Boyle v. Landry

PETITIONER:Boyle et al.
RESPONDENT:Lawrence Landry et al.
LOCATION:United States District Court for the Northern District of Illinois, Eastern Division

DOCKET NO.: 4
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: Federal district court

CITATION: 401 US 77 (1971)
ARGUED: Mar 24, 1969
REARGUED: Apr 29, 1970 / Nov 16, 1970
DECIDED: Feb 23, 1971

Facts of the case

Plaintiffs, several African American residents of Chicago, sought declaratory and injunctive relief against a number of Officials of Cook County and Chicago for the enforcement of a number of Illinois Statutes and Chicago ordinances prohibiting mob action, resisting arrest, aggravated assault, aggravated battery, and intimidation. Plaintiffs contended that the officials violated Plaintiffs’ First Amendment right to free speech by threatening enforcement of the statutes for the sole purpose of harassing and intimidating Plaintiffs. Plaintiffs filed the case in United States District Court for the Northern District of Illinois. A three-judge court upheld all of the statutes except for one subsection that prohibited “the assembly of 2 or more persons to do an unlawful act” and one subsection a statute that prohibited intimidating a person by threats to commit any criminal offense. The court enjoined the officials from enforcing these two subsections. Defendants appealed the decision as to the intimidation statute.

Question

Does an Illinois statute prohibiting the use of intimidation to commit a criminal offense violate freedom of speech?

Earl Warren:

Number 244, John S. Boyle, Chief Judge of the Circuit Court of Cook County, Illinois et al, appellants versus Lawrence Landry et al.

Ronald Butler:

Mr. Chief Justice —

Earl Warren:

Mr. Butler.

Ronald Butler:

Mr. Chief Justice, Your Honors, this is an appeal from a permanent injunctive order issued by a three-judge court in Northern District of Illinois which order for purposes of this appeal held unconstitutional one sub-section of the Illinois intimidation statute.

Illinois Revised Statutes, Chapter 38, Section 12-6 (a) (3).

Jurisdiction is conferred upon this Court by a Title 28, Section 1253 and 2281.

Probable jurisdiction was noted on the 9th of December 1968.

The posture of this case in the lower court is as follows: A complaint was filed by the plaintiffs purported alleging a conspiracy to violate the plaintiffs’ constitutional right and setting forth that by the use of unconstitutional statutes on their face or statute or the misuse of statutes which would be otherwise constitutional that the plaintiff’s’ constitutional rights were violated.

The defendants’ filed a motion to dismiss initially alleging four basic grounds.

First, lack of jurisdiction, second, no relief upon which your claim can be granted, third, as to those sub-classifications of plaintiffs who had been arrested prior to the filing of the complaint for federal equitable jurisdiction the bar of 28 U.S.C. 2283.

And lastly, as to those class of plaintiffs who had not been arrested but who were plaintiffs in the case the claim that the lack of specificity in the complaint takes jurisdiction away from the District Court.

The single trial judge dismissed the motion to dismiss filed by the defendants.

In doing so, he stated that the plaintiffs did have proper standing that the question of 2283 was a premature question because that statute was not jurisdictional that a three-judge court would be convened and the first order of business upon convening the three-judge court would be to determine the threshold question of constitutionality with respect to the five enumerated statutes which the plaintiffs have challenged.

The appellants thereby filed an answer, denying the material allegations of the complaint and specifically in an affirmative series of affirmative defenses setting forth those statements which we made in a motion to dismiss.

Now, the statue in question reads as follows: a person commits intimidation when with intent to cause another to perform or to omit the performance of an act he communicates to another a threat to perform without lawful authority anyone of the following acts in sub-section 3 commit a criminal offense.

The lower court held that the statute in question was overbroad because it prohibited insubstantial evil.

They said that the commission of offenses against public order only is not such a substantial evil that the state may prohibit the threat of it and they further stated that the prohibition of insubstantial evil is outweighed by legitimate political discussion on a wide birth.

There are two issues presented for review in this case.

One, whether the plaintiffs have sufficient requisites standing to entitle them to determination of the constitutionality of the intimidation statute and two, if they do have such standing whether the First Amendment prohibition against the abridgement of speech is violated by a state statute which prohibits threats to commit a criminal offense where the intention is to force another to surrender his freedom of choice.

Now, as to the standing point, the complaint shows the constitutional validity of five Illinois statutes: the map violating statute, resisting arrest, aggravated assault, aggravated battery, and intimidation.

There are seven sub-classes of plaintiffs.

Six of the sub-classes have been arrested in incidents prior to the filing of the federal declaratory complaint and whose cases were presently pending at the time that the federal declaratory suit was filed.

Byron R. White:

What are the — were any of those suits under the intimidation statute?

Ronald Butler:

None were under the intimidation statute, Your Honor.

Now, as far as the complainants who were not arrested but who were party’s plaintiff, the complaint is the appellants’ view it show no specificity with respect to the — with respect to any factual allegations which can be shown to depict a depravation of constitutional right.

In my view, reading the 37 paragraph complaint there are six paragraphs which have anything at all to do with the intimidation statute and with the sub-classification of the plaintiffs who have challenged the statute under it.

That was paragraphs 8, 24, and 25, paragraphs 34, 37 (b) and 37 (f) but in each of those six paragraphs, the complaint is devoid of any specificity effect.

All we see are conclusory allegations.

I am intimidated because of the intimidation statute.

Now, the purported foundation for this case lies in two cases, Dombrowski versus Pfister and Zwickler versus Koota but in both of those cases, Your Honors, there were specificity effects at least in Dombrowski there were affidavits filed, there were offers of proof made in both Dombrowski and in Zwickler.

Ronald Butler:

We have situations where there were prior arrests even though the arrests were not pending at the time of the federal declaratory relief.

And lastly, there was in the complaint a specific contention shown by the defendants to future arrest, to future violation of the plaintiffs’ constitutional rights.

