TURNER v. NEW YORK
Argument of H. Richard Uviller
Chief Justice Earl Warren: William Turner et al., Petitioner, versus New York.
Mr. H. Richard Uviller: Mr. Chief Justice, may it please the Court.
Yesterday afternoon, I had just concluded a brief description of the physical area known as Duffy Square, the narrow triangular concrete island in the middle of Times Square Manhattan.
At about 4 PM on a Saturday afternoon in August, a group of people began to congregate in front of the statue erected to -- for the Duffy in response to some 10,000 leaflets which had been distributed announcing the meeting.
At that hour at 4:00 PM, Mr. Lao one of the petitioners ascended the steps in front of the statue and with the use of a hand amplification device known as a bullhorn or a battery powered megaphone began to address this group which has been variously estimated at between 60 and 300 people.
The group was by all accounts orderly.
There was no evidence of any disturbance, any violence, although there was a drum that was used at some point or another during this proceedings, there was no allegation by the prosecution of any disorder by that group.
Mr. Lao announced that this was a meeting called by an organization called May 2nd Movement and he said what the purpose was and he stated his intention to introduce chairmen and speakers and made no statement really of any consequence on the purpose or content of the -- of the meeting.
Justice John M. Harlan: Well, what's the name of the group?
Mr. H. Richard Uviller: May 2nd Movement.
It entirely was a group that had been formed sometime before described by one of the petitioners as a radical piece movement and for the specific purpose of protesting the American involvement in the Vietnam conflict.
Justice Abe Fortas: The May 2nd name refers to Castro based on the Cuban events.
Mr. H. Richard Uviller: I thought that was a July 26th Day.
I don't know what May 2nd refers to, but the organization was founded according to the testimony Mr. Justice in March, but it was entitled the May 2nd Movement.
Justice Potter Stewart: Were they -- were these New York citizens?
New Yorkers, lived within the city?
Mr. H. Richard Uviller: Presumably, no testimony in the record.
There were a quite number of them as to where they all hailed from.
But their background was not going into extensively in the testimony.
In any event, Mr. Lao then turned the meeting over to the man who was designated as the chairman and who subsequently testified that he was one of the organizers of this meeting, Mr. Luce who was not arrested and is not a petitioner here but did testify at the trial.
Mr. Luce likewise only got through some preliminary statements before a police captain approached and made his first statement to the speakers and leaders of this meeting.
Now, there was a question raised by Mr. Fraenkel as to why this statement by the police officer was not reproduced on the recording or tape that was played and which did quite clearly indicate at the trial what each of the speakers had said to the crowd.
And I think the reason for this is quite obvious, the speakers who were speaking through this amplification device whereas the police officer was not.
So, the recording device which was secreted on one of the police officers who was mingling with the crowd in civilian dress, that recording device reproduced what have been said on the amplification megaphone but not what the police officer said.
However, his statement has been variously testified to on his first approach.
It was according to the police officers who heard it, simply that they were interfering with traffic.
By this time, a description of the crowd indicates that they had moved forward crowding toward the speaker as quite not true.
This is a noisy place at that hour.
And had overlapped the two sidewalk areas on either side of the statue, 12 feet in width each and indeed some of them had spilled over from the concrete island in to the traffic lanes of Broadway in 7th Avenue that bound this so-called square.
Justice John M. Harlan: I thought that Mr. Fraenkel said that -- I misunderstood him at that point.
The police officer did not testify in that.
Mr. H. Richard Uviller: The police officer who made the statement, Captain McAllister did not testify but other -- the other police officer who had the recording device and was present with the crowd heard what he said and testified as to what he said.
The defendants variously testified as to what --
Chief Justice Earl Warren: What did the officer testify said Mister, exactly?
Mr. H. Richard Uviller: He -- he testified that on the first approach he said, “You are interfering with vehicular and pedestrian traffic, no direction to disband simply a statement of that nature.
According to the defendant he said, “You are not permitted to have this meeting” or “Where did you get permission for this meeting?”
Or “We do not allow meetings at this point”.
And I think I should mention at this time that the petitioner here makes a statement in his brief that there is evidence in the record that the police officer announced that there was a ban on meetings of political dissent in this area.
There is absolutely no shred of evidence in anywhere in this record that there was any ban on meetings on political dissent.
Indeed, there is no indication that this was a response to the content of the meeting at all.
