Turner v. New York

LOCATION:Virginia General Assembly

DECIDED BY: Warren Court (1965-1967)

CITATION: 386 US 773 (1967)
ARGUED: Apr 12, 1967 / Apr 13, 1967
DECIDED: May 08, 1967

Facts of the case


  • Oral Argument – April 13, 1967
  • Audio Transcription for Oral Argument – April 13, 1967 in Turner v. New York

    Audio Transcription for Oral Argument – April 12, 1967 in Turner v. New York

    Earl Warren:

    Number 399 William Turner et al., Petitioners, versus New York.

    Osmond K. Fraenkel:

    Mr. Chief Justice may it please the Court.

    I was not able to see respondent’s brief until late Monday because I had been out of the country for some weeks and I therefore prepared a Xerox, a very short reply brief dealing with one point in respondent’s brief which I would like to submit and will replace by a printed brief in the requisite number of copies and so on when I get back to New York tomorrow or Friday.

    Earl Warren:

    Very well.

    Osmond K. Fraenkel:

    I have given my advisory a copy.

    Earl Warren:


    Osmond K. Fraenkel:

    This is on appeal rather by certiorari here from conviction of a group of individuals in the Criminal Court of the City of New York, convictions which where affirmed by the appropriate appellant court and then reviewed by New York’s highest Court, the Court of Appeals and there affirmed without opinion, but with an Amendment to the remitted toward indicating the constitutional issues had been raised which are the precise constitutional issues referred to in the petition.

    The case arose as a result of the meeting held in an area just north of Times Square in New York City known as Duffy Square, which is a triangular area between Broadway and 7th Avenue and this was a meeting protesting the Vietnam War and it began around 4 o’clock on a certain afternoon in summer time.

    The testimony is somewhat in conflict which I will develop later, but before I get to the testimony I think it is important for the Court to hear exactly what the complaint contained, because my first contention is that these petitioners were convicted for things not specified in the complaint.

    That conviction therefore cannot stand being a denial of due process under De Jonge against Oregon, Cole against Arkansas, Thomson against Louisiana, and Garner against — Now the complaint says this.

    At 4:25 pm on August 8, 1964, vicinity Duffy Square, 47th Street and Broadway the defendants did unlawfully congregate and assembled at the above location obstructing the area to the exclusion of those wishing to use the same and did delay vehicular traffic while carrying placards and using loud and boisterous language; by their actions did cause a crowd to collect.

    When ordered to move on the defendants did fail to do so, after being informed that their actions were not lawful and the references of course to the New York Disorderly Conduct Statute, Appeal Law Section 722 specifically to Sections 2, 3 and 4 to which I will come later.

    Now it was the defense’s contention at —


    Osmond K. Fraenkel:

    Yes, oh yes.

    It was the defendant’s contention at the trial, it is that contention all the way up at here that this complaint charged them with holding an unlawful meeting which the police had a right to disperse because the meeting was unlawful in the respects indicated.

    Whereas at the trial there was testimony produced over objection by the defense specifically on that ground.

    From various acts committed by most of these petitioners although curiously enough not all, which occurred after the order to disperse, beyond the mere allegation of the complaint that they refused to move on, act such as two of them lying down on the street.

    One of them hit a policeman’s horse, others running around and interfering with the police’s attempts to break up the meeting, various acts which was stressed in the appealing of the appellant term affirming the convictions as justifying them.

    Now our view is that except for the failure to move on, nothing which happened after the order to disperse is relevant to this particular complaint which rests on the proposition that before there was an order to move on, there was an unlawful assemblage.

    We submit that therefore the convictions cannot stand because in the first place no one can tell from this record whether these petitioners were convicted because there was an unlawful meeting before the order to disperse or because of unlawful conduct afterwards.

    The trial court wrote no opinion in finding all of the defendants guilty, although some distinction was made in the sentence, three of them were fined $25 and the others were fined with suspended sentences.

    But the appellant term expressly relied on these subsequent events as justifying the convictions and so does my opponent in his brief here.