I submit that this case does not fall within the precept of Dombrowski and Zwickler but rather falls with the concept of DuBois versus Clark and the recent case of Golden versus Zwickler.

In DuBois, this Court declined to hear a situation where they said that the — were just this Court said that the no specificity at all is shown.

In Golden versus Zwickler, we had a situation where the Court stated that the complaint failed to present probably because of the specificity — lack of specificity of the complaint fail to present an actual case or controversy.

It is our opinion that the present complaint fails both to shows specificity or to show an actual case or controversy.

William J. Brennan, Jr.:

Now, is the situation different at the time of the judgment you were calling Golden and we felt that the three-judge court had erred in making this determination of case of controversy on the allegations alone rather than on the situation as it’s existed at the time of the remain?

Ronald Butler:

Yes.

Well, —

William J. Brennan, Jr.:

And what’s your position?

Ronald Butler:

We don’t have any facts, Your Honor.

We have no facts.

William J. Brennan, Jr.:

So that we do have to go back then to the complaint itself?

Ronald Butler:

We have to go back to the complaint itself for purpose of the jurisdictional argument, yes.

We would be in the same situation as Zwickler versus Golden before this Court’s second try.

William J. Brennan, Jr.:

Well, I know but this argument based on Golden that’s what I’m trying to get clear.

Ronald Butler:

Yes.

William J. Brennan, Jr.:

Is this an argument that even on the face of the complaint there’s no case of controversy in the sense of a live fight alleged within the four corners of the complaint?

Ronald Butler:

That’s our allegation, —

William J. Brennan, Jr.:

Alright.

Ronald Butler:

— yes.

Unless this Court is prepared to allow that much more wide of latitude than it seemed that the intendment of Dombrowski was designed to protect.

Yes.

Secondly, as to the issue on the merits, the appellants contend that a statute which prohibits threats to commit a criminal offense where the threats are intended to force another, to surrender their freedom of choice is not within the purview of the First Amendment.

We contend this upon two factors.

First, in analysis of the thrust of the statute; and secondly the scope of the First Amendment with respect to threaten conduct where the intention is to force another to surrender their freedom of choice.

The lower court in this case in a very fine opinion found that the intimidation statute as a whole was designed to protect communications intended to compel another to act against his will.

The Court defined a threat then and they said a threat was an expression of an intention to inflict harm or evil against another.

They said that it was more than a mere intention however that it was a menace that it must unsettle the mind of the person on whom it operates and then it must take away from his acts that free and voluntary choice which would alone constitute consent.

They set further that the expression of that threat must have a reasonable tendency to be carried out by the threatener according to its tenor.

Ronald Butler:

This is the definition of threat, this is a definition we abide by now yet when the lower court approach to sub-section involved it shifted its emphasis from the substantiality of the threat to the substantiality of the crime.

This, we feel is what precipitated the error in the lower court’s decision.

The lower court itself stated earlier that the substantiality of the crime was not really the important thing because they said that a mere expression of intent to commit a criminal act was not itself sufficient under the statute that we need the final element of extortion which completes the prohibited act, which is the taking away of that free and voluntary action which alone constitutes consent.

So the substantiality of the evil must go to the threat and to the fear committed by that threat as far as the object of the threat is concerned, the victim, and not to the substantiality or the insubstantiality of the crime threat.

The Court made three illustrations to justify proposed — their proposed opinion and the three illustrations were the following: a group of dissidents who asked for certain things or will commit disorderly conduct, people in a high crime neighborhood who asked for more police protection are failing to get a threat and to carry conceal weapons, and finally, group of mothers who threatened to block a highway should they not get a traffic regulatory signal.

And the lower court was of the opinion that since those crimes that they threaten was so insubstantial when measured against legitimate political discussion on a wide birth that the First Amendment should then protect those statements.

In those examples, the Court in looking to the crime threat failed to observe the main purpose in spirit of the statute toward the person threatened.

The substantiality of the threat could be great and the substantiality of the crime need not be great, need be insignificant and can be insignificant.

One example of this would be a threat by an individual to burn two pieces of lumber placed together in the form of a cross in an open field next to a school which is to be integrated the next day.

A situation involving a substantial threat, but yet of an insubstantial crime.

A further example individuals on a campus who approach the chancellor and tell the chancellor that unless their demands are met within five days, that they are going to disrupt classes, that they are going to take over his office, they’re not going to threaten him personally or physically, they’re not going to destroy the building but they’re just going to make it impossible for the school to function.

This would be a situation where the threat would be very substantial but yet the crime might be nothing more than disorderly conduct.

It is appellant’s contention that this type of examples along with the example cited by the lower court which fall within the purview in concept to this statute and that the statute is valid.

In essence then with the lower court seems to be saying is that the threat of an insignificant crime when they said that the threat of an insignificant crime should not be punished, they are really saying that a little bit of illegality is not so bad and can be protected by the First Amendment so long as speech is involved.

In examining this issue in the light of First Amendment protections, it doesn’t seem to meet the category of the First Amendment preserves.

An extortion by threat is not the advocacy of ideas, it’s not the teaching of ideas and it’s not the exposition of ideas.

It’s not legitimate political discussion on a wide birth.

The entire history of the cases of this Court from Baldwin versus Robertson in 1896, to the statement made in Carroll versus President and Board of Commissioners of Saint Anne’s County late last year seem to indicate that speech uttered in a context of violence or speech uttered to follow an illegal course of conduct are not prohibited — are prohibited rather by the First Amendment.

The First Amendment should not protect that type of conduct.

And on our brief on page 18 and 19, we have set forth a myriad of cases respecting this point.

I should just like to mention a few.

In Bridges versus California where this Court a contempt case where this Court reversed the contempt conviction, this Court was very clear to point out that under no construction therefore and I’m quoting directly, “under no construction therefore, can we take the telegram of Bridges to be a threat to follow an illegal course of conduct?”