Although there is testimony that there were placards for example displayed during the course of this meeting, there is no testimony in this record as to what was on the placards, what they said or whether the police officers perceived them or reacted to them.
Justice Abe Fortas: Well, is it costmary for the New York police to go around with the tape recorders concealed under their clothes or is this policeman especially equipped for this particular meeting in view of the subject matter?
Mr. H. Richard Uviller: The New York Police Department has a bureau which is called the Bureau of Special Services.
It is not clear from this record but I think it is fair to infer from the record that it is the obligation or duty of these specially trained police officers to attend meetings of groups that are thought to be possibly hostile or dangerous and to perceive or listen to what it -- what is stated in public meetings.
Justice Abe Fortas: Well, we may fairly infer then before this meeting began, the New York police regarded that as one deserving of the special consideration.
Mr. H. Richard Uviller: I think that is fair to infer, yes Justice Fortas.
As a matter of fact, the officer from this Bureau of Special Services testified that he had recognized and was familiar with the faces and voices of the leaders of this particular organization.
He has seen them on previous occasion.
On the other hand, there was not -- it was not from the Bureau of Special Services that the ordinary precinct policemen attended this meeting.
As I say, it was announced by a public distribution of some 10,000 leaflets.
In any event at this point, no other policemen were on the scene with the exception of Captain McAllister.
There is then some testimony in the record indicating that the police officers attempted to --
Justice William J. Brennan: Excuse me Mr. Uviller, how many of the -- how many of the -- does the record show how many were assembled at that time of this so-called first post?
Mr. H. Richard Uviller: As I say Justice Brennan, it's unclear.
The estimates vary from 60 to 300.
Justice William J. Brennan: At that time?
Mr. H. Richard Uviller: Yes, at that time.
Justice William J. Brennan: I see.
From the outset then it's not difficult.
Mr. H. Richard Uviller: Apparently, the group did not change in size although during this period a number of onlookers not an immediate audience, it varies really -- estimated at several thousand gathered on the opposite sidewalk.
Justice William O. Douglas: Over here, over there?
Mr. H. Richard Uviller: Presumably, the bullhorn would carry though not distinctly and depending on the variations of traffic noise.
Justice William J. Brennan: Well, that all was happened in New York doesn't it (Voice Overlap)?
Mr. H. Richard Uviller: It certainly happens in New York, yes.
Justice William O. Douglas: What's the distance between the square and the curve?
Mr. H. Richard Uviller: Well, this is the 12-ft distance to the curve of the -- of Duffy Square.
The front of the -- (Voice Overlap)
Justice William O. Douglas: (Voice Overlap) Well, they're all on the square.
Mr. H. Richard Uviller: The immediate audience was located in this area on the square.
Roughly it covers the area represented by the subway grade.
The onlookers while their position was not described with clarity, apparently where at this distance on this side.
Justice John M. Harlan: Does New York have permit requirement which makes it illegal in this time for the use of the streets?
Mr. H. Richard Uviller: Well, in New York, this record does indicate that New York has a permit requirement for the use of a bullhorn and that was prosecuted jointly with this trial but the conviction for two -- the two individuals who used the horn for using it without a permit is not before this Court at this time.
There is apparently also some requirement for a permit for the use of a public park for these meetings.
Now, and point of the fact this Duffy Square is technically a public park, however, there was no proof in this record to that effect and indeed they were not prosecuted for having use a public park without a permit.
The permit requirement by the way in New York is an automatic one, the law requires that on application a permit shall issue.
So there is no discretionary issue there.
In any event, the crowd was completely orderly at this time with the exception of the fact that certain individuals had spilled over into street.
Now, the police officers tried to move them back and they tried to open a path along the sidewalk but found that they were unable to do so.
At this point, there was a second approach and under -- the second approach apparently repeated the injunction that they were obstructing vehicular traffic, pedestrian traffic and in addition, the police officer said, “You'll have to disband the meeting”.
Now, the question of whether or not this was a reaction to the situation as it developed or the result of a predetermined plan by the police officer was raised and indeed, the counsel -- trial counsel tried to establish that there was some sort of ban.
They say the record is not altogether clear as to whether there was a ban and if there was a ban, who had directed it or what the nature of it was.
But on the record on which these individuals were convicted, there is only the faintest hint of any such ban and if indeed there was a ban, it was simply a ban on meetings of any sort in this area.
Now, there was a question yesterday, I believe, directed to Mr. Fraenkel as to whether or not there hadn't been some evidence that a police officer had offered alternative site to these individuals.