    Now he says that the complaint is susceptible to the interpretation which he gives to it and which the appellant term gave to it, because of the reference in the beginning of the complaint to this time of 4:25 pm, to which I say two things.

    In the first place these defendants were not operating at that meeting with stop watches in their hands so that they would know at what time of the meeting 4:25 arose, but in the second place and this I consider to be basic and this what is discussed in my brief reply, under New York law, well settled law as decided by our Court of Appeals, the time mentioned in a charge is of no relevant and whatever, except in those rare cases where it might have some relevance as to whether an offense is committed in the day time or at night, but otherwise it’s no relevant whatever and the prosecution is in no way bound by it, but can prove the offenses occurring at any time.

    So that the reference to 4:25 we submit gave no notice or warning to these defendants that they were going to be charged with things that occurred after the order to disperse even if any of them had been conscious of the fact that order was given before 4:25.

    Now here is what the testimony showed.

    And I should point out that there were three classes of witness at this trial; police officers, defendants, and a reporter for the New York Times, a man by the name of Joseph Lelyveld who is by line members of this Court may have seen in the Times in recent months.

    He was there in his capacity as a reporter.

    He is only therefore disinterested person in our view.

    Osmond K. Fraenkel:

    Now the testimony was that almost immediately after the meeting began and some words were stated, a police captain and inspector came up to the person holding the meeting and told him the meeting had to disperse.

    Neither the captain nor the police inspector testified at this trial.

    What they said was testified to differently by the different groups of people.

    One and only one police officer said that he heard the captain talk about obstruction of traffic.

    The reporter from the Times said nothing was said about obstruction of traffic and that was supported by the defendants.

    There is another significant element to this.

    This police officer had a tape recording of what was said by the speaker at the meeting.

    That tape recording for some unexplained reason did not contain anything said by the police captain when approaching the speakers, but it did contain what the speakers said immediately in response, which was that they considered that they had a constitutional right to hold a peaceable meeting and that was the whole thrust of the discussion insofar as it appeared.

    Now up to that point the evidence of the Times reporter was the meeting was orderly, no excitement, no undue noise, there were perhaps 60 or 70 people present.

    Earl Warren:

    What is the size of this Duffy Square?

    Osmond K. Fraenkel:

    Your Honor, there is a photograph of it in the record I don’t know that the exact size with specify, do we have the exact size?

    Potter Stewart:

    You got a pretty good picture of it, on top at page six of the record.

    Osmond K. Fraenkel:

    Well there is a — Mr. (Inaudible) has given me.

    Potter Stewart:

    Triangular piece of land that is in the the Times Square.

    Osmond K. Fraenkel:

    I would say its looks to be about 30 feet wide at its widest and – you haven’t got the dimensions and the length?

    I would guess about 150 feet.

    It occupies roughly two blocks, between 45th and 47th Street with a triangular shape in between them.

    Now the only evidence prior to the order to disperse with respect to possible justification was the evidence of one policeman, but there had been some overflow of people from these paved area raised above the street, on to the street itself and that some cars had to swerve to avoid these people who were there.

    But he testified that he had not ordered the people to go back on to the, what would be called the sidewalk of the square.

    Here is the enlarged Duffy Square.

    This was not in the record but I have no objection of it being considered by the Court.

    So that our contention is that there is no substantial evidence whatever in this record justifying the original order to disperse.

    Potter Stewart:

    What time of day was this?

    Osmond K. Fraenkel:

    This began around 4 o’clock.

    Potter Stewart:

    On a Saturday afternoon?

    Osmond K. Fraenkel:

    No, was it a Saturday?

    Potter Stewart:

    Saturday afternoon.

    Osmond K. Fraenkel:

    It was a Saturday afternoon.

    Potter Stewart:

    In the summer time?

    Osmond K. Fraenkel:

    In August.

    Osmond K. Fraenkel:

    Now it is true —

    Potter Stewart:

    How big a crowd there?

