New York v. Uplinger

PETITIONER:New York
RESPONDENT:Uplinger
LOCATION:Environmental Protection Agency

DOCKET NO.: 82-1724
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: New York Court of Appeals

CITATION: 467 US 246 (1984)
ARGUED: Jan 18, 1984
DECIDED: May 30, 1984

ADVOCATES:
Richard J. Arcara – on behalf of the Petitioner
William H. Gardner – on behalf of the Respondent

Facts of the case

Question

Audio Transcription for Oral Argument – January 18, 1984 in New York v. Uplinger

Warren E. Burger:

Thank you gentlemen the case is submitted, we will hear arguements next in New York v Uplinger and Butler.

Mr. Arcara, you may proceed whenever you are ready.

Richard J. Arcara:

Mr. Chief Justice, and may it please the Court:

The present cases are before you on a writ of certiorari to the New York Court of Appeals.

That Court, in a memorandum decision last year, found unconstitutional New York Penal Law, Section 235.40, Subdivision 3.

That statute is generally referred to as the loitering statute in New York and it generally prohibits individuals from loitering or remaining at a public place–

William H. Rehnquist:

Mr. Arcara, can I ask you a question about the procedural posture of this case?

You are the District Attorney of Erie County, which, I guess, is Buffalo.

Richard J. Arcara:

–That is correct, Your Honor.

William H. Rehnquist:

And you represent the state in this case.

Richard J. Arcara:

That is correct, Your Honor.

William H. Rehnquist:

Now, the Attorney General of New York has apparently taken a partial fall in this case.

He has filed a brief where he says, you know, maybe to minors, but… Now, you are speaking to the State of New York in this case, not him, I take it.

Richard J. Arcara:

That is correct, Your Honor.

Generally that statute prohibits individuals from–

Byron R. White:

You are not speaking for the Attorney General of New York though?

Richard J. Arcara:

–No, I disagree with the Attorney General.

Byron R. White:

I know, I know you do, but he–

Richard J. Arcara:

Your Honor, he doesn’t have the responsibility of enforcing this law either.

I would also like to point that back out.

I have the responsibility of enforcing this law and I have no knowledge–

Byron R. White:

–You have the authority to represent… You can’t speak for the State of New York, can you?

Can’t you just speak for the county or what?

Richard J. Arcara:

–No, Your Honor, I am speaking on behalf of the State of New York.

Byron R. White:

For the state, because you have the authority to do that?

Richard J. Arcara:

That is correct, Your Honor.

William H. Rehnquist:

But, only he has to run for election.

Richard J. Arcara:

I have to run also, Your Honor.

William H. Rehnquist:

But not statewide.

Richard J. Arcara:

That is correct, Your Honor.

Richard J. Arcara:

And, by the way, I might add that I had no knowledge that the Attorney General was going to file their brief until the day in which the Respondents were to file their brief.

That is the first time that I had any notice at all that the Attorney General was going to take this position, contrary to mine.

In fact, he was invited to participate in this case at the Court of Appeals and he refused.

So, this case came–

William J. Brennan, Jr.:

Mr. Arcara, do you have some state requirement that the Attorney General has to be vouched in whenever their is an attack on the constitutionality of a New York statute?

Richard J. Arcara:

–Under the executive law, Your Honor, it says that the Attorney General can appear in court to defend the constitutionality of a statute.

William J. Brennan, Jr.:

No.

My question was… Some states have statutes which provide that in any action in the state, a question of the constitutionality of a state statute is raised, then the parties must vouch the Attorney General into the case to let him come in and defend the constitutionality of the statute.

Richard J. Arcara:

Your Honor, he has that option.

He can either appear to defend the–

Byron R. White:

Are you required to give him notice?

Richard J. Arcara:

–We did give him notice in this case, Your Honor.

Byron R. White:

Aren’t you required to if the constitutionality of a law is at stake and then he has the option.

Richard J. Arcara:

That is correct, Your Honor.

He has refrained from exercising that option until the case came before this Court.

William J. Brennan, Jr.:

So, after he got the notice, he never told you he was going to appear in the case?

Richard J. Arcara:

No, he didn’t, Your Honor.

I had no knowledge.

This statute, generally referred to as the loitering statute, prohibits individuals from loitering or remaining in a public place for the purpose of soliciting or engaging in deviate sexual intercourse or other sexual behavior of a deviate nature.

Now, briefly the fact underlying the two cases before the Court are as follows:

The Respondent Butler, who was a known prostitute by the Buffalo Police Department, was observed for approximately ten minutes on a public street in the City of Buffalo waving at passing automobiles.

She ultimately entered one of those automobiles which then proceeded down a side street.

The police officer who was making those observations then went to where that car was parked and observed the Respondent Susan Butler engaged in an act of oral sodomy with the driver of that vehicle.

She was then arrested under the loitering statute.

Mr. Uplinger was arrested on a public street in a quiet residential area of the City of Buffalo following a direct and overt solicitation to a plain clothes Buffalo police officer to engage in an act of oral sodomy.

The police action in both of these cases was the result of a reaction by the Police Department to citizen complaints of these type of activities occurring in those two respective neighborhoods.

I will go into a little more detail of the facts of the case during the course of my argument.

At issue here is whether or not this statute represents a valid attempt by the state to control public order.

Our position as the Petitioner is that the state enactment is valid.

It is based upon a legitimate and a compelling interest in the control of the conduct that it prescribes.

Richard J. Arcara:

Now, with regard to the compelling state interest, first I submit that the solicitations we are talking about here constitute a real harassment.

