Gunn v. University Comm. to End War in Viet Nam – Oral Reargument – April 30, 1970

Media for Gunn v. University Comm. to End War in Viet Nam

Audio Transcription for Oral Argument – January 13, 1969 in Gunn v. University Comm. to End War in Viet Nam
Audio Transcription for Oral Argument – January 14, 1969 in Gunn v. University Comm. to End War in Viet Nam
Audio Transcription for Oral Reargument – April 29, 1970 in Gunn v. University Comm. to End War in Viet Nam

Audio Transcription for Oral Reargument – April 30, 1970 in Gunn v. University Comm. to End War in Viet Nam

Warren E. Burger:

We will resume the arguments in number 7, Gunn against the University Committee.

Mr. Louisell you may pick up where you left off.

David W. Louisell :

If your Honors please, in view of the time limits, we must submit the matter of appealability that we were discussing yesterday on our supplemental brief.

We submit that it’s covered there.

If not a judgment we have here under the statute a reviewable order.

I might only say that the appellees themselves in their motion to affirm with great candor acknowledge this, so far as it’s relevant, and they pointed out on page 2 of their motion to affirm that under Reynolds against Sims, a reapportionment case, they had no doubt about the appealability of the order here.

It would of course be very unfortunate I think from a viewpoint of judicial administration.

The case have —

William J. Brennan, Jr.:

If the Court was going to request, was all the question would not be appealability of an order, but whether there was any order at all which would be appealable?

David W. Louisell :

Well, that’s —

William J. Brennan, Jr.:

That’s what bothered me about it?

David W. Louisell :

And of course as we point out in the supplemental brief but there is, is in the last paragraph —

William J. Brennan, Jr.:

Yes.

David W. Louisell :

— of the Court’s opinion.

Your Honors, it seems to us that the crux of this case, the real turning point when it might have gone the right way was on the motion by the appellants to dismiss made very promptly within a day or two after all of the criminal complaints in the state court had been dismissed.

At that point, we submit to Your Honors, there was no case or controversy.

Anything more to be done was a simple matter of advice and advisory opinion and from the beginning of this nation to the present time, the teaching of this Court is there was no occasion, no reason, no right to go ahead and render an advisory opinion.

The Court insisted on so-called using the phrase “we will carry this motion with the case.”

If it had faced up to the motion explicitly, what happened might not have happened.

Now remember, if I may say as far as Dombrowski goes and I wish there were time for a full review of it although there has been so much rethinking and refreshing by the Court in any event, I doubt it would be necessary.

But far from the facts here invoking Dombrowski where there was a bona fide allegation of deliberate, intentional, none of good faith used of the very complicated statute to effect racial repression far from those facts being involved here, and even assuming every disputed fact or anything that we can imagine was disputed here in favor of the appellees, this was a one-shot proposition.

This wasn’t a continuing concert of effort to deprive anybody of his rights.

Instead of Dombrowski being controlling, I submit to you there are controlling words in Cameron against Johnson.

If the mere possibility of erroneous application of the statute, the mere possibility of such erroneous application of the statute does not amount to the irreparable injury necessary to justify a disruption of orderly state procedure.

All the good that may be done —

Byron R. White:

Well the — are you saying there was no case of controversy or that there was not, but there was — but the Court should not have entered either at the third for a judgment or an injunction?

David W. Louisell :

I’m saying that when those criminal cases were dismissed Mr. Justice White, there was no longer a case or controversy.

The state had given up every effort.

There was no reason to go ahead with the federal three-judge case.

William J. Brennan, Jr.:

Even if they had in this Mr. Louisell, I suppose you would say —

David W. Louisell :

I would still say that it wasn’t the type of situation, but with the dismissal any pretense of excuse —

William J. Brennan, Jr.:

You mean that brings it within Golden?

David W. Louisell :

Within Golden of course and the necessary or the necessary distinction between the declaratory judgment and injunction thinking, I invoke all that.

But even within Golden, I would say would confirm, make more explicit of what I’ve said about the applicability of Cameron against Johnson.

Byron R. White:

What would you say if criminal charges were dismissed and no criminal charges were pending but there were allegations that because of the statute and because of past conduct, we are now deterred from taking some following of course that we would have otherwise.

Would that amounts to a case in controversy in your view?

David W. Louisell :

If there were a genuine position to that effect, there might be within the doctrine of Golden from Dombrowski through Golden, there might have been.

But there was nothing here far from meeting the strong requirement of the very words of Dombrowski.

