MILLS v. ALABAMA
Legal provision: Article 4
Argument of Alfred Swedlaw
Chief Justice Earl Warren: Number 597, James E. Mills, Appellant, versus Alabama.
Mr. Alfred Swedlaw: Mr. Chief Justice, may it please the Court.
I'm Alfred Swedlaw.
Chief Justice Earl Warren: Yes, there are two counsels here.
Mr. Alfred Swedlaw: Yes sir.
Chief Justice Earl Warren: Yes.
Mr. Swedlaw, you may proceed with your argument.
Mr. Alfred Swedlaw: Thank you, sir, we are both of Birmingham.
Mr. Perrine, my colleague and I, are appearing on behalf of the appellant, Mr. James E.Mills.
Chief Justice Earl Warren: Yes.
Mr. Alfred Swedlaw: This case concerns Section 285 of the Alabama Corrupt Practices Act, regulating election practices.
And specifically, that portion of the Act which provides as follows.
It is a corrupt practice for any person on election day to do any electioneering or to solicit any votes for or against the election or nomination of any candidate, or in support of or in opposition to any proposition that is being voted on, on the day on which the election affecting such candidates or propositions is being held.
Mr. Mills is editor of the Birmingham Post-Herald, a morning newspaper published daily in Birmingham, Alabama, and distributed throughout the State of Alabama.
The circulation of this paper is approximately 85,000 as being the second largest newspaper in the State.
Justice Potter Stewart: It's the only morning paper in Birmingham?
Mr. Alfred Swedlaw: Yes, sir.
There's an afternoon paper, the sister paper of the Birmingham Post, it's the Birmingham News and it has a circulation of approximately 130,000, I think Your Honor.
Justice Potter Stewart: And this is the only morning newspaper?
Mr. Alfred Swedlaw: This is the only morning newspaper.
On November 6 of 1962, a municipal election was held in Birmingham to determine whether the existing commission form of city government would be retained or would be replaced by the so-called mayor-council form.
Mr. Mills authored an editorial which was published on election day in his newspaper.
The editorial appears in full on page 25 of the record and as Appendix K on page 35 of the appellant's brief.
In this editorial, Mr. Mills criticized the then mayor of Birmingham for promising pay raises to city employees and for saying that he would instruct city employees to neither give out news to nor discuss with reporters of the Birmingham Post-Herald, or its sister paper, the Birmingham News, any public business.
The Mills editorial stated that the proposed pay raises were -- was another good reason why the voter should vote overwhelmingly today in favor of mayor-council government.
As to the news blackout threatened by the mayor, the editorial comment was, if Mayor Hanes displays such arrogant disregard of the public right to know on the eve of election, what can we expect in the future if the city commission should be retained.
Birmingham and the people of Birmingham deserve a better break.
A vote for mayor-council government will give it to them.
The publication of this editorial marked the beginning of the chain of events ultimately leading to our appearance here this morning.
A criminal complaint was filed against Mr. Mills on November the 13th, 1962 issued from the Jefferson County Criminal Court charging Mills, head by the editorial in question.
Electioneered or solicited votes on election day in contravention of Section 285 of the Alabama Corrupt Practices Act.
If guilty of this misdemeanor as charged, Mr. Mills is subject to a fine of not more than $500 and he may also be imprisoned in the county jail or sentenced at hard labor for six months, but not more than six months on behalf of the county.
Demurrers to the complaint were filed on Mills' behalf, testing the constitutionality of the statute as applied to the editorial on both the Alabama and the federal constitutions.
The lower court -- the criminal court sustained these demurrers thereby, in effect, declaring the statute as applied unconstitutional.
Justice William J. Brennan: May I ask, Mr. Swedlaw, is this directly involved to do any electioneering or to solicit any votes?
Mr. Alfred Swedlaw: Yes sir.
Justice William J. Brennan: Is that all?
I mean just that much?
Mr. Alfred Swedlaw: Yes sir, that's all.
Justice William J. Brennan: -- any electioneering or to solicit any votes.
Mr. Alfred Swedlaw: On election day, yes sir.
Justice William J. Brennan: I see.
Mr. Alfred Swedlaw: The statute having been declared unconstitutional, as provided by Alabama procedure, the State appealed directly to the Supreme Court of Alabama.
Reversing the judgment of the trial court, the Supreme Court of Alabama held that Section 285 clearly applied to the Mills editorial and that the statute as applied was constitutional under the police powers for the State of Alabama.
The order of the court remanded the case to the trial court.
We filed a timely application on behalf of Mr. Mills and this was overruled by the Alabama Supreme Court.
Mills then appealed to the Supreme Court of the United States and this Court by its order of December the 6th, 1965, postponed jurisdiction for further consideration to the hearing of the case on its merits.
Under those circumstances, we will address ourselves first to the question of this Court's jurisdiction, if it please the Court.
The jurisdictional issue in this case arises because on its phase, the judgment of the Alabama Supreme Court does not necessarily conclude the litigation between the State of Alabama and Mr. Mills.
Alabama procedure would permit Mills on an actual trial of the case below to interpose defenses other than the unconstitutionality of the statute in question.
In reality, however, Mills has no other defense either in fact or in law to the charge against him.
He freely concedes that he wrote the editorial complained of and caused it to be published on election day.
And the Alabama Supreme Court specifically held that this constituted a violation of the statute and the statute as thus applied is constitutional.
Therefore, may it please the Court, the federal question, that is the constitutionality or not of the Alabama statute is the only question remaining in this case.
There is nothing more to be decided.
Under these circumstances, the decision of the Alabama Supreme Court constituted a final judgment for the purposes of Title 28 U.S.C. Section 1257.
In the case of Pope versus Atlantic Coast Line Railroad Company which was decided by this Court in 1953, a railroad employee invoking the Federal Employers Liability Act sued his employee -- employer for injury sustained in the course of employment.
The injuries occurred in Georgia but the employee sued in the Alabama courts and the railroad filed a proceeding to restrain the Alabama action.
The trial court sustained the general demurrer which raised the provisions of the federal statute as a bar for the power of the Georgia Court to issue the injunction.
The Georgia Supreme Court reversed the trial court's order and the employee appeal to the Supreme Court of the United States.
As an out case, the jurisdictional question in Pope was whether or not the judgment of the Georgia Supreme Court was final.
The Supreme Court held that it was a final judgment because the issue was right for adjudication.
There is Hill.
The petitioner conceded that he had no other defense in opposed and that his case rested upon his claim under the federal statute and nothing else.
Justice Abe Fortas: Does that mean that you do conceive that the publication of this editorial constituted electioneering or the solicitation of votes on election day?
Mr. Alfred Swedlaw: The Alabama Supreme Court, Judge Fortas, has so construed it and --
Justice Abe Fortas: And you -- you don't dispute that and you represent to us that if you went back to trial, you would not dispute that.
Mr. Alfred Swedlaw: Your Honor, we disputed it initially in the court below but the application of the statute by the Alabama Supreme Court is a binding construction of it and binding on this Court, may I suggest, to the same effect as though it were written into the statute.
Justice Abe Fortas: And to the same effect as if that conclusion we arrived at, at the trial?
Mr. Alfred Swedlaw: Yes sir.
This is correct.
Justice Potter Stewart: You had your day in the court on that and it's been decided against you (Voice Overlap) at the end of it.
Mr. Alfred Swedlaw: Yes sir.
Justice Potter Stewart: And you're stuck with it and without reading, and as you suggest, we're stuck with that reading.
Mr. Alfred Swedlaw: Exactly, Your Honor.
Justice John M. Harlan: Suppose at the opening of the trial say that (Inaudible).
Mr. Alfred Swedlaw: I didn't quite understand you, Justice Harlan.
Justice John M. Harlan: (Inaudible) defendant trial on the ground that you didn't know the contents of the editorial.
Mr. Alfred Swedlaw: Oh yes sir, we can then oppose that, but this is not the fact where you (Voice Overlap) --
Justice Potter Stewart: The defendant wrote the editorial.
Mr. Alfred Swedlaw: The defendant authored the editorial.
Mr. Mills, the defendant, the appellant in this case authored the editorial and caused it to be published.
So in truth, we have no further defense.
Justice Byron R. White: Well, I suppose -- if you lose here, what will you do?Plead guilty?
