DIAMOND v. LOUISIANA

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Argument of James M. Nabrit Iii

Chief Justice Earl Warren: Number 100, Dion Tyrone Diamond, Petitioner, versus Louisiana.

Mr. Nabrit.

Mr. James M. Nabrit Iii: Mr. Chief Justice, may it please the Court.

This case is before the Court on writ of certiorari to the Supreme Court of Louisiana, brought by the petitioner, Dion Diamond, who was convicted of the crime of disturbing the peace in violation of Louisiana Revised Statute 14:103 and was sentenced to jail and to pay a fine.

Petitioner contends generally and has throughout the proceedings that his Fourteenth Amendment rights were violated by his conviction for making a series of speeches under a vague and indefinite criminal law.

Now, the statute involved is setout on the second page of petitioner's brief, it is that may be remembered as the law which was before this Court in Garner against Louisiana two years or three years ago.

The Part A of the statute with -- which we're concerned, contains seven subsections prohibiting a number of different acts.

The -- for example, the first describes as engaging -- as disturbing the peace, engaging in a fistic encounter, the second relates to unnecessary -- unnecessarily loud, offensive or insulting language.

The third, appearing in an intoxicated condition, the fourth, engaging in any act in a violent and tumultuous manner.

And now we come to the last three sections.

Section 5, holding of an unlawful assembly, 6, interruption of any lawful assembly of people and 7, relate -- the catch or clause relates to the Commission of any other act in such a manner as to unreasonably disturb or alarm the public.

Now, the parties are in dispute in this case as to which part of this law was used to convict the petitioner and indeed, the State has shifted its ground in successive briefs filed in this Court.

The State now contends that subsections 5 and 6 were the ones used to convict the petitioner.

In the brief in opposition to certiorari, they argued only that subsection 6 was in the law.

Now before -- but -- but before describing the facts in the proceedings, I'd like to briefly state just -- just state without argument, the principal arguments that we will make.

First, we contend that this case is like Stromberg against California.

And that, there is no way to exclude the possibility that the trial judge relied upon the most sweeping and general and indefinite part of the statute, subsection 7 to convict the petition and that this provision is unconstitutionally vague.

And secondly, we urge that in another aspect, for cases like Thomas against Collins because whatever part of the law, it was used to convict Diamond, he was convicted and given a single penalty for making a number of speeches and saying a number of different things including the charge that he encouraged a group of college students to stay away from classes.

Justice John M. Harlan: This was before -- before the judge without a jury, was it?

Mr. James M. Nabrit Iii: That is correct Your Honor.

And they took -- finished that second thought.

There -- no part of the statute is sufficiently precise and definite to punish this type of -- this particular type of speech.

And the applical -- applicable principle of Thomas against Collins being that as for a single conviction rest on more than one State and one of the statesmen cannot validly be punished here for want a fair warning.

The entire conviction must be reversed.

Now, --

Justice Byron R. White: Did the -- did the speeches urged entering the classrooms?

Mr. James M. Nabrit Iii: One of them did, Your Honor, one of the speeches for which he was convicted.

I'm going to attempt right now to describe the -- the evidence which concerned a series of speeches made by Diamond on the campus of Southern University near -- in East Baton Rouge Parish, Louisiana.

The time of his first speech, which was on January 20th or 30th of 1962, some of the Southern University students had been engaged on a boycott of classes for several days and their protest related to the school's treatment of some students who had been arrested in anti-segregation demonstration.

Justice Potter Stewart: This is a State College University?

Mr. James M. Nabrit Iii: Yes, it is Your Honor, the school established in the state constitution and the statutes provide for its administration by State Department of Education.

Justice Potter Stewart: It's a -- it's setup as -- as college for Negro students?

Mr. James M. Nabrit Iii: It has been and is still operated only for Negroes.

There's nothing in any of the -- in the state constitution or -- or the statute which specifically limits it to Negroes.

However, --

Justice Potter Stewart: But that is the fact though?

Mr. James M. Nabrit Iii: That is the fact.

Justice Potter Stewart: Is -- was the petitioner, Mr. Diamond, connected in anyway with the -- with the University?

Mr. James M. Nabrit Iii: No, well -- well, on the morning of January 30th when Diamond came on to make his first speech, he was not a student in that University, when --

Justice Potter Stewart: Has he ever been?

Mr. James M. Nabrit Iii: No, he had not.

Justice Potter Stewart: Any connection?

Mr. James M. Nabrit Iii: No, he's not.

Justice Potter Stewart: Had he been invited there by anybody?

Mr. James M. Nabrit Iii: The record does not indicate how -- how or why he -- he came on the -- on the campus.

On this -- on this morning, Diamond was seen at about 9:30 in the morning by the dean of students, speaking to a group of students in a quadrangle outdoors in the campus.

The dean listened to Diamond's speech for 10 or 15 minutes and his testimony is the only description of this first speech.

He -- he said only that Diamond was talking about the importance of demonstrating and staying out quest, it's a quote, that's the only description of the first speech on the morning of the 30th.

The meeting lasted -- the speech lasted about 15 minutes and the students then dispersed on about their business.

The second speech occurred the next morning on the 31st, I might interject at this point that the information charges that Diamond committed this crime on the two days.

On the second morning, and again about the same time and place, Diamond was again seen by the dean, speaking to a group of several hundred students on the campus.

And he's -- and the dean's only description of the second speech was that it was pretty much the same as that of the previous day.

The speech was also heard by a man named, (Inaudible), it was the campus guard or security guard.

And he -- he said that Diamond told the students listening to him not to go classes.

The faculty had signed some sort of a petition to supporting them and that they should show their gratitude by staying out of classes during this dispute.

Again, the meeting lasted about 15 to 20 minutes, that's all it had.

Now, the Dean said that he didn't authorize Diamond to make these speeches.

And for listening to him for 15 to 20 minutes, he started toward him to tell him, he didn't have permission, but then the meeting broke up so he never talked.

Now, the third speech occurred during the noon hour of the second day.

And the estimates of the number of students listening -- there varied from 200 to 600 and three witnesses testified about this third speech.

Again, with respect to the third speech, the dean who heard it said it -- "It concerned principally the boycotting of classes."

That's the only description of it.

However, the two campus security guards gave and said more.

They said that -- Officer (Inaudible) that he heard Diamond tell the students, we will go through the classrooms and if necessary, we will put them out of their classrooms.

And his assistant Harris said he heard Diamond urging the students to say -- stay out of classes and to say, "Let's go through the classrooms and to go from classroom to classroom."

Now this speech ended --

Chief Justice Earl Warren: Can you repeat that last line -- it's what the petitioner said?

Mr. James M. Nabrit Iii: Yes, Your Honor.

The -- these are the -- the only -- only descriptions of this third speech --

Chief Justice Earl Warren: Can you read the last part that --

Mr. James M. Nabrit Iii: There were -- there were two people who described it.

Chief Justice Earl Warren: Yes.

Mr. James M. Nabrit Iii: Mr. Harris, the second one said that Diamond urged the students and a -- Diamond was pleading for more followers from the student body.