There wasn’t even a serious claim that there was any concerted effort to keep —

Byron R. White:

Oh, I understand that.

There were no allegations of harassment or non-good faith application of the law, but the allegation is or suppose the allegation was that we know that the statute might be applied in these circumstances and we are now not holding anymore demonstrations or expressing our views at all because of the statute, and that gives us a case or controversy.

David W. Louisell :

Well, if there were a bona fide — if there were a real showing, a real position that they were so inhibited by the statute; that would be one thing, but I want to come to that and show that the statute has construed never in Texas had been attempted to reach the content of the speech.

It was only a method of controlling disturbance in the historical meaning of disorderly conduct statutes.

Byron R. White:

Well, was there an actual allegation here of deterrence?

David W. Louisell :

There was an actual allegation of deterrence, but I submit there’s absolutely nothing, but for narrow, conslusary mere allegation.

Now, we all know even from the view point of the strongest support of the Dombrowski philosophy, Dombrowski is strong medicine in the federal state relationship and I respectfully submit that unless taken according to prescription, strong medicine is poison.

But giving to the claims of the appellees every possible intend and then every assumption.

Mr. Justice White, if it’s true that they were being kept out of the county by a concert of action between these people, wasn’t the remedy to grant an injunction against that sort of an abuse rather than to reach out and declare unconstitutional, a conventional orthodox disorderly conduct statute?

Potter Stewart:

They declare the whole statute unconstitutional —

David W. Louisell :

The whole statute.

Potter Stewart:

Do you think?

David W. Louisell :

At one point, they seem to be emphasizing one part of it.

Potter Stewart:

Yes.

David W. Louisell :

But the net conclusion is in the assumption among the lower courts of Texas apparently is the justices that all of 474 has gone.

Potter Stewart:

Because that’s one the difficulties in this case, there being no injunction you can’t tell this part one.

David W. Louisell :

You can’t tell the precise notion the Court had in mind.

Potter Stewart:

No.

David W. Louisell :

But they did say entitlement to injunctive relief.

I want to reserve a few minutes so I would just say now that of course historically, the purpose of this statute I supposed was to meet the conventional types of disorder, things on the street, disturbances in church and so forth.

Today, the need for this kind of a statute is the kind of a situation where a mob may come to a school room, a classroom, and screech and shout so as to disrupt.

David W. Louisell :

Your Honors, that has nothing more to do with free speech than the fact that it involves the noise from the vocal chords.

Potter Stewart:

You do understand that the District Court in fact did declare null and void under the constitution, those parts of the statute that have to do with indecent exposure and firearms and so on?

David W. Louisell :

Of course, they didn’t direct themselves to that specifically, but in the final conclusion of the Court, the whole statute went.

Warren E. Burger:

They didn’t carve out any exception?

David W. Louisell :

No exceptions to the condemnation.

Thurgood Marshall:

But it did say that the state could pass it as legal?

David W. Louisell :

They did say that.

Well of course, the next session of the legislature met and adjourned without taking any action as we point out in our supplemental brief.

Potter Stewart:

Because that’s the difficulty in the case when there’s actually no injunction.

You can’t tell and that’s the reason for the rule under law that it requires an injunction to be very carefully and precisely drafted.

David W. Louisell :

That is —

Potter Stewart:

And here’s no injunction at all?

David W. Louisell :

There is the concluding paragraph and of course, if we did have–

Potter Stewart:

If the statement, if there any —

David W. Louisell :

— If the Court had been obedient to the notion that Your Honor just put, we would have a specific injunction.

But you can go to the whole opinion of the Court including the so-called addendum opinion to see the completeness of the condemnation of Section 474.

Warren E. Burger:

Thank you Mr. Louisell.

Mr. Clinton?

Sam Houston Clinton, Jr.:

Mr. Chief Justice and may it please the Court.

We think the disposition of this case here for reasons about to be stated is rather simple matter and suggests that that disposition is to affirm what the District Court has done and remand for further proceedings not inconsistent with whatever action the Court does take.

Warren E. Burger:

Well, are you addressing to that observation to the limitation of the injunction so that if they have some rational relationship to the events?

Sam Houston Clinton, Jr.:

I am addressing it to remanding it to the court in order that then the court can actually enter an order for injunction if the court deems it now appropriate to do so.

Potter Stewart:

We don’t have any power at all to review a case in which an injunction hasn’t either been granted or denied.

And here your suggestion is we now remand it so an injunction can be granted.

We don’t have any jurisdiction to this case unless an injunction has been granted or denied under Section 1253.