Mr. Alfred Swedlaw: Justice White --
Justice Byron R. White: You've already been convicted.
Mr. Alfred Swedlaw: We have not been convicted.
There has been no trial.
Justice Byron R. White: That's right.
Now, would you plead guilty or not?
Mr. Alfred Swedlaw: Oh yes sir, we would plea -- we would have no alternative, there's no defense.
Justice Byron R. White: Well, can the jury -- is the jury -- you have a jury trial if you wanted to.
Mr. Alfred Swedlaw: Well, we wouldn't have a jury trial and the initial procedure would be without a jury in the Jefferson County Criminal Court if we lost there in order to work our way back up to where we are today, we would go to the -- to the Circuit Court and there we could demand a trial by jury.
Justice Byron R. White: That's a de novo?
Mr. Alfred Swedlaw: Yes sir, there would be a de novo procedure and losing there, we would then be permitted to appeal to the Court of Appeals and losing there to the Supreme Court of Alabama --
Justice Byron R. White: But what if --
Mr. Alfred Swedlaw: -- and losing there to the Supreme Court of United States.
Justice Byron R. White: Did the jury find you not guilty if you -- if you just went to trial and offered no defense?
Mr. Alfred Swedlaw: I suppose that they -- that they could Your Honor.
It would be set aside in --
Justice Byron R. White: What do they do, just judge the facts in Alabama or do they judge the law too?
Mr. Alfred Swedlaw: They judge the facts only and jury tries the facts.
There is no way from a practical standpoint, Justice White.
There's nothing that we can do that we are not now doing.
And this is -- this is our plea as to the finality of the Supreme Court of Alabama's judgment.
Justice Abe Fortas: But you didn't --
Justice William J. Brennan: It is conceivable, I suppose, juries in face of no defense with acquitted people in other situations, I suppose the jury in Circuit Court could acquit.
Mr. Alfred Swedlaw: Yes sir, I suppose that the jury could acquit.
Justice Byron R. White: And Pope, in carrying those cases, really went on the ground that -- that the state court that -- the court that tried the case had no jurisdiction to try it.
Mr. Alfred Swedlaw: No sir, the Pope case, Justice White, went on the -- went on the theory that the judgment was final even though it was a demurrer and that the case was right --
Justice Byron R. White: Well, I know.
Mr. Alfred Swedlaw: -- for adjudication.
Justice Byron R. White: Right, it was right with adjudication because the Court purported to give the adjudication really shouldn't have given them at all.
Mr. Alfred Swedlaw: I think not, if it please the Court, that the case it followed in 1963, the Curry case --
Justice Byron R. White: That's right.
Mr. Alfred Swedlaw: -- went off on the question, initially, the main rationale of the decision was the power of the Georgia Court --
Justice Byron R. White: Georgia Court has no power.
Mr. Alfred Swedlaw: -- to act.
But it's an alternative -- it's an alternate basis of decision in the Curry case, the Court cited Pope and relied on Pope which was apart completely from the question of the jurisdiction to act, power as I understand it.
The Pope --
Justice Byron R. White: You're most completely on the Pope approach.
Mr. Alfred Swedlaw: Oh, yes sir and the alternate basis of opinion in Curry.
And I think in Richfield which preceded the Pope case.
Justice Byron R. White: But you also -- as I read your brief, you also rely on not because on its facts the same on Dombrowski notion that this is a First Amendment problem and in that sense that even if these were not a final judgment for purposes of our review, it may be decided.
Mr. Alfred Swedlaw: We think -- we think this is very true and a very cogent reason.
The Dombrowski case of course involved the question of -- the doctrine of abstention.
But the analogy is certainly clear.
We feel that Mr. Mills should not be subjected to a criminal prosecution and conviction in order to obtain a declaration of his constitutional rights.
This matter has -- it began in 1962 of November, some two and a half years have already elapsed since that time and we are now after that long delay here in the Supreme Court.
If we are compelled to go back to the Alabama courts and went our way through the torturous appellate procedure to get back here, it would be anticipated that another two or two and a half years would expire.
Justice William J. Brennan: Would you -- was the First Amendment argument addressed in the -- addressed in the Alabama Supreme Court instead?
Mr. Alfred Swedlaw: Yes sir.
Justice William J. Brennan: And it was rejected without merit?
Mr. Alfred Swedlaw: Yes sir.
Justice William J. Brennan: So that at least we have a determination.
Mr. Alfred Swedlaw: We have a firm determination by the Alabama Supreme Court that this is a reasonable exercise of Alabama's police power.
Justice Hugo L. Black: What you presented that -- in relation on that is whether not having them to finally determine that he would be guilty as he's tried and had to be found guilty but you don't want to be sent back down there just to proceed up and when you went through the various courts.
Mr. Alfred Swedlaw: Exactly, Justice Black.
We feel that not only -- not only would this be an intolerable situation insofar as the appellant is concerned but there are other rights besides those of Mr. Mills here involved as in the Dombrowski case.
The question of the effect that the Supreme Court's decision has had on First Amendment rights in Alabama must be considered.
The broad sweep of the Alabama Corrupt Practices Act to encompass an editorial has necessarily in the words of Dombrowski had a “chilling effect”, if you please, on the Alabama press generally.
The blanket of silence which has descended upon the press of Alabama each election day since the arrest of Mr. Mills continues to insulate the people of Alabama from editorial comment and press information to which we feel they are entitled and that they're entitled to this without restraint.
Justice Abe Fortas: Are you making any distinction between something that's published in a newspaper and something that is published in a pamphlet and distributed --
Mr. Alfred Swedlaw: No sir --
Justice Abe Fortas: Let's suppose at some -- the Chamber -- the local Chamber of Commerce turned up exactly the same editorial, it is to every word exactly the same.
But instead of putting it in a newspaper, the Chamber of Commerce had distributed it on election day.
Now, you say we're bound to regard the editorial as electioneering or solicitation of votes.
And the pamphlet in the example I'm putting to you would the electioneering or soliciting of votes that both occur on election day.
Are you asking us to draw a distinction between two things on the grounds that one was a newspaper and the other was just a handout?
Mr. Alfred Swedlaw: No, Justice Fortas.
We think that the First Amendment applies equally to any form of expression be a newspaper or a Chamber of Commerce publication, or the handing out of pamphlets.
Justice Abe Fortas: How about a speech --
Mr. Alfred Swedlaw: Or a speech why --
Justice Abe Fortas: -- on election day?
Mr. Alfred Swedlaw: Yes, and we see no distinction that there is no --
Justice Abe Fortas: Do you think that the rule which I guess is quite prevalent in the United States dropping the curtain on election activities on election day.
Do you think that that -- that that rule prohibiting electioneering on election day is unconstitutional?
Mr. Alfred Swedlaw: Yes sir.
And with reference to --
Justice Abe Fortas: Whatever form of electioneering may take?
Mr. Alfred Swedlaw: Whatever form the electioneering may take.
We see no legitimate legislative purpose in this sought of restraint.
This is not a case of a man being prosecuted for standing within 20 or 30 feet of an election booth and blocking or harassing people coming to vote.
This is not a regulation of conduct.
This is a regulation of speech.
And we see no legitimate interest for the State of Alabama in such restraint.
In fact, we -- it's our contention that the public interest lies completely in the other direction.
Not in the direction of curtailing expression but in the direction of giving full vent to public expression concerning matters of general interest and public interest elections particularly.
Now, as far as the construction of the statute being binding on this Court irrespective of the -- when it's emanated -- the expression emanated, it is binding on this Court, the Alabama Supreme Court's application of it.
This was decided in Herndon versus Lowry, in the Terminiello case just to the same effect as though -- the statute had said that no editorial shall be written or published on election day.
Justice Abe Fortas: I understand that but the usual defense, I suppose, of these statutes prohibiting electioneering on election day is that they avoid disorder on election day --
Mr. Alfred Swedlaw: Yes sir.
Justice Abe Fortas: -- number one, and number two, they reduce the possibility that somebody will make a last minute sensational announcement that would panic people and which may not be true.
Mr. Alfred Swedlaw: May I -- we're getting into the merits of our case which is perfectly --
Justice Abe Fortas: I beg your pardon.
Mr. Alfred Swedlaw: -- satisfactory, and I should -- I would be happy to pursue this argument further.
No sir, the two rather blur together the question of jurisdiction and the merits of our case are rather intermingle, but you're absolutely correct.
