Boyle v. Landry – Oral Reargument – November 16, 1970

Media for Boyle v. Landry

Audio Transcription for Oral Argument – March 24, 1969 in Boyle v. Landry
Audio Transcription for Oral Reargument – April 29, 1970 in Boyle v. Landry

Audio Transcription for Oral Reargument – November 16, 1970 in Boyle v. Landry

Warren E. Burger:

We’ll hear arguments next in number 4, Boyle against Landry.

Mr. Brannigan you may proceed whenever you’re ready.

Thomas E. Brannigan:

Mr. Chief Justice and may it please the Court.

My name is Thomas Brannigan.

I’m the Assistant States Attorney of Cook County, Illinois and I represent the appellants in this case.

I am the Third Assistant States Attorney from Cook County to argue this case in Court and I want to say that I hope that I can bring new insights to this appeal, but if I can’t I want to make — let you know that we have accomplished one thing anyway and that is that we have brought new faces before the Court and I am at least please in that.

Are you resting on your predecessors’ brief?

Thomas E. Brannigan:

On the brief, yes.

The statute that we’re here concerned about is the Illinois intimidation statute, and not the entire statute but only a subsection of the statute which was held unconstitutional by a three-judge court and an injunction was issued in joining states attorney from prosecuting anybody under this statute.

The statute provides, “A person commits intimidation when, with 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”.

Now all the other subsections were held constitutional, but this one subsection, “Commit any criminal offense” was held unconstitutional.

The reasoning of the Court was that this language “Commit any criminal offense” would include misdemeanors or insubstantial offenses, and mere violations of — against public order statute only and that it was there for overbroad and unconstitutional.

Now before I turn to the question of the finding of unconstitutionality we have, as we have in all the cases that were set down with this case the procedural question.

And that is the problem raised by the — what is now generally called the Dombrowski-type complaint.

And this is the type of complaint that was filed in the District Court below.

But we submit that this is not a Dombrowski-type complaint.

It’s not as Zwickler because in those cases there was allegations and showing of some prior activity by the state officials under the statute which the court found unconstitutional.

In this case, nobody, none of the plaintiffs were charged with the violation of this intimidation statute, not any section of it and not this subsection.

There was no — the allegation that the District Court felt was sufficient to bring this — the merits of this statute to its attention was the allegation that the — that there was a threat to enforce the statute and that the purpose of the threat and enforcement was to harass and intimidate the plaintiffs who were simply exercising First Amendment rights and demonstrating, advocating for equality — racial equality in Chicago.

But we submit that there is a big difference in this case and in the Dombrowski and Zwickler because there was this course of conduct that those plaintiffs could point to and say, “This is how we’re being harassed.

This is what the state officials are doing.”

Now, for example one of the subsections to which was held constitutional says that one of the threats made to a person which would constitute intimidation would be to take action as a public official against anyone or anything or withhold official action or cause such action or withholding, and yet none of the plaintiffs were public officials.

None of them were capable of acting as public officials so that they could take action as a public official against anyone or anything.

And yet the Court felt under Dombrowski that they could reach all the subsections and decide one after another whether or not they were constitutional or not.

Now, we of course realized that if this Court were to decide that the District Court should not have reached this question and there would be a reversal on grounds other than the constitutionality of the statute that the judgment of the court below would stand in effect in Illinois as the only decision interpreting this subsection of the Illinois intimidation statute and that decision would be that it was unconstitutional.

So we would ask the Court to, in this case it is our request that if it be possible that the Court also reach the question of the constitutionality of the statute.

Potter Stewart:

I suppose if you are correct in what you call the procedural question that is the threshold question of the propriety of the District Courts acting as it did.

It would follow I should think perhaps wouldn’t it that this Court would vacate the District Court’s order that would vacate the opinion wouldn’t it?

Thomas E. Brannigan:

Yes it would and —

Potter Stewart:

Then that opinion would no longer be in the books because you’re not going to tear it out of the Federal Supplement but it would — anybody who jeopardized it would see that it had been vacated.

Thomas E. Brannigan:

That’s true you’re correct, but —

Potter Stewart:

That’s your threshold point.

Thomas E. Brannigan:

That’s true, Your Honor but, nevertheless that determination withstand.

We would live for —

Potter Stewart:

Withstand?