    Osmond K. Fraenkel:

    Well that, there’s some questions about it.

    Mr. Lelyveld testified they were about 60 odd people in the meeting.

    The police officer said they were about 200.

    There is some testimony in the record about thousands of people walking along on the sidewalks, would be these sidewalks you see the normal sidewalks on which people travel in that area all the time, but there is no evidence that prior to the order to disperse a crowd collected, that any relation to the meeting other than people who were at the meeting themselves.

    No evidence that these people wandering along the sidewalk where in anyway disturbed or affected by anything which occurred at the meeting.

    Now there is evidence that after the order to disperse, at least I should point out that the first order to disperse was followed by these remarks of the speaker that they had a right to continue to hold the meeting and then came almost immediately a second order to disperse.

    Somewhere in respondent’s briefs there is mention of a half hour interval, but there is no such testimony in the record, the times are not given specifically clearly enough.

    But in any case there is no doubt that after the second order to disperse, certain amount of disorder resulted and had some of these individuals been prosecuted specifically what that kind of disorder as the two persons who were charged with having laying down on the sidewalk, or the one who claimed –is charged with having hit a horse, a policeman’s horse although his testimony was that he hit that horse because the horse was about to trample on somebody who had fallen near it and he wanted to divert the horse.

    So I say had they been specifically charged with disorderly conduct of that kind, the issues before this Court would be all together different.

    I doubt whether the case would be here before this Court but in it’s present posture we contend first as I have said, that this complaint did not justify use of any of the evidence as to what could be called disorderly acts of the persons after the order to disperse other than their mere failure to obey that order and that, that failure was not constitutionally, is the subject of a charge, because the police at that stage had no justification for giving the order, but in any case because of the way in which this case was decided both below and in the appellate court, no one can determine on which basis the convictions rested, so that the cases somewhat like that of an improper charge to a jury such as was condemned many, many years ago for instance in the California Red Flag case, the Stromberg case.

    And therefore what is involved here, is an interference with a lawful meeting held for a lawful purpose of speech, to be sure the speech in connection with an unpopular cause and there is some testimony in the record which in my judgment justifies the inference that it was the unpopularity of the subject of the meeting which induced the original order to disperse.

    The testimony is that the officer told the people in charge of the meeting that they had no rights to conduct the meeting, not that he told them that they were obstructing traffic.

    Now —


    Osmond K. Fraenkel:

    No, I don’t know of any such evidence in this case.

    Earl Warren:

    Was this a place where gatherings had customarily been held?

    Osmond K. Fraenkel:

    There was an offer of proof, that other meetings had been held in this area and that was rejected by the trial court.

    It’s not a place like Union Square which has a traditional character or used to have because I think they are fewer now than there used to be, but in any event speak meetings in New York or not unusual (Inaudible) and as I say there was an offer of proof to show that meetings had been held there in connection with bond rallies and some other subjects.

    Now whether that offer of proof could have been sustained we can’t know, but it was rejected.

    Now we content further in this case that the statute as here applied is unconstitutionally vague.

    Now here is what the statute says.

    Subdivision 2; acts in such a manner as to annoy, disturb, interfere with, obstruct or be offensive to others.

    Subdivision 3; congregates with others on a public street and refuses to move on when ordered by the police.

    Subdivision 4; by his actions causes a crowd to collect except when lawfully addressing such a crowd.

    Now as to the first, we submit that as to what constitutes an appearance or being offensive is very vague and in fact the appellant term itself recognized that I thought that it was overcome by the acts which occurred subsequent to the order to disperse.

    But we submit that there has been no sufficiently definite definition of that provision and that the final case on which reliance was placed in the Court, in the appellant term by my opponent does not support the convictions in these cases — in this case.

    As this Court will recall, Finer (ph) was convicted because he made a speech on the streets of, I think it was Syracuse or Rochester, in which he in effect urged Negroes to take the law into their own hands and the police told him to stop because the people around where getting arrested and one of them had indicated some resentment and the police feared that there would be some kind of a disturbance resulting from these inflammatory remarks.