Justice Hugo L. Black: I suppose that they can make it illegal for a candidate to hire a host and make a speech on election day, there's no reason why they couldn't make it as a crime for him to make a speech five days before election day, it's the only ground that they didn't want to make that late.
Mr. Alfred Swedlaw: Well the only justification, Justice Black was the Supreme Court of Alabama gave for this statute is a -- and I think I'm quoting directly, a salutary enactment designed to prevent last minute charges and countercharges.
Justice Hugo L. Black: Did they say they hope to do that?
Mr. Alfred Swedlaw: The futility of this reasoning is apparent, may it please the Court.
You don't prevent last minute charges and countercharges, be the deadline election day or 30 days, or 60 days or 90 days before election day.
Someone always has the last word before time runs out.
Justice Hugo L. Black: Would you be attacking the statute if it had been construed this meaning if he couldn't go down to poll and stand there and beg voters and have 40 people standing and beg voters to move one way or another.
Mr. Alfred Swedlaw: No sir, we concede readily that the Alabama Corrupt Practices Act does have a valid sphere of operation.
We certainly think that the restriction as to place would be appropriate, prevent the actual harassment of a voter.
Justice Byron R. White: Why is that?
Mr. Alfred Swedlaw: Possibly because, Your Honor, that there are certain interest that the State has in -- and oddly that is a -- an election is not disturbed by breach of peace by the State.
By a criminal offense, we don't argue that the -- that the right of free speech or free press is an (Voice Overlap) absolutely right.
Justice Byron R. White: If you could just do your breach of peace statute to prevent those.
Mr. Alfred Swedlaw: Possibly, this would be the equivalent.
This would be the equivalent, be convicted -- conviction on misdemeanor.
We argue for a complete and absolute right to question.
Justice William J. Brennan: Well, but suppose this statute, instead of reading as it does, there's no limitation, it just says, it's a crime to do any electioneering or to solicit any votes.
Suppose it said it's a crime to do any electioneering or to solicit any votes on election day within an area of 100 feet of any poll area.
Mr. Alfred Swedlaw: We think that that would -- that would lend the validity.
We tend to make this that extensive.
Justice Byron R. White: Why should it be permissible for the state to say like, “You can't stand within 100 feet from the poll place”, and --
Mr. Alfred Swedlaw: Oh, possibly --
Justice Byron R. White: -- and individually ask people to vote for me if I'm running and -- or to vote for my friend who is running --
Mr. Alfred Swedlaw: I see.
Justice Byron R. White: -- in order to -- and yet the newspaper should be able to write an editorial and sell it off the newsstand --
Mr. Alfred Swedlaw: Because --
Justice Byron R. White: -- off the newsstand 101 feet away.
Mr. Alfred Swedlaw: Because when you're -- may it please, Your Honor, it involves something physical.
It involves conduct.
It's not a limitation on the expression.
An analogy for example was in the Schneider case, I think it was, various statutes prohibiting --
Justice William J. Brennan: Well, it's quite a bit of conduct involved in public newspapers.
Mr. Alfred Swedlaw: But not restraining, not a physical -- not a physical blocking of a polling place.
Justice Byron R. White: There's no blocking here used at all.
You just talk to your friend (Voice Overlap).
Mr. Alfred Swedlaw: I would argue most vehemently with you but this should not be tolerated, that this would be an unwarranted restriction.
I would -- this would --
Justice Byron R. White: What?
Within 100 feet?
Mr. Alfred Swedlaw: With 100 feet, I don't think there's any magic of 100 feet.
Justice Byron R. White: Well, or any other places as long as there wasn't a breach of the peace (Voice Overlap) brought in this title.
Mr. Alfred Swedlaw: I'm incomplete in terms, Your Honor.(Voice Overlap)
Justice Abe Fortas: You mean in your part?
Mr. Alfred Swedlaw: But I don't have to go that far here.
Justice Abe Fortas: You mean you think it would be a violation of the First Amendment for a state or municipality to provide that you can't get any electioneering within 100 feet of the voting place.
Is that your position?
Mr. Alfred Swedlaw: That it would be unconstitutional?
Justice Abe Fortas: Yes.
Mr. Alfred Swedlaw: I would take that position.
I don't think that we have to go nearly that far in this case, however, Your Honor.
Justice Abe Fortas: How about in the place where the voting takes place?
Mr. Alfred Swedlaw: Unless there is a breach of the peace -- unless there is a clear and present danger to use the classic test, a clear and present danger of -- to the public interest, I feel that there should be no limitation or restriction on freedom of expression be at newspaper or otherwise.
Justice Hugo L. Black: Do you think a man should have the right to say anything he wants to, anytime he wants to at anyplace he wants to in respect of the fact that the State might want the street be used for some other purpose?
Mr. Alfred Swedlaw: Yes sir.
Justice Hugo L. Black: Do you think they have the right to go anywhere they want and say anything they please --
Mr. Alfred Swedlaw: If the --
Justice Hugo L. Black: -- even if the city tries to keep certain streets, they're not going to have you on why it shouldn't have been done?
Mr. Alfred Swedlaw: If they're not blocking traffic, creating hazards to the public peace, creating traffic conditions that might result in danger to the public --
Justice Hugo L. Black: Do we have to go that far to decide it with you the other day?
Mr. Alfred Swedlaw: No sir, you do not.
There is --
Justice Hugo L. Black: No.
Mr. Alfred Swedlaw: -- there is no such a question involved in our case, may it please the Court.
Justice Abe Fortas: The alternative though would be to say to withdraw a line of what is an unreasonable restraint, isn't that right?
Mr. Alfred Swedlaw: I don't think so --
Justice Abe Fortas: And then you're going to say that -- and your argument would be that this is an unreasonable that preventing electioneering on the day before -- or election day is unreasonable, do you have in your brief -- I've forgotten, any indication of how widespread such statutes and ordinances are?
Mr. Alfred Swedlaw: There are numerous statutes -- Corrupt Practices Act are numerous.
Justice Abe Fortas: I don't mean Corrupt Practices Act.
I mean this specific type of provision.
Mr. Alfred Swedlaw: It says you shall not publish a newspaper editorial?
Justice Abe Fortas: Where it says you can't electioneer on election day.
Mr. Alfred Swedlaw: I do not know how general that specific provision is, Your Honor.
Justice Potter Stewart: That is in one of the briefs, isn't it?
There's some little (Voice Overlap) of the statutes.
Mr. Alfred Swedlaw: There are acts of this nature but their exact content -- there has been no construction.
We know this but we have found no cases bearing on that point.
Justice William J. Brennan: I suppose Mr. Swedlaw under this statute as it's written, if this editorial had appeared -- that this very editorial had appeared in Montgomery newspaper on Birmingham's election day, now, the author of the Montgomery --
Mr. Alfred Swedlaw: Yes.
Justice William J. Brennan: -- editorial would have been subject to prosecution --
Mr. Alfred Swedlaw: That is correct.
Justice William J. Brennan: -- even though it deals with the Birmingham election.
Mr. Alfred Swedlaw: Yes sir, this is true.
We feel that -- as I've said in the Schneider case trying to regulate the distribution of pamphlets on public streets under the guise of this being a regulation that would keep the street from being littered.
And this statute was struck down under the guise of regulating conduct, those statutes regulated free expression.
Now, that's exactly what is happening in the Alabama statute.
It would be only of small step from the Alabama Supreme Court's decision in the Mills case to say -- well, for a benevolent legislature to say well it would be in the interest of the public, we think, in this -- in times of trouble and stress such as we are now enduring, it would be in the public interest that there'd be some surcease, some respite from all of these tension, all of the bad news.
And therefore, let's say that only on Monday, Wednesday, and Friday, we'll have no editorial appear in newspapers, we'll have no television, news broadcast of any sort because the people are entitled to this sort of euphoric atmosphere in which their tranquility is undisturbed.
This is the danger of the Mills case that's decided by Supreme Court of Alabama.
This is speech control.
If you will, this is thought control.
If I may just take a moment and quote from the Mills' opinion to give the Court an idea of what was here involved.
This Court, this is the Alabama Supreme Court.
This Court holds in accordance with the great weight of authority that a law cannot be held to be invalid because unreasonable unless and until it appears beyond reasonable controversy that it necessarily impairs to the point of practical destruction, a right safeguarded by the Constitution.