In Chaplinsky versus New Hampshire where this Court said fighting words are no essential part of any exposition of ideas.

In American Communications versus Douds where the majority set the Government may cutoff a speaker only when his views are no longer merely views but threatened clearly and imminently to ripen into conduct into which the public has a right to protect.

And even Roth and Smith in the concurring and dissenting opinions, the dissenters or the individuals who concurred stated that freedom of expression can be suppressed if and to the extent, it is so closely brigaded with illegal action as to be an inseparable part of it.

Your Honors, the approval of a little bit of illegality constitutes the doctrine of permissive lawlessness which this Court has never sanctioned and which I hope it never will.

How can we allow individuals or pressure groups to exact gain from others based upon the threat to commit a criminal offense and at the same time maintain that we lived under a system of order, under a system where First Amendment rights are protected under a system or individual rights are first and foremost?

I don’t think we could live with the opinion of the lower court in so state.

In conclusion, the effect of the decision of the lower court is to insulate via the First Amendment threatened acts which force other individuals to surrender their freedom of choice.

The statute under consideration when measured by the scope of the decisions of this Court failed to transgress upon the sanctity of free expression of ideas, since the protection of the right of another as freedom of choice stands upon as equal footing as the right of the speaker to say it.

Could I ask you a question going back to your standing point?

Ronald Butler:

Yes, sir.

Your statement that find on its face fails to say any charge formal or informal of a particular statute the District Court held the Constitution in the particular section, is that challenged by your opponent?

Ronald Butler:

Yes, he challenges, yes.

Did you ask if my opponent challenged it, Your Honor?

Yes.

Ronald Butler:

Yes, he says that there is sufficient standard.

I understand that but I understood your statement was that as to the group of that that you were charged formally charged or something this particular statute District Court relied on the intimidation statute was not involved and you’re charged?

Ronald Butler:

That’s correct.

No one was —

I understood you to say that the defendants who were not properly charged.

There is no allegation in the complaint that they were threatened.

Ronald Butler:

There’s an allegation — yes, there is an allegation that they were threatened but it is our contention that the allegation and the complaint is conclusion only.

There are no facts to support that.

They said that they were threatened, yes.

In my recollection, the complaint is perhaps I’m wrong is that in one general allegation beginning they list this intimidation statute among the others when —

Ronald Butler:

Yes.

— they come down to say what specific defendants are complaining about this intimidation statute is not the first.

Ronald Butler:

That’s correct.

Am I right?

Ronald Butler:

That’s correct although later on they then restate in a conclusory fashion that they are intimidated and harassed by the intimidation statute, yes.

Byron R. White:

No, but they don’t allege any state officer actually threaten them with prosecution —

Ronald Butler:

No.

Byron R. White:

— to the statute?

Ronald Butler:

No, they don’t Your Honor.

Of anything?

Ronald Butler:

That’s correct.

Byron R. White:

They alleged that they feel threatened?

Ronald Butler:

They alleged that they feel threatened, yes.

That’s my reading of the complaint, yes.

Byron R. White:

And as a matter of fact they say they are deterred from —

Ronald Butler:

Yes.

Byron R. White:

— advice in their (Voice Overlap).

Ronald Butler:

Yes, that’s correct.

Byron R. White:

Now, is that conclusory?

Ronald Butler:

I think it’s conclusory, yes.

I think we need something along the lines of Dombrowski in the sense of when and how and where, how did this happen, can you just say that I have been intimidated?

Byron R. White:

Well, can you say there are some demonstrations that I would engaged in except for this statutes, is that (Voice Overlap) for you?

Ronald Butler:

I think there are many demonstrations that one could engage in and still live with the statute, Your Honor.

Byron R. White:

No, that’s not my question?

Ronald Butler:

Maybe I didn’t understand.

Byron R. White:

Well, they say there are some demonstrations that we would engage in except for the statute, is that too general an allegation satisfied?

Ronald Butler:

I think it is, yes.

I think it’s quite general.

Byron R. White:

Can you say on there was a demonstration on such and such a date that I did engage in?

Ronald Butler:

No, I think it would be — I think it would be more valid to say that we were going to involve ourselves in the demonstration that we have been specifically harassed by police officers —

Byron R. White:

You mean it has to be specific action by the state under the statutes?

Ronald Butler:

I would think that there should be, yes.

Yes.

Byron R. White:

Some allegation?

Ronald Butler:

Some allegation of it, yes.

Abe Fortas:

Is this the only statute in the State of Illinois that covers some intimidation, commercial intimidation for example that suppose hey, a gangster goes to a store, the owner of a store and says unless you pay me hundred dollars a week we’ll burn your store?

Ronald Butler:

Yes, this is the only statute with its seven sub points, one of which is (Voice Overlap) —

Abe Fortas:

How do you construe the effect of the Court’s judgment here?

The Court says, as I understand it, that this statute is hereby declared unconstitutional, null and void and then it violates the Due Process Clause of the Fourteenth Amendment of the Constitution, is that right?

Ronald Butler:

Well, they — no, no, no.

Well, they said it was maybe that’s true but the basis of it is it violates the Fourteenth Amendment because it’s overbroad because it sweeps unnecessary broadly over (Voice Overlap) —

Abe Fortas:

Now does that, as you understand it would that mean the Court’s judgment here mean that the statutes unavailable to the state and situation that I have discussed?

Ronald Butler:

Yes, absolutely with respect to sub-section (a) (3), yes.

Abe Fortas:

Sub-section (a) (3)?

Ronald Butler:

Which is the only sub-section on appeal before this Court, yes, but the —

Abe Fortas:

And that this is not equivalent to a holding confined of the First Amendment area.

Ronald Butler:

I couldn’t believe that that’s true Your Honor.

Abe Fortas:

Because there’s nothing to do with any — with the application of the statute.