But my point is that it wouldn’t stand.

Thomas E. Brannigan:

Well I mean it would be, it would be a reversal on some other ground Your Honor as —

Potter Stewart:

But the judgment would be vacated if you’re correct in your threshold point.

Thomas E. Brannigan:

Now, what we feel so strongly about the question of the constitutionality of this statute, Your Honor that — and we feel that the District Court was wrong in finding the statute unconstitutional.

And I would like to just address myself immediately to that to show you why we feel so strongly about it.

The — I think that the first point that must be made about this statute is that it is not a public order statue.

It’s not designed to maintain public order.

It’s not designed as a protection of the state of the sovereignty, but it is designed to protect an individual from threats.

And the District Court in its opinion said that, “the term threat has a sinister and well define meaning in common parlance and in the law.”

It is the expression of intention to inflict evil or injury on another.

It is more than a mere expression of such an intent.

It is a menace, especially any menace of such a nature and extent as to unsettle the mind of the person on whom it operates.

And to take away from his acts that free and voluntary action which alone constitutes consent, that’s the kind of threat the District Court held is what is prohibited by the statute.

Now the Court said that that subsection (a) and all the other subsections were not vague, they could be understood, but they were overbroad and they pointed out some examples.

They said that this statute would in effect make legal threats by mothers to block traffic to cause stop sign to be placed at an intersection because it was a dangerous intersection.

That it would prohibit threats by persons who lived in a dangerous neighborhood who threaten to carry arms because of the dangerous neighborhood they lived in.

I think that what the court there does in that language is that it turns the focus from this threat to the person to just advocacy of threatening in the abstract.

And this statute does not prohibit people from standing up in the civic center in downtown Chicago and saying, “We are going to carry arms in our neighborhood because we live in a bad neighborhood.”

In other words, we’re going to commit a crime because we live in a bad neighborhood.

This statute has nothing to do with that type of language, that type of advocacy.

To the same extent the mothers who want to block traffic, they can talk about it all they want.

They can advocate it and this statute does not prohibit that type of talking in speech.

What it prohibits is threats directed towards somebody to deprive that person of his free will and it’s got to be that type of sinister threat that freezes his free will and makes him act in a way that he doesn’t want to act.

And I think that the proof that the court misapplied the First Amendment doctrine enunciated by this Court in striking this statute down is the statement in the brief that — a statement in the lower court opinion that what the public official — what the State of Illinois can do is wait till this threatened act, this minor, little, insignificant violation of a public order statute is carried out and then go ahead and prosecute people for violating that law.

But the fact of the matter is, is that if the threat to the individual is successful that is, “you do something or we will carry you in bare arms.”

Thomas E. Brannigan:

Then if the threat is successful and the person making the threat has got his point home and has caused that individual to act the way he wants them to act he will not carry out the threat.

And so we never — the situation doesn’t arise where the violation, the threatened act is ever carried out.

So we think that this demonstrates clearly that the District Court misapply the doctrines enunciated by this Court in the First Amendment and incorrectly came to the conclusion that this statute was unconstitutional.

Now, we point out in our briefs that there are other statutes that are wider drawn the Federal Hobbs Act for example prohibits one from interfering with commerce by extortion.

And this Court has upheld that statute where there were threats simply to violate or to breach a contract or to cause a strike which are certainly are broader than what this statute prohibits and that is the commission of a crime.

I would also maybe argue that this subsection is really surplusage because there are other acts, other types of threats that are enumerated in the other subsections and that this one really doesn’t — we don’t really need this subsection.

We think that it was a legitimate exercise of the legislature’s judgment to include the subsection so that types of threats that the legislature could not foresee which an inventive person may devise to use to intimidate a person are also prohibited.

And that is we think sufficient reason to defer to the legislative judgment here and to approve the statute on constitutional grounds.

Getting back to the — getting back to the procedural question I must re-stress that our point there is that if this Court is presently considering a restatement of Dombrowski case or doctrines that have emanated from it the course of the cases that have followed the Dombrowski case.

We think that this case without getting into a whole restatement of that whole question can simply be distinguished by Dombrowski and Zwickler on the grounds that no one was charged with intimidation.

There was just a bare allegation in the complaint that the threat was made to use the statute and that there was no course of conduct to which the plaintiffs could point to which was anywhere near like what was present in Dombrowski and Zwickler.