As it already has been pointed out, the law under consideration lies within the police power field and impairs, and please listen -- and impairs only the right of free expression.
Now, by whatever theory or by whatever rationale this decision is tested, we think that the Alabama statute as applied to Mr. Mills was faux.
The Alabama Supreme Court and this is fundamentally objectionable, is that -- is the assumption by the Court that the State has the power to provide the voters of Alabama an intellectually, antiseptic atmosphere on election day.
This is not true.
This is a monstrous assumption, if you will, in a free society.
This is the danger of the Mills case.
The gradual, by slow degrees, encroachment on First Amendment rights by the states or by the Congress, it should not be tolerated except in very clear cases.
And then as this Court has pointed out in the Roth case, the door should be left ajar only for the purpose of restricting what have to be restricted in the public interest, and then the door should be tightly closed because the matter of free expression is not just free expression, it is the essence as this Court has recognized, it is the essence of self-government.
And we ask that the Court take jurisdiction and then it reversed the Alabama Supreme Court, my colleague, Mr. Perrine will argue the vagueness objection to the statute.
Chief Justice Earl Warren: Mr. Perrine.
Argument of Kenneth Perrine
Mr. Kenneth Perrine: May it please the Court, I will take that up in rebuttal and use it all at one time, if you please.
Chief Justice Earl Warren: Don't you think we ought to -- well, if you are raising the question of vagueness that you should raise it in some sense either even to --
Mr. Kenneth Perrine: Alright, yes sir, I would be glad to.
Chief Justice Earl Warren: You don't need to use all your time but we would like to know --
Mr. Kenneth Perrine: I would like to save some for rebuttal because mine is all mixed up in that situation.
This statute, Section 285 provides that for anyone, anywhere in the State of Alabama to communicate with anyone on any election day, and it could be interpreted as being solicitation for electioneering.
Now, we have no quarrel whatsoever with a -- the Corrupt Practices Act as such which is directed to particular and specific conduct, but where it goes out into the field as so vague as to what might be any solicitation or any electioneering on election day, then we go into a field whereby an intelligent person might well ask but what do they mean.
What conduct is subscribed in this particular situation.
Now, what is it that I might do or I might not do that would be consistent with electioneering and solicitation?
Now, while we recognize mostly that solicitation and electioneering is understood by the average layman, yet we find that there are many faces of endeavor in which we could wonder whether or not we are absolutely in that particular category.
If you wish to take literally this field of solicitation as it is here, it would mean simply this.
That upon election day, that a person could not even speak to his wife and ask her to go down to the polls and vote for his friend because that would be solicitation or electioneering.
Justice Byron R. White: Or vice versa?
Mr. Kenneth Perrine: Or vice versa.
Usually, it's vice versa.
A Chamber of Commerce, I believe, has been mentioned.
A Chamber of Commerce who has been sponsoring a bond movement to be voted on, on a particular day, and also, as any Chamber of Commerce has done has gone into an active campaign for getting out the vote.
And yet if on election day, they proceeded with this campaign of getting out the vote, it could be interpreted as it was in this statute -- in this case by the Supreme Court of Alabama.
It could be interpreted that the members of the Chamber of Commerce were guilty of electioneering.
Because it could be said and truthfully so, that their interest, one of their interest not only in getting out to vote as the civic proposition but their interest in getting out the vote was to pass the bond issue in which they were interested in.
Then we have --
Justice William J. Brennan: I gather that these two rely to this argument, doesn't it, pretty much under First Amendment aspect of electioneering and soliciting and if you have some business coverage in which you said were dealing with First Amendment finding.
Mr. Kenneth Perrine: Yes sir.
Justice William J. Brennan: And the doctrine of vagueness particularly requires passage of the publicity.
Is that what this argument is?
Mr. Kenneth Perrine: That sir, yes sir.
That's exactly what it is.
Justice William J. Brennan: -- electioneering and solicitation doesn't provide that kind of --
Mr. Kenneth Perrine: There is no definitive wording here that we might know what solicitation would be.
For example, it is common practice in all campaigns to use billboards for the candidate to express his platform and what have you, alright.
They say no election -- there shall be any electioneering on election day but what is the situation with the -- this billboard still being up on election day where you can read it going to the poll, is that not electioneering?
And under this statute which says there can be any no electioneering, no solicitation on election day, that would be a violation of this Act and subject the candidate or whoever put up that billboard to a criminal penalty.
In the same terminology in all kinds of campaigns, there have been certain types of literature that has been put out by the candidates.
And if this is in evidence on election day, under this statute, then too it could be determined to be electioneering or solicitation.
There is no limitation here --
Justice Abe Fortas: But, there is no doubt about this particular incident, is there?
Mr. Kenneth Perrine: Sir?
Justice Abe Fortas: I say there is no doubt that this particular editorial was a solicitation of votes, you probably just said that.
And do you agree with that?
Mr. Kenneth Perrine: Well, yes and no.
Justice Abe Fortas: You've used that by saying --
Mr. Kenneth Perrine: Your Honor, I agree with it to this extent, the Supreme Court has said that the article constituted solicitation.
Justice Abe Fortas: Well, the last paragraph of the editorial says, “Birmingham and the people of Birmingham deserve a better break.
A vote for mayor-council government will give it to them.”
Mr. Kenneth Perrine: Yes sir.
Justice Abe Fortas: That's what it says.
Mr. Kenneth Perrine: Yes sir.
Justice Abe Fortas: And do you -- that does seem sort of like a solicitation of votes, doesn't it?
Mr. Kenneth Perrine: That's exactly true.
It does seem sort of like it.
But then there isn't any definite conduct prescribed in the statute which says that that is a solicitation.
Justice Abe Fortas: Well, you said vote for the mayor-council government (Voice Overlap)
Mr. Kenneth Perrine: Yes, he said vote -- he said vote for it (Voice Overlap) --
Justice Abe Fortas: -- you phrase it.
Mr. Kenneth Perrine: And what did he --
Justice Abe Fortas: Now, tell us how you phrase it.
Mr. Kenneth Perrine: What did he do in this particular case, if Your Honor please, was that he first stated the facts which were news items and appeared in the news items in other parts of the paper.
And then he gave his comment upon that particular news item.
There was no question that the mayor had attempted to bribe the people on votes.
There's no question that the mayor had attempted to put a blackout on the city hall of news.
And he merely said his comment in an editorial that that is another good reason to vote for the city -- change in the city form of government.
Justice Potter Stewart: I should think Mr. Perrine.
I thought that your case was that surely, yes, this is the solicitation for a vote.
Mr. Kenneth Perrine: I think --
Justice Potter Stewart: And that's precisely what the State cannot prevent under the Constitution.
Mr. Kenneth Perrine: I think it was a solicitation of votes, yes sir.
I don't think there's any doubt about it.
But I might call the attention here.
I believe it has been mentioned before in this particular statement in this regard that -- pamphlets that could be issued by the Chamber of Commerce obtaining the same comment.
But here is the solicitation by a newspaper which is only published and obtained by paid subscribers.
It's not some pamphlet that's handed down up on the street corners as you pass by or as you approach the polls and does not come in that category.So there is some question as to whether or not it is vague in that regard.
Justice William J. Brennan: Well, may I ask --
Mr. Kenneth Perrine: Yes sir.
Justice William J. Brennan: Mr. Perrine --
Mr. Kenneth Perrine: Perrine.
Justice William J. Brennan: Perrine.
Thank you, Mr. Perrine.
We've also -- assuming that this is a solicitation, accepting that(Inaudible) in the First Amendment area that nevertheless had a standing (Inaudible) if in other respects, it's the other people have said it.
Mr. Kenneth Perrine: Yes sir.
As I've --
Justice William J. Brennan: And you have to rely only on that assuming it's a solicitation in and of itself as First Amendment proscribed the statement here.
Mr. Kenneth Perrine: In and of itself which says that we must have freedom of speech.
The very foundation of our government is the freedom of speech and particularly in the political.
Justice William J. Brennan: Irrespective of that -- under the vagueness argument, you are standing to argue that is it's too vague as applied to other people.
Mr. Kenneth Perrine: Yes sir.
Justice William J. Brennan: The billboards and all of those.