That he urged them to stay out of classes and that Diamond told the students and this is reported, "Let's go through the classrooms," and also at another place to go from classroom to classroom, all of this appears between pages 107 and 111 of the record.

But those are the only reported quotes.

Now --

Chief Justice Earl Warren: Isn't this supposed to have gone a little -- a little farther than that and to have said, go through the classrooms and if necessary, put them out of the classroom?

Mr. James M. Nabrit Iii: Yes, I -- I've -- I had read that just a moment before, that was --

Chief Justice Earl Warren: Well, I missed that.

Mr. James M. Nabrit Iii: That was the first witness Your -- Mr. --

Chief Justice Earl Warren: Yes.

Mr. James M. Nabrit Iii: -- Chief Justice and -- and that quote was at page 63 --

Chief Justice Earl Warren: Yes.

Mr. James M. Nabrit Iii: -- we will go through the classrooms and if necessary, we will put them out of the classrooms.

Chief Justice Earl Warren: Yes.

Mr. James M. Nabrit Iii: And these were the two descriptions --

Chief Justice Earl Warren: Yes.

Mr. James M. Nabrit Iii: -- of the speech.

Now, about an hour after, this third speech, a group of students began marching around the campus carrying signs, singing, walking through the classroom buildings, making noise and in general, according to the testimony, disturbing the people in the buildings wherein somebody's classes will be conducted.

This lasted for at least over a half an hour.

There was no testimony that anyone was actually pulled from a classroom.

There were no fights and there was no evidence that Diamond was in any of the buildings or carrying the sign.

Justice Potter Stewart: What was this boycott about, what -- what the sign say?

(Voice Overlap)

Mr. James M. Nabrit Iii: There was no -- well, to answer your question directly, the first question and what --

Justice Potter Stewart: Yes.

Mr. James M. Nabrit Iii: -- was it about?

The students were protesting the University's treatment of some -- of some students who had previously been arrested for participating in anti-segregation demonstrations.

And --

Justice Potter Stewart: In Baton Rouge?

Mr. James M. Nabrit Iii: In Baton Rouge -- in the area, somewhere.

Justice Potter Stewart: I see.

Mr. James M. Nabrit Iii: And some of them apparently had been ousted from school.

That's all of the description with controversy that appears in this record.

Justice Potter Stewart: Does the record show what the sign said or what the --

Mr. James M. Nabrit Iii: Well, four signs were put in evidence.

They were not specifically identified as the signs carry that day or one witness said, there were -- there were similar to the signs.

I can't locate that description out of the -- at the moment.

It's in the testimony of the witness, (Inaudible).

In any event, Diamond was not seen participating in this march or carrying the signs.

There was no evidence that he made the sign and there was no evidence that he had been told not to come on the camp or so not to make a speech or to leave.

Now, about 6:00 that evening, there was an official meeting of the Student Government Organization where the Dean spoke and the President of the student body spoke.

Diamond was in the audience and he asked permission to speak, when permitted to and he left without causing a disturbance, it's uncontradicted.

And later, Diamond and a group of people who -- who left the meeting, several people made impromptu speeches and at -- this occasion that evening, Diamond is supposed to have criticized the people who staged this march through the classroom early in the day, announced them.

This was a testimony by defense witness and there was no description of that speech by the prosecution witnesses.

And Diamond was arrested the following morning when he arrived on the campus in a taxi cab.

No claim that he did anything but just appear the following morning.

Now, our first argument, if there are number of things occurred in the trial which make it impossible to exclude the possibility that the trial judge relied on subsection 7 to convict Diamond.

In fact, we think it's very probable that he did.

The first of this was the circumstance that at the time of this trial, they were already pending against Diamond.

Five other charges, two of them were under the same statute, Section 14:103 and they happened to -- to appear in this record.

There were tests to a motion to quash at pages 10 and 12 of the charges which track the language of subsections 5 and 6.

They charged him with interrupting a lawful assembly and with prohibiting and -- and withholding an unlawful assembly.

And at the beginning of the trial, this trial, the prosecutor sought and obtained the stipulation that when this other cases -- if and when this other cases were brought to trial, he could use the testimony of one of these witnesses in these future trials.

Beyond this, --

Justice John M. Harlan: (Inaudible) that information?

Did they arise out of the same trans -- were they based on the same transaction, his speeches?

Mr. James M. Nabrit Iii: Well, they were never brought to trial but what I believe that to be the case.

The -- they contained no detail as to the facts, except the dates which were from January 29th through February 1st, the period including the same period of these charges.

In any event, the prosecutor at the beginning of this trial got a stipulation, the first witness' testimony that could be used if tried these -- both these other cases at trial.

And secondly when Diamond filed a motion to quash in which he asserted that Section -- that the whole statute was vague, the trial judge ruled and specifically ruled on the -- that subsection 7 was valid and devoted most of the discussion and the only case decided pertained to -- to this catch all clause.

The only cases cited were the State Supreme Court's decision in the Garner case and two companion cases and an earlier case, which is called Ponchatoula versus Bates which had upheld a generalized disturbing of peace -- prohibition, so that the --

Justice John M. Harlan: (Inaudible) subsection 6?

Mr. James M. Nabrit Iii: The -- this appears at page 28 of the record and at the top of page 29 Mr. Justice Harlan, and the paragraph is starting at the bottom of 28.

All it is said is, the statute sets forth six different specific acts disjunctively, anyone of which have done in such a manner as perceivably would disturb along the public, constitutes the crime.

It's the only reference to the first six statutes.

And any, begins to talk about subsection 7 and -- and cite the -- and cite the cases which he believed to uphold the right the State to have a generalized disturbing of peace statute.

Fairly, when -- when Diamond filed a motion for new trial, in which he made explicit what he assumed throughout that he was charged under subsection 7.

The Court's -- the opinion overruling this didn't contradict him in any way.

It just said that the statute denouncing the crime is constitutional.

And the Court believed there was -- he was guilty beyond a reasonable doubt.

And in the -- similarly, the petitioner urged in the Louisiana Supreme Court, that he was convicted under subsection 7, but that Court affirmed without discussion.

It was only until we get to this Court and when the State filed its brief in our position to certiorari that the State contends that Diamond was charged with interrupting a lawful assembly.

The State didn't stick to that very long because just a few months later, when they filed a brief on the merits here, they now shifted ground in our arguing that Diamond was convicted of holding an unlawful assembly and interrupting a lawful assembly.

So that, that plus an examination of the charge against Diamond, it appears on the first page of the record, tends to confirm that Section -- subsection 7 may have been involved.

That the information alleges is a -- a variety of conduct which is not expressly mentioned in the statute.

It -- it includes this charge of encouraging students to boycott or it did not the use the words of any of the subsections, did not track the language of any of the seven subsections.

And we submit that an information sufficiently imprecise to permit the -- this -- this type of shifting theory as to what the charge is by the State is at least sufficiently unclear to seem to invoke this general and sweeping catch-all clause, subsection 7.