And which this Court well done extensively in both of those opinions by way of reaching the conclusion that the Federal District Court had an obligation to make a determination of the constitutionality of statutes.

Potter Stewart:

You don’t have any 2283 argument in your case, do you?

Thomas E. Brannigan:

No we don’t because we don’t have any prosecutions.

Potter Stewart:

Yes, the — what were the terms of the injunctions?

Just enjoined any enforcement of this section of the statute in the future?

Is that it by the defendant?

Thomas E. Brannigan:

Yes, Your Honor it’s on the last page of the appendix, page 104.

Potter Stewart:

Last page?

Thomas E. Brannigan:

Yes, Your Honor.

Warren E. Burger:

What page?

104?

Thomas E. Brannigan:

104, the last page in the appendix.

“Hereby ordered and adjudged, and decreed that the defendants, their employees, servants, and agents be, and they hereby perpetually enjoined and restrained from the enforcement of, or the prosecution under these other statutes,” Your Honor that are mentioned.

There are other statutes, which were held unconstitutional.

Potter Stewart:

They dropped out of the case?

Thomas E. Brannigan:

We have not appealed from it.

The only Section that we appeal from is the Illinois intimidation statutes, which is Chapter 38 Section 12-6 (a) (3).

Potter Stewart:

Yes, that appears on page 3 of your opening brief.

Thomas E. Brannigan:

That’s right Your Honor, and it’s only that little subsection that we’re taking about.

Potter Stewart:

I understand.

Warren E. Burger:

Thank you Mr. Brannigan.

Mr. Reid.

Ellis E. Reid:

Mr. Chief Justice and may it please the Court.

I’d like to begin my answering argument by some observation in light of the fact that no matter has been argued twice before and in light of the fact there are four cases here which is apparent that we are dealing with the cases that began with Dombrowski versus Pfister.

And the issue here is whether or not in the case before the Court we have standing to sue.

I’d like to point out that in Dombrowski, the Court said in his opinion and I’m quoting from his language because I think it’s important to — really the background of my argument.

The assumption that defense of a criminal prosecution will generally assure ample vindication of constitutional rights is unfounded in such cases and it cites Baggett versus Bullitt.

For the threat of sanctions may deter almost as potentially as the actual application of sanctions.

Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights for free expression of transcendent value to all society and not merely to those exercising their rights might be the loser.

We have fashioned this exception to the usual rules governing standing and that’s at United States versus Raines.

Because of the danger of tolerating in the area of First Amendment freedoms, the existence of a penal statute acceptable to — of sweeping and improper application citing NAACP versus Button.

If the rule were otherwise, the contours of regulation would have to be hammered out case by case and tested only by those hardy enough to risk criminal prosecution to determine the proper sculpt of regulation.

Now it is with that in mind, Your Honors, that I further point out to the Court the language in Golden versus Zwickler as follows: “The difference between an abstract question and a controversy contemplated by the Declaratory of Judgment Act is necessarily one of degree.

And it would be 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 the facts alleged under all the circumstances show that there is a substantial controversy between parties having adverse legal interest of sufficient immediacy and reality to warrant the issuance of a declaratory judgment citing Maryland Casualty Company versus Pacific Oil.

Now, Your Honors, with those two cases in mind, I address your attention to what has been characterized as our Dombrowski-type complaint.

And I ought to say to you Your Honors as it has come out here, the particular injunction involved here as can be seen from page 104 of the appendix, did not only deal with Chapter 38 Section 12-6 of Illinois Criminal Code.

It dealt with Chapter 38 Section 25-1(a) (2), Chapter 38 Section 12-6 (a) (3).

And also Your Honors, which this injunction did not deal with but another one issued by a single judge, Judge Welt, dealt with two ordinances of the City of Chicago.

Now, the background of this case is as follows: In 1967, there were a series of arrest and we’d like to point out to you, Your Honors the facts involved in this particular case.

We have alleged, Your Honors, in our – well, it’s in the record I’ll give you the page number for each particular circumstance.

But starting with page 12 and paragraph 27 of our complaint, we deal there with a mass arrest situation that occurred on the first day of August 1967 and certain plaintiffs were arrested and charged as the complaint states with four violations of law under Illinois law.