Mr. Kenneth Perrine: Yes sir, not only -- not only to the billboards, it applies as vague as to individuals, as to the press, as to the radio, as to the TV, or in fact any type of communications under this section.
And I believe that that was adequately expressed by this Court originally in the Thornhill against the State of Alabama case in which this general principle was involved, that you could not subscribe to and curtail the freedom of speech unless it is specific or directed to certain conduct.
And this is no conduct directed here.
There's no particular act involved.
Yes, he wrote an editorial which could be read by the people if they so desire.
It was no button holding.
There was no --
Justice Hugo L. Black: They didn't object to the conduct, did they?
They objected to what he said.
Mr. Kenneth Perrine: They objected the fact that he --
Justice Hugo L. Black: That's what you're trying to defend here.
Mr. Kenneth Perrine: That's right.
Justice Hugo L. Black: He said.
Mr. Kenneth Perrine: What he said, his speech.
This broad no solicitation rule, I believe, was asked as far as not in the federal Corrupt Practices Act.
It's not in 46 states.
I believe there are only four states that have a similar broad rule as we have here, Alabama being one of them.
And none of those states has yet passed upon the constitutionality of this particular act as it had been brought before us.
We do not think that it can be presumed that the people will know in their own minds what is solicitation and electioneering.
Now, if you have specific conduct directed as it has been many times in many statutes within 100 feet of the poll, that you will not have the passing out of pamphlets, you will not have the button holding of people who would be obstructed in their line of march to the polling place, that you will not have loud sound trucks, all of those things are specific conduct which can be defined.
Yes, they are all electioneering and they're all solicitation but where you put any solicitation or any electioneering without any specific conduct being prescribed in that particular area, then you will think that there can be no communication.
Now, if you read this statute in its entirety as to what it says, this Section 285.
Now, we're not attacking the Corrupt Practices Act of the State of Alabama as a whole, but only this one particular section.
And what this one particular section says, that on any election day, anywhere in the State of Alabama, it doesn't matter if it's a municipal election, a county election, a state election or a federal election, just so an election is being held, that anyone in the State of Alabama whether it's an individual, whether it's an editor of a newspaper, whether it's a radio or television who solicits any vote or does any electioneering on that date, and as expressed that the State -- if the election as being held in Birmingham but the statement is made in Mobil, it's still a violation of this Act because there's no conduct prescribed, and there's no time element involved.
There's no place involved in this particular thing.
It was not delimited in any direction.
And we state that from the standpoint of being vague and indefinite, that this statute does not meet the requirements that have been handed down by this Court particularly when those requirements are infringing upon the First Amendment rights.
Justice John M. Harlan: Had there been any construction of this statute by any of your courts before this case?
Mr. Kenneth Perrine: No sir, there has been no construction of this section.
There have been many constructions of the Corrupt Practices Act --
Justice John M. Harlan: On that construction?
Mr. Kenneth Perrine: -- but nowhere in the -- nowhere have we found any construction of a broad, no solicitation, no electioneering rule on election day.
And as I've stated, there are only four states that have such election.
All the other states confined it to within so many feet of the polling place --
Justice Abe Fortas: Are there municipal ordinance --
Mr. Kenneth Perrine: -- and to specific acts?
Justice Abe Fortas: -- to this effect?
Are there municipal ordinance as to the same effect?
Mr. Kenneth Perrine: No sir.
Justice Abe Fortas: Nowhere.
Mr. Kenneth Perrine: Nowhere.
Well, maybe in some places.
I do not know but I am not familiar of any ordinance which had been upheld by any court which would put a blanket expression upon the freedom of speech.
Justice Potter Stewart: Just on the parts -- the parts of Section 285 probably clear enough, aren't they?
Mr. Kenneth Perrine: If you start -- if you start off, if Your Honor please --
Justice Byron R. White: Obstruct or hinder or attempt to obstruct -- obstruct or hinder or prevent or attempt to prevent the forming of the line of the voters who are waiting for their opportunity or time to enter the election booth, that's fairly --
Mr. Kenneth Perrine: I think that part of it is there and if they stop there, it would be fine but if you go on, I'll show the -- how inaccurate this section are loosely drawn and then it goes on to prescribe that any person who hires a vehicle to take into the polls, or any person who hires out a vehicle is guilty of a violation on this Act.
And which should mean that if a voter did not have an opportunity to go to the polls, he couldn't hire a taxicab because if he did, that's hiring a vehicle to go to the polls, and he would be guilty of a violation of this Act.
Justice William J. Brennan: That's a specific argument.
Mr. Kenneth Perrine: That's the specific --
Justice William J. Brennan: Though -- your vagueness argument, as I understood, goes on to (Inaudible) any electioneering or the soliciting of votes.
Mr. Kenneth Perrine: Yes sir, but I was illustrating how this particular section was so loosely drawn as to be unconstitutionally vague in that regard because I'm sure that they didn't intend to say that a taxicab should be guilty of a crime by merely hired it, taking a passenger to the polls.
And yet, that's what this statute says.
And therefore, in that standpoint, it would be unconstitutional restrictions of rights there.
Justice Abe Fortas: Suppose the labor union had a meeting on election day, got its members together and the labor union officials who rang them and pull them out to vote.
And they were then -- go into the polls, would you consider that the statute is unconstitutional as applied to that sort of situation?
Mr. Kenneth Perrine: Yes sir, I do because I think that that would be an invasion of their freedom of speech and their right of expression.
And in that connection, I might call your attention to the National Labor Relations Board in the holding of their elections.
And they have held their elections in the atmosphere of the clinical laboratory.
And yet in the National Labor Relations Board, they say that you can talk to your people as long as it's not within 100 feet of the polling place.
They also confined it to the times when the polls are open.
Here, you got a 24-hour period involved.
The polls open from 7:00 to 7:00 and yet a blanket of silence is placed upon all of the electorate of the State of Alabama for the entire day, not for just the time the polls were opened.
The National Labor Relations Board elections is only the time that the polls to vote -- or open, that the requirement is that you cannot electioneer or you cannot solicit the employee within 100 feet of the polls.
Now certainly, with all of the care that they have used in the NLRB in holding their elections, to say that the people of the United States cannot use their own intelligence and talk to people any time, any place in the State of Alabama for the day is such a vague proposition that it would run right into the teeth of the constitutionality and this Act should be declared unconstitutional.
Does that answer that portion of the question regard to the -- as I have previously stated, there's nothing here in regard to the geographical area.
Everywhere in the State of Alabama is restricted.
That is the vagueness of this particular statute.
And it's difficult to talk about the vagueness of the statute without going into the First Amendment rights because they're all mixed up together and the same as it is with the jurisdictional rights.
They're all intertwined and I've attempted to bring out at this time the vagueness with saving some time for rebuttal.
Chief Justice Earl Warren: You may.
Mr. Kenneth Perrine: Thank you.
Chief Justice Earl Warren: Mr. Hall.
Argument of Leslie Hall
Mr. Leslie Hall: Mr. Chief Justice and members of the Court.
I want to address myself first a little bit to this matter of jurisdiction.
It seems to me in my impression from the argument given by Mr. Swedlaw, was that he was asking this Court to give an advisory opinion.
I don't think this Court has been in the habit of doing things like that and I hope it doesn't start doing it now.
But be that as it may, the Court has reserved decision on the jurisdictional question in this particular case.
Now, I want to go into something with regard to the merits.
Mr. Perrine --
Chief Justice Earl Warren: Is that all you're going to say --
Mr. Leslie Hall: Yes, I'm not going to --
Chief Justice Earl Warren: -- the question of jurisdiction.
Mr. Leslie Hall: -- go too much into that because --
Chief Justice Earl Warren: Yes.
Mr. Leslie Hall: -- actually Mr. Hawkins and I are quite interested in getting the decision as far as the constitutionality.
Justice John M. Harlan: You don't care about jurisdiction.
Mr. Leslie Hall: I wouldn't waste the Court's time too much on that.
Chief Justice Earl Warren: I think -- yes, very fair to do that.
Mr. Leslie Hall: Yes.
Chief Justice Earl Warren: Proceed.
Mr. Leslie Hall: Now, as far as this particular editorial is concerned, it didn't fall in the category of news.
There's a distinction between news and a distinction between editorializing and solicitation of votes on election day.
Something was read here with regard to the last paragraph in that particular editorial in which it said, Birmingham and the people of Birmingham deserve a better break, a vote for mayor-council government will give it to them.