They are a real annoyance to a general public.

They are conversations of the most intimate nature.

They are the most private of matters and they are delivered in a public form.

Sandra Day O’Connor:

Well, Mr. Arcara, that may be true, but apparently the New York Court of Appeals placed the construction on the purpose of this statute that was more limited than that said that it was not a statute intended to protect the harassment of other people in the vicinity, but rather was in the nature of the companion attempt statute to another law which New York, of course, had held unconstitutional.

Are we bound by the determination of the state court as to the purpose of this statute?

Richard J. Arcara:

No, Justice O’Connor.

I dealt with that issue on page four of my reply brief.

Sandra Day O’Connor:

Well, I was afraid you might have dealt with it incorrectly and that is why I asked the question.

Richard J. Arcara:

Well, Your Honor, I submit that the Court of Appeals applied no statutory construction to that statute.

They merely invalidated it in toto and then they gave some reasons for it which I submit–

Sandra Day O’Connor:

Well, the Court gave… spelled out what it said the purpose was and was not.

Are we bound by that?

Richard J. Arcara:

No, Your Honor, because the Court, in making its finding, relied upon the Onofre decision and that decision relied upon the right of privacy and the equal protection clause.

And, they interpreted the federal Constitution regarding the applicability of that statute to the state law.

I submit that this court is the final arbiter as to whether or not the federal Constitution, as it is applied to a state court, was applied correctly.

And, I submit they did not apply it correctly.

William H. Rehnquist:

Do you think in interpreting the New York Court of Appeals opinion we may read the opinion in this case in the light of its Onofre opinion?

Richard J. Arcara:

–Well, Your Honor, I don’t think you have to.

I think we are talking about here a public nuisance and I personally think that the Onofre decision was totally another matter.

The right of privacy they use in that case… that dealt with private acts, adults in a private setting.

Here we are talking about a harassment statute on a public street in a public area that is annoying to the public at large and it is so offensive.

I submit the legislature had a right to enact this law and to protect the public from these types of infringements on their rights.

William H. Rehnquist:

Counsel, here we are dealing with an opinion of New York’s highest court that is a little over a page long.

Richard J. Arcara:

That is correct, Your Honor.

William H. Rehnquist:

And, it doesn’t cite any constitutional provision.

It cites the penal law.

Unless one is to go back and look at People versus Onofre, which they refer to, it is almost impossible to tell on what grounds they did away with this statute.

Richard J. Arcara:

It is very difficult, Your Honor, I agree.

William H. Rehnquist:

So then don’t you think People against Onofre sheds some light on it?

Richard J. Arcara:

Well, People versus Onofre dealt with the right of privacy and equal protection.

And, I don’t believe the right of privacy, the home, in the private setting of a home between consenting adults would apply to the privacy that a person is entitled to on a public street.

And, secondly, the equal protection clause, I don’t think, has any application here whatsoever.

Sandra Day O’Connor:

Well, this Court denied cert on that.

Richard J. Arcara:

That is correct, Your Honor.

William H. Rehnquist:

Do you think the New York Court of Appeals held this statute was unconstitutional?

Richard J. Arcara:

It would have to, Your Honor.

William H. Rehnquist:

Well, I would think it would have to, but it doesn’t say so.

Richard J. Arcara:

Well, it is very difficult, Your Honor.

I wrestled with that decisions for many, many hours as to what they were trying to say.

I don’t think they did anything to try to construct that statute in harmony with the Constitution.

They didn’t look to what the intent of the law was.

They didn’t care what the purpose of the law was.

They just kind, in a summary fashion, of just said this was an act that was anticipatory of a legal act and, therefore, we are going to cite it as unconstitutional.

Warren E. Burger:

What did the dissenting judge think they acted on?

Richard J. Arcara:

He thinks that they acted on the overbreadth; that they felt… Justice Jasen felt that the Court was applying the law from the setting of a private setting of a home or private residence to the street and he felt it was an overbroad interpretation of the statute.

Sandra Day O’Connor:

Well, possibly the Court based it on either the right of privacy inquiry or possibly a First Amendment problem, is that right?

Richard J. Arcara:

I don’t believe there is any reference at all to the First Amendment.

I don’t believe that was the case at all, Your Honor.

It is strictly dealt with the right of privacy… Well, in conjunction with the First Amendment, I am sorry… And, as far as the equal protection clause is concerned.

William H. Rehnquist:

Now, the only intimation I find in the opinion of the New York Court of Appeals in this case as to some constitutional ground is it says this statute, therefore, suffers the same deficiencies as did the consensual sodomy statute.

Now, that takes you back to Onofre and there they are talking about federal Constitution rights.

It seems to me that your best chance to get a review of this decision on the merits in this Court is to agree that this decision should be looked at in the light of Onofre.

Richard J. Arcara:

I agree, Your Honor.

Okay.

[Laughter]

Richard J. Arcara:

Secondly, these types of solicitations could also lead to a violent reaction.

And, beyond the fact that they are forced upon an individual in a public setting, they are so intimate in nature that I submit that a violent reaction could be generated by a solicitee when some one addresses his sexuality in a public street.

I further believe regarding the compelling state interest here that there is a real effect on minors.

There is an incident in the record… and I make this claim based upon what is in the record… that a mother was concerned about her son being apprehensive about going out into the street being solicited to engage in an act of oral sodomy.

Richard J. Arcara:

I submit that there is a potential harm when the sexuality of a minor is addressed in a public street, not with the consent of the minor or his parent, but strictly is to the arbitrariness and discretion of a pure stranger.