Two statutes and two ordinances, they were charged with the mob-action statute, the resisting arrest statute, the disorderly conduct ordinance, and the resisting arrest ordinance.

Now, on the 14th day of September 1967, there was another incident where there was a mass arrest situation.

I might back up and say that the first incident was locally called in Chicago the big gym incident because there, a Negro had been shot by a white man and people had gathered to peaceably and I emphasize this to peaceably protest against this unlawful shooting of Julius Woods, a Negro citizen.

Now, in the incident that occurred on September 14, 1967, it occurred that 43rd street in Chicago, 43rd in Langley and there was a gathering there for the peaceful and lawful demonstration to protest against the unlawful attack and brutal beating of an 18-year-old Negro woman who reside in the community by police officers.

The other incident is the incident of May 21, 1967 and there was a gathering at 51st street in South Park Avenue in the City of Chicago to peaceably protest for redress of grievances and that they wanted to rename Washington Park to a name that they felt would be more relevant in location and character to the predominantly number of Negro residents who resided in the vicinity of that park.

There was another mass arrest in that situation.

On August 23, 1967, there was a gathering at the 111th street in the City of Chicago to protest and to inquire with respect to the unlawful shooting of another Negro youth and resident of that community.

Ellis E. Reid:

On August 4, 1967, there was a gathering peacefully at a playground to protest that there were not sufficient playgrounds located in certain sections of the City of Chicago, and particularly this was at 3501 South Wallace Street in Chicago.

And the protest was against the lack and absence of adequate playground facilities in the black community.

Now, I’d like to point out that in each and every one of these particular arrests that took place in the summer of 1967, all of the people who arrested in mass the following things happened.

They were all charged with four identical charges: mob action, state resisting arrest, city ordinance resisting arrest, and the city ordinance of disorderly conduct.

In each and every instance, the people had bonds placed against them ranging from $10,000.00 up to and including $50,000.00 as is alleged in the complaint.

Now, with this background, we then go into our allegations, which bring us to the intimidation statute.

We have alleged that there was, and I will point out the points and parts of the complaint at paragraph 21 of the complaint we alleged the following.

We alleged that the defendants, this being the Mayor of Chicago, the Chief Judge of the Circuit Court of Chicago, the Sheriff, the Ordinance Enforcement person, and the Corporation Counsel’s Office, and certain magistrates which were named as defendants in the original complaint.

We alleged that, them or some of them have met together on more than one occasion, they have discussed, formulated, outlined and agreed to a detailed plan and scheme of harassment, arrest, detention, setting of exorbitant and excessive bail, prosecutions, trials, conviction fines, and imprisonment which detail plan and program they have agreed to direct against plaintiffs herein and other citizens of the United States, members of the same class as these plaintiffs similarly situated solely for the purpose of deterring, hindering, preventing and depriving these plaintiffs of rights, privileges and immunities secured to them by the Constitutions and Laws of United States, and more particularly of the First Amendment privileges of speech and assembly.

Now we allege in subparagraph (a) under 21 that the defendant James Conlisk who is the Superintendent Police and Richard Jay L. Rod who was in-charge in of Ordinance Enforcement of the Corporations Councils Office.

As a result of the above described meetings and this is found pages 9 and 10 of the record, among defendants and formulation of the above described plan and scheme have been designated by their superiors namely defendants Richard Jay Daley and Raymond F. Simon respectfully to be principal persons to implement and carry out the aforesaid plans of the deterrence, hindrance and prevention of the exercise of plaintiffs First Amendment privileges of speech and assembly.

By designating the occasions, places and manner of arrest as well as the number of plaintiffs to be arrested and by actual designation of particular places of detention or particular plaintiffs as distinguished from other persons arrested in the City of Chicago.

Then in the subparagraph (c) of that same paragraph 21 found at page 11, defendants Richard Jay L. Rod and the defendant John J. Stamos acting through his subordinates as a States Attorney of Cook County have threatened and actually attempted to set in motion unlawful prosecutions of the plaintiffs or some of them through the application of these — to these plaintiffs of the aforesaid statutes of the State of Illinois and ordinances of the City of Chicago.