But we should backup a little bit and go back to the preceding paragraph.
And the preceding paragraph has only one sentence.
Let's take no chances.
That was the thing that I believe Mr. Justice Stewart was referring to a little while ago as to what actually that editorial meant.
It meant to the people to come out on that particular day and vote for that particular proposition.
And I admit that and not against.
Justice Hugo L. Black: Whether they're violating the law to have just said the people to come out and vote.
Mr. Leslie Hall: No sir, I don't think it would have, Mr. Justice Black.
Justice Hugo L. Black: Well, the only part they objected to is decide its own (Inaudible)
Mr. Leslie Hall: They -- the part of the objection to is the effect that they solicited votes for a particular proposition.
And that's what the statute forbids.
Justice Hugo L. Black: And an editor can write that on election day?
Mr. Leslie Hall: That would be --
Justice Hugo L. Black: Is that your issue?
Mr. Leslie Hall: Sir?
Justice Hugo L. Black: That an editor cannot say on election day in an editorial in the papers in the public (Inaudible) perhaps illegally published, and expresses views on how people should vote.
Mr. Leslie Hall: Well, he can express -- he can write views on that day.
Justice Hugo L. Black: He can write -- suppose he writes -- expresses his views, but I hope that you're going to vote certain ways today, that would violate the law there, I suppose.
Mr. Leslie Hall: I believe it would.
I believe it would, yes.
Justice Hugo L. Black: That would violate that law.
Mr. Leslie Hall: Yes.
Justice Byron R. White: And he's violated the law that even if he didn't say “please vote for John” it would also violated that his last paragraph says John into that man.
Mr. Leslie Hall: I believe it would, sir.
Justice Byron R. White: Or that this idea -- the city -- he just wrote this editorial that said generally, the city-council type of government is a poor form of government.
Mr. Leslie Hall: Well actually, Mr. Hawkins can give you a little bit of background on this particular thing because he lives there in Birmingham but --
Justice Byron R. White: Is that the issue -- if the issue was not the city-council type of government and you're writing editorial that says, “City-council type of government has failed all over the United States”, then you have electioneering then?
Mr. Leslie Hall: When he get a little bit of that with Mr. Hanes --
Justice Byron R. White: Well, what do you think about that?
Mr. Leslie Hall: Yes sir.
Well, I don't know.
If you write a general proposition, probably it would be alright but if you --
Justice William J. Brennan: Well, how about the suggestion that he was trying to make, a mobile type of a billboard, or billboard.
Mr. Leslie Hall: Well now, billboard is a different proposition there.
Justice William J. Brennan: Well, I can expose all the billboard that says, vote to change to change to whatever it is, you need the exact -- the last sentence of this editorial, is that somewhere within the --
Mr. Leslie Hall: The billboards have been up there all the time and they went up on election day.
Justice William J. Brennan: But it's still there on election day.
Mr. Leslie Hall: Yes sir.
Justice William J. Brennan: Would that come within a violation of the statute?
Mr. Leslie Hall: I don't believe so.
What do you mean?
We are supposed to have everybody take them down on election day?
Justice Byron R. White: It's what the law said.
Justice William J. Brennan: Isn't that -- it certainly said, to do any electioneering or to solicit any votes and my hypothesis is a billboard which says vote for or vote against whatever its proposition was, that's all it says.
Wouldn't that mean solicitation or electioneering on election day?
Justice Byron R. White: If it isn't, why people are spending a lot of money for --
Mr. Leslie Hall: I agree with you.
I lived over here in Virginia for 19 years and these just stand out there on the sidewalks and handout the cards.
I guess they still do it.
Justice William J. Brennan: suppose this newspaper on election day had an editorial and a paper version, a whole paper -- a paper version of -- just like the voting which says, “Vote against and vote for this form of government,” would that have been a violation of the statute?
Mr. Leslie Hall: No.
The main thing that we've rather add here is that --
Justice William J. Brennan: I know but this goes certainly as Mr. Perrine's argument of vagueness, does it not?
Would it be reached by the findings?
Mr. Leslie Hall: Well, I think if there's any question about the definiteness of the --
Justice William J. Brennan: That it actually gets would have reached the verdict and I take that the business manager of the newspaper and the sponsors of the advertisements should all be prosecuted and criminally convicted under your statute.
Mr. Leslie Hall: Well, no.
The only one who is responsible is the one who composed the editorial.
Justice William J. Brennan: Only?
Justice Byron R. White: Well, there could be more than one.
Mr. Leslie Hall: Sir?
It couldn't be one.
Justice Hugo L. Black: It might have a ghost writer.
Mr. Leslie Hall: Sir?
Justice Hugo L. Black: It might have a ghost writer?
Mr. Leslie Hall: That may be true.
Justice Hugo L. Black: He had -- it could be more than one.
He have the newspaper and also the (Inaudible)
Mr. Leslie Hall: Yes.
Justice Abe Fortas: Do you know whether anybody else of this record or anybody else having been prosecuted under this particular (Voice Overlap)?
Mr. Leslie Hall: I think no sir.
I don't know of any, Mr. Justice Fortas.
This is the only case we know about in my experience.
Justice Byron R. White: You mean newspaper case or just any case under the statute?
Mr. Leslie Hall: The only newspaper case that I only think of.
Justice Byron R. White: But there have been others on --
Mr. Leslie Hall: Well, not in recent years.
We have never had one go up to the Supreme Court of Alabama until this case came up.
Mr. Hawkins will resume after lunch.
Chief Justice Earl Warren: Yes, yes.
Mr. Leslie Hall: To carryout a bit.
Chief Justice Earl Warren: But we'll -- we'll recess now, we're so close to adjournment.
Argument of Burgin Hawkins
Mr. Burgin Hawkins: -- prior to that time, many acts of corrupt practice at the polls, intimidation of voters getting them drunk, buying votes, there are many types of corruption.
Of course, those -- all those laws were passed to give the elector a right to go to the polls unmolested, undisturbed, and vote his choice.
Now, the question here is whether or not this statute prohibiting all electioneering and solicitation on an election day transcends the right of a legislature to put certain reasonable restraints on the Constitution, the First Amendment of the Constitution of the United States.
So we get right down to the mead of it, to ask ourselves, is it a reasonable regulation?
And I think the second question then is, what do you mean by electioneering?
What do you mean by solicitation?
Does it give or does it take the breath away from a First Amendment or can the First Amendment still breathe easy with that statute on the books?
I think every statute has to be governed by what the intent and what evil was sought to be cured.
The evil sought to be cured here was to prevent corruption at an election.
Congress has just recently given to literate thousands in our state a franchise to exercise their right to vote.
And many of them, illiterates, will have many difficulties confronting them when they reach the polls.
And I think that this Court should give serious consideration to any acts of a legislature that will carry out the purposes and intent and a motive behind that act.
Now, theirs is no reason -- or no place here for idle talk about a man at a breakfast table asking his wife won't she vote for a certain candidate?
To me that's in a -- on a golf course, in a tennis match, that's idle conversation.
What we are talking about is something that is done, enacted as done with the intent to swear on election or to decide on election.
I even put up your billboards, talk about your billboards, they're ought to be taken down, maybe in some sense that is electioneering.
Maybe in some sense that billboard does solicit your vote.
Justice Byron R. White: What about the --
Mr. Burgin Hawkins: But I am sure --
Justice Byron R. White: Could I ask you?
What about just urging people to vote?
Mr. Burgin Hawkins: Urging people to vote?
I think if you urge the person to vote, it would be absolutely alright.
It's urging them to vote for particular candidate or issue.
Justice Byron R. White: That is electioneering in one of its most traditional sense.
Mr. Burgin Hawkins: I don't think it was that -- I don't --
Justice Byron R. White: It was urging -- getting out to vote -- just urging people to vote.
Mr. Burgin Hawkins: Justice White, I don't believe that that was the original intent of this legislature --
Justice Byron R. White: Well, you can tell it from the word.
Mr. Burgin Hawkins: -- but to prohibit people from getting numbers of people out to the polls.
In our county and in our state, the city organizations put plaques across the streets, “Go to the poll, this is election day.
Exercise your constitutional right”.
I don't think that that is electioneering as it was meant when it was adopted in 1915 in the State of Alabama.