Thirdly, I submit that this law acts as a deterrent to those minors who would solicit, either voluntarily or through coercion.

And, further, it prevents minors from being exploited by those who would seek to satisfy their own sexual desires.

Lastly I submit that we are dealing here with a public nuisance.

The record clearly establishes that businessmen were concerned about congregating groups of solicitors.

They believe that there was a problem that senior citizens and elderly people were somewhat apprehensive about going into the neighborhood to the stores and the to the restaurants that are located in that area.

And, the citizens were apprehensive about walking outside their homes for fear of being solicited.

What you have in the posture of this case here is that these individuals have taken over the area of Genesee Street in the City of Buffalo and taking over the area of North Street and Delaware and North Street and Irving Place.

Having set out these compelling interests of the state, the speech and the conduct we are here now can be examined as it relates to the First Amendment.

First, in regard to the context of the solicitation, I don’t think it can be disputed that the communications we are dealing with here are not ideas, they are not discussions of the issues or of opinions.

There is no search for the truth here.

These are in no way at all a pursuit by man for his higher pursuits.

I submit that at the minimum these solicitations are lewd and perhaps they may be obscene.

These are not four-letter, sexual explicit epithet emblazed on the jacket of an individual to denote some political position.

These are solicitations which are wholly erotic in nature and they are merely meant to satisfy the personal and the selfish sexual desires of the solicitors.

Much of the conversations that we are dealing with here deal with the crime of prostitution and I submit are clearly not protective.

We submit that certainly an argument can be made, a strong argument I submit, that this type of speech should be denied, all constitutional protection based upon the content.

However, if somehow this speech is minimally protected with respect to the content, then I submit that in the context of which it is uttered clearly prohibits the implication of a First Amendment.

We are talking about a public street here.

There is no right to privacy involved here.

The solicitations are not occurring in one’s home.

These are in a public area that belong to the citizens of their community.

They are delivered indiscriminately, with the key here that they are delivered without any indication at all on the receptiveness on the part of the solicitee.

As noted earlier, these solicitations involve the most intimate of matters and they are made without the consent of the solicitee.

Last and most importantly here, the solicitees’ rights of privacy have been infringed upon.

He is not only a captive listener here, but he is forced to respond even if by abrupt avoidance.

Someone directs a solicitation at that person, I would say that is much more intimidating than even in Colfax or in Laramie where the conversation was not directed at your personally.

Your sexuality now becomes a topic of conversation with someone who may be a total stranger to you.

Now, with regard to the overbreadth, Mr. Uplinger claims here and suggests that the statute overreaches with respect to his conduct as reflected in the record.

Byron R. White:

Well, the Court of Appeals didn’t deal with… denied it was placing its decision on overbreadth.

Richard J. Arcara:

But, the Respondents raise that issue, Your Honor, in their brief, so I thought that the Court here may want to deal with that.

I would like to go back to the facts regarding the solicitation by Mr. Uplinger.

We have a Buffalo police officer who is standing on the steps in a private or in a quiet residential area of the City of Buffalo.

Mr. Uplinger approached the Buffalo police officer and after the initial greetings then said to him, do you want to get high?

The police officer responded in the negative, no.

Then a group of other individuals came over and they were involved in a conversation when a police vehicle arrived and the police officers inside asked the individuals to get off the steps and to leave the area.

At the time the Buffalo police officer separated himself from Mr. Uplinger and walked away from Mr. Uplinger.

Mr. Uplinger then followed or pursued the police officer and asked him if he would come over to his house.

The police officer responded… He said, why don’t you come over?

The police officer then said I am afraid with the police, I just want to leave.

This was the second time that the police officer refused an offer by Mr. Uplinger.

At this point in time, and I submit in an offensive way and I submit without any receptiveness on the part of the police officer, Mr. Uplinger asked the police officer to come over to his house to engage in an act of oral sodomy.

I submit here that the real argument that my opponent is addressing with his overbreadth question is that they are saying that since these type of solicitations don’t both them, therefore, the public must tolerate them similarly to a publicly intoxicated person who would say that public intoxication doesn’t bother me, why should it offend you?

If there is one instance where there may be a possible overbreadth, I submit, that is if an individual were to loiter in a public place with another person and that person is not a minor and he knows that the solicitee is receptive.

And, that one instance, I submit, there could be a possible overbreadth.

Sandra Day O’Connor:

Well, Mr. Arcara, I still don’t understand why we are talking about overbreadth in view of the Court of Appeals’ clear statement that it wasn’t basing its decision on that.

And, I assumed we were here to review their decision.

Now, for purposes of your argument, do you assume that there is a right of privacy as articulated in Onofre?

Do you make that assumption and nevertheless urge that this statute need not be held invalid?

Richard J. Arcara:

That is correct, Your Honor.

William H. Rehnquist:

Well, certainly the assumption that Onofre was correctly decided is contrary to our summary affirmance of the Doe case in 1976 from the Eastern District of Virginia, isn’t it?

Richard J. Arcara:

That is correct, Your Honor.

Sandra Day O’Connor:

But, the merits of the Onofre case were not briefed here in this Court or argument by–

Richard J. Arcara:

No.

We submitted a petition for cert and it was denied.

Sandra Day O’Connor:

–Right.

So, that really, I assume, wasn’t before us.

You were assuming somehow that Onofre was correct and there was the right found in that Court of privacy, but that this statute, the attempt statute, if you will, was nevertheless valid, right?

Richard J. Arcara:

Yes, Your Honor.

I would like to go on at the time with the question of vagueness.

Lewis F. Powell, Jr.:

May I ask you a question before you proceed?