Justice John M. Harlan: The allegation in fact very sufficient, I take it to bring it under Section 6.

Mr. James M. Nabrit Iii: Under Section 6?

Justice John M. Harlan: Yes.

Mr. James M. Nabrit Iii: Well, I would submit Your Honor that -- and -- and this relates really to our -- the second argument that if a charge of -- if a charge that students -- that -- that it's a -- if a charge of encouraging students to boycott and leave classes is embraced by 6, then we would submit that -- that -- that 6 doesn't give any fair warning if that's included.

Let -- let me explain that a little.

The -- part of the charge against Diamond, quite clearly was that he encouraged students to boycott classes, he was not convicted simply for making one speech.

The -- the trial judge made clear that Diamond was convicted for making a series of speeches.

His -- to judges some of the evidence, he thought sufficient to convict refers to speeches in the plural and then -- and this appears two or three of -- two or three times in the record.

Now, there was only one speech which related to the march, the first two speeches that had -- dealt only with encouraging students to stay out of classes so that if -- if it seems clear that -- the part of the affairs which Diamond was convicted, was simply urging that the students stay away from classes.

Justice Byron R. White: (Inaudible) who are urging a boycott and urging people to enter classrooms and that to have people leave their classes.

Mr. James M. Nabrit Iii: Yes.

Justice Byron R. White: Convicted for both of that?

Mr. James M. Nabrit Iii: Yes.

Justice Byron R. White: Given one -- what was it?

A fine or jail sentence?

Mr. James M. Nabrit Iii: That's correct.

Justice Byron R. White: Was it a fine or a jail --

Mr. James M. Nabrit Iii: Well, both Your Honor.

Justice Byron R. White: Both and given one -- one sentence anyway for both sentences.

You see something fundamentally wrong about that?

Mr. James M. Nabrit Iii: Yes, it seems to me that this is just like Thomas against Collins where Thomas was charged with making one -- one speech --

Justice Byron R. White: (Voice Overlap) let's assume there'd been two counts in the information.

One charging 6, one charging 7.

Mr. James M. Nabrit Iii: Well --

Justice Byron R. White: Convictions on both concurrent sentences on both and 7 was invalid.

Mr. James M. Nabrit Iii: Well, if you have separate adjudications of guilt on each count determination that -- that -- that would be different from this case.

Justice Byron R. White: So what's -- why is it different from what we have here, assuming -- assuming for the moment -- assuming for the moment that there was a -- that this information charged defenses under both 6 and 7?

Mr. James M. Nabrit Iii: Well, the -- because the -- the determination of guilt was a general one.

The determination of guilt didn't differentiate between the -- the two charges so it's not possible to know.

In other words, in -- in Thomas against Collins, Thomas made a speech in which he urged that the -- his audience generally joined the union and that specific person in the audience joined the union and there was a -- a single penalty imposed for these two acts and this Court held that where one of them could not constitutionally be punished, the whole conviction had to fall and it had to be sustained as to both or as to neither.

It was in light -- as this Court (Voice Overlap) --

Justice Byron R. White: Did the trial judge ever -- did the trial judge ever say to himself that he was convicting under 6?

Mr. James M. Nabrit Iii: Now, the trial judge never said what he was convicting at.

He said, "Diamond is guilty as charged in the whole statute."

It's quite -- they never say.

We never heard anything about 6 until in this Court.

Well --

Justice John M. Harlan: (Inaudible) Section 6 indictments has been -- information has been filed before --

Mr. James M. Nabrit Iii: Yes --

Justice John M. Harlan: -- this -- this information?

Mr. James M. Nabrit Iii: Yes, there were -- there were -- there were five charges -- these five, we refer to in this record filed before this one.

The one -- one under Section 6, one under Section 5, another one charging vagrancy, another one charging -- that were all summarized in a footnote, from my brief I think and perhaps I'd better reserve my remaining time.

Justice Arthur J. Goldberg: Mr. Nabrit, before you sit down, would you address yourself to this problem, they may not read the information as you -- replicating the -- the boycott was related to the speech calling the assembly or erupting the assembly but it says the information and date and encourage me to see the whole unauthorized demonstration.

I encourage them to march -- I encourage to boycott and leave the classes in such a manner that would foresee (Inaudible)

Cannot this all be looking and found as one allegation?

Mr. James M. Nabrit Iii: Well --

Justice Arthur J. Goldberg: Not just a separate charge as the boy -- I heard you in the boycott?

Mr. James M. Nabrit Iii: Well, I -- I -- I think that the evidence tends to confirm my theory -- my interpretation of this -- of the information.

The -- the -- the evidence and the judge's finding, however, the judge relied on more than one speech -- at page 40 of the record.

He refers to speeches, the -- now, the phrase as would foreseeably disturb and alarm the public, which appears at the end -- near the end of the information.

This is the prefatory phrase which applies that all sub -- all subsections of the statute and presumably, was intended in the information to -- to apply although there's no punctuation there, to all of the three acts alleged before it and -- and not just the last one concerning boycott.

Chief Justice Earl Warren: Mr. Roy.

Argument of Ralph L. Roy

Mr. Ralph L. Roy: Mr. Chief Justice, may it please the Court.

The Louisiana Law Article 227 provides in effect that a bill of information shall contain the essential facts or averments of the offense charged.

That same Act provides that it is not necessary nor required that the identical words of the statute involved, be set forth in the bill of information.

Under 253 of our criminal code or procedure, an accused may, if he so desires, apply for a bill of particulars.

Of course, I recognize the fact that a bill of particulars will not hear a -- any otherwise stable information.

I meantion the bill of particular for the simple reason that I understand the authority of this Court in criminal state cases on review to be limited to federal or constitutional questions if you will, which have been presented to you and passed upon by the trial court, by the State District Court and by the State High Court.

This particular section or sections that petitioner alleges he was or was not charged with, was information that he could have obtained, had he asked for it, however, he would have not been entitled to it.

I'm sure the trial judge would've given it to him.

I think as to which section this -- or sections this bill of information covers, I think this question can readily be ascertained by merely reading the bill of information in view of and in the light of the law allegedly violated 103.

And it is true 103 has several sections, seven sections to be exact and they are, disjunctively set forth --

Chief Justice Earl Warren: Did he ask for bill of particulars?

Mr. Ralph L. Roy: Yes, sir.

He did, Your Honor.

I'm -- I'm sorry he did ask for it but the information that he sought was information with reference to the witnesses who were involved in our case.

He wanted to know in effect who the witnesses were, who allegedly encouraged to enter these classroom buildings and their names, etcetera.

He did not ask for any information that he complains of here today.

Chief Justice Earl Warren: Commend for bill of particulars in the record?

Mr. Ralph L. Roy: Yes at page -- application -- page 14.

Chief Justice Earl Warren: 14.

Mr. Ralph L. Roy: You will note in -- generally in Article 1, he wants to know the names and addresses of the students of Southern University that the accused allegedly encouraged the whole unruly and non-authorized demonstrations, the names, addresses of students, etcetera, names and addresses, name and addresses.

He does not ask which section was being charged on him.