Justice Byron R. White: Well, I would think almost anybody would think that was electioneering.
It may be not what the legislature had in mind but --
Mr. Burgin Hawkins: I don't think that's what the statute intended to prohibit.
Chief Justice Earl Warren: (Inaudible) to prohibit it.
Mr. Burgin Hawkins: Taking those very people --
Chief Justice Earl Warren: (Inaudible)
Mr. Burgin Hawkins: If that was a case before Your Honor, I would confess, I wouldn't argue such a ridiculous thing that a man cannot get him a taxicab and go to the polls to vote although I think it's just ridiculous to argue that.
And to that, I don't think that that's -- I don't think that's what the statute means.
Now, I think that if you furnish for the purpose and motive of getting those people that you picked up and carry to the polls to vote your particular sentiments or to vote your particular issue or to vote for your particular candidate I think is electioneering.
Not just to furnish somebody or transportation to the polls, you might be on your way to the polls and pick up a passerby and carry him to the polls.
Unknown Speaker: (Inaudible)
Mr. Burgin Hawkins: Well, it's a question you get down to what is the meaning of the word solicitation and electioneering.
How broad in scope is it?
Is it -- does it have such a meaning that a man of common intellect and common knowledge understands this meaning or is it a meaning that that is not understood.
Justice William J. Brennan: Mr. Hawkins, apparently, those two words are used in different sentence though is it not, if you do any electioneering or to solicit any votes.
Now, what you've been talking about and what your response to Mr. Justice White, it seems to me before went in to solicit the electioneering obviously, will tend to be voter management.
At least (Voice Overlap) --
Mr. Burgin Hawkins: It certainly could be.
It could be broader than the word or confine the word solicitation (Voice Overlap)
Justice William J. Brennan: Well might it not -- might it not be broad enough to reach what Mr. Justice White suggests, just a plea, get out and vote without saying vote for whom.
Mr. Burgin Hawkins: Well, it says to for any candidate or any issue --
Justice William J. Brennan: Well, but that's my point it seems -- the way that it's exactly driven.
It seems to distinguish between electioneering, on the one hand, and soliciting votes or promising to cast any vote or against the election or nomination of any candidate or in support of or in opposition of any proposition.
Electioneering seems to be something distinct from any of those other things.
Mr. Burgin Hawkins: Well, it could be so.
Justice William J. Brennan: At least your (Voice Overlap) --
Mr. Burgin Hawkins: It could be so interpreted --
Justice William J. Brennan: Your Supreme Court has not told us.
Mr. Burgin Hawkins: What?
Justice William J. Brennan: Your Supreme Court has not suggested that it means anything such that you're asking us to -- reading from it, has it?
Mr. Burgin Hawkins: No sir.
Now, if the statute has a field of operation and it's not too broad, I think it plays the most important part in having an orderly election.
You say that the statutes, I think the courts have so held that the prohibiting of a solicitation of a vote within a certain distance from the poll is a valid exercise of the police power of the State.
It seems to me that more damage could be done in a printed word through a mass media, and then would be by having a statute that's limited to the prohibiting and solicitation of votes within 100 feet of the poll.
I think that all of these -- all of these statutes has to be looked at with common sense.
All lies go hand in hand with common sense.
And I don't think it was ever intended that a person would be prosecuted if that abridged party, one lady said to another one, “I wish you'd vote for a certain candidate or vote on a certain issue.”
Its sole purpose is to have orderliness, peace and quiet.
Let the editor of that paper for 364 days out of the year, expound any cause he desires.
We're not arguing that he doesn't have the right to advocate any issue or to support any candidate.
But we do think that the statute is not asking too much to say that on one day, out of the year, don't publish an editorial soliciting votes for a particular candidate or on a particular issue.
Chief Justice Earl Warren: Mr. Hawkins, may I ask you (Voice Overlap).
Mr. Hawkins, may I ask you this.
Suppose one side in an election launches a scurrilous attack upon the other side about an hour before midnight, the night before election, is it reasonable, is it fair to prevent free speech in order to oppose that next day?
Mr. Burgin Hawkins: Mr. Chief Justice, I would defend that man's right on election day to defend his character and his good name
And I think the First Amendment gives him that right even in the face of what the statute may say.
Chief Justice Earl Warren: Alright, let's take another one.
Now, suppose the man, one man who's running for office admits in some other context an hour before the election that he's been guilty of bribery.
Do you think that the opposition would have no right to expose that to the public the next day?
Mr. Burgin Hawkins: I think that it would but I have given a lot of thought to that.
I'll say this that I certainly think that a newspaper can write a news item and state the facts, if it is a fact.
Now I'm -- we're not arguing (Voice Overlap) the fact of newspaper or publishing news (Voice Overlap).
Chief Justice Earl Warren: Would it not have the right to say in addition to that that it is a view of this newspaper that a man who has just admitted his guilt of bribery should not be reelected to this office?
Mr. Burgin Hawkins: Mr. Chief Justice, there's so many things brought there.
How do you know the man made an admission on the certain conditions?
How do you know that the report is -- that the opposition got a correct reporter.
But if it were a fact --
Chief Justice Earl Warren: Yes, I say if it were a fact.
Mr. Burgin Hawkins: I don't know.
I confess to you that I don't know on that question what my opinion would be.
Chief Justice Earl Warren: It does bring --
Mr. Burgin Hawkins: It's such a (Voice Overlap) --
Chief Justice Earl Warren: -- a hard question.
Mr. Burgin Hawkins: Yes, it brings up a serious question.
I think that people have the right to know of course whether the candidate is corrupt, whether he's violated the laws that would necessarily disqualify him for office, yet on the other hand, I don't know rather it should be done on a particular election day or not, because if you say well, that can be done then why can't this be done
And if this can be done, why can't that be done.
Chief Justice Earl Warren: That's what I had in mind.
Mr. Burgin Hawkins: Well, I don't know what the end of that would be.
If you take all of the decisions of the First Amendment and state all of them, I think you get back about where you started for in the first place.
Justice William O. Douglas: Of course, he could say after in the news, thereafter he says that despite this fellow admitted bribery so that I'm going to vote against it.
Mr. Burgin Hawkins: Justice Douglas --
Justice William O. Douglas: He could say that he's going to vote against him, could he not, under your statute?
Mr. Burgin Hawkins: I think it would be fair to comment when in fact that one person is going to vote against somebody, it wouldn't necessarily be (Voice Overlap) all others while they're there.
Justice William O. Douglas: He'd just be announcing what he's going to do.
I'm going to vote against him.
Mr. Burgin Hawkins: I think that probably that would be a fair comment that he's going to vote against him.
Justice Byron R. White: Well, what competing state of interest really is involved here, Mr. Hawkins?
What does the statute attempting to attain or to protect somebody against?
What is the evil of saying that here?
Mr. Burgin Hawkins: Justice White, I think if you recall in the days of the old west in other sections of our country where elections were bought.
People go into the polls were intimidated.
They were frightened.
They were fearful to even go there to exercise their right to vote.
And I think it was to give a feeling of security and to prevent some undue influence on election day.
If I would tend that voter, he maybe even vote contrary to his own best interest, I don't see why if a newspaper or any other person or association or anybody else has every day in a year to express their opinion, why is such imposition on any individual to say, well now this day is going to be set aside for an election day, let's all keep quiet and let the newspaper keep its mouth shut and let everybody else keep quiet on that day.
Justice Byron R. White: The other side of the coin is why should they keep quiet?
And then you've got to be, if you certainly, at the very minimum, you have to be able to demonstrate --
Mr. Burgin Hawkins: Well I think that -- I think --
Justice Byron R. White: -- that the State is being served --
Mr. Burgin Hawkins: Well I think it causes -- like that it cause disorder, riots, violence, (Voice Overlap).
Justice Hugo L. Black: Not the editorial.
Mr. Burgin Hawkins: Sir?
Justice Hugo L. Black: Not the editorial, we're talking now about the editorial.
Mr. Burgin Hawkins: The editorial?
Justice Hugo L. Black: You're talking about the riot and disordered polls.
Mr. Burgin Hawkins: Well, an editorial written work can start a war just as well as --
Justice Hugo L. Black: What?
Mr. Burgin Hawkins: -- two people in a fight.
Justice Hugo L. Black: Yes, but I thought you were talking about the disordered polls, that's quite a different thing.