Richard J. Arcara:

Yes, Your Honor.

Lewis F. Powell, Jr.:

Is there any legislative history that sheds light as to the purpose of this statute?

Richard J. Arcara:

No, Your Honor.

I do cite in my brief the Model Penal Code that indicates what the purpose of this statute was and that is that it was a harassment statute.

Lewis F. Powell, Jr.:

Well, was there any evidence in the legislative history that that was its purpose?

Richard J. Arcara:

No, Your Honor, there wasn’t.

Lewis F. Powell, Jr.:

In the dissenting opinion there is a statement that every indication is that this statute was designed to regulate public conduct which would be considered offensive.

There is no citation or documentation of that.

Do you have any in mind?

Richard J. Arcara:

No, Your Honor.

Sandra Day O’Connor:

But, apparently the majority of the New York Court of Appeals felt that it did not view the legislative purpose to be the deterrence of harassment, but, nonetheless, I suppose you would perhaps say that this statute that we are looking at was an effort to control certain public conduct rather than conduct in private.

Richard J. Arcara:

That is correct, Your Honor.

With respect to the vagueness question, I submit that there is no possibility for arbitrary enforcement of this statute.

Police officers, I submit, would not be able to arrest strictly on a whim or a guess if someone were merely standing on a street corner, but that they–

Byron R. White:

Are you arguing vagueness because your opposition has said the statute is vague?

Richard J. Arcara:

–that is correct, Your Honor.

Byron R. White:

Not because the Court of Appeals said it was?

Richard J. Arcara:

No, Your Honor.

Byron R. White:

Because as the Respondent they have raised vagueness and on that ground they urge it be affirmed?

Richard J. Arcara:

That is correct, Your Honor.

Byron R. White:

Or the Appellee or whatever you are.

Respondent.

Richard J. Arcara:

Due process would require that for an arrest that there be an articulable, overt conduct which would demonstrate the individual’s mental state before arrest could occur.

In the case of Mr. Uplinger, we have a direct solicitation.

In the case of Susan Butler, we have her loitering, waving at an automobile, followed by an observation that she was engaged in an act of oral sodomy.

Furthermore, due process would require that before a conviction that there would be proof beyond a reasonable doubt.

I submit that there would be no discriminatory enforcement based solely upon anyone’s status regarding this case.

There is no indication in the record or the face of the law that is directed at anyone’s status.

The fact the clear language of the statute relates only to conduct and activity and not sexual preference or any criminal reputation.

Richard J. Arcara:

The Respondents also raise the question regarding notice and they allude to the other behavior of a deviate nature which is the second severable part of that statute.

I submit that this challenge to the portion of the law under which he was not charged is not a facial challenge.

It is a challenge to a severable part of the law which has not been charged, and, therefore, she is precluded from raising that question under precedent of this Court.

In regard to the last issue, and this is under-inclusiveness, the opponent suggests that the New York statutory scheme is flawed because it prohibits solicitations or deviate sexual intercourse and not normal sexual intercourse.

I submit that New York does prohibit solicitations for normal sex under the general harassment statute and that statute, however, does require an intent to harass.

I believe that what occurred here is that the legislature felt that this type of conduct was so offensive to the general public that they decided to make this a strict liability statute.

In conclusion, I ask that this Court act on behalf of the citizens of New York and their right not only to privacy but tranquility in their neighborhood and I ask that you reverse the judgment of the New York State Court of Appeals.

Warren E. Burger:

Mr. Gardner?

William H. Gardner:

Mr. Chief Justice, and may it please the Court:

I agree with my opponent that this was a constitutional adjudication below.

I don’t believe that needs to be proved, but if there is any need for proof of it, one only need look at the record.

The only issue that was raised in the lower courts and presented to the Court of Appeals was a constitutional challenge.

Byron R. White:

Based on the United States Constitution?

William H. Gardner:

It was based… The challenge was based on both the United States Constitution and the State Constitution.

Byron R. White:

Then what was the case adjudicated on?

William H. Gardner:

One can’t determine that by looking at the Uplinger decision by itself.

Byron R. White:

No, but Onofre?

How about Onofre?

William H. Gardner:

The Onofre decision was adjudicated solely under the United States Constitution.

Byron R. White:

Right.

And, here they relied on Onofre?

William H. Gardner:

Yes, that is what they said in their decision.

And, I have no doubt, therefore, that they made this adjudication under the federal Constitution as well.

I think that some of the problems we have procedurally at this point is that both counsel for both parties have some difficulty, as I am sure the Court does, in the brief opinion that was written by the Court of Appeals in knowing exactly what they were saying.

However, there were some things that they were saying that come through very clearly and while that has been mentioned briefly, I want to emphasize that the state is asking this Court to go beyond its jurisdiction.

I might also say that the state has varied its position with regard to whether the court below construed the statute or not.

If you will look at the petition for certiorari at page six you will find the following quotation:

The state argued there that the statute, and I am quoting,

“Contrary to the conclusion of the New York Court of Appeals was not limited just to consensual sodomy anticipatory conduct. “

In other words, in the petition for certiorari, they were saying what I say which is that the Court of Appeals did construe the statute.

William H. Gardner:

When they got into the main brief, they were saying somewhat the same thing as I indicate in my responding brief, and then when they got to the reply brief, as a result, I believe, of my having raised the issue in Point Two of my brief.

They come up with the concept that I am not certain I fully understand that is based upon, I believe, a misreading of the decision Ward and Gaugh versus Krinsky.