Now, Mr. Fraenkel, in answering in a negative overlooked the testimony of one of his own witnesses who testified that police officer when he first came up to the leader of the group said, “Why don't you hold your meeting South of 48th Street or North of 59th Street?”
Now, that --
Justice Potter Stewart: You don't have that in the record, do you?
Mr. H. Richard Uviller: Yes, that's on page 200.
Justice Hugo L. Black: 200 in what?
Mr. H. Richard Uviller: 200 of the record.
Justice Hugo L. Black: Page 200.
Chief Justice Earl Warren: Was there any offer or further proof as to what the intent of the police officer was other than that what's in the record?
Mr. H. Richard Uviller: No, Mr. Chief Justice.
That is the sum and substance of it.
There was no evidence for example that there was any disorder of a violent or threatening type and there was certainly no evidence that the police were reacting to the content of what was being said.
Indeed, there was not very much that have been said.
I think that the record as it reproduces the tape recording of what the speakers had said will indicate one sentence only on the content and that was something along the lines that the American policy in Vietnam was ill advised.
Chief Justice Earl Warren: Mr. Uviller, I wonder if you could tell us what the use or what's customary use made at that square was, were there -- were there demonstrations of that kind or were there not or were there gatherings or not?
Mr. H. Richard Uviller: The record photograph -- the photograph of the square, I think, dramatically reveals what the usual use of it is.
There are two bus stops, there are benches, there are some foliage, there are crosswalks on either end, and north to south sidewalk running on lawn.
It is as you can see simply a traffic dividing the island in point of fact and its customary use is simply that which is disclosed by the photograph.
Now, I should say that there were efforts made by counsel at the trial to establish that there had been other demonstrations at other times or other meetings or rallies held in the Time Square area.
The trial judge excluded this evidence on the grounds of irrelevancy.
It was not really a question as to whether or not this area or any other part of Times Square were used for bon rallies or New Year's Eve celebrations, it was a question of whether or not this group was too large to be comfortably contained within this island that without presenting an interference to the flow of vehicular traffic which is considerable and the passage of pedestrians using the sidewalks.
Justice Potter Stewart: Would you tell us Mr. Uviller how this meeting had been advertised in advance, if it was and if so, how it was?
Mr. H. Richard Uviller: I -- I only know what the record reveals Justice Stewart on that and that is that there was a distribution of 10,000 leaflets inviting people to a rally protesting the war in Vietnam at Duffy Square, 4 o'clock and that's apparently the only matter and which are cited to our brief.
There was a testimony by a newspaper reporter for example that he got one of those fliers or announcements on the city desk in the usual course, I mean, which newspapers get these announcements.
Justice Abe Fortas: Well, the state then does not contend that this meeting was held in a place that is improper for meetings.
I take it the state does not say that, the state's contention is solely that the manner in which this meeting was run constituted in obstruction of traffic etcetera.
Am I correct in this?
Mr. H. Richard Uviller: Precisely correct, Justice Fortas.
We -- we -- there is no contention as to the appropriateness of this anymore than any other sidewalk meeting as in Shuttlesworth or anything of that sort.
Our -- our only contention is that as this meeting developed it was too large for the place and the police reacted to that.
Apparently what happened was that after this failure and attempt to get people back on the sidewalk, there were some testimony that automobiles coming at -- from south of the avenue had to veer to avoid pedestrians in the street, that people using the bus stops and so on had to walk in the roadway and so on.
There must have been a gesture or signal or some communication because at that point, some 12 to 15 blue coded patrolman and two mounted patrolman appeared.
Where they have geared from is not altogether clear, whether they were waiting or -- or where they're waiting is not clear.
One of the defendants testified that that they appeared from behind the statue in this area.
And at that point, they started to disperse the crowd.
Justice Hugo L. Black: May I ask you a question.
The state as I understand it, neither the state nor the city contend that there's law which attempts to forbid public meeting at this place.
Mr. H. Richard Uviller: Correct, correct.
Justice Hugo L. Black: So that we can take as true that they are permitted?
Mr. H. Richard Uviller: I -- I presume so, whether they actually held of not --
Justice Hugo L. Black: And it's not a violation of law?
And you proceed only under statute which has been referred to?
Mr. H. Richard Uviller: That's correct sir.
That's correct sir.
Justice William J. Brennan: Mr. Uviller, is the traffic flow one-away for the apex?