Sam Houston Clinton, Jr.:

Of course, the real problem here is I suggest that the — that Court in real deference to the legislature of the State of Texas stayed any action under its opinion and with that occurring, counsel, prevailing counsel has just the practical matter is not going to try to bother the court below as getting some kind of order.

We’re still waiting for the legislative action.

And may I —

Potter Stewart:

But then as a practical matter, this Court has no jurisdiction to review anything under Section 1253.

You know what its words say, don’t you?

Sam Houston Clinton, Jr.:

Yes sir.

Potter Stewart:

And it was very understandable the courtesy and deference that the three-judge court showed to the sovereign State of Texas I suggest that the result of what it did is quite unfortunate because it leaves an essentially advisory committee — essentially advisory opinion unreviewable.

Sam Houston Clinton, Jr.:

Well, the opinion does in the last paragraph say that —

Potter Stewart:

Express and reviewed —

Sam Houston Clinton, Jr.:

— we are entitled —

Potter Stewart:

— entitled to an —

Sam Houston Clinton, Jr.:

We are entitled to declaratory.

Potter Stewart:

But there is no order granting an injunction, there is no injunction.

Sam Houston Clinton, Jr.:

I — certainly, that’s true.

May I however clear up one thing that arose yesterday as to whether the District Court’s own suspension of its order later somehow became effective by reason of a legislature meeting and adjourning.

What actually happened was, the legislature did meet on June 4, 1968 in special session that was scheduled by the normal course of events to adjourn on July 3.

In the meanwhile, the state, the appellants here applied to His Honor, Mr. Justice Black, and he on June the 12 I believe entered a stay order which in effect superseded whatever the District Court’s stay of mandate meant and actually, we are still today under that stay order.

I want to discuss what counsel says is the crux of the case that being the motion to dismiss and I’d like to put that in the context, if I may, of the events that led up to that.

This particular occurrence was on December the 12.

We filed our complaint by the 21.

The single-judge granted a temporary restraining order holding things in status quo.

We also filed a motion for preliminary injunction and requesting the convening of the three-judge court.

In January 2, the TRO was extended as I recall by agreement.

On the 19, the defendant’s filed an answer to the motion for injunction joining issue on our allegations.

And on January the 23, the TRO was extended to February the 23 which was also the date of the hearing set for the three-judge court.

So by January of 23, everybody had their pleadings in order and the three-judge court had been convened and the application for the preliminary injunction was then pending.

It was February 15, some two or three weeks later that for the first time, the motion to dismiss surfaced and was called to the attention of the Court in connection with a contemporaneously filed motion for a continuance seeking to have the Court put off the hearing that had already been scheduled on the pleadings and concentrate only on the motion to dismiss.

The Court on February 20, three days before the previously scheduled hearing entered an order deferring the motion to dismiss or carrying it along with the case as we say down there and denying the motion for continuance.

And then on the 23, the hearing was held on which date incidentally and for the first time the defendant’s filed any character of proof, this being in the form of affidavits from some of them and some of the deputies.

I think and submit that the Court was entitled with respect to the motion dismissed to be very suspicious of the validity of the good faith, coming not only as a matter of time when it did, and in fact as I recall, the presiding judge, Judge Thornberry raised that very question during the hearing as to the timing of that motion.

If you thought he said, if you thought that these events had occurred on a federal enclave over which the state had no jurisdiction, why have you waited this long to call it to our attention?

But in any event, the motion to dismiss if the Court please is directed only to that event.

The motion to dismiss is limited to the fact that the —

Warren E. Burger:

Where does that appear Mr. Clinton?

Sam Houston Clinton, Jr.:

It’s page 16 of the brown appendix, page 16.

Warren E. Burger:

Thank you.

Sam Houston Clinton, Jr.:

The last two sentences, the defendants would show the Court that no useful purpose could now be served by granting an injunction to prevent the prosecution of these suits because the same no longer exists.

Plaintiffs can asked no greater relief in the instant case than that the complaints heretofore filed be dismissed for want of jurisdiction.

Well of course, we can, not only can but did ask for more relief than just to stop to pending prosecutions where we had a prayer for declaratory judgment that the statute be declared unconstitutional.

We had a prayer for preliminary injunction later permanent injunction.

We have a prayer for general relief that I submit is so broad that if relief could be granted, we could still ask for monetary damages for the action vested upon the appellees here.