Ronald Butler:

That would be correct, yes.

Thank you, Your Honor.

Earl Warren:

So, if you — in your opinion if the decision below is sustained even a substantial threat a serious threat or a serious crime would not be punishable under this section?

Ronald Butler:

That’s correct.

It would have to come under one of the other sections and may I state to the Court that there are other specifically enumerated crimes such as bribery, perjury, theft, pass of anything which conspires concealed weapons are concerned which be within the confines of sub-section (a) (3) but not within the confines of sub-sections (1), (2), (4), (5), (6) and (7) which would fall as well along with this legitimate political discussion.

Earl Warren:

I think these crimes that once bothered American City so much like the rush — the extortion racket and the cleaners-and-dyers racket and all those others, do you think so far as this sub-section was concerned those prosecutions would be wiped out?

Ronald Butler:

I believe so, Your Honor.

I think the legislature try to make specific wherever they can and each of the sub-sections and then they put in the final section which still was narrow limited to the prevention of threats to commit a crime and still take in the areas which were not covered by the other sub-sections.

Byron R. White:

But you do have some independent criminal statutes that — against extortion?

Ronald Butler:

No, not against the extortion, Your Honor.

We have the specific criminal sections when the Act is completed as far as the extortion is concerned —

Byron R. White:

But this is the only threat?

Ronald Butler:

Except for Section 33 (3) which have to do with extortion by public officials which is the old common law extortion.

That’s the only other extortion intimidation statute we have, yes.

Thank you, Your Honor.

Earl Warren:

Mr. Reid.

Ellis E. Reid:

Mr. Chief Justice, may it please the Court.

Basically, to begin I’d like to point out and quote from the page 8 of my brief “legitimate political expression intended to secure changes in society’s legal, political, social, or economic structure.

Frequently, takes the form of expressions about future events or conditions such expression may be in the form of promises, predictions, or warnings, or threats of an unlawful — threats of lawful action.

Now, apparently the basis of this appeal is that the court below deemed it inappropriate to circumscribe a threat of miniscule illegal activity but what we have here is really a collision between the right of certain individuals in this society to exercise what has been historical and classical First Amendment freedoms and the right of a state to protect itself and to protect the order of liberty which — without which we would not have any freedom of speech.

So, we’ve always — we always do have a conflict in this area and this Court has in many — on many occasions try to resolve a conflict but now we have a statute before this Court which the state contends is an extortion statute in the classic sense, it is not.

This statute does not require the defendant to take or to attempt to take anything of value from the purported victim.

I say it’s not an extortion statute.

It is overbroad and extortion statute could’ve been drawn to protect a state against that evil and in fact, you have Section (a) (1) of that statute which is not here on appeal and which would remain valid which says of course the threat of inflicting physical harm on the person threatened or any other person or on property.

Now, if they want to protect people from extortion, I say well, in good the state has an interest in that which is substantial but when you deal with what they term as the right of a public official to have freedom of choice, I say you made the statute so broad as to really put a five year news or a $5,000.00 fine around anyone’s neck would have it to merit to publicly utter that we will march around Mayor Daley’s house and violate let’s say an ordinance which would maybe cause us to pay a hundred dollar fine at the most.

Now, we must face five years in the penitentiary or pay a forfeit $5,000.00.

Ellis E. Reid:

This is the real guts of this particular case.

The statute also makes criminal the threat to commit a criminal offense without regard to the degree of the threat.

This is the point I’m making.

In other words, if you carry out the threat in its final analysis and its one to violate a misdemeanor and it will be punishable only by fine, why then when you take it one step back and say, I’m going to do this tomorrow?

Now, you face five years in the penitentiary.

I suggest to you that this is the reason that the court below struck this particular portion of this statute.

Now, —

Abe Fortas:

Don’t you have to have another element under this statute which is take your example in Mayor Daley unless you fire the superintendent of schools we’re going to commit this misdemeanor —

Ellis E. Reid:

Yes.

Abe Fortas:

— around your house?

Ellis E. Reid:

That’s correct and I think that —

Abe Fortas:

But in that element of the threat is not part and lets say part of the suppose misdemeanor.

Ellis E. Reid:

That’s correct.

In other words, in every form of let’s say direct action protest there is always an evil that you’re trying to get rid off or there is always some change in the society that you’re trying to bring above.

So I’m saying that this statute when you take just historical direct action protest it elevates what has been the exposure of using misdemeanors and punishment by fine or short detention to the area of a felony and I think that it puts a chill on legitimate free expression of ideas and a chill on the right of individuals to determine that they will do something in a way to bring about legitimate change.

Abe Fortas:

Has there been to get around of the first question which I assume you’re going to make?

Has there been any threat of invoking this statute against any of the plaintiffs here?

Ellis E. Reid:

Well, in —

Abe Fortas:

(Voice Overlap) of the appellees here?

Ellis E. Reid:

Yes in the complaint, we alleged a scheme and we alleged a conspiracy and alleged the chronology of events.

But most of which in fact all of which took place in 1967.

There were a series of mass arrest in Chicago involving about three or four incidents separate distinct incidents.

There are seven sub-classes in the total class action presented to the court below.

Abe Fortas:

But nobody then used the intimidation statute.

Ellis E. Reid:

They did not arrest anybody for the intimidation statute but we alleged they threatened to do so and it would be a question of whether or not we could prove that they in fact threatened to use this particular statute but we were going to prove that there were meetings of officials and they have set about a scheme of high bonds and to use everything at this disposal including the statute.

Abe Fortas:

Did you specifically allege a threat to prosecute under this statute?

Ellis E. Reid:

I believe we did.

Now, whether or not it is a conclusion as my opposing counsel said I would say that we alleged it as a fact and —

Abe Fortas:

Well, I missed that if you did and I haven’t seen that and I’d like to be directed to it if there is such an allegation.