It sounds to me like what your statute really want after.
Mr. Burgin Hawkins: That is to prevent disorder at the polls.
Justice Hugo L. Black: At the polls?
Mr. Burgin Hawkins: Yes sir.
And I think that you can create a disorder at the polls by allowing a newspaper to create certain editorial on certain subjects, just the same as if they went to polls, holding someone and trying to convince them in.
So I think that's --
Justice Hugo L. Black: They wouldn't do that at the polls.
Mr. Burgin Hawkins: Sir?
Justice Hugo L. Black: They wouldn't be there at the polls.
Mr. Burgin Hawkins: Well, of course sir.
Justice Hugo L. Black: He'd be back at the editorial office.
Mr. Burgin Hawkins: Oh yes, he'd be back up then.
Now, there are some questions here about -- on jurisdiction.
I think Your Honor that this Court should render an authoritative decision on this question.
It's of vital importance to the people of Alabama.
And if we went back through the courts, I can tell you what I think would happen in the face of the Supreme Court's decision although there is a trial de novo, I think if an evidence was, as presented to you here, the Court would give a request in favor of the State under a general charge, that if they believe that they would have to convict Mr. Mills.
So now in this type of a statute, in any complaint or sworn affidavit or indictment, the facts alleging a solicitation or the electioneering would necessarily have to be in that complaint or sworn affidavit.
And I think if any person, prosecuting attorney or anyone else attempted to use the statute in a -- and under the facts that wouldn't constitute solicitation or demurrer filed to the indictment, a demurrer filed to the complaint raising a question that it does not constitute a violation of the law under the State of Alabama, the courts would have a review of the conduct of the individual to determine whether or not the Court in its opinion thought that this alleged, where it might be who was accused of violating it, did electioneer or solicit votes for an individual or candidate on election day.
I thank you.
Justice Hugo L. Black: May I ask you another question, Mr. Hawkins?
As I recall Alabama, it does not have a provision in the Constitution which makes the jury the judge who brought the law in facts and criminal libel cases, does it?
Mr. Burgin Hawkins: In criminal libel, Justice Black, I've never had a criminal libel case --
Justice Hugo L. Black: Now, this has many arguments.
This has not named that but it's a kind of thing, it was a criminal libel in the old days.
Mr. Burgin Hawkins: I just don't --
Justice Hugo L. Black: I'm just wondering.
I didn't think that that provision is in the Constitution at this time of Alabama.
Mr. Burgin Hawkins: I do think of one thing that these statutes being penal in nature are certainly be strictly construed.
And with that, I appreciate the opportunity for speaking to you.
Chief Justice Earl Warren: Thank you, Mr. Hawkins.
Rebuttal of Alfred Swedlaw
Mr. Alfred Swedlaw: Mr. Chief Justice, may it please the Court.
In rebuttal, Mr. Hawkins has stated that in his judgment, various acts which the statute by its terms proscribed would not be so construed and would not be -- this is not the intendment of the statute.
The language of the statute is clear in these various respects and this, this is one of the faults, the vagueness fault in the statute that it brings within its ambit and within its purview otherwise harmless conduct and proscribes it and makes it a criminal offense.
The statute does not require that it'd be done with a criminal intent.
The statute says thus and so shall be forbidden on election day.
Now, one of the concerns of the State apparently and Mr. Hawkins has expressed here and I think that this paternalistic attitude is permeated in the State's position throughout these proceedings.
Questionably, the right of the public to be protected, Mr. Hawkins said that he thought that one of the purposes would be to prevent a voter from forming a role and opinion.
Now, this is precisely -- this is precisely the thought -- that sort of thing that we are urging on the Court here to take cognizance of the fact that this is not a legislative interest that the State has a right to protect, Thornhill decided that.
Thornhill decided that -- the fact that people might be persuaded to take the position contrary to their best interest or to adopt an indirect opinion are not dangers which government has any right to prevent.
The antiseptic atmosphere of an election is not something that is a matter of legislative interest -- legitimate legislative interest.
There's nothing it says we need to have peaceful, and calm, and tranquil atmospheres on election day.
We must defend out -- like to speak out robustly as the State has said, even to the point -- as this Court has said, even to the point of criminal libel unless done with malice as this Court held in the Garrison case with regard to public officials.
If the Court will permit with the remaining time we have at hand, we should like to revert to the question of jurisdiction notwithstanding that the State is in effect graciously conceded that it makes no issue of the jurisdictional question.
But since a state in its brief has made certain comments and distinctions, for example the State has made much of the -- of an alleged distinction on the finality question between the Pope case, for example, in our case and that this case is a criminal procedure whereas in Pope, criminality was not involved.
We submit that if there is any such distinction, it lies in favor of the appellant in this case for the reason that it's of much more pertinence, much more concerned that this man, that Mr. Mills not be subjected to a criminal trial and risk having a conviction against his record in order to test his constitutional rights.
The distinction is not made in the statute.
Section 1257 requires no distinction such as the State would urge between criminal and civil proceedings.
Now, the State also relies on the Polakow case which was decided by the Supreme Court on a writ of certiorari, not decided, the writ of certiorari was denied.
And in Polakow, there was involved the procedure of indictment against certain persons in Alabama for selling real estate without a license as prescribed by the statute.
The constitutionality of this statute was likewise tested by demurrer and the matter went to the Supreme Court on certiorari but the Supreme Court denied the writ.
Now, the distinction between the Polakow case and the case involved is a fraud that appears in Polakow.
The defendant there had other defenses to interpose in a trial of the case.
That is not true as we have pointed out in the case involved.
Moreover, the Court has moved away from Polakow to the point that it maybe said that Polakow has by being ignored been overruled.
The Pope case, the Richfield case, the Curry case have all departed at least implicitly from the Polakow holding.
And this Court has recognized that the threat of sanctions, the threat of First Amendment restrictions, can even more or can almost as much as the imposition of the sanctions themselves infringe upon constitutional rights.
As late as last month in the Fanny Hill case, for example, this Court in passing on the -- on its jurisdiction in the -- on the Massachusetts proceedings, in which there had been an in rem declaration of obscenity against the Fanny Hill book but there had been no prosecution, there'd been no criminal trial, been no criminal conviction albeit.
But this Court noted that the declaration of obscenity is likely to have a serious inhibitory effect on the distribution of the book.
And that this probable effect is in no small measure derived from the possible collateral uses of the declaration in subsequent prosecution under the Massachusetts statute.
Justice Potter Stewart: Mr. Swedlaw, may I interrupt you just a moment.
Mr. Alfred Swedlaw: Yes.
Justice Potter Stewart: I didn't get the name of the case you were referring to that you say has been undermined.I thought you said Palco --
Mr. Alfred Swedlaw: Polakow, P-O-L-A-K-O-W is the --
Justice Potter Stewart: Is that in your brief?
Mr. Alfred Swedlaw: -- case, yes sir, it's cited in the State's brief and we had -- we have the citation, I think it's 319 U.S.--
Justice Potter Stewart: Polakow?
Mr. Alfred Swedlaw: Yes sir.
Justice Potter Stewart: Thank you.
Mr. Alfred Swedlaw: It's 319 U.S. 1155.
Justice Potter Stewart: Thank you, sir.
Justice Byron R. White: What's that?
Mr. Alfred Swedlaw: 319 U.S. 1155, I think.
Justice Potter Stewart: It's 750 and it say (Voice Overlap) --
Mr. Alfred Swedlaw: 750 to 755.
Justice Potter Stewart: Yes.
Mr. Alfred Swedlaw: The parallel between the Fanny Hill case and the Mills case we think is evident.
Mr. Mills' editorial like Fanny Hill stands condemned by the highest court of the State as being in violation of state law and thus irrespective of what may or may not happen in future proceedings below.
The freedom of expression is now seriously impaired just as this Court felt that it would be in Massachusetts although no criminal prosecutions had actually occurred.
And it might be said in conclusion.
It might be said within the Pope case for example for all that appears of the railroad company might have waived its injunction proceedings which was sanctioned.
And these are possibilities, but the practical effect of this situation, as we have said, is that Mr. Mills has been tried on the merits by the Alabama Supreme Court.
And we feel that under the circumstances, the matter is right for adjudication and nothing is left to be decided, and we urge the Court to take jurisdiction and reverse.