came in under pendent jurisdiction and we have the substantial controversy between the first five groups — the people who were arrested.

There’s no question that there was a substantial controversy going on at that time between the mass arrest situations and the City of Chicago.

Now, all that controversy as a result of what was happening to the people that were arrested.

In our humble opinion they were the people who were standing on the sidelines, who might have wanted to picket, who were not picketing because they felt, oh look what’s happening to these people, there in there picketing and they’re getting the heads beat in and they’re being arrested and they’re being kept in jail.

Now, why should I go out there and picket peacefully and go to jail for two weeks before I can even post bond.

Now, it is these people that I think this Court should address itself too because it is these people who then after seeing the suppression of the other people who are the activists, stand silent and stand to moot and that’s the danger to order liberty and that is the sole reason why this Court has made a distinction between First Amendment cases and all other cases.

Warren E. Burger:

And what is there in this record that tells us that people get beat over the head, at least for picketing, in this record counsel?

Ellis E. Reid:

No, Mr. Judge, I was speaking fast then you came out.

I apologize for there’s nothing in this record.

These people were arrested, they were held on bond as the record shows and they were later discharged and we’re saying that because these people in the first five subclasses were dealt with in this manner with no —

Warren E. Burger:

It will be more helpful to the Court Mr. Reid if you keep your factual development within the records, so that we know that you’re talking about this case and not some other hypothetical case.

Ellis E. Reid:

In this particular case, there were four or five groups arrested and we picked some of the people out of these groups as representative of the class.

Now, we added it and in an answer to Justice Marshall’s answered question, people who were never arrested, but who wanted to speak out and use speech in all of the matter.

Now, I’m saying to the Court that this —

Warren E. Burger:

Well, does this record show, does this record tell us somewhere that the people in this class had been arrested at some time?

Is that by —

Ellis E. Reid:

Yes, in that point Your Honor which starts — in the appendix started at page four, paragraph 8 plaintiff Lawrence —

Warren E. Burger:

Well, is that an allegation of the complaint or it’s the evidence?

Ellis E. Reid:

It’s in the complaint.

Warren E. Burger:

Was it denied?

Ellis E. Reid:

It was — no, paragraph 8 I think was denied.

No, paragraph 8 was admitted I believe and we find the answer.

Warren E. Burger:

Well, I don’t want to hold you up now you might —

Ellis E. Reid:

In any event, there was no question about who the subclasses were.

There is one thing you’re off the record discussion with this and you need to be pertinent, you said this statute had been repealed by the legislature and you didn’t know whether it had been signed and if it had been signed this will moot the case —

Ellis E. Reid:

Mr. Bilton has to be, no.

Ellis E. Reid:

He said the bill has been —

(Voice Overlaps)

Ellis E. Reid:

The bill has a veto.

I just got this note from Mr. Bilton two minutes ago.

Alright.

Ellis E. Reid:

So, it is not moot, but the only thing I’m saying is that when you look at whether or not there is a case in controversy, I think you have to relax your standard so far as First Amendment cases are concerned because this Court has said and I think that we can’t cross over this, that we are not really dealing so much with the people that want to break the law.

There are statutes on the books that are available to give these people their just rights and to put them in jail, commensurate with the crime that they have perpetuated in their actions.

But when they backup a step and say that when you use language and you verbalize your grievances open in a public forum and you address them to a public official and you say, “Do something for us please or we will do X” and it turns out that analysis of all the statutes they’re been contemplating X is applied, that you’re then subject to five years imprisonment.

I say this runs smack down into what we are trying to start out with in this country of having truly conflicting interests balanced and I’m saying that they’re always on a collision course that anytime that you take to the public forum and say, “Do something for us –“

Warren E. Burger:

We’ll suspend and you’ll have seven minutes left after lunch Mr. Reid.

Ellis E. Reid:

Okay.

Warren E. Burger:

Mr. Reid, you may continue whenever you are ready.

Ellis E. Reid:

Thank you Your Honor.

Mr. Chief Justice may it please the Court.

I would like to at this point just digress and point out to Your Honors the problem I think that was bothering this particular Court and that is that I feel and I have a feeling that you have a fear of being inundated by this type of case.

If you relax the standing required in a declaratory judgment action to the degree that we feel is necessary in order to protect First Amendment freedoms, but I would like to say two things and try to make this clear to the Court so that you understand it from really a practicing lawyer’s point of view, one who is concerned with First Amendment freedoms.

First of all, I would like to say to you what I feel would have happened had the state in this particular proceeding one to race to the courthouse.

Now, it has been called in many circles that this is the so-called race to the courthouse whether or not the state will file the charge or whether we will get to court and ask for declaratory judgment on these over broad statutes first in federal forum.

I like to say that this is from the lawyer’s point of view, had the state in this particular proceeding won the race to the courthouse in addition to the complex, legal, and factual issues that I have had to address myself to hear, myself to hear over the last three years.

I would have then had to deal with in another forum also the issue of bail, the issue of defense in a criminal case, the issue of being prepared to try the case if it was not enjoined and also the anti-injunction statute in the federal system.

Warren E. Burger:

Well, isn’t that the normal course of litigation in the whole general scheme of things?.