Now, then we go ahead and say at paragraph 25 found in page 12, pursuant to this plan or scheme, the defendants have attempted to threaten and continue to attempt to prosecute the plaintiffs and all persons associated with them or working in cooperation therewith under color and authority of certain statutes namely, and we set forth Chapter 38 Section 25 (a) (1) and (2), Chapter 38 Section 31-1, Chapter 38 Section 12-2, 12-4, 12-6 which is the one that where before, Your Honors on and certain ordinances of the City of Chicago to wit, Chapter 193-1 and Chapter 11-33 said statutes and ordinances are set forth in an appendix marked Exhibit “A” etcetera.

Now, then Your Honors —

Potter Stewart:

Mr. Reid, except for your conclusory statement on the top of page 11 and perhaps elsewhere in your complaint that these statutes are unconstitutional.

The gravament of your — of what you’ve been reading to us is a conspiracy on the part of this people to harass your clients in Chicago and others similarly situated by abusing criminal statutes.

And that could have been true as — just as true as this have been shoplifting statutes or grand larceny statutes or anything else.

If they’re going to make false charges against you and conspire to misuse statutes, it doesn’t necessarily, it doesn’t follow at all the statutes themselves are unconstitutional, does it?

Ellis E. Reid:

Well, Your Honor we later alleged on those complaints that the statutes on their face were —

Potter Stewart:

Do you — you do allege that?

Ellis E. Reid:

We do.

Potter Stewart:

But all these wrongs that you’ve been talking about could equally have been — have taken place with respect to abusing perfectly valid, concededly valid statutes such as grand larceny?

Ellis E. Reid:

That is correct, Your Honor.

Potter Stewart:

Isn’t that correct?

Ellis E. Reid:

That is correct, Your Honor.

But I’m only —

Potter Stewart:

But these wrongs don’t have anything to do necessarily with the constitutionality of the statutes that you alleged in this complaint that this defendants were intending to abuse in order to harass your clients?

Ellis E. Reid:

I beg to differ with you, Your Honor.

I think it does because I think that as said by this Court in Golden, you have to take all the facts and circumstances into account.

Ellis E. Reid:

This is a unique case, this case may never happen again in a hundred years.

But what I’m saying is that you have to go back in time and I am asking Your Honors to do this on your own mind sight to 1967 in the summer in Chicago and ask yourself what was happening to those people then?

Why was this issue standing apparently overlooked by the District Court?

Why were there no requirement of proof by the court?

And the answer was obvious.

The court well knew what was happening in Chicago and the court well knew and perhaps the states attorney then conceded the point that he did not want us to bring in our evidence of what the threat was and now they get up here and get a clean shot by saying the threat is now a conclusion instead of a statement of fact.

Your Honor, I say that when we say we were threatened, I say that is an allegation of fact in our complaint.

It is not a conclusion of law and I am saying you look at the totality of the circumstances to back up at the total four corners of the complaint to say, does this complaint state a cause of action upon which relief can be granted?

And in the federal system, I understand we are not obligated to plead evidence but to plead in simple language the fact that there is a case or controversy upon which the court is asked to render a ruling.

And I am saying that when we stood before that three-judge court, there was in fact a sincere and obvious case in controversy involving the mob action statute, involving the resisting arrest statute and involving ordinances of the City of Chicago.

Now, to give up on your appeal on those matters on the merits and then to appeal on one issue and one issue alone would say, “Look, aha, nobody was ever charged with intimidation.

Therefore they have no standing.

What I am saying that it would be, really an abuse of the court to go back and then say “We’ll now arrest somebody and we’ll now go back to this arduous process to get at the intimidation statute which is obviously on its face back.”

It would be just like surgeon going to a man’s abdominal cavity and seeing a bad appendix when he is in there for something else and then closing up the man and then going back next week and then opening up the abdominal cavity to take out the bad appendix.

And that may even amount to medical malpractice but I am saying it is a similar situation here.

It’s a question of pendent jurisdiction.

The court had before it an issue that had the jurisdiction of not only the parties but of the subject matter involving clearly the mob-action statute and clearly the other matters that were before the court.

Now what makes this case unique is that the court then in the fact of pendent jurisdiction dealt with obvious issue and took care all of our ills at one time which I suggest to the court is the better way to do it.

Then they come up and say, aha, we walked in, off of the street and we only attacked Section 12-6 and nobody ever threatened us.

Nobody was ever arrested.

There were no high bonds.