And the Court had this kind of evidence before it too which I think this Court can easily conclude that the District Court not only considered but was impressed by it to justify this kind of evidence, to justify the sworn testimony in the sense of affidavits, we agreed and the stipulation that those affidavits meant that those people given the affidavits if called to testify would testify in the fashion shown on the affidavits, this was all done by agreement for the convenience of the Court.

The appellees here, the three young men who were handled in Bell County as they were and other affiance called as witnesses through their affidavits, who were there also as a part of the demonstration, all said that they were limiting their activities in the committee it’s peaceful protest that they would not return to Bell County, that they would not engage in any demonstrations in Bell County and some said elsewhere, so long as the statute was being used in the fashion that it was.

Warren E. Burger:

Could that conceivably be form of protest against the statute as well as bona fide expression of a fear, — the statute it’s got to be a fear, an apprehension, doesn’t it?

Sam Houston Clinton, Jr.:

Well, I think it’s an expression of fear maybe not or maybe it was stated directly to the statute itself, but it was stated in terms of if this is the way the statute — if people can be charged for disturbing the peace for what we’ve done, well then, we are not going to do it until something is done about the statute.

The point that I’m trying to get to is to suggest to the Court that when the District Court accepted those statements not only by the appellees but by their witnesses who were there in the demonstration, they have very good reason for accepting him and believing him and get writing relief based on that or indicating that we were entitled to relief based on that.

Warren E. Burger:

Professor Louisell, I think argued yesterday Mr. Clinton that the 1871 Statute was not aimed at isolated or sporadic enforcement of a particular statute in a particular way, but systematic or pattern of the use of local statutes to inhibit constitutional rights.

Do you think that going back to your original pleading, do you think you have a case of systematic conduct or pattern of conduct to deprive people of their constitutional rights here?

Sam Houston Clinton, Jr.:

We did not allege that the defendants, the appellants here had previously used this statute, excuse me.

Warren E. Burger:

Let’s suppose, let me try hypothetical case that might illustrated that.

I think someone said Texas had 365 or 367 counties?

Sam Houston Clinton, Jr.:

It’s actually 254.r.

Warren E. Burger:

254?

Sam Houston Clinton, Jr.:

Yes.

Warren E. Burger:

Well that’s still quite a few —

Sam Houston Clinton, Jr.:

Yes, it’s still —

Warren E. Burger:

Suppose you got a prosecutor in each county and you have one prosecutor in one of those counties who has some aberrations about a Texas statute and enforces it in a certain way.

Is that the kind of state action which 1871 Act contemplated where it’s one prosecutor in one of 265 counties or is that must have be something broader than that?

Sam Houston Clinton, Jr.:

Well, I thought — I think it is especially in this case where our Attorney General — where the Attorney General appear — our State Attorney General appears in the case —

Warren E. Burger:

Well, that’s —

Sam Houston Clinton, Jr.:

— a part of the State of Texas.

Warren E. Burger:

That’s after the event?

Sam Houston Clinton, Jr.:

Well, but he is in effect saying as he did in the pleadings that the statute was valid, that the events that occurred there were the disturbance of the peace and he’s alleging really that local event in Bell County was proper and is effect for the State of Texas adapting that position.

I think the Court was entitled to consider that.

Warren E. Burger:

That’s an argument over the factual issue of whether this was a disorderly conduct case or whether it was a repression of First Amendment rights, isn’t it?

Sam Houston Clinton, Jr.:

Yes.

Warren E. Burger:

He’s defending on the different ground quite different from your attack?

Sam Houston Clinton, Jr.:

We contend it and we allege that what was happening in Bell County which is a focal point for such demonstrations for the reason that counsel pointed out was deterring the exercise of free speech of people that wanted to go to Bell County to demonstrate.

We did not contend that the same thing was happening in other parts of the state because we weren’t really trying that that all of these are true.

Byron R. White:

But did you allege anything in your complaint that indicated that there was something you wanted to do that you hadn’t done?

Sam Houston Clinton, Jr.:

Actually wanted to do?

Byron R. White:

That you haven’t been?

I mean specifically other than just generalities?

Sam Houston Clinton, Jr.:

We alleged what the university committee did in terms of not only activities — in terms of its activities, demonstrations, distribution of literature –

Byron R. White:

That you alleged you’ve seized it?

Sam Houston Clinton, Jr.:

And said that it had been — if various individuals handle it different way, some individual says we have seized all activities, other said we have seized any activity in Bell County, we will not go back to Killeen in Bell County and the Fort Hood area.

Byron R. White:

This was in your complaint or in the affidavits or what?