They suggest in the reply brief by a quotation from that case that this Court, while it may be bound by a construction of state statute, is not bound by the reasoning in reaching the decision that this Court reaches, and then they state in their brief that, therefore, if the legislature’s intent was different from what the Court of Appeals said it was, that this Court is not bound by the Court of Appeals decision.

Byron R. White:

Let me ask you this.

Suppose a person on the street in a public place solicits two people engage in an act of oral sodomy or act of sodomy and both of them say, please leave me alone, you are annoying me, and they immediately call a policeman and say this man is soliciting me contrary to the statute.

Now, on what ground under the Court of Appeals decision would you say that that person could not be convicted?

William H. Gardner:

I would say that the ground would be that the Court of Appeals has construed the statute as being limited to a smaller… if I may use the word “geographical” area… than what you are talking about.

It was not designed to reach offensiveness per se.

It was designed as one of the levels of inchoacy behind the consensual sodomy statute.

Behind the consensual sodomy statute originally you had–

Byron R. White:

So, you are saying you couldn’t be convicted under the statute even if you were annoying people by your solicitation?

William H. Gardner:

–Well, Your Honor, I haven’t–

Byron R. White:

Is that right or not?

William H. Gardner:

–I haven’t thought that through, I am not sure, but you could be convicted under another statute which is the harassment statute.

Byron R. White:

I want to know whether you could be convicted under this statute.

William H. Gardner:

If you take the construction of the New York Court of Appeals–

Byron R. White:

I can see that perhaps… Suppose the person first solicited, a person who says, please leave me along, you are annoying me, and refused.

He solicits another person who is very willing.

He is then charged with two counts of illegal solicitation under this statute.

Now, could he be convicted under the New York Court of Appeals opinion?

Could he be convicted on either one or both?

William H. Gardner:

–I believe that the way this statute is written and the way the New York Court of Appeals has construed it he would not be convicted under this particular statute at the present time.

Byron R. White:

On either count?

William H. Gardner:

On either count.

However, the New York Court of Appeals has made it clear that that kind of conduct could be subject to conviction.

I cite the Phipps versus Ohio case as an example the kind of fact pattern, Your Honor, that you have cited.

Byron R. White:

Then I can’t believe that you say this is a constitutional decision.

All you are saying is that… In my example, you are just saying, well, neither of those acts under either of those counts is covered by the statute.

The New York Court of Appeals just construed the statute not to cover either one of them, and yet you say this is a constitutionally-based decision.

William H. Gardner:

What I have said is this–

Byron R. White:

And, you can’t have it both ways.

It can’t be both ways.

I don’t blame you for arguing this is just a case of statutory construction, but I thought you said that… I certainly read the Court of Appeals opinion as having a constitutional issue in it.

Well, I thought counsel did too.

William H. Gardner:

–I don’t believe… First of all, I am convinced that the Court of Appeals decision was a constitutional adjudication.

It had no jurisdiction to–

Byron R. White:

Why did it have to reach a constitutional issue if it just construed the statute not to cover either one of the situations that I outlined in those two counts?

William H. Gardner:

–Well, because, Your Honor, it was faced with a fact pattern that is totally different from what you were talking about.

It was faced with a fact pattern of an individual who extended a private invitation to go to his home and engage in–

Byron R. White:

It may be private, but can you imagine holding that when he solicited an undercover police officer that it was sort of a consensual matter?

William H. Gardner:

–I don’t think that the determination of the consensual matter can be judged on the identity of the police officer which was not known to the Respondent at that time.

It has to be gaged in terms of the kind of the role the police officer was playing.

Byron R. White:

You mean he can just take his chances, solicit anybody he wants to as long as he doesn’t know.

He isn’t annoying anybody just by soliciting anybody on the street?

William H. Gardner:

Your Honor, that is not what I say at all and that is not the facts in this case.

Byron R. White:

Well, I–

William H. Gardner:

What the people are saying is that there is a per se absolute prohibition which is constitutionally permissible that no man or woman can ever have this kind of a conversation with any other person anywhere in the State of New York under any circumstances.

Byron R. White:

–Well, that is an overbreadth argument, isn’t it?

William H. Gardner:

I believe that overbreadth is necessary here and I don’t understand–

Byron R. White:

Well, if it is necessary, the Court of Appeals didn’t think it was.

William H. Gardner:

–I understand.

Warren E. Burger:

That is not the state’s case.

The state says it can’t be done in public, in public.

William H. Gardner:

The state makes the claim, Your Honor, that it can’t be done in public under any circumstances except in what it says is a limited circumstance, if two people were in a remote place and no one else was around, which, I submit, is the general situation, in these kinds of situations, as pointed out in the UCLA Law Review Article cited in a couple of the amicus briefs.

I think that the problem that we are facing here has to do with the kind of characterization that the state gives the Court, the thought that homosexuals have taken over this particular area or what-have-you.

The fact is if two homosexuals had met… First of all, that is not true, but be that as it may, if two homosexuals had met each other and had a private conversation in that particular area with no one around who could hear anything, under the state’s analysis, the problem they are facing is that he sees it that they have taken over.

Warren E. Burger:

How would that case ever come up if no one is around and they both consenting?

William H. Gardner:

It would only come up–

Warren E. Burger:

You are talking about a hypothetical that can’t occur.

William H. Gardner:

–It would only come up in the way that this case has come up, through an undercover police officer, which is another way of indicating that the only way that you have offensiveness in the typical situation is where somebody has blatantly posed the question right up front at the very beginning and has not, through a process of acquaintanceship, become attuned to the fact that the other person is receptive to the conversation that is going to occur.