There was none of this background and ask you to try this case in the vacuum and I say it cannot be argued in the vacuum, it cannot be tried in a vacuum but you must understand that what the court did in my humble opinion was the only thing it could have done, other than to put us to additional expense and put the court to additional time with additional burdens upon the court and upon this Court.

Now, I — that is really the gravamen of my argument is that case is unique and that our standing to sue stands on the issue of pendent jurisdiction.

We were properly in court and the court took care of all our ills and the court in fact saved itself some time because now I come to the argument which is even the states attorney wants me to reach and that is that on the face of this particular statute, there is a question of whether or not it was in fact overbroad or vague.

And I submit to Your Honor that it was both and the court in its opinion written by three judges came to the conclusion that it was both overbroad and vague.

Now, here is the problem with that intimidation statute. The problem is this, whenever you take an intimidation statute or extortion statute or what have you, and you put it on the political arena as they have done here and the victim of that alleged crime becomes the politicians either on the state of local level or a national level.

Then you have really set the collision in motion of the right of our society to deal with freedom of speech on an ordered liberty and the right of people to be free from threats.

Well, I say Your Honor as you’ve said in cases involving libel and slander in dealing with people who are public figures.

Once you enter the public arena, you’re not to be cuddled and protected because you are a public institution and so when I say that you cannot say that these politicians are so frail that we can’t tell them directly or indirectly that unless you redress our grievances, we will do less insult.

Now this brings us to the ill in the statute, that Section which the court found to be overbroad says that we will commit in a crime and this sends us back not only to the criminal code.

Ellis E. Reid:

It sends us back to all regulatory legislations which has a sanction of criminal punishment therein.

It sends us back to all the ordinances of the City of Chicago which may or may not be codified which have sanctions, and I submit to you that there is no way with regard to vagueness that you can then determine when you’ve committed a crime and the sanction in this particular Section is five years imprisonment.

Now, the crime that you may threaten to commit if it goes to (Inaudible) may only be fine of $25.00 or maybe up to a year in jail then to convert speech into felony.

I mean this is really what we are talking about here.

You are dealing with politicians and you say now by threatening a politician that I will commit a crime that has a $25.00 penalty and now I can get five years.

Well, obviously we were chilled by this and there was a chilling effect of the threat of this that we have to beat them to the courthouse.

Now whether or not we were too fast and got to the courthouse first, I don’t think Your Honors have to reach that because we were properly in court on the mob-action statute and on all the other statutes that the court dealt with and I felt that and I feel now that the court had a right and a duty.

Not only a right but a duty to deal on the basis of pendent jurisdiction with this other matter and there was an actual case and controversy based on our allegations of meetings, threats and plans and also these facts are somewhat important.

The uniformed charges of all these people and all this incidents, you see there are four charges on all these incidents that went before and it just doesn’t happen that way generally unless there is some concerted action that everybody would be — who is involved in this type of matter violates four charges each and every time and everybody although he may be a college student with no prior record has a bond of $10,000.00 set against him and he stays in jail for ten days before he can get bond or get it load in a petition and therefore loses time in school.

So, I am saying that there was an actual case or controversy.

There were litigants who clearly represented the rights of all the people that we sued on behalf of and whether or not no one was arrested because of one statute that had been threatened to be used in the future.

You see we then get on the horns of the dilemma — of the dilemma 2283 anti-injunction statute which says now if they beat you to court, you cannot get an injunction; if you beat them to court, you have no standing.

Now, I submit Your Honors that this is a precarious and it is a wrongful position of the people to be put in because as advocates of really the first amendment freedom, which is the touchstone of our very democracy.

If we are going to deny by this dilemma, the court system and the judicious use of the court system because I recognize also that we cannot inundate this Court with this types of cases because then this Court will have to seize to function because it will be shuffling papers.

But I submit that is an apparent but unreal fear because first of all you have to run this gauntlet.

You have to go through a three-judge court which must be convened by a single judge who must see some merit, apparent merit in your complaint before he will even convene a three-judge court.

One of the judges sitting on that three-judge court is a member of the Court of Appeals.

Now, these judges or at least the majority of these three judges must then rule on the matter before the matter will get here as a matter of right.

Now if the matter is frivolous and no three-judge court is convened then we don’t have a matter of right appeal here.