Sam Houston Clinton, Jr.:

I believe it’s in both.

We allege in our complaint —

Byron R. White:

You just said you say will?

Sam Houston Clinton, Jr.:

That the sole purpose of these activities about the defendants were to deter, intimidate, hinder, prevent plaintiffs and the members from — members of the university committee, his friends and supporters from exercising the rights guaranteed.

We say unless the court restrains the operation and enforcement of the void and valid unconstitutional statute, plaintiffs and members of the committee will suffer immediate the —

Byron R. White:

Yes, I know, I know, but that’s a long way from saying that you had actually had then deterred from a course the conduct?

Sam Houston Clinton, Jr.:

Well, we say as long as the charges are pending, we would it be fearful of exercising the rights, our federal rights guaranteed and then the affidavits come along and say that they have indeed ceased activities either state wide in the event of some of the parts or just in Bell County in the case of others.

Byron R. White:

So, the details were in the affidavits?

Sam Houston Clinton, Jr.:

The details are in the affidavits and what I want to try to point out at this time is to show why the court below was justified in accepting those statements against the background of the other evidence that was before the court, what counsel labeled yesterday as unfortunate events.

Some of those unfortunate events included the following based on the evidence that was before the Court, Sheriff Gunn himself said to two of the demonstrators who were not actually handled, who were not arrested, who were not jailed Sue Granville and Phillip Juvenville get out of my county and don’t come back, don’t ever want to see your faces in Bell County again.

Now Gunn contrary to counsels’ suggested yesterday does not deny having made those statements.

He denies having said other things to the specific appellees here in and out of the jail but he does not deny in his affidavit making those statements to Sue Granville and Phillip Juvenville.

Thurgood Marshall:

Mr. Clinton, my problem is assuming that the officials in this county did exactly everything that you alleged they did, why is that sufficient ground to not have the the state wide statute?

Do you allege that any other counties are going to enforce it?

Sam Houston Clinton, Jr.:

No, we do not allege any experience in any other counties.

Thurgood Marshall:

You alleged that any other person police official is going to use it the way it was used here?

Sam Houston Clinton, Jr.:

This case relates solely to what happened, arises solely from what happened in the Bell County.

Thurgood Marshall:

So, could you get the same relief by enjoining those officials from acting without knocking the statute out?

Sam Houston Clinton, Jr.:

Well, it occurs to me that if the statute is of course it was invalid in Bell County, its invalid state wide.

Thurgood Marshall:

Why?

Sam Houston Clinton, Jr.:

And it’s just — excuse me, It just happens that this situation arose from Bell County.

Thurgood Marshall:

Well, I respect to submit the situation would not arise again in Bell County unless the President of the United States came down now?

Sam Houston Clinton, Jr.:

Well, no sir.

That’s exactly another threat of — the point that’s made throughout these affidavits.

Thurgood Marshall:

Well, I can’t leave that out?

Sam Houston Clinton, Jr.:

Well, may I comment about that?

Thurgood Marshall:

Well at first I want to know, can you get your relief without knocking the statute out?

If so, you’re going to understand it.

Sam Houston Clinton, Jr.:

I don’t see how we could.

We’d have to allege as I understanding it under Dombrowski that the statute is unconstitutional, and that —

Thurgood Marshall:

Well, what did Dombrowski said the statute was being used systematically over and over and over again.

You say the statute was used once by one group of officers?

Sam Houston Clinton, Jr.:

Well, we say it was used on this occasion and that they were threatening us in effect with using it again and again and again if we came back.

Thurgood Marshall:

Where do you get that?

Sam Houston Clinton, Jr.:

I infer that from all of these events that happened.

The sheriff’s saying “don’t come back, we don’t want to see your face here again.

“ The other things that — I have to call to the Court’s attention, these other evidentiary events that happened at Fort end what would happen in the future.

Thurgood Marshall:

Well, if this case — did you ever apply for an injunction after the judgment in this case?

Sam Houston Clinton, Jr.:

After the — I’m sorry, I don’t get your timing there, after the Court handed down its shall we say opinion?

We did not apply because the Court said we’re deferring any further action until the legislature acts.

Thurgood Marshall:

And then the legislature closed?

Sam Houston Clinton, Jr.:

The legislature met.

The legislature — while the legislature was in session, Mr. Justice Black entered a stay order which is still in effect.

Thurgood Marshall:

Still in effect?

Sam Houston Clinton, Jr.:

Yes sir.

Thurgood Marshall:

But if this case is decided and sent back, then you apply for an injunction, will you get it or not?