Ellis E. Reid:

Pursuant to, this is page 17 of the appendix and this is paragraph 34 of the complaint.

Ellis E. Reid:

Pursuant to the aforesaid plan or scheme, defendants have threatened to continue — no, strike that, have threatened and continue to threaten to enforce the said unconstitutional, void and illegal statutes and ordinances against the plaintiffs herein for the sole purpose of arresting, intimidating, subjecting and causing to be subjected plaintiffs and their members.

Now, I suggest to you that this statement met all of the statutes including the intimidation statute and I would like to point out.

I think at the page 18 also which is paragraph 37 (a) where we alleged as a result of those threats.

Now, we never really dug down to the factual issues because we felt that we could prove that there were meetings of the chief judge, meetings of the states attorney’s office and that they had gone over all of these statutes and we didn’t just pull the statutes on that.

These were the statutes that we had on information and believed that they were going to use in the scheme of dealing with so-called mass arrest situations.

Now, we alleged that threat.

Now, I — we didn’t name names or dates and meeting places —

William J. Brennan, Jr.:

Well, may I understand this?

Your proofs would’ve gone only so far as to show that there had been as I understand you meetings of these various law enforcement authorities where there had been discussion each of the statutes.

Ellis E. Reid:

That’s correct.

William J. Brennan, Jr.:

Now, that they in the event certain things happened they would bring to bear these statutes, is that it?

Ellis E. Reid:

That’s correct.

William J. Brennan, Jr.:

But was there ever anything in the way of coming anyone of these appellees and saying in this is what we’re going to do if you do that?

Ellis E. Reid:

Well, I would suggest no.

No one ever pointed a finger at us and said they were going to do it directly to us.

William J. Brennan, Jr.:

And you don’t have any allegation in here do you that that threat of the kind that I’ve just suggested was ever made?

Ellis E. Reid:

No, not a direct threat by suggest to the Court that a threat can be just as ominous if it’s indirect and it gets back to you by a third party as if the finger was pointing in your faces that we’re going to do this to you.

William J. Brennan, Jr.:

Well, I would suppose law enforcement authorities must be doing this sort of thing everything in the week, aren’t they?

They got anticipate if certain things arise they may have to bring the bear in the circumstances particular statutes, don’t they?

Ellis E. Reid:

But the question here is one of standing in one of chill and one of (Voice Overlap) —

William J. Brennan, Jr.:

Well, it might be not what I’m telling — I’m not thinking to those so much as I can the issue which of course we dealt with here only in Golden since —

Ellis E. Reid:

Yes, but I would —

William J. Brennan, Jr.:

And the issue where I don’t see how you frankly how this alleges within the principle of Golden, a case of controversy.

Ellis E. Reid:

Well, in Golden, the language that I’ve picked out of Golden states that the difference between an abstract question and a controversy contemplated by the Declaratory 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 these circumstances show that there is a substantial controversy between the parties having adverse legal interest of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.

Now, I’m asking this Court to take into account the fact that you have to look at all of the facts and circumstances as to what is alleged in the complaint.

Here, we have had experienced with the circumstances that we contend with or that we contended with in the mass arrest circumstances.

We have under gone the mass arrest of 60 people some of which were on their front porche.

Thurgood Marshall:

Mr. Reid, what experience did any of these people have with the statute that was held unconstitutional in this case?

Ellis E. Reid:

What is it Your Honor?

Ellis E. Reid:

I didn’t under the question.

Thurgood Marshall:

What experience did any of your people had with the enforcement of this statute which was declared unconstitutional in this case?

Ellis E. Reid:

With the intimidation statute only.

Actually, no one was ever charged so we had no experience other than let’s say an indirect threat that the next time around will not only use mob-action but we’re going to use the intimidation statute as well.

Thurgood Marshall:

An indirect threat?

Ellis E. Reid:

Yes.

Thurgood Marshall:

That’s sufficient to declare a statute unconstitutional?

Ellis E. Reid:

I would say when — whether or not the threat is indirect or direct it is still a threat and either I am going to be chilled in my feelings that I can go out and exert my First Amendment freedoms or not.

Thurgood Marshall:

Could you be chilled by rumor?

Ellis E. Reid:

Well, I would suggest this was more than rumor.

Thurgood Marshall:

Well, weren’t you chilled when the statute was passed?

Ellis E. Reid:

Yes, we were but as a question of degree, Your Honor, and I’m saying we’re little bit closer to this in to the spectrum.

Thurgood Marshall:

You just found it, didn’t you?

Ellis E. Reid:

What did you say?

Thurgood Marshall:

You just found the statute?

Ellis E. Reid:

I didn’t hear you.

Thurgood Marshall:

You just found the statute before this was filed?

Ellis E. Reid:

Did we just find statute?

Thurgood Marshall:

Yes, sir.

Ellis E. Reid:

Well, you mean so far as our drafting the complaint?

Thurgood Marshall:

Yes, sir.

Ellis E. Reid:

Well, I would suggest it didn’t start from our end as to which statutes we were going to sit down and try to get the Court to define to be unconstitutional.

I suggest that in light of what was happening and in light of what we felt was going to happen to our plaintiffs below and appellees here that we said in light of these statutes where they have already taken action and we have this history behind us now and in light of the fact that we’re being threatened in the future by the intimidation statute, let’s file a complaint taking care what has gone before, the mob-action, disorderly conduct as well as intimidation because we want perspective relief as well as — I mean you know as well as dealing with history, and then —

William J. Brennan, Jr.:

And then everyone of this case is so far Mr. Reid I think this is right, isn’t it in the Golden, Zwickler had been arrested and convicted on one occasion —

Ellis E. Reid:

That’s correct.

William J. Brennan, Jr.:

— violation of the statute involved.

In Cameron and Johnson after the statute was enacted the police came down and they arrested all of the picketers.

In Dombrowski, we had raids on the plaintiffs’ offices and the call and taking all that papers and all of the rest of it.