We would then have to go to the Court of Appeals if it was not frivolous and the three-judge court decided the issue.

Then I submit, Your Honor that you’ve done a screening device.

You’ve got a three-judge court here which is convened and then the matter is not frivolous and then Your Honors have the duty to hear it because that caveat of First Amendment freedoms that we’re dealing with.

I cannot emphasize how important it is because if we cut off that valve and say that you cannot get to this Court in matters of freedom of speech, redress of grievances, peaceful assembly.

And I am not talking about anarchy and I am not talking about violence or anything like that.

I am talking about the legitimate, peaceful First Amendment rights that we all suggest or should be nurtured.

Then everybody will then say, “Well, if I cannot use the courts, what is my next remedy?”

And the next remedy may well be that we then all have to become revolutionaries as they did in 1776 and overthrow the entire Government because the courts if they don’t give you a remedy, a speedy remedy, an open remedy, one that you can count and rely on as advocates and lawyers, then I suggest you what do you tell your clients when they say, “The doors have been closed, so let’s take to the streets” and as with that in mind that I say to you, you have a duty Dombrowski.

I must say when I read the opinion, I have felt that it was a long time coming but I am saying you have no right in light of what’s happening today to turn back the clock with respect to Dombrowski.

You have the duty to open that wire.

Thank you very much.

Warren E. Burger:

Thank you Mr. Reid.

Mr. Brannigan, you have about four minutes left.

Thomas E. Brannigan:

Thank you, Your Honor.

When it has been suggested that the question of the standing of the plaintiffs to raise this constitutional objection to the Illinois intimidation statute, this subsection ought to be sustained on pendent jurisdiction and I think that I disagree with that and I do not think it’s called for.

First of all Dombrowski and Zwickler were the court said, extra ordinary cases.

Nobody here has been charged with the violation of this intimidation statute.

Nobody has been charged with the violation of this subsection.

I think to take an extraordinary step like was taken in Dombrowski, that alone I think is the court recognized in the opinion, it was taking a significant new step.

To now say we can drag in all sorts of challenges to state statutes on the concept of pendent jurisdiction I just think it’s uncalled for.

I think that this would create a monster that the court will never be able to control if it incorporates the challenges to statute whether they are being used or not or ever has been used against the plaintiffs in a complaint drawn like the complaint in the lower court and say we want an adjudication of all these statutes whether or not they are constitutional or not.

I think that’s the step that this Court shouldn’t take.

Now, so far as what was going on Chicago on 1976, Mr. Reid has been talking a lot of things here that I don’t know if they occurred or not but they put us in a bad light.

The fact remains however that I think that one thing — the fact — one fact, that Court can take notice of is an appeal.

The United States Court of Appeals for the Seventh Circuit which was decided on February 5, 1970 and cause number 17346 entitled Boyle versus Landry.

This was another aspect of this case where the court decided that certain sections challenged in this action were constitutional.

It remanded the case to the single-judge court and said, “Now, you determine whether or not they are being applied unconstitutionally.”

And there were hearings held and witnesses were brought in.

These people who have been arrested said we were peacefully demonstrating.

We weren’t doing anything and the police came along and charged us with violations of all these statutes which the three-judge court had just held were constitutional statute and we were not doing anything except exercising First Amendment rights and here we are being charged with this things.

And the single judge said that shows they are being tried, you do not have evidence here to — we didn’t offer any evidence whatsoever.

We said to the courts should submit to the bar of 2283.

The court was conducting probable cause hearings and when they said there was no probable cause for the arrest, that indicates that this was a bad faith prosecution and therefore they enjoined us from prosecuting even under these valid constitutional statutes.

The United States Court of Appeals for the Seventh Circuit reversed that.

But they also said there was no finding even though this Court was — that Court was open.

The District Court was open to present all the sort of evidence what was going on, these allegations of conspiracy and so on.

There is no finding that there was — there is no finding in the District Court that there was no expectation of convictions or that the sole motive of the prosecution was to discouraged the exercise of civil rights.

They have their opportunity to prove this gigantic conspiracy that they were talking about in the complaint and they didn’t prove it.

I submit that the opinion of three-judge court should be reversed.

Warren E. Burger:

Thank you Mr. Brannigan.

Thank you Mr. Reid.

Warren E. Burger:

The case is submitted.