Ellis E. Reid:

Well, I’m saying it does not have to be for the future.

We have a problem here and I think that the Court is trying to address itself to that problem because in Dombrowski and in Zwickler, this Court said that it would be enough to have a threat of arrest under the proper facts and circumstances.

And I detect from not only some of the questions today, but the previous time I argued this case that this Court also is dealing in its own mind with the floodgate problem and that is whether or not it should be inundated with this type of litigation if we’re able to sit back in our office and go through the Criminal Code and say, “That’s a good statute, that’s a bad statute.

We’ll file a suit on the bad statutes and then come to court.”

I don’t think it’s going to happen that way because these cases are expensive.

These cases are varietous and they take as you can see in this case three to four years of a lawyer’s time and that’s one issue.

But on the other hand, if the state wins the race to the courthouse and there is a threat and we have to wait even though they are threatening us like today to file a suit tomorrow and then we have to wait until tomorrow when suit is actually filed, then in addition to the complex problems in this type of case, in this federal forum I’m also put to the task of dealing with the complex legal and factual issues in the state court.

So, I’m saying to Your Honors that the floodgate argument that might be thrust upon you today will be found to be wanting in this particular type of case because it is a very burdensome type of litigation.

And number one, you must get one judge of a District Court to hear your case, look at your complaint and decide whether or not in his discretion he will convene a three-judge court as was done in this case and motions for this dismissal of your complaint may be found as they were found in this case.

Ellis E. Reid:

And I like to point out that these issues were met ahead on, on a motion to dismiss filed in this particular case and I’d like to in the time I have remaining address myself to four portions of the appendix which I think are important, which are four specific portions of the three-judge court’s opinion.

Now, at page 57 of the appendix the court said as follows.

It said, “Plaintiff’s filed their complaint on October 27th, 1967.

Simultaneously, they moved that a three-judge court be convened to hear and determine the issues presented therein.

Shortly thereafter both the state and city defendants moved to dismiss, contending interalia that the complaint failed to disclose a basis for equitable relief and the adoption of federal abstention should be utilized to allow the state courts an opportunity to adjudicate the issues presented in the complaint.

An opinion dealing with these motions was issued on December 28, 1967.

The defendant’s motion to dismiss were denied.”

Now, at page 62 of the same opinion, it’s found on page 62 of the appendix, the court there said as follows, “The principles announced by the Supreme Court in Dombrowski and Zwickler appear clearly applicable in the instant case.

Plaintiffs claim that statute is invalid because of vagueness, indebtedness and over breadth, have been used by defendants in furtherance of a scheme to discourage plaintiff’s legitimate exercise of First Amendment rights.

In Dombrowski, the court indicated that defense in a state criminal prosecution is not sufficient to correct either of these evils.

Arrest, detention, and threats of prosecution may have an interim effect on free expression where prosecutions are instituted in bad-faith in furtherance of a scheme to discourage protected activities, the ultimate success of the defendant does not alter the impropriety of the unconstitutional scheme.

The adjudication simply resolves the guilt or innocence of the defendant.

It does not purge the scheme of its impact upon federally protected rights.”

And then at page 94, the same court, the three judges continues and they say there, “The provision is not vague.

It is however over broad, I am speaking now of the particular statute, since it prohibits threats of insubstantial evil, the commission of criminal offenses against persons or property is a substantial evil and the state may legitimately proscribe the making of threats to commit such offenses.

The commission of offenses against public order only however is not such a substantial evil that the state may prohibit the threat of it.”

And then they go on to deal with the statute to show examples as to how you can commit disorderly conduct and because of this statute end up with five years imprisonment.

Now, back — I’d like to go back on page 84 of the appendix, page 88 excuse me where the court points out this and I think this is important.

On page 88 and they say, “However, at the outset of this analysis it should be recognized that Illinois has no legitimate interest in proscribing as intimidation statements that have no reasonable tendency to coerce or statements which although alarming are not expressions of an intent to act.

Legitimate political expression intended to secure a changes in a society’s legal, political, social, or economic structure frequently to take the form of expressions about future events or conditions.

Such expressions may be in the form of promises, predictions, or warnings or threats of lawful action.

And I know my time is up but I like to say here this is the trust of this particular statute that we contend as unconstitutional and because of that we feel this court has a duty to affirm the court below.

Warren E. Burger:

Thank you Mr. Reid.

You have four minutes left Mr. Bilton.

Dean H. Bilton:

I only wish to rebut one statement.

Mr. Reid just said that in Illinois you can threaten to commit a disorderly conduct and wind up in prison for five years.

You can only do that in Illinois if you threaten to commit disorderly conduct while you are attempting to steal from a person or while you are attempting to rob from a person or why you are attempting to extort something from that person.

Threats of disorderly conduct in the abstract are not prohibited by this statute or whatsoever because this is not a public order statute, this is the statute which protects the person.

Other than that I think that my argument in chief covered all the points that Mr. Reid talked about and I have no further rebuttal but just to respectfully request this Court to reverse the three-judge court below and restore the Illinois statute that we feel is very important in our scheme about Criminal Code.

Thank you very much.

Warren E. Burger:

Thank you Mr. Bilton.

Thank you Mr. Reid.

The case is submitted.