And I guess actual indictments of them under some of those Louisiana’s statutes.

Now, you’re carrying us pretty far, aren’t you?

William J. Brennan, Jr.:

We suggest that merely, merely because officers get together and decide that they’re going to cope with this developing situation by applying this and not any of statute but no threat of any kind to any particular individual under your client was in fact threatened to the prosecution under this or in fact threatened that the statute will be brought to bear if he carried on misconduct.

We don’t have anything like that.

Ellis E. Reid:

Well, I’m suggesting to the Court that, Your Honors, and from your question I can take the attitude or the idea from that that you feel that a police officer must first come down or a state’s attorney and say, I’m going to charge you Ellis Reid.

William J. Brennan, Jr.:

Now, what I’m suggesting Mr. Reid is that the cases where —

Ellis E. Reid:

I understand.

William J. Brennan, Jr.:

— this issue or isn’t have all been cases where on the fact the statute was actually applied against the plaintiff who sought the relief, the declaratory relief.

Ellis E. Reid:

That’s correct and I would —

William J. Brennan, Jr.:

And here, at least we don’t have that factual situation.

Ellis E. Reid:

That is a difference.

But I’m suggesting that even though that is the difference and I recognize that to be a difference, I’m not trying to minimize that I’m saying when you put you can’t try this case in a vacuum surely if you said nothing else that happened before.

You might be right, it would be pretty remote but when you have the chronology and the dealing with the plaintiffs below with the other statutes they were in fact applied.

I think that they — the threat became so imminent and immediate and there wasn’t actual controversy between live litigants at that point although the indictment had not fall.

And no one had come down to make an arrest.

I still think although we were in court perhaps early I don’t think we were in court too early as to make the issue one that would be not an actual case of controversy and I’m asking you to really look at the factual circumstance involving the mass arrest situation where the use of the statutes and we cannot divorce this statute from the total scheme of things.

I’m saying, it’s the total scheme of things.

Byron R. White:

Well, did this case come up on a motion to dismiss?

Ellis E. Reid:

I did.

Byron R. White:

But it was –- they’re after an answer?

Ellis E. Reid:

No, they came up on a motion to dismiss before Judge Will alone and it was denied.

Byron R. White:

He denied — that denied motion to dismiss?

Ellis E. Reid:

That’s correct.

He felt that there was subs — sufficient allegations to state a claim and of course now that point we were not split off between intimidation mob-action, disorderly conduct (Voice Overlap) —

Byron R. White:

There’s never been any facts.

Ellis E. Reid:

— for this arrest.

Byron R. White:

Never been any facts in this case at anyway?

Ellis E. Reid:

Other than on — in some other circumstances what Judge Will termed as ad hoc hearings involving whether or not he would enjoin particular prosecutions which came at a subsequent point in time.

There were of course facts but there was never been a evidentiary hearing dealing with the threat or the nature of the threat involved in this intimidation statute.

Byron R. White:

Now, I take it that the state is saying that your allegation in section — in paragraph 34 which is an expressed allegation that the defendants have threatened the plaintiffs, was not a sufficient allegation to sustain — to survive a motion to dismiss?

Ellis E. Reid:

That’s what they’re saying and of course the court below sought our way that it was substantial and it’s the question of semantics whether or not this is a conclusion.

Byron R. White:

Well, I know but whatever the actual facts were is another matter, the question is sufficiency of this allegation?

Ellis E. Reid:

That’s correct.

Byron R. White:

When you — the question is whether you must not only say you’ve been threatened but then go on and allege specifically how you been threatened on a certain day or by a certain letter or by words or telephone call or what?

Ellis E. Reid:

That’s the issue and of course we contend that in the totality of the complaint that we have made out a case on the pleadings when you read the complaint as a whole not picking out certain portions and forgetting others but when you take it as a whole that we have stated a cause of action upon which relief could be granted and that’s the way the case was presented below and I would urge the Court to deal with it in that fashion here.

Thurgood Marshall:

Well, what to do we do with the states specific denial of 34?

Ellis E. Reid:

Well, I would say that —

Thurgood Marshall:

What did they do with that?

Ellis E. Reid:

— at that point, we did not really get to an evidentiary hearing because basically the —

Thurgood Marshall:

Did you say — you say you were threatened and the states say you were not threatened?

Ellis E. Reid:

That’s correct.

Thurgood Marshall:

Now, on basis of that that’s all the Court had to go?

Ellis E. Reid:

That’s what the Court had before, yes.

But specifically, though I have raised the point in my brief and I would like to just to point out to the Court now though I see that the Court has a great deal of interest in this point probably in light of Golden.

But I perhaps I was in error when I pointed out that this matter comes here really on a direct appeal and in their jurisdictional statement it is our contention that this issue was not fairly complies with in that jurisdictional statement and therefore this particular issue is not before the Court.

Now, I’ll — I understand that if the Court wants to deal with this as a jurisdictional requisite then the doctrine of waiver may not apply but it’s our contention that this particular standing argument has been waived because it was one wherein an appeal should’ve been taken directly to the Court of Appeals because it was based on a decision of a single judge.

Byron R. White:

But you don’t waive that’s the jurisdictional matter, isn’t it?

Ellis E. Reid:

Well, that’s why I’m saying if that is a matter of jurisdiction then I would say that it would not be one that could be waived but I don’t feel that under the circumstances here that it would be a matter of jurisdiction.

Byron R. White:

Did the state ever move to dismiss or one of jurisdiction or did they just move to failure to state of claim?

Ellis E. Reid:

That’s what based; they move a failure to state of claim and the Court decided against it.

Byron R. White:

And they thereby admitted rule — their allegations of 34, did they?

Ellis E. Reid:

They did what?

Byron R. White:

They must have admitted —

Ellis E. Reid:

Well, I don’t have a copy of the answer before me now but and of course unfortunately Mr. Tucker below argued the matter —

Byron R. White:

— what to dismiss before Judge Will as dissenting judge.