Therefore, that question was not presented to the District Court.

The trial court was not presented nor reviewed by the State Supreme Court on writ of certiorari.

And therefore, was not passed upon our lower courts.

As I've said, the reading of the bill of information --

Justice John M. Harlan: Mr. Roy, what question do you say was not passed on?

Mr. Ralph L. Roy: The question as to what section he was charged on, or sections.

Unknown Speaker: (Inaudible)

Mr. Ralph L. Roy: He -- he filed motions to quash.

It was generally -- in general language urged the unconstitutionality of -- of the proceedings on based on the First and the Fourteenth Amendments.

He --

Unknown Speaker: (Inaudible)

Mr. Ralph L. Roy: I would not think, Your Honor.

On our law as this Court undoubtedly knows, in criminal cases, the Louisiana Supreme Court is limited to questions of fact, of -- of law rather.

The Court -- the State Supreme Court does not pass some questions of -- of -- of fact or evidence.

In order to properly present a question of law to the State Supreme Court, it is necessary that in the trial court, what we call a bill of exceptions must be perfected, must be taken and perfected.

Now, this is done for example if a witness is being -- is testifying and accused, he wants to object to a question, he makes his objection at the time.

He states his specific reasons upon which the objection is based.

The ruling of the Court has made a part of this bill of exception and the acceptor makes the testimony of the -- the witness or any other evidence that he wishes to make a part of this so called bill of exception, which is signed by the judge and a per curiam written, the connection that we -- the explanation therefore and this constitutes what is known as a bill of exception and this is the only thing that constitutes the record in a criminal case in the State of Louisiana.

The transcript of the witnesses, the -- the evidence in the case, on a criminal case, is not subject to review by the State Supreme Court unless that transcript of evidence is specifically attached to and made a part of a bill of exceptions, which incidentally, was not done in this case.

The trial judge points this out in all of his per curiams.

Therefore, when -- when applicant -- when petitioner filed his applications for writs to the State Supreme Court, I would think, following the law that the State Supreme Court had no record other than the bill of informations and the minutes of the Court would have no transcript or testimony.

Getting back to the affirmance in this case, generally speaking, I submit that the accused is charged with the violations specifically, clearly of 6, interruption of any law -- lawful assembly of people.

It is true as contented by petitioner that the word, interruption is not used in the bill of information but as -- as stated on the Article 227, it is not necessary to categorically and literally file the wording or the words of the offense allegedly violated.

We submit that, and I quote, "Unlawfully did violate LS -- Louisiana Revised Statutes 14:103 and that he not a student of Southern University, did enter upon the premises of Southern University and that engaged in and encouraged students of Southern University to hold unruly, unauthorized demonstration on the campus and did lead and encouraged their students to march through the University buildings were our classes were being conducted and did encourage etcetera.

Now, --

Unknown Speaker: (Inaudible)

Mr. Ralph L. Roy: I'm reading from the bill of information, Your Honor and I say, --

Unknown Speaker: (Inaudible)

Mr. Ralph L. Roy: Page 4 and I say it --

Unknown Speaker: (Inaudible)

Mr. Ralph L. Roy: I'm sorry, I was reading from --

Unknown Speaker: (Inaudible)

Mr. Ralph L. Roy: I'm reading from -- from petitioners brief on page 4.

Justice Hugo L. Black: (Inaudible) filed February 13, is that in amendment?

Justice Byron R. White: Page 1 of the record.

Mr. Ralph L. Roy: Yes sir, as page 1.

Justice Hugo L. Black: It goes for another one but it doesn't say that.

Did it take the place of this one?

Mr. Ralph L. Roy: Yes, so they plead --

Justice Hugo L. Black: (Voice Overlap) one on which he was tried?

Mr. Ralph L. Roy: This is number one.

If I might explain a little later Your Honor, what I was saying was that the wording did lead and encouraged such students to march through the University buildings is a descriptive factual averment of an interruption.

Justice William J. Brennan: (Inaudible) the information at page 1 --

Mr. Ralph L. Roy: Yes, sir.

Justice William J. Brennan: -- on which he was convicted off.

Mr. Ralph L. Roy: Yes, sir.

Justice William J. Brennan: Now, what about the five other informations?

Are they involved here at all?

Mr. Ralph L. Roy: No sir, not at all.

Justice William J. Brennan: He was not tried on those?

Mr. Ralph L. Roy: No, sir.

Justice William J. Brennan: So the only thing that we have to deal with is the one you're reading from.

Now, that's the one on page 1.

Mr. Ralph L. Roy: That's correct, sir.

Unknown Speaker: (Inaudible)

Mr. Ralph L. Roy: They were made as part of a bill of exception by -- by a counsel --

Justice Hugo L. Black: Are they amendments?

Mr. Ralph L. Roy: -- the petitioner.

No sir, they're a separate bill.

Justice Hugo L. Black: Were they ever filed?

Mr. Ralph L. Roy: Yes, sir.

They were filed and they are pending.

Justice Hugo L. Black: But you -- I thought you agreed that he was tried on the one on page 1.

Mr. Ralph L. Roy: Yes, sir, that's correct.

We say that the factual averment did lead and encouraged such students to march through the University buildings while classes were being conducted.

We say this is a factual averment of the interruption of a lawful assembly, which are the ultimate of facts that the trial court must determine.

As also contained in this bill of information, as was noted by counsel and -- and I quote further, "And did encourage such students to boycott and leave the classes in such manner as would foreseeably disturbed and alarmed the public.

Well of course, the State is not -- is not contending here that it is against the law to urge a boycott.

As we have said that reasonably, there were several bills of Information filed in this case and subsequently, one bill of information was filed which is the one we are concerned with here today.

The bill of information which was filed and upon which this accused petitioner was tried, contains a combination of two subparagraphs of subsections if you will, of this 103.

It contains five holding of an unlawful assembly and it contains six interruption of any lawful assembly of people.

Now, in our law --

Justice Hugo L. Black: (Inaudible) against the law to urge --

Mr. Ralph L. Roy: Well --

Justice Hugo L. Black: -- for someone to urge students to leave school and disturbed the school against the law of the State, are you saying that, not what you're charging here or are saying that the Constitution forbids you to do that?

Mr. Ralph L. Roy: No sir, I'm saying that, although we have averted -- averred that statement in the bill of information that we are not -- we did not aver it as a matter of law.

We averred it on the question of intent.

Now, disturbing the peace --

Justice John M. Harlan: (Inaudible)

Mr. Ralph L. Roy: Yes sir, perhaps if I'll start from here.

Disturbing the peace is the doing of any of the following in such a man etcetera.

In order to violate this offense, it is necessary that it be voluntarily and willfully done, intentionally done.

For example engaging in a fistic encounter, a -- a person who would be assailed, may use force to protect himself against his assailant.

In such an encounter, that particular person would not be guilty of disturbing the peace by engaging in the fistic encounter because it has to be a willful, intentional thing.

Now, sets --

Justice Hugo L. Black: (Inaudible) defend themselves, you -- you're not defending that clause of your law, are you?