Sam Houston Clinton, Jr.:

We will —

Thurgood Marshall:

Will you get that back?

Sam Houston Clinton, Jr.:

As we pointed out in our brief, we will appear before the Court and make application for whatever relief then appears to be appropriate.

Thurgood Marshall:

Well, what other relief is appropriate other than an injunction?

Sam Houston Clinton, Jr.:

We think frankly that the declaration of the statute is unconstitutional, is sufficient to preclude any other bona fide prosecutions under the statute.

We believe the state and local district county attorney will follow the law if it’s declared unconstitutional, they won’t —

Thurgood Marshall:

Say you wouldn’t ask for an injunction?

Sam Houston Clinton, Jr.:

We may not in view of the problems that —

Thurgood Marshall:

Well, If you’re not interested in an injunction, where do we get our jurisdiction?

Sam Houston Clinton, Jr.:

Well, I don’t suggest we were not interested.

I say we may not.

Thurgood Marshall:

[Attempt to Laughter] What?

Sam Houston Clinton, Jr.:

We may not, but I must again emphasize this point that I’m trying to make that the Court below acted very properly in seeing that there was a case and there was a controversy that it was continuing, that it was very live because of what the appellees said as to restricting their activities, and if they were justified and accepting that by reason of what had happened to them in Bell County and what was threatened would reoccur in the event, they went back to Bell County.

I have indicated what the sheriff himself said when they were taken before the justice of the peace.

He greeted them under the evidence of this case, he greeted them with the statement, “We don’t like traitors around here.

” And he said — he says, “You can plead guilty, you’d fined $200.00 or you can plead not guilty and I’ll put you in jail until you can make $500.00 bond.

” And one of the appellees here said isn’t that a little high?

And he said “well sure, it’s high, but I want you to make sure you’re back here because I want to see that this case is tried.

” While after that happened, an officer of the law is there in JP’s office and he confronts one of the appellees and he is toying with live bullets in his hands.

And he says, “You know sonny, I shot a lot of mad dogs in my day and I could shoot a traitor, I could shoot a traitor and never give it a thought.

It’d be just like shooting a mad dog.

” And then when they finally get moved from the Killeen City Jail and to be taken over to Belton community or town some 15 or 20 miles away to be put in that jail, the Killeen police chief tells them, “Don’t come back here.

We don’t like your kind around here and tell your University of Texas friends the same thing because we got all the education we need right here at the junior college.

” All of these activities, all of this evidence, the whole point of bringing it up is to justify what the Court below found was a live controversy, a genuine good faith, solid based statement by each of the appellees and their associates that they were no longer going to engage in demonstrations because this is what happened to them and would happen to them.

Warren E. Burger:

Let’s assume they could have demonstrated with solid evidence that all of those allegations were true, those are just allegations now of course, do you think those allegations if true would bring it within the systematic pattern of conduct that Dombrowski case was talking about?

Sam Houston Clinton, Jr.:

Well, — not state wide, obviously not state wide but this — sir?

Warren E. Burger:

— in Dombrowski, it was sustained over a period of time.

Dombrowski opinion describes the series of events which had this inhibiting effects drying up contributions, acts that took place over a period of many months if not years.

Sam Houston Clinton, Jr.:

Well, —

Warren E. Burger:

Here you have one event on one day, don’t you?

Sam Houston Clinton, Jr.:

One event on one day with a threat of what would happen if they came back to have any other event on any other day.

I don’t — It’s occurs to me that we should not be required to keep testing the statements that these officers had made in order to have standing to complaint and say we’re being put up on and we’re being mistreated and we can’t get a fair trial up there and come into federal courts for relief.

Warren E. Burger:

Well, that goes back again to what was suggested about the 1871 Act.

It was aimed only at sustaining systematic, organized patterns of harassment of a particular group of people or a particular kind of conduct.

Is that not true the 1871 statute?

Sam Houston Clinton, Jr.:

I’ll accept the professor’s statement on that, but view that carefully —

Warren E. Burger:

I think the Dombrowski case opinion reflects that too?

Sam Houston Clinton, Jr.:

I’m suggesting to the Court that we have definitely shown in this case a chilling effect by reason of acts of conduct that happened there and that are threatened to reoccur every time any of these people or their associates or their friends and supporters ever again enter Bell County in order to engage in a peaceful demonstration.