Ellis E. Reid:

Yes.

Byron R. White:

That was just a motion to dismiss and prepare the state of cause of action?

Ellis E. Reid:

That’s correct.

Byron R. White:

And for that — for those purposes they admitted your allegations?

Ellis E. Reid:

That’s correct, for those purposes and they have never really —

Byron R. White:

And they never move to dismiss for one of jurisdiction?

Ellis E. Reid:

That’s correct.

Ellis E. Reid:

I would say that if you read their motion to dismiss it does not really articulate one of jurisdiction.

I think it’s found beginning at page 30 of the appendix.

Byron R. White:

But then after the three-judge court was convened they didn’t file their answer denying 34?

Ellis E. Reid:

That’s correct and then the three-judge court ruled.

Abe Fortas:

Now you challenged quite a lot of statutes didn’t you in your initial complaint?

Did you challenge all of those statutes that listed beginning on page 25 of the transcript in record of the appendix?

Page 25.

Ellis E. Reid:

25 of the appendix?

Abe Fortas:

Yes.

Ellis E. Reid:

Let’s see.

Abe Fortas:

Did you challenge all those?

Ellis E. Reid:

No.

Well, basically, no.

We challenged the disorderly conduct ordinance 93-1 — 193-1.

We challenged the mob-action statute.

We challenged the intimidation statute and I believe the resisting arrest ordinance and there were some few others which we — I don’t have a copy and see where which we withdrew more or less are challenged for the court below.

Basically, it was two ordinances and two statutes and that were challenged below.

Hugo L. Black:

Which two?

Ellis E. Reid:

Two statutes were mob-action and the intimidation statute which is before this particular Court.

The other ordinances were dealt with by the single judge, Judge Will below.

He separated them saying that they felt that it was not for a three-judge court being that they were only ordinances of lawful application.

Potter Stewart:

How did this list on page 25 get in this appendix, there are some (Voice Overlap)?

Ellis E. Reid:

I don’t know.

I did not make a point of it, I read it but I really — I guess what this is on page 25 is really a listing of the grand page of the city counsel of the ordinances that fall under Chapter 193 of the Municipal Code of Chicago that obviously —

Abe Fortas:

But that attached to your complaint, wouldn’t it?

Ellis E. Reid:

I just — I don’t think this was attached on plaintiff.

We said out if I have the — I have not looked at it.

Abe Fortas:

As part of exhibit (a) as I see it to your complain here in statutes and ordinance —

Ellis E. Reid:

Well, I would say this although it might’ve been it was just an index or maybe all of the available ordinances under Chapter 193 but we only challenge 193 (Voice Overlap).

Abe Fortas:

(Voice Overlap) Do you contend that you really are in danger of being arrested for advertising psychic or magical powers or for promotion of marriage or spiritualism and fortune telling, do you?

Ellis E. Reid:

Well, basically, this, I guess when we realize that many of these ordinances that were passed was specific reasons all of which or some of which have long since cease to have any meaning.

Maybe I did not — I would say deal with this particular portion of a complaint and I don’t know why it was put in there.

Maybe it was to show that they have many, many ways to control us and what we specifically were dealing with disorderly conduct.

Abe Fortas:

Well, the real problem it’s not merely matter amuses me but it sort of highlights the real what is a real problem in this case to me which is whether you can go through a statute book and without any specific or explicit basis and threats of enforcement you say against you whether you can just go through a statute book and pick out statutes that might conceivably be used by the police and a civil rights demonstration and then bring an action based on Dombrowski seeking relief or whether you’ve got to have a specific basis and specific threats, specific harassment, specific action taken under a specific statute before you can utilize Dombrowski.

That’s the issue here and this long list is merely a humorous illustration of a kind of intellectual problem and legal problem that I suspect is very real in this case.

Ellis E. Reid:

Well, I would ask the Court to reach a middle ground from what you’ve said.

I think there is a point in between those two poles, in other words, I would agree this Court should not sit to hear contrive not substantial litigation where one would go to a statute book and dig them out.

But I think also we should not in the area of the First Amendment freedoms and this is why I think this is unique.

And this I think is the reason for Dombrowski, wait until someone has been tried and convicted before they would have standing before this Court.

I think that this particular case presents a factual circumstance of that middle ground.

There was a scheme that was entered into and upon where we were arrest, where we were intimidated, where we were thrown into jail with high bonds and where there were meetings and where the police prosecutors start going to the statute book and we heard about it and we got to Court before they did.

Now, I don’t think that we lose our standing by beating them to Court and that’s what the issue I’m trying to impress upon this Court.

I think that when I say look at the totality of the chronology of events.

Abe Fortas:

Yes, but the question perhaps is whether you have this by general allegation listing some general statutes and then inserting a general allegation that you’re threatened with harassment under those statutes, that’s your paragraph 34.

Ellis E. Reid:

Well, Mr. Justice —

Abe Fortas:

Whether you made out a basis saying whether you made out — whether you got a complaint that really comes under Dombrowski.

And on Dombrowski is quite a different kind of case when it’s at least arguable that Dombrowski is quite a different kind of case then you’ve been presenting to us with respect to the intimidation statute because all you have alleged here is very general statement embracing a number of statutes without any particularization and embracing and alleging a general danger of prosecution again so far as this statute is concerned without any particularization.

Ellis E. Reid:

Yes, I can see your concern but again I’m saying that had nothing occurred, had no one been arrested other than the many, many people who were arrested perhaps you would be right.

But here, we had a serious of arrest, mass arrest and here, we had all be — other statutes and ordinances as used.

It showed a scheme to deal with this type of protest activity in a certain way.

I think then we’re in a different position and we then perhaps and I’ll urged upon the Court, I think we would have the right to then alleged they’re not only going to use the ones they’ve already arrested us on but we might it call it pendent jurisdiction or whatever you want to deal with but I’m saying to deal — to get away from securities litigation.