Mr. Ralph L. Roy: No sir, what I'm saying is, Your Honor, under -- under Section 222, by our criminal court procedure, that is a proviso and I quote, "Several distinct offenses are the -- are the intent necessary to constitute such offenses disjunctively enumerated in the same law or in the same section of a criminal statute may be accumulated in the same count when it appears that they are connected with the same transaction and constitute but one act, but in that event, they must be charged conjunctively."

Now, this is the authority whereby we filed the bill of information which we are presently concerned with.

Unknown Speaker: (Inaudible)

Mr. Ralph L. Roy: That's correct, Your Honor and you will note and -- and I'm quoting from --

Unknown Speaker: (Inaudible)

Mr. Ralph L. Roy: I'll come to that in a minute, may it please the Court.

Your Honor, on -- on page 9 of brief for respondent, this particular -- this particular section is set forth and you will note the words or the intent necessary to constitute such offense.

This is where the averment in the bill of information with reference to boycotting comes in.

It was set forth as an averment to show that this -- to buy up on the question of the intent of this accused to commit the offense of that is left violated.

The fact that he -- he was preaching boycotting, he didn't' want the members to go to class.

It's not against the laws of criminal violation but it does have some prohibitive vie on the question of whether he voluntarily did that or expected them to do what we say he did when he said, go out and pull them out of the classroom.

So in that respect, it is averred as being of some prohibitive weight on the question of intent.

Justice Hugo L. Black: (Inaudible) first by telling me which section of the statute are you depending on, which subdivision?

Mr. Ralph L. Roy: 5 or 6, Your Honor.

Justice Hugo L. Black: 5 and 6.

Mr. Ralph L. Roy: We have 5 and 6 and then we have the averment which is made for the purposes of the intent.

Justice Hugo L. Black: Would you charge him withholding an unlawful assembly?

Mr. Ralph L. Roy: Yes, sir.

Justice Hugo L. Black: Where?

Holding of an unlawful assembly and you're charging him with interruption of a lawful assembly of people?

Mr. Ralph L. Roy: Yes, sir.

Now if I may proceed your Honor --

Justice Potter Stewart: That is --

Mr. Ralph L. Roy: I might be able to connect it.

Justice Potter Stewart: That is the classroom so the --

Mr. Ralph L. Roy: Yes.

Justice Potter Stewart: -- the classes -- those -- that were those of the lawful assembly which he interrupted?

Mr. Ralph L. Roy: Yes sir.

Justice Potter Stewart: Is that -- is that your point?

Mr. Ralph L. Roy: Yes, sir.

I would like to say here, --

Justice Hugo L. Black: Why does the statute say that the interruption has to be against the consent of the assembly?

Mr. Ralph L. Roy: Beg pardon Your Honor?

Justice Hugo L. Black: Why does the statute say that the interruption has to be against -- get over the objection of the assembly itself?

Suppose that it's an assembly of people gathered together and they want the man to interrupt and make a speech?

Mr. Ralph L. Roy: Well then we wouldn't have -- we wouldn't have any problem Your Honor, at all.

Justice Hugo L. Black: In fact -- in fact, I was asking though when -- what part of your statute adds to these words, interruption of any lawful assembly of people?

Mr. Ralph L. Roy: Well, the first part disturbing the peace is the doing of any of the following in such manner --

Justice Hugo L. Black: Well, that -- that is on the such as -- would foresee them and disturb or alarm the public.

Mr. Ralph L. Roy: Yes sir, that's right.

Justice Hugo L. Black: It doesn't say that over the consent of the assembly.

Mr. Ralph L. Roy: No, sir.

Justice Hugo L. Black: So what you have here is yes, when I think, you have something very much like it.

If a man -- you -- you've made it a crime, a man to go in to an assembly and if you say interrupt them as I see exactly what you mean by it, if that might disturb, foreseeably disturb or alarm somebody, that's your crime.

Mr. Ralph L. Roy: Yes sir and -- and I might say that foreseeability --

Justice Hugo L. Black: To what?

Mr. Ralph L. Roy: Foreseeability has been or is identified, defined according to our law Section 24 rather Section 2 of our criminal code and I quote, "Foreseeability refers to that which ordinarily would be anticipated by a human being of average reasonable intelligence and perception."

Now, if I may --

Justice Hugo L. Black: Is there any statute that makes it a crime unlawfully to -- and over the consent of an assembly or group to interfere with their meetings?

Mr. Ralph L. Roy: No sir, I know -- I know of no other.

Justice Hugo L. Black: When was this one drawn?

You know?

Mr. Ralph L. Roy: It's -- it's been -- I would know to the day but it's been quite -- it's been on the books for quite -- quite --

Justice Hugo L. Black: This -- on -- in all of these broad terms?

Mr. Ralph L. Roy: Yes, sir, quite a few years.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Ralph L. Roy: No sir, the -- the trial court in -- in all of these per curiam exceptions make mention to it.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Ralph L. Roy: No, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Ralph L. Roy: No sir, I didn't --

Justice Arthur J. Goldberg: No such report?

Mr. Ralph L. Roy: I didn't -- well, it's -- it's in the brief --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Ralph L. Roy: Now, may it please the Court.

We have in our criminal code, Section 24 as most States do, I imagine, under the category of parties.

We have this article and I quote, "All persons concerned in the commission of the crime where the present or absent and whether they directly commit their act to constitute in the offense, aid and abet in this commission or directly or indirectly counsel or procure another to commit the crime or principles."

In other words, this is the codification of what was an accessory before the fact that common law makes an extra -- type of party a principle on our law.

And it is under this crime which is applicable to all of the basic offenses murder, rape, robbery, disturbing the peace, if you will, because this article in effect says, "Any person who is concerned in the commission of a crime whether he is directly present or not, who aids or abet all who procures or counsels directly or indirectly another to commit a crime, is the principle."

And it is upon this particular law in connection with what the evidence showed some 100 students to do that is go through these classrooms and completely interrupt them, immediately after this petitioner had urged them to do so, it is upon that evidence that the State contends for his conviction.

Justice John M. Harlan: (Inaudible) you cannot tell from this record whether the -- this man was convicted under Section 6, assuming that Section 6 conviction would stand for a moment or Section 7.

Mr. Ralph L. Roy: Well, the -- the nearest answer that I can give for that argument is it contained in his own brief.

In a footnote at page 11 and this is a quotation from the trial judge in one of his per curiam bill of exceptions number 7, this -- this was at a --at a point when the State had rested in chief and counsel for defendant, for petitioner herein, made a motion for a directed verdict based upon the inadequacy of the evidence that had been presented by the State, which he had a right to do -- this being a misdemeanor case, being triable without a jury.

Here's what the judge said, "The court overrules the motion for the reason that the State in the opinion of the Court, had sustained its burden approving the guilt into defendant beyond reasonable doubt."

Reliable confident evidence offered by the State show that the defendant, a non-student was present on the campus of Southern University on the dates alleged in the bill of information and while that did in speeches made by him, in meetings not authorized by those in charge of these matters, encourage and exhort Southern University students to boycott classes and to march into the classroom while classes were in session and to disrupt the classes even to the extent of pulling the students from the classrooms in such a manner as would -- foreseeably disturb and alarm the public.