William H. Rehnquist:

Mr. Gardner–

William H. Gardner:

Yes, Your Honor.

William H. Rehnquist:

–do you agree with me on my understanding of the New York Court of Appeals opinion which I am about to state to you that… They say in Onofre we held that you cannot criminalize the act of deviate sexual intercourse and that is their language.

The statute under consideration in Uplinger prohibits solicitation of that sort of intercourse.

Since you can’t criminalize the act, the state can’t prohibit the solicitation either.

William H. Gardner:

I am not sure that they said this prohibits the solicitation.

William H. Rehnquist:

That is a quote.

It is pretty close to a quote, not quite.

William H. Gardner:

All right.

I was only going to draw the point that it is a loitering statute.

I didn’t recall that they claimed that it was a solicitation statute.

But, what is clear is that it is an inchoate invitation to engage in an act of conduct in a private place which was not illegal.

And, the question I think they were facing is–

William H. Rehnquist:

It is not illegal only in the sense that the New York Court of Appeals has opined that the legislature can’t make it illegal in Onofre.

William H. Gardner:

–I pointed out in my brief, Your Honor, that it is not illegal after the Onofre decision, as a matter of adjudication in that case, whatever the rule may be in this Court’s opinion with regard to the correctness of that case.

I don’t believe you need to reach that issue.

William H. Rehnquist:

Well, I don’t know that I agree with you, because if one of the pins of the New York Court of Appeals opinion in this case is the validity of its Onofre decision… We obviously can’t review Onofre, but we can certainly review the constitutional law that is laid down in Onofre.

William H. Gardner:

I would agree that you have that power.

What I would say is that it may not be appropriate to do it under the circumstances that you are presented with in this case.

I have referred to the Gates decision in my brief and I submit that that should be reviewed and thought about.

The one thing that I would emphasize, please, is that we do not have a record here that would give Your Honor and the Court sufficient information to make the kind of judgments and evaluations as to whether the Onofre decision was correct in terms of the social impact, in terms of the degree of participation in the kinds of sexual activities that we are talking about, things of that sort.

Sandra Day O’Connor:

Well, Mr. Gardner, assuming that that is correct and we shouldn’t address the correctness of the Onofre decision, nevertheless, if there is any right, as recognized in Onofre, and assuming for this purpose that there is, does that right extent to prohibiting the state from controlling attempts made in public?

And, why should the right to privacy to do things in private extend on to do the same or some portion of those things in public?

That is my question.

William H. Gardner:

Your Honor, I don’t believe that the right of sexual privacy that Onofre talked about is the right that protects my client in terms of his conversation with someone else in a public place.

I believe that the right we are dealing with here falls under the rubric of the First Amendment freedom of speech subject to all the power of regulation that is appropriate under that particular Amendment.

There has been suggestions in some of the amicus briefs that the right of sexual privacy may be impaired or burdened in some way if the Court does not allow some very limited controlled public conversation about the private right.

I would suggest to you that if you limit it, if you balance the interest as between the right of the speaker to speak and the right of the hearer to have an acceptable environment, as Justice Stevens indicated in the Bolger case last year.

If you balance those interests in the area of sex, it is going to be obvious that any exercise of the right of free speech is going to have to be subject to consideration for the acceptability of the that speech to the person you are speaking to, consideration for the sensitivity of the public at large.

I would only point out to you that what the state wants to say is that you can’t talk about it at all, you can’t discuss this subject if it includes and invitation to come home.

William H. Gardner:

I am saying that this Court has never–

In public.

William H. Gardner:

–In public.

Warren E. Burger:

That is all the statute is dealing with.

William H. Gardner:

It says in public, Your Honor, but a conversation between two people on a street with no one within hearing distance at all, I submit, is still a private conversation, just as the telephone conversation in a public place in Katz was a private–

Byron R. White:

Your submission has to include, I suppose, that a person must, when he is walking down the street, put up with people accosting him or her for deviate sexual purposes?

William H. Gardner:

–Absolutely not, absolutely not.

Byron R. White:

Well,–

–That is just about what you said a minute ago.

Do you think the… The solicitation may be very private, very quiet, very polite, but nevertheless there is a person walking down the street who doesn’t care to be solicited for a deviate sexual purpose and is very annoyed by it.

Now, may the state forbid that or not?

William H. Gardner:

The state may forbid it.

And, in the hearing–

Byron R. White:

How could it forbid it?

William H. Gardner:

–The state may forbid it by, in effect, adopting the kind of a statute which was approved in Commonwealth versus Sefranka and in Pryor, the California decision, which I cite in my brief.

Byron R. White:

Would you say that it is illegal… You have committed a criminal act if you solicit a person on the street and he turns you down?

William H. Gardner:

What you can say is–

Byron R. White:

Would that be all right?

William H. Gardner:

–No, no.

The result–

Byron R. White:

So, anyone must put up with being solicited on the street?

William H. Gardner:

–No, Your Honor.

In Commonwealth versus Sefranka… I refer you to that case… and in the Pryor decision, what the Court said was that you could not be convicted unless there was some reason to believe or some indication that there was someone present who would be offended thereby.

Byron R. White:

The person who is solicited is the one who is most offended.

William H. Gardner:

But, let me pose these facts, if I may.

Suppose I meet an individual and we have a discussion for 30 minutes, 45 minutes, whatever, and it quickly becomes apparent that we are both homosexuals and that he is interested and, therefore, I extend an invitation.

How can there be offense?

Byron R. White:

That may be fine, but I am talking about the person who turns him down and he is very annoyed by it.