In order to do as what the counsel himself said to the Court yesterday was nothing improper about their protest and may I hark right back to the business about the President of the United States and that to show that not only does this evidence show that any other time they went up there for any other purpose, the same as likely to reoccur, but also to suggest that to protect the President on this occasion, all that was necessary was to once whoever the officers were that seized them and detained them and walked them out to the edge of crowd was then to suggest that they leave.

There was no necessity in protecting the President.

For these deputy sheriffs then, to seize them and handcuff them and frisk them and put them in the cars and take them down to the Killeen jail choking them along the way while they were down there and engaging in this further activity that really gave rise to the complaints.

Thurgood Marshall:

Do you, since you push that point so far, do you think the sheriff or any of his people had the slightest idea that they will be going to use this statute where they just working them over?

Sam Houston Clinton, Jr.:

Weren’t they just what sir?

Thurgood Marshall:

Working them over, period.

Sam Houston Clinton, Jr.:

Oh, no.

No.

They —

Thurgood Marshall:

And then later, they found the statute?

Sam Houston Clinton, Jr.:

No.

The sheriff while still — the sheriff — while an evidence shows, the sheriff while still at the scene told his deputy, who Deputy Strange, I believe his name is and Deputy Strange confirms this that while he was taking the appellees into the Killeen jail, he was in communication with the sheriff and told him to file disturbing of peace complaints.

Thurgood Marshall:

That was afterwards, wasn’t it?

Sam Houston Clinton, Jr.:

Well, with just a matter of minutes.

Thurgood Marshall:

Well, I mean but it was after.

All I’m trying to say is your complaint is against some police officials of that county, not against the statute.

Suppose —

Sam Houston Clinton, Jr.:

No, wait.

We don’t think at this —

Thurgood Marshall:

— suppose there had been a Texas statute, a disorderly conducts statute that was satisfactory to you and the nine of us, and they did the same thing and you, there’s no doubt, they would, you wouldn’t be able to get to the statute, would you?

The statute was just an excuse, wasn’t it?

Sam Houston Clinton, Jr.:

If the statute — you’re suggesting if the statute were constitutional?

Thurgood Marshall:

Yes.

Sam Houston Clinton, Jr.:

Well, no.

Sam Houston Clinton, Jr.:

We’d have to complain about the abuse of the statute, but here we’re complaining about both.

There’s unconstitutional and we also alleged the other branch of Dombrowski too below.

Thurgood Marshall:

I know, but the Court took one problem, the statutes were unconstitutional?

Sam Houston Clinton, Jr.:

That’s correct, yes, sir.

Thank you.

Warren E. Burger:

Thank you Mr. Clinton —

David W. Louisell :

If the Court please —

Warren E. Burger:

Mr. Louisell, you have two minutes left.

David W. Louisell :

Before I forget, I just wanted to point out all that this Court has done to make freedom of speech really viable when it has an orderly procedure before it as contrasted with what went on here, I simply refer to your own recent decision in the Bachelor case for Maryland.

And if I may add two California cases, certainly a court trying to be obedient to your teaching on free speech, they were too late to get into the brief.

These case has shown how you don’t reach out to strike down the California disorderly conduct statute because you got to grant some kind of relief, In re Cay in 1 California 3rd 930, In re Bushman, 1 California 3rd 767.

Now the one thing that Mr. Justice Stewart directed himself to us all I will have time to comment upon, but I would like to call Your Honors’ attention to the fact that we’re not dealing here with Rule 65 that uses the phraseology preliminary injunction, temporary restraining order and permanent injunction.

We’re dealing with Section 1253, an order fortunately, I need to take Your Honor if even I had a time on this, Your Honors had occasion carefully to rethink this problem in the Goldstein case.

In the Cole against Richardson proposition, that was referred to from the bench yesterday, that as I understand it from the concurring opinion, there was only very brief per curiam order and the dissenting opinion, in that case, the matter was one of mootness.

There was no possible claim of mootness here Your Honors.

Potter Stewart:

No, no.

I had in mind Section 1253 and I point out to your own words and your motion for a new trial to the District Court.

I’m quoting from you motion, you said that “the Court had given not a declaratory judgment, but an advisory opinion.

” And so according to your submission to that Court with which I agree, the Court has not even given a declaratory judgment much less entered or refused to enter an injunction.

David W. Louisell :

But wouldn’t it be a very serious commentary on judicial administration if an opinion that is so effective but for Mr. Justice Black’s restraining order, his stay of mandate that is so effective as a practical matter and remember, there’s no other review except to this Court —

Potter Stewart:

An outrageous situation.