    This Court, although divided Court, upheld that conviction.

    Osmond K. Fraenkel:

    Now here of course there was nothing of the kind.

    They were no inflammatory remarks.

    No one urged to do anything improper.

    There was no resentment from anyone listening.

    There was therefore no basis for the police believing that any unlawful conduct would result from the continuation of this meeting.

    Now the second —

    Potter Stewart:

    By your own definition you are confining your description to the events preceding the order of the police, is that it?

    Osmond K. Fraenkel:

    That’s right.

    Potter Stewart:

    There is plenty of evidence thereafter they run the horses and one of the witnesses slapped a sergeant.

    Osmond K. Fraenkel:

    Well of course the use of the word they, don’t forget Your Honor, Mr. Justice there were 17 people charged here jointly.

    There was no evidence of any joint unlawful conduct, none whatsoever.

    Had there been any reference to these specific wrong doings in the complaint that it would have been appropriate for the defendants to try to get severance, so different people charged with the different kind of things would receive discreet treatment.

    Potter Stewart:

    I just want to be sure when you talked there was no disorder, you are talking about the –-

    Osmond K. Fraenkel:

    I am talking the time of the order to disperse the meeting.

    Potter Stewart:


    Osmond K. Fraenkel:

    But after all until there was an order to disperse there was no reason for dispersing and the order can be justified only by what occurred prior to the order not by what occurred afterwards.

    This is the reverse of the search and cease situation where the search can be justified by what’s found afterwards, but not by what was found before.

    Potter Stewart:

    Doesn’t it appear that at least some of these people weren’t arrested until they engages, here is a women —

    Osmond K. Fraenkel:

    That’s right.

    Potter Stewart:

    -– hit a policeman and now they wouldn’t have slapped the policeman.

    Osmond K. Fraenkel:

    Not everybody.

    Potter Stewart:

    -– on a horse with a rolled up placard and they weren’t arrested until they did do that?

    Osmond K. Fraenkel:

    Well, no that’s not strictly accurate because at least three of these petitioners were never charged with by any witness with having done anything and the appellant term in its opinion so recognizes.

    They were simply important people in connection with the meeting, but it’s true that most of the people arrested were by testimony connected with some act which had it been separately charged as a separate act and no merely as a failure to move on when ordered to break up a peaceful meeting.

    What if just they found true, would have justified a conviction and as I said before wouldn’t have come to this Court.

    Now we come then to the next subdivision, the congregation with others on a public street, refuse to move on when ordered by the police well that’s obviously unconstitutional on its face because not every order by a policeman, because people have congregated two or three people talk together can be justified particularly not when a meeting is being held to discuss some matter of public importance and therefore we can’t suppose that the conviction rested on this.

    And finally we have the vary vague ambiguous provision, by his action causes a crowd to collect to except when lawfully addressing such a crowd, well that’s what we contend happened here, he was lawfully addressing such a crowd and there is nothing in this statute which suggests what constitutes lawfully addressing a crowd and what doesn’t constitute lawfully addressing a crowd and there are no standards whatsoever in this statute.

    So that we contend first that the complaint restricted the charge to what occurred prior to the order to disperse.

    That there is no substantial evidence in this record that anything which occurred prior to the order to disperse justified that order.

    And that therefore the order was unconstitutional as an interference with freedom of expression along the lines of many cases which this Court has recently decided which I have cited on my brief, which have taken the general view that a broad disorderly conduct statute cannot be made the basis for interference with free expression.

    Osmond K. Fraenkel:

    That if there are particular circumstances or places where such expression is improper or inappropriate then legislation should be wise dealing with such situations so that people generally maybe advised of what their rights are, but that the broad catch all, this orderly conduct charge is inappropriate to deal with such matters.

    Finally we contend that there is no substantial evidence justifying these convictions because nobody can determine from this record whether they arrested on the police or the trier of the facts, that the meeting was unlawful and therefore the police had to right to break it up or whether the convictions rested on the police or the trier of the facts that what occurred after the order to disperse justified the conviction.