Now, on our law, the --

Justice John M. Harlan: (Inaudible) that as being consistent in neither with the conviction under subsection 7 or a conviction under Section 6?

Mr. Ralph L. Roy: I read that as being a conviction on the subsection 6 and 7 -- I mean 5 and 6.

As I said, the averment with reference to urging the students to boycott classes is an averment that was placed in the bill of information in order to show the intent involved or the willingness involved on the part of the petitioner this case.

Now, actually when -- when an accused person commits several crimes in one transaction, the State of Louisiana has two means by which it may proceed.

It may separately by separate bill of information or indictment, charge his violation, as it initially did in this case against petitioner.

Or it makes in one count, accumulates conjunctively all of these alleged violations and only penalty involved is one conviction.

So actually, it -- it -- it really works in favor of an -- of an accused person.

He's subjected to one trial, one penalty.

Justice Byron R. White: (Inaudible) just assume for the moment that this indictment or information charged to violation of 5, 6 and 7.

You're saying that the -- that the charge was conjunctive and that if the judge found him guilty beyond reasonable doubt and he's finding them guilty of each and everyone?

Mr. Ralph L. Roy: That's exactly what the judge said in -- in -- in his motion for directed verdict.

Our Louisiana law has no provision whereby a judge or a jury.

Justice Byron R. White: So this is -- and this is as though and -- and your position is that it is as though they were set out in separate counts and he found them guilty on all counts?

Mr. Ralph L. Roy: That's correct.

Your Honors have --have said on numerous occasions and you did it recently in the -- in the Garner case that you can make an independent search of the record and if it is devoid of any evidentiary nature or foundation, why -- you -- you can reverse and -- and you've done it.

Now, if you look at this record and with reference to the specific charges and you find that the record is not devoid with reference to an interruption of a lawful assembly and you find that the reference that the record is not devoid of evidential foundation of -- unauthorized assembly and you find a record not to be devoid evidentiary wise in any particular phase of this case, well then I don't see how you can do anything but affirm.

In -- in the State of Louisiana, in order for the higher court to overrule a criminal court -- a criminal case, not only must error be shown but prejudicial error must be shown.

And of course, there's a lot of difference.

We have errors all the time.

I dare say that you can pick up this record and find plenty errors, counsel pointed one of mouth.

He says, the trial judge was talking as if he was -- he was -- he was thinking under the provisions of Number 7 and as he said that, I found some -- some language used by the trial judge early in the case, in some informal conversation between the trial judge and -- and one of counsel for petitioner.

At page 35 whereby he says about the middle of the page, the trial judge said, "The accused is being tried for disturbing the peace by urging them to do an unlawful claim, break up the classes."

So, direct is not perfect but I submit that just because the judge may have made an error on some incidental question during the proceedings that this should not warrant this Court in -- in giving the reversal and I'm sure it would.

I like to say one other thing, counsel is relying plenty on freedom of speech, vague and general academia involved etcetera.

Now, this Court, of course, has recognized it -- although freedom of speech is important that it is not an absolute thing and it is subject to limitation and restriction.

This Court has held that slanderous statements do not enjoy the protection of the First Amendment, First and Fourteenth.

Statements that incite to immediate right or -- or statements that this Court has called fighting words do not enjoy the shield of protection of First and Fourteenth Amendment.

And I say likewise, that the language by our petitioner to the effect, let's go into the classes and pull them out if necessary.

I say this is not language that has any probative social intercourse.

This is not language that this Court should be interested in protecting.

This is -- this is language that -- that calls us disorder and disruption in society.

And certainly, the State has a legitimate interest in -- in maintaining good order in society.

I might say one more thing before I close and it simply this.

As was indicated earlier, this is an all-Negro University, staffed by an all-Negro faculty and administered and run by all-Negro personnel.

One of the witnesses in this case Dean Harvey, said with reference to this last speech made by Diamond, he asked, "What do you think about -- what do you think about this Dean?"

Dean says, "I agree with him 100%, on his talk about freedom and of good citizenship."

But he said, "I didn't agree with the way he wanted to do it."

And as soon Dion Diamond said this, "Let's go out into classrooms and get them," one of the security officers immediately and this in the record, ran to the -- to get some of his men so he can station them out around the classrooms, that were -- around the buildings that housed the classrooms.

And immediately thereafter, counsel said about an hour, somebody in the records said, about half an hour.

Immediately that after these students, some 100 carrying these signs and the signs at page 34, carrying these signs through classrooms, stomping their feet and I say that the record shows that there was no doubt that this was a complete disruption and interruption of a lawful assembly.

That they -- they were violating their way in trenching upon the rights of these students, who also have rights.

Chief Justice Earl Warren: (Inaudible) I just like to understand, do you say that under your Louisiana law that you could file an information charging in the conjunctive, each one of these seven offenses that are listed in this statute, could then have a general verdict --

Mr. Ralph L. Roy: Yes, sir.

Chief Justice Earl Warren: -- and it would be -- it could be sustained?

Mr. Ralph L. Roy: Yes, sir.

That's all I have thank you.

Justice Hugo L. Black: I would suppose that it if could be sustained, you'd have to have enough evidence and they didn't separate that, basis of admission and has to be showing, wouldn't it, that there was another evidence to convict on all of them?

I don't -- I don't understand it.

Do I understand you to say, you charged a man with ten different offenses and an information that he's convicted generally that the Court would then have a right to sustain it without showing that there was enough evidence to convict on all the ten offenses?

Mr. Ralph L. Roy: Yes sir, that's correct.

However, there are all qualifications to -- to the applicability of this particular section.

The offenses must be connected in one continuous transaction.

Justice Hugo L. Black: But -- but if they're separate offenses, might you not then be subjecting a man to punishment when he has been convicted of one of them?

Mr. Ralph L. Roy: No, sir, I wanted say that also --

Justice Hugo L. Black: (Voice Overlap) --

Mr. Ralph L. Roy: -- I didn't cover that but for example, this accused could not regardless to the outcome of this case, we could not file this accuse on his separate bills.

He could plead double jeopardy but he has been exposed in -- in these counts, in -- in these violations.

In this one count, he has been exposed to do these things and whatever he's been exposed to, whether he's convicted or acquitted, he will -- he will enjoy the right if and when an attempt is ever made to prosecute them again on the same claim.

Justice Hugo L. Black: But I was asking you because I'm -- I've been trying to think maybe you didn't understand my question.

Mr. Ralph L. Roy: Yes, I understood it.

Justice Hugo L. Black: That I can't -- I can't believe that let's take that charge ten offenses in one count.

Let's conceive that all nine of them could've been convicted and that they were to turn the blues.

So on the 10th, it's the bad charge and you couldn't convict him because of invalid law.

Would you -- are you still saying that they could sustain that --

Mr. Ralph L. Roy: No, sir.