Can the man then be convicted for annoying this other person?

William H. Gardner:

He can if there was an element harassment or if there was an element of recklessness.

Byron R. White:

Well, an element of harassment… He says I am harassed, I don’t like to be walking down the street and be accosted by a homosexual.

William H. Gardner:

The word “accosted” and the word–

Byron R. White:

Well, solicitated by a homosexual.

William H. Gardner:

–If there is–

Byron R. White:

He came up to me very politely, very politely and said, would you like to come over to my house?

Now, I take it you say the state may not forbid that.

William H. Gardner:

–I say that the state may not pass a law which blanketly forbids it in all circumstances without regard to–

Byron R. White:

Well, may it forbid exactly what I said?

William H. Gardner:

–Yes, it may, if it is a narrowly drawn statute.

Byron R. White:

So, the state could say it is illegal to solicit anybody… You have committed a criminal act if you have solicited somebody who turns you down?

William H. Gardner:

No, no, no.

I am sorry.

Byron R. White:

Or who turns you down and is annoyed.

William H. Gardner:

No, it is not the result of the individual.

It is illegal for you to solicit somebody, if, under the circumstances, you had no reason to believe that they would be consensual towards that kind of a solicitation in terms of receiving the information.

Byron R. White:

So, if a fellow comes up and says let me ask you a few questions, is he off the hook then?

William H. Gardner:

I think it is a factual question in every case, Your Honor.

We can pose hypotheticals, but the real issue here is whether or not you can blanketly proscribe speech without requiring that there be some–

–It is a state overbreadth argument?

It may be.

I would point out in that connection, someone asked the District Attorney what he was doing, whether he was just responding to our arguments in that regard.

If Your Honors will look at the brief, you will see that the District Attorney, and I don’t fault him for this, has argued association, overbreadth, under inclusiveness and vagueness in his original brief to the Court.

On the basis that those issues were submitted to the court below and it is difficult to determine whether they had an impact on the decision below or whether they would be before this–

Byron R. White:

Well, an overbreadth argument certainly didn’t have much of an impact.

William H. Rehnquist:

That is the only one that you can say that might not have had an impact, I think, because the only constitutional doctrine which the Court of Appeals mentions is one which it says it didn’t use.

Byron R. White:

Either implicitly or overtly.

William H. Gardner:

–I think that the argument I make–

Byron R. White:

Although the dissent said that they were really, in effect, applying overbreadth and the majority the dissent couldn’t be more misguided.

William H. Gardner:

–We have to go back one step, If I may.

We have to go back to determine what it was the Court was doing.

William H. Gardner:

I submit to you that what the Court below was doing was saying that the ultimate act had been converted into a legal constitutionally protected act and that, therefore, you couldn’t forbid discussion about that act.

Now, what we do not know is whether their statement to that effect is a First Amendment speech statement or whether it is an extension of the privacy concept.

William H. Rehnquist:

But, the Court of Appeals didn’t say discussion.

It said antecedent–

William H. Gardner:

Solicitation.

William H. Rehnquist:

–Yes.

It certainly didn’t use the term discussion which might have lent some support to the idea that it was a First Amendment.

William H. Gardner:

The whole case was about solicitation.

The Court of Appeals was dealing with an actual solicitation.

We don’t know what the Court of Appeals meant or whether they were thinking in First Amendment terms because they didn’t express it.

What they did say was that since the ultimate act was not criminal, you can’t punish the discreet invitation for that act.

William H. Rehnquist:

What about heterosexual solicitation to get to a question of somewhat different circumstances?

Can the state ban a prostitute of either sex from soliciting intercourse in public or soliciting money for intercourse I should say?

William H. Gardner:

Yes, I believe they can.

I believe that when you get into commercial sex, that is a different area.

I am not arguing that prostitution is constitutionally protected at all.

William H. Rehnquist:

Could it ban simply solicitation on the public streets of heterosexual sex not for money?

William H. Gardner:

You have the sample principle, Your Honor, if I may.

Quite apart from whether they could effectively do it or not, the fact is that they do not attempt to ban solicitation of heterosexual sex unless it is harassing.

Sandra Day O’Connor:

Well, the statute does exactly that as I understand it.

That is precisely what this statute does and you have two Respondents here, one of which apparently was involved in a heterosexual solicitation and that is precisely what this statute does.

William H. Gardner:

That gets into the area of the discrimination argument, Your Honor.

We started out… if you look at the trial court memorandum and opinion, it says that they only started going after the prostitutes after Onofre was decided.

Although the statute is broadly written and could theoretically apply to any heterosexual sex, it is not applied to anyone else at all.

Warren E. Burger:

What difference does it make what the motivations were or what triggered the prostitution program?

What has that got to do with the constitutional question?

William H. Gardner:

Well, it has to do with the underinclusiveness and denial of equal protection argument which I made in my brief.

But, on this particular point, with Justice Rehnquist inquiry, my response is the same.

The state could prohibit public solicitation in a singles bar or elsewhere in heterosexual situations.

Put aside the commercial aspect.

William H. Gardner:

I think that is a different question.

If you had a situation either where the individual was coming up announced blantantly to somebody and issuing an invitation in what would have to be a harassing situation under the facts, but I don’t think that they could extend it to the point of two acquaintances, for example, who happen to be sitting in a bar and one invited the other to go home for consensual sex.

Again, you get to the point that there must be some type, when you’re not dealing with ultimate criminal conduct, you get to some point where there has to be some type of freedom of speech and the narrowing of the writing of statute which is going to restrict that freedom of speech.