    And in that state of doubt we submit there can be no convictions because there can be no proper basis for appellate review and as I said just a moment ago we also claim that as here applied these three provisions of the law under which the convictions — on which the convictions rested are unconstitutionally vague at least as applied to the particular facts in this case.

    We ask therefore that the convictions be set aside.

    Earl Warren:

    Mr. Uviller.

    H. Richard Uviller:

    Chief Justice and may it please the Court.

    I do appreciate the permission which I received from the Court to make use of this visual aid and I have asked that it would be distributed to the bench a rather poor quality photograph of the same thing.

    I think that it is important to appreciate what the physical location in which these events took place was.

    Now this is what we call a square in New York.

    As you can see it is an island between two major arteries in the center of Manhattan, 7th Avenue on the one side and Broadway on the other.

    Indeed it was referred to throughout the record in this case and is commonly referred to in New York as part of Times Square.

    Times Square itself being an ill defined area, not a square at all either, but generally considered to be an open space bounded on the one side by east side of 7th Avenue and on the other by the west side of Broadway and extending to the north side of 47th Street on the north and down as far as the north side of what used to be the Times Tower Building which is on approximately 43rd Street.

    There is a large commercial section within that area and indeed in the part depicted on this chart between 47th and 46th Street there are movie theaters, lining this sidewalk over here together with places for eating, amusement and some gift shops.

    About the same is true on the other side of Broadway and indeed as is well known Times Square is a heart in Manhattan and an attraction under normal circumstances not only to residents of Manhattan, but to the visitors to New York as well.

    At the time that events here in question took place we had a so called World Fair in progress in New York and so that the — as testified in the record the normal influx of visitors which we would expect on a Saturday afternoon in August was somewhat augmented by that attraction.

    Potter Stewart:

    This August of 1965?

    H. Richard Uviller:

    Two and a half years ago, that’s 1964.

    Potter Stewart:


    H. Richard Uviller:

    Now coming to this island which is known as Duffy Square itself, the central part of Duffy Square is a statue of Father Duffy located in this small enclosed area enclosed by a fence and elevated by about three or four steps from the rest of this concrete island.

    The area north of this statue is really not involved in this case.

    Apparently nothing took place in that area with the possible exception, a rather vague testimony that they may have been some police officers assembled in that area who entered the scene somewhat later.

    The speakers for this meeting were located on the south steps of the statue approximately in this position here.

    There are two flag poles as you can see on either side and the sidewalk about 12 feet on either side of the statue extends fully from the north boundary to the south boundary of this concrete island.

    The sidewalk I should say is not delineated or demarcated from the reminder of the concrete island in any way, but as you can see aside from the fact that the statue is in the center in that fenced area, it flows into the general concrete area between the two curves.

    There is a subway grading immediately to the south and from the testimony in the record it’s quite apparent that the listeners to this meeting, the group which has been estimated in size variously from 60 to 300 people where for most part in the immediate area which is marked by the subway grading standing –.

    Potter Stewart:

    It is not a subway station area?

    H. Richard Uviller:

    No sir it’s just merely a grading by which air is allowed down into the tunnel.

    Potter Stewart:

    I know, egress and ingress to the subway –-

    H. Richard Uviller:

    No sir.

    There are bus stops as marked on the chart on the 7th Avenue side, two, one just in front of the other and these of course are marked by signs and are used the enter the various 7th Avenue buses that proceed south.

    H. Richard Uviller:

    There is also another statue located at the far south.

    This is the statue of George M. Cohan and perhaps it should be called Cohan Square, but there was nobody standing in that immediate area either.

    In between is a small planting area in which there is some greenery.

    Apparently no one in this meeting with the approximate exception of some newspaper reporters were standing anywhere in this vicinity.

    Therefore this entire meeting took place in rather limited part of this rather small island between the steps here and the south end of the subway grading here.

    Earl Warren:

    We will recess now.