Justice Hugo L. Black: That I didn't think you were --

Mr. Ralph L. Roy: No sir, I'm -- I'm not saying that, I believe what you -- that could be sustained.

But I'm saying that if -- if they're two -- two factual averments constituting the offense -- and it's really just one offense here but it's -- it's charged in two different ways in the same account -- count.

Now, if the evidence would support one and there was absolutely no evidence on the other, then I say that under Louisiana law that the trial judge can find him guilty of the offense charged.

Justice Hugo L. Black: Well, as I understand that the main charges -- offenses made here, I do not understand that the defendant's lawyer maybe had, has attempted to defend the conduct what you have charged him here.

Maybe he did but I didn't hear that, that he's defending a charge and the man would go to a public school and either himself drag out or ask others to drag people out of the school and that the State with -- without power to protect itself against such conduct (Voice Overlap) --

Mr. Ralph L. Roy: That's his contention, Your Honor.

Justice Hugo L. Black: No, I understand that these are the procedural matters that your charges in the first place are too vague in your statute.

Second place that one of them is bad and that you've got two charges with one offense and he can't tell that you convict him on the right offense.

Mr. Ralph L. Roy: Well I --

Justice Hugo L. Black: So that, as I understand it, the issue that's put up to us, is not to approve as constitutionally protected conduct which is charged here in this case but that you can't tell whether that's what is convicted for.

Mr. Ralph L. Roy: Well, I --

Justice Hugo L. Black: And then it's a procedural matter with reference to the type of charges that you've made.

Mr. Ralph L. Roy: I think he's relying on -- on -- on both of those contentions.

He --

Justice Hugo L. Black: Do you have any general statute against trespassing in your school?

Mr. Ralph L. Roy: No sir, I -- they -- they don't prescribe against school.

Justice Hugo L. Black: You have no statue anymore definite than this?

What about religious worship?

Mr. Ralph L. Roy: We -- we rely to disturbing the peace.

Justice Hugo L. Black: That same thing here?

Mr. Ralph L. Roy: Thank you.

Chief Justice Earl Warren: Mr. Nabrit.

Rebuttal of James M. Nabrit Iii

Mr. James M. Nabrit Iii: Mr. Chief Justice, may it please the Court.

For the first time during these proceedings, the State has attempted to raise on the procedural objection and that the way the issues were raised.

So I would submit that the free speech and vagueness issues were properly raised the right way, the earliest possible time, the motion is quashed before the trial.

They were ruled on adversely to the petitioner's contention.

They were reiterated in the motion for new trial in the court -- in the trial court, again rejected them and that they were properly before the State Supreme Court.

Now, counsel made some sort of -- sort of an argument about the bill of exceptions and the references and the trial judges' opinions to irregularity, in the way the petitioner preserved his bill of exceptions.

First, I should point out that there was no right of appeal under the state law in this case to the Louisiana Supreme Court.

Just like the procedure described in -- in this Court's opinion in -- in Garner against Louisiana.

It was no right of appeals because the fine and the jail sentence were too small.

The only way petitioner could get review of this conviction in the State Supreme Court, was pipelined to these extraordinary reefs attempting to evoke the State Supreme Court's supervisory jurisdiction.

Now, Louisiana Supreme Court held as long ago as 1926 that in the case called State versus Mullen at 160 Louisiana 916 107 Southern 698, that where -- that the supervisory jurisdiction is involved, it suffices that the errors complained of are paid into on the face of the record.

And it does not matter at all that in that case, that the bill of particulars weren't even signed by the trial judge.

So the ordinary procedures for appeal are not applicable in the State Supreme Court presumably held at.

There's no suggestion anywhere in any of the state court rulings that it was not ruling on the federal questions presented, though the trial judge noted this certain mistakes of counseling nevertheless, when he had ruled on the merits.

Now in addition, the -- the discussion of a bill of particulars, we submit that the Louisiana Supreme Court has held that this objection is not -- made by the bill of particulars, the way they make the objection about to an information is by a motion to quash and the State Supreme Court held that in the case involving its very statute which is cited on the last page of our brief and it's called State against Morgan in which also Mr. Justice Black, gives the history of this statute and whether there is parts that it came from, the statue or part (a) of in any event was passed in 1942.

And it -- as that Morgan case describes was an attempt to gather together offenses from various different parts of the code.

I might add that there has been no state court litigation which in anyway illuminates any of this subsections.

No construction of what interruption of a lawful assembly of people means.

As to subsection 5, holding of an unlawful assembly.

That was based on an earlier law which the -- the Louisiana Supreme Court held invalid in 1932, so 10 years -- held invalid in -- in 1932.

The case was cited in the State's brief on opposition to certiorari.

It's called State against Bula (ph).

Now, the several --

Justice John M. Harlan: May I ask you a question in reference to Justice Black's question to your opponent?

Assuming this record is read as indicating that the trial judge intended to basic conviction on Section 6 as well as Section 7, with the concurrent sentence invoked, what would your position be then?

Mr. James M. Nabrit Iii: Well, I -- I think the conviction would have to be reversed because it would seem clear to me that no part of the statute neither 6 nor 7 or 5, no part of the statute warns against one of the acts which -- this is my argument based on Thomas against Collins.

No further statute warrants that it's criminal to make a speech urging a boycott.

Justice Byron R. White: (Inaudible) that it's illegal to make a speech urging students to enter classrooms.

Mr. James M. Nabrit Iii: Subsection 6 might be thought to warn that.

Justice Byron R. White: Well, --

Mr. James M. Nabrit Iii: But that -- but -- but it's quite clear Your Honor that the trial judge relied not on the one speech, the third speech -- the trial judge talked in -- in the finding that Mr. Roy read a moment ago from page 4 of the record.

The trial judge talked about speeches.

Justice Byron R. White: I understand --

Mr. James M. Nabrit Iii: And the trial judge talked about the fact that Diamond encouraged the boycott.

Justice Byron R. White: But your point is that -- that it seems to me only if that the judge didn't find them guilty of both and you can't tell, what he found them guilty of.

What if he found guilty of --

Mr. James M. Nabrit Iii: Well, that's not my confession.

Justice Byron R. White: Yes, but what if he found guilty of both?

Mr. James M. Nabrit Iii: If the charge -- if the charges found --

Justice Byron R. White: He found them guilty of both two offenses (Voice Overlap) one valid and one invalid, but he did find them guilty of both and gave them one sentence.

Mr. James M. Nabrit Iii: Oh well -- well, there is -- there is --

Justice Byron R. White: Well, the States point is that --

Mr. James M. Nabrit Iii: There is no way to know that in this (Voice Overlap) --

Justice Byron R. White: Yes, but the States point is of course, that when you -- when you get two matters charged conjunctively and information like this and the judge finds him guilty, it means he did find him guilty on both.

That's their point.

Mr. James M. Nabrit Iii: Well, this argument would not at all cut against the fact that -- that the trial judge might have found him guilty for an act which neither 6 nor 7 warned.

It seems to me that is perfectly playing that -- that the trial judge found Diamond guilty on the basis of a -- a number of speeches Mr. Justice White, which -- which only one which involved any exhortation to march.