David W. Louisell :

An outrageous situation and also I invoke, I invite the attention of Your Honor to the fact that you can’t blame counsel for the appellants or for appellees for that matter because the very last sentence of Rule 58 provides “attorney shall not submit forms of judgment except upon direction of the Court, and these direction shall not be given as a matter of course.

” I have to leave it to the Court to find a way of avoiding the continuation of a reprehensible order that’s operating de facto as an advisory opinion and arrest the processes of enforcing the law in the state.

Something has to be done or the situation will become impossible.

Warren E. Burger:

Just to pursue the point that I think Justice Stewart raised earlier, isn’t the very function of the judgment which ordinarily follows the opinion on the expression of the Court as to what it’s going to do, isn’t the very function of that judgment defined precisely and narrowly and specifically the general thrust which the Court’s memorandum opinion has articulated?

David W. Louisell :

Yes.

Warren E. Burger:

And wouldn’t that be very likely that an injunction of this stringent nature would have been very precise and very specific as against the broad and sweeping language of the Court’s opinion?

David W. Louisell :

Hopefully, certainly it would.

Potter Stewart:

Where can you find any such judgment in this appendix?

David W. Louisell :

In the appendix Your Honor, and I again call your attention to the fact that in the docket entries, it is referred to as a judgment.

Potter Stewart:

Yes, but where can you find the judgment, any judgment?

David W. Louisell :

You must turn to the last paragraph of the opinion.

You don’t find as I said yesterday, you do not find any separately entered document.

Rule 58 was again violated —

Potter Stewart:

— It’s not even judgment here, is it?

David W. Louisell :

But Your Honors —

Potter Stewart:

— paragraph of an opinion.

David W. Louisell :

You will remember in how many instances, in fact the very rules provide that if findings of fact and conclusions are embraced within an opinion you can use that —

Potter Stewart:

We’re asking no —

David W. Louisell :

Now, if you can substance a judgment is embraced within a form of words concluding an opinion, even though it isn’t entered as the rule requires on a separate piece of paper, we respectfully submit it can constitute at least, I submit this Court should refrain.

William O. Douglas:

Did you go back to the Court at any time asking them to —

David W. Louisell :

No, and I think — of course, I have nothing to do with the case at that stage but the Attorney General’s office —

William O. Douglas:

I’m talking about the last year.

You had something to do with last year, didn’t you?

David W. Louisell :

Yes.

The argument of first appeal, but the attorney —

William O. Douglas:

My question was did any of the parties asked the Court since the last argument?

This is the question raised last time.

David W. Louisell :

To my knowledge, no.

But Your Honors will note again the last sentence of Rule 58, this is a matter that’s left to the Court and the Court has never entered what it should have done Rule 58, but that is —

William O. Douglas:

Well, lawyers had something to do with it.

David W. Louisell :

That isn’t the question as we respectfully submit the question issue, Mr. Justice Douglas.

The question is there any kind of an order under 1253 of the judicial code.

William O. Douglas:

We understand it.

David W. Louisell :

The language of 1253 is not in terms of a preliminary injunction.

It is an interlocutory order granting or denying relief.

Thurgood Marshall:

Well, is this anything more than a judgment of the Court that we will hold this case and retain jurisdiction?

Is there anything else in that last paragraph?

David W. Louisell :

There is, the explicit provision that the Court stay expires upon the termination of the next session of the state legislature.

Potter Stewart:

Stay of what?

David W. Louisell :

The stay of what the Court conceived out as its injunction.

Potter Stewart:

There is no injunction.

We can agree there is no injunction.

David W. Louisell :

Your Honor, words are words, owe to distinguish the reality of things, criteria —

Potter Stewart:

Let me reiterate in more questions I haven’t implied any criticism of you at all sir.

I just —

Thurgood Marshall:

May I ask you one thing Professor?

How can anybody given contempt to that piece of paper?

David W. Louisell :

The whole problem of an establishment of a contempt of course would be a very difficult thing, but with the clear intend, with the intention that is deducible from the words of the opinion, I would say it’s conceivable in any, you have being subject to a contempt order is not the definition of Section 1253 Mr. Justice Marshall.

Thurgood Marshall:

But, it has something closely resembling an order?

David W. Louisell :

Yes, but any —

Thurgood Marshall:

Well, you don’t have an order here, do you?

David W. Louisell :

We have what the judge intended to embrace within his opinion as an order.

However, it had to — such a thing was done.

Warren E. Burger:

Thank you Professor Louisell.

Thank you Mr. Clinton.

The case is submitted.