Byron R. White:

Mr. Gardner, how do you present your issues?

How do you make what clear what issues you are presenting to the New York Court of Appeals?

In your briefs or do you file a paper initially petitioning for review?

William H. Gardner:

No, you file the briefs.

There is a petition.

Excuse me.

There is a petition for leave to appeal to the Court of Appeals.

Byron R. White:

Right.

And do you state your grounds?

William H. Gardner:

You state your grounds therein.

But that does not become a part of the appeal record that the case is decided on.

Byron R. White:

So the grounds are your briefs?

William H. Gardner:

That is correct.

Byron R. White:

And is your New York Court of Appeals brief in the record here, do you know?

William H. Gardner:

No.

I was told it couldn’t properly go into the record, but that the Court could call for it if it wished to do so.

And I have summarized in my brief the arguments that were raised and pointed to the pages of the brief before the Court of Appeals where those arguments were raised.

Warren E. Burger:

Did the rules of the New York Court of Appeals require the parties to state what is the question presented on the first page, as we do here?

William H. Gardner:

Yes, they do, Your Honor.

Warren E. Burger:

And what did they say the question was?

How did they define–

William H. Gardner:

Well, in the opening of the briefs the questions are stated.

Warren E. Burger:

–In other words, is it set out as we do here?

William H. Gardner:

No.

I’m sorry, Your Honor.

Warren E. Burger:

It might help the Court find out what they are deciding.

William H. Gardner:

In the petition for certiorari, Your Honor, you have a request for what the issues are that will be appealed.

William H. Gardner:

In our procedure, when you apply for permission to go to the Court of Appeals you indicate what the issues are that are involved in this case that make it significant.

You do not have to specify what the issues are specifically that will be decided.

In your brief that you file with the Court of Appeals, you indicate those questions in detail.

If the Court calls for my brief, you will see how I have indicated those questions.

I want to get back for just a moment to the construction argument.

I would suggest to you that once there had been a construction of the statute in a narrowing way indicating, in effect, that if you’re looking for the problem of harassment of other people and if you’re looking for some of those other types of concerns that the state talks about, the problem with minors and things of that sort, there are other statutes.

What the Court of Appeals said was this statute doesn’t deal with that, this statute is part of the statutory scheme which was involved in the consensual sodomy laws, and the legislature of the State of New York is free to deal with those other problems any time they want to, as long as they write, to the extent that it imposes free speech restrictions, narrowly, stated statutes that do not undually impinge upon free communication.

Lewis F. Powell, Jr.:

Mr. Gardner, in that connection, I thought I understood you to say at the outset of your argument that the constitutional issue was here, and now I understand you to say that we’re bound by the construction of the New York Court of Appeals, which–

William H. Gardner:

Justice Powell, I think that what has happened–

Lewis F. Powell, Jr.:

–would not leave us free, perhaps, to consider any other question.

William H. Gardner:

–Justice Powell, what I’m saying is that the Court of Appeals has defined the scope of the statute.

Lewis F. Powell, Jr.:

Yes.

William H. Gardner:

And they’ve limited that.

Then they have declared that statute as so defined unconstitutional.

The issue as to whether it is constitutional as construed is before this Court.

But the Court is bound by the construction, which does not encompass all of these other concerns with regard to harassment, offensiveness, children, and things of those other types of things that would be very critical in the correct case and involving the correct statute.

In the brief that the State filed there is a considerable amount of, I would call, slipperiness as to whether we’re dealing with speech or conduct.

When we’re dealing with a question of whether vagueness has been violated, the State tends to refer to the fact that there can only be an arrest of there’s actual speech, actual solicitation.

When we’re dealing with a situation, however, where I’m challenging the statute as being vague… correction… I’m challenging the statute as being a violation of the First Amendment rights, then we talk about the fact that it really deals with conduct.

I would respectfully refer the Court and recommend the reading of a case which was published after the briefs were filed.

The name of the case is Wirtz versus Risley, published in the Ninth Circuit Court of Appeals in November 1983.

I have a citation.

The pocket part came out in late December.

It is 719 Fed. Second 1438.

That was a stature that dealt with the question of a threat and of conduct that tended toward intimidation, and the court specifically talked in terms of the fact that the ultimate act could generally only be committed by some type of communication and therefore it tended toward pure speech.

And therefore, dealing with the issues under the First Amendment, dealing with the problem of overbreadth being thrown up as an argument against the appellant, the court stated that: first, there is pure and we don’t have to worry about overbreadth; and even if we did, there is substantial overbreadth here.

I would submit to the Court that there is substantial overbreadth here as well because, although we have specifically here facts in this case regarding solicitation on North Street in Buffalo, what the State is arguing for is a general power to forbid any type of sexual invitation to come home, even in a gay bar, which is the fact pattern postulated in the reply brief.

Warren E. Burger:

You’re defending the Court of Appeals on a ground that they didn’t rely on.

William H. Gardner:

I am responding to the… I think the Court of Appeals relied on First Amendment free speech, although they didn’t articulate it.

And I’m anticipating that either my opponent or someone on this Court will that I cannot argue that the First Amendment is involved beyond the narrow facts of my client’s case because case because of the overbreadth doctrine.

William H. Gardner:

I see the overbreadth doctrine not as something which I raise in support of my case, but which other will raise against my position, and I’m pointing out to you that I do not believe it applies in this case in that manner.

Thank you very much.

Warren E. Burger:

Do you have anything further, counsel?

Richard J. Arcara:

Your Honor, I will waive my rebuttal.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.

The Honorable Court is now adjourned until Monday next at 10:00.