Justice Byron R. White: Well, they -- but he did -- assuming he found them guilty of exhorting people to march as well as they're guilty of something else that perhaps couldn't stand.

Mr. James M. Nabrit Iii: Well, but -- but the single penalty rests on -- inevitably on by -- by that -- that statement on the conviction on the unconstitutional statute.

Justice John M. Harlan: (Inaudible) the one count that -- that could be a valid count and there's evidence to support that count namely Section 6 by hypothesis for a moment.

And he finds him guilty on that one episode and then guilty on the other episodes which are maybe vulnerable and he poses the concurrent sentence and the concurrent sentence is no greater than that which would've -- could've been imposed on the valid Section 6 conviction.

Where do you run and do --

Mr. James M. Nabrit Iii: I -- I think that -- that -- that brings on another problem and this is that a man on trial accused of a crime, seems to me has a right to know to some notice under due process clause what the charge against him is.

And how can Diamond know what the charge against him is, if two years later the District Attorney who drilled the information is still shifting from one part of the statute to another.

Even -- he asserted positively in five different places in the brief and our position to certiorari that this charge was based on 6 and no other.

Today, the argument is that it's based on 5 and 6.

Justice Byron R. White: (Inaudible) even if the trial judge did find that your client is guilty of two different offenses charged in the single count.

He found them guilty of both -- absolutely both, it was clear that he did.

If one is valid and one invalid, why wouldn't you argue that this -- that the -- which you do but -- but for a different reason, why wouldn't argue that it's bad because of -- because a fine might have been half that.

If -- or that the sentence or the jail sentence might've half that.

Mr. James M. Nabrit Iii: I -- I assume they agree with that, yes.

Justice Byron R. White: And then the -- which is a different that it had been -- they had been charged in separate counts then he had assessed it, the same penalty for each count concurrently.

Mr. James M. Nabrit Iii: Yes, the -- the trial judge himself, said on -- on in this opinion on -- appears on page 28, that he considered this one count.

So that the --

Justice Hugo L. Black: (Inaudible)

Mr. James M. Nabrit Iii: Yes, Mr. Justice.

Justice Hugo L. Black: I've stated to the counsel for the State that I did not understand you to argue to us that the State was without power to protect its school from having people come in, who are not students and go through the classrooms or interrupt the meetings or advice others to do so, am I correct in that sentence?

Mr. James M. Nabrit Iii: Yes, Your Honor.

Your -- your statement during the conflict with Mr. Roy, I think, accurately described my position.

We'd object to the use of a -- of -- of vague and general statutes which -- in applying, we have the speech statutes which have a -- a deterrent effect on free speech.

And which are as easily like the -- well known language in Thornhill case.

These are statutes which could just as easily be applied to other types of speech not in -- involved in this case at all.

Justice Hugo L. Black: The shotgun nature of the statute?

Mr. James M. Nabrit Iii: That -- that's right.

Justice Hugo L. Black: You understand of course, the difference between the Collins statute, the ordinates, in which he's convicted, where he's speakingly, he had a right to leave where the charges here that he came to a place that was unlawful, it seemed to be.

Mr. James M. Nabrit Iii: Well, yes Your Honor but I -- I would comment upon that, that nowhere I understand -- I do understand that the difference and I think my -- my argument it says, to reflect it look your remark -- you -- your remark indicates that there's some claim that Diamond had no right to be here.

The testimony of the University Registrar was that this was a public institution, anyone who could -- could come there who wanted.

Nowhere was Diamond told not to make speeches or that he -- or to go or to leave.

Only were they were out are (Voice Overlap) the charges against --

Justice Hugo L. Black: What I meant was on the constitutional level, Collins case related the speeches made where a man had a right to be and the State couldn't stop him from making those speeches, but assuming that this is a school where dedicated to the purpose of educating children, not to having speeches made during school hours, you would see the difference, would you not?

Mr. James M. Nabrit Iii: Yes indeed, but -- but would add that the State can't draw their line by -- by a statute which unaddressed itself to this issue.

Justice Hugo L. Black: But what you're saying is the fact that's layered upon to cover the situation.

Mr. James M. Nabrit Iii: Precisely.

Justice Byron R. White: Do you think -- do you think number 6 does not -- does not fairly give you notice that -- that going through classrooms at a university is illegal.

Mr. James M. Nabrit Iii: Well, I -- I think it -- it might very well, but it does not fairly give you notice that it's a crime to make this a series of speeches and (Voice Overlap) --

Justice Byron R. White: Yes, but how about warrant and how about one speech, one speech that urges people to go through classrooms and pull the students out of it?

Now, does number 6 give you adequate notice if that is illegal?

Mr. James M. Nabrit Iii: It -- it very well -- it very well might however --

Justice Byron R. White: Well, why did (Voice Overlap) --

Mr. James M. Nabrit Iii: -- it doesn't have to draw a line.

Yes, Your Honor.

Justice Byron R. White: I just want to stipulate with that you did made one speech urging students to go the classroom and pull students out.

Number 6, Section 6 would've been ample notice if that was an -- an acceptable conduct.

Mr. James M. Nabrit Iii: Alright if you -- if you had a different charge against him, a different --

Justice Byron R. White: Yes, I understand that.

Mr. James M. Nabrit Iii: -- information against him, but indicated that statute and you have different evidence, otherwise, a different judgment.

The trial judge didn't rely on this other speech.

It turned to be -- it seemed to me be a different case.

However, I -- I can't (Voice Overlap) --

Justice Byron R. White: It's the other States here --

Mr. James M. Nabrit Iii: Yes, but wonder whether or not, a statute like 6 even in the situation you oppose, wouldn't involve a fairly substantial vagueness problem because it doesn't attempt to -- the statute doesn't attempt to draw any line between constitutionally protected speech and unprotected speech.

So that that line would have to be drawn on an outmost basis but the trial judge after you -- you heard the evidence as to why -- subsection 6 does -- doesn't represent the Legislature's attempt to draw that line.

But -- but -- but, I -- I submit that our entire conversation as about another case not this Your Honor.

Justice Arthur J. Goldberg: (Inaudible)

Mr. James M. Nabrit Iii: No, no, I don't -- I don't --

Justice Arthur J. Goldberg: (Inaudible)

Mr. James M. Nabrit Iii: That -- that -- and --

Justice Arthur J. Goldberg: (Inaudible)

Mr. James M. Nabrit Iii: I -- I quite agree, I -- I -- I attempted to indicate my agreement with that.

Justice Arthur J. Goldberg: (Inaudible)

Mr. James M. Nabrit Iii: That would be different also.

Justice Arthur J. Goldberg: (Inaudible)

Mr. James M. Nabrit Iii: That's right.

In -- indeed Mr. Justice Goldberg, subsections 2 and 4 have gone unnoticed but by imagine -- with the type of imaginative changing of the theory of this case, you could apply 2, which involves unnecessarily allowed language if you'd suddenly decide this late date that Diamond was really charged under 2 or 4.

Thank you.