That’s deal with the total problem now because they now or threaten now used mob-action in disorderly conduct.

They have threatening to use intimidation too.

So, we therefore put it in as part and parcel of this complaint and therefore I feel that the court below had jurisdiction and I feel that as I stand here now, I have standing to sue and to the right to attack the intimidation statute also as well as the ones that we’ve attacked below with proper standing and I’d say well, with no allegation below that we did not have proper standing.

Basically, for those reasons I’d like to urge that the Court affirmed the court below because unless we have a basis for dealing with these matters with in the framer of the courts.

All of those things which they urged about taking to the streets in a righteous way may come to pass.

And I would suggest that when we tighten the news around people’s neck and it become frustrated.

They have no way to go but the mostly illegal way.

Thank you for listening.

Earl Warren:

Mr. Butler.

Ronald Butler:

Several short points on rebuttal, Your Honor.

Earl Warren:

Very well.

Ronald Butler:

First of all in answer to Mr. Justice White’s question with respect to the pleadings on page 30 of the appendix, first point under the motion to dismiss is that this Court has no jurisdiction and it’s been re-alleged —

William J. Brennan, Jr.:

And was that argued in the context of case of controversy?

Ronald Butler:

It was argued in the context of case of controversy and the memorandum that was filed, yes which is not a part of the appendix.

William J. Brennan, Jr.:

It doesn’t appear on this Judge Will’s opinion on motion to dismiss.

Have you dealt with this in the context of declaratory judgment but rather in the injunctive relief?

Ronald Butler:

He dealt with in the context of Dombrowski generally, Your Honor where there is a statement I believe on page 487 of Dombrowski which said that the minimum requirements of standing I have been lessen and the Court — the three-judge court on page 64 of the appendix footnotes 25 and 26 repeated that statement and in the manner and which seem to indicate that the standing requirement was lessened.

Byron R. White:

Yes.

But at least you never did address himself specifically to the elements of either injunction of declaratory judgment with respect to the intimidation or to the threat statute?

Ronald Butler:

Yes, I believe and I’ll furnish to him.

I believe he tried to attribute it toward the declaratory judgment face not the injunctive face.

I think he is —

Byron R. White:

Well, I don’t see him even mentioned declaratory.

Ronald Butler:

Well, no.

Well, maybe not in the opinion I mean probably not in the record but I was cognizant at least —

Byron R. White:

But either declaratory general injunction was not in either aspect you didn’t talk about —

Ronald Butler:

No, that’s —

Byron R. White:

— statute?

Ronald Butler:

That’s correct but we must remember that Zwickler versus Koota had been decided at the time of this and he was cognizant though but although it doesn’t appear.

Also as far as paragraph 34 is concern, Your Honor, I see no different between the allegations which I can contend that conclusory in that respect or in a civil case where I state that some else was negligent and someone else committed it toward against me.

I think that’s conclusory, I don’t think that has any kind of even quasi-specificity and I think I could take paragraph 34 and I’ve as have been pointed out by one of the justices earlier and include every single state of Illinois criminal statute in paragraph 34 because all I have to say that I’m in fear.

Byron R. White:

Does the 34 says more than that?

34 says defendants have threatened.

Ronald Butler:

Well, I think that’s the same allegation could be made.

The defendants have threatened to use every single statute.

Byron R. White:

Do you think that on a motion to dismiss for failure to state — an equitable claim that you could say that you have threatened these people?

Ronald Butler:

I think so, yes.

Because a motion to dismiss admits all well pleaded allegations but the question is whether that’s well pleaded.

Byron R. White:

So you wouldn’t admitted by that motion to threat anybody?

Ronald Butler:

No, I would admit only well pleaded allegations and something says I’ve been threaten, it’s the same of saying I’ve had it toward committed against me.

Byron R. White:

Well, I know but —

Ronald Butler:

Someone has been negligent.

Byron R. White:

This says defendants have threatened and continued to threaten.

Ronald Butler:

When someone says a defendant is threatened, that’s a conclusion.

How did the threat come above?

That’s a conclusion based upon something else with something else is not involved here.

Byron R. White:

That’s just a general description of facts isn’t a conclusion.

Ronald Butler:

I respectfully disagree with as far as that’s concern.

I think it’s not.

Byron R. White:

Yes.

What do you think a conclusion is?

Ronald Butler:

I think a conclusion is something that’s based upon series of other statements.

I can’t say that I committed a negligent act against you and have a complaint with stand and motion to dismiss.

I can say that you injured me as far as certain time and place in automobile when you went into the back of my automobile.

I could make a conclusion from the basis of those statements but I can’t just make the statement and expect to withstand a motion to dismiss.

Byron R. White:

Do you have any cases indicating this kind of a — allegation as insufficient?

Ronald Butler:

No, I have no cases Your Honor.

I —

Byron R. White:

Anywhere?

Ronald Butler:

No, I’ve been — Dombrowski and Zwickler and the rest of the cases have been quite difficult and up until Golden versus Zwickler was taken, I didn’t know myself whether standing argument would be sufficient in this case.

Thurgood Marshall:

What about a civil court action in which the allegation is made that the six defendants threatened to be with vital harm, do you think they would stand that?

Ronald Butler:

I think there would have to be something more Your Honor.

Thurgood Marshall:

Like what?

Ronald Butler:

Like time, like place —

Thurgood Marshall:

Which is evidence?

Ronald Butler:

Well, —

Thurgood Marshall:

Which you don’t use to plea.

Ronald Butler:

It can, yes.

It can be over this time.

Thurgood Marshall:

Why do you run off the point that you filed an answer and denied it?

Ronald Butler:

No, I’m not running away from it, Your Honor.

I’m not running away from it at all.

The answer was filed, there was a denial.

Earl Warren:

Very well.