Mr. H. Richard Uviller: It does at the present time and I think --
Justice William J. Brennan: Oh, it did then?
Mr. H. Richard Uviller: I think that -- I think that at that time, it did on -- on one avenue and --
Justice William J. Brennan: And the other way or the other.
Mr. H. Richard Uviller: I think I -- I think it might have been at that time one-way traffic on both stops.
Justice Hugo L. Black: The bus stop indicates that?
Mr. H. Richard Uviller: The bus stop would indicate that there was south-going traffic only on 7th Avenue --
Justice William J. Brennan: Yes.
Mr. H. Richard Uviller: I believe Broadway has been one-way for some time.
Justice William J. Brennan: Yes.
Justice John M. Harlan: South going.
Mr. H. Richard Uviller: South going, yes sir.
There had been or some -- I can -- this is not in the record but we -- we in New York have observed in this general area certain kinds of demonstrations and protests that have proceeded without any interference.
I'm thinking of one which was a silent vigil so-called which pickets stood with signs around the area, not a meeting, but stood with protest signs for some period of time around the Times Square area, without any interference.
In any event, the -- I think one of the clearest indications in this record that there was no reaction by the police to the content or substance of what was being said, was the fact that the chairman of this meeting and the organizer, Luce, was never arrested.
The only people who were arrested in this case were those who fail to heed the police order to disperse.
Now, under Subdivision 3 of our Disorderly Conduct Statute, it is a disorderly conduct to refuse a police order to move on.
That statute has been construed by the New York State Court in a limited fashion.
It is only the reasonable order by the police and the substantial purpose of the order which constitutes the offense.
In other words, an order which is without foundation or based upon whim, can be disobeyed without a violation of that disorderly conduct provision.
Justice Abe Fortas: Excuse me Mr. --
Mr. H. Richard Uviller: Yes.
Justice Abe Fortas: Excuse me sir, but does the record show with respect to each of the persons who was convicted, that here, he personally refused to move on?
Mr. H. Richard Uviller: Yes, it does.
They refused in various ways.
This is the part of course in the case that Mr. Fraenkel makes his point on.
Some of them refused by lying down, some by sitting down, some by striking police officers, biting them, one by striking a police horse with a rolled up placard, others by just simply refusing, and indeed responding to the police request to move with such shouted the joiners as factious police could stop all, “You have no right, we have rights”, and so on.
But each of the defendants who is arrested in this case was one who in someway or another refused to heed the police order which have been repeated not only by the police officer who first made the direction but by the individual officers who made the arrest.
Justice John M. Harlan: What was the total number of arrest?
Mr. H. Richard Uviller: 17 I believe.
Well, there's 17 convictions, Justice Harlan.
I am not quite sure how many were arrested.
There may have been some that were dismissed before.
Justice John M. Harlan: Won't have jail sentences.
Mr. H. Richard Uviller: No jail sentences, that's correct.
Justice William J. Brennan: How many officers were involved in here?
Mr. H. Richard Uviller: The estimates are that there were between 12 and 15 on foot and two on horseback.
This was at about 25 minutes after four.
Justice William J. Brennan: Yes.
Mr. H. Richard Uviller: The time specified in the complaint.
They were charged in this complaint with three -- aside from the administrative code violations for the use of the megaphone, with three -- violation of three subdivisions of the Disorderly Conduct Statute.
This is set forth in the complaint, Subdivisions 2, 3, and 4.
3 as I've indicated is the one which is failure to move and I don't think that there is any serious dispute with the conviction there.
These were in the alternative.
That is to say this was not a disjunctive charge, and the conviction, the general verdict of the court guilty I think should be fairly construed and this distinguishes that case from Stromberg cited by my adversary as a conjunctive charges to say, if this conviction can be sustained under any one these subdivisions, then there is no need to reverse the conviction based on the general verdict of guilty as charged.
There was as I say no disorder until the order of the police to move on.
Now, one of these subdivisions, Subdivision 2 charges the defendants with creating a disturbance, tending to breach the peace, annoying to others.
That is the language of Subdivision 2.
And indeed it is that conviction which is principally challenged by my adversary.
He claims that the complaint does not charge that particular offense and consequently any conviction based upon evidence as to what -- of what occurred after the order to disperse in not fairly charged in the complaint and therefore violation of due process.
The complaint appears itself on page 1 of the record and I think in a fair reading of it and then by the way I do think that it should be read fairly.
It is a -- an affidavit by a police officer and should be construed in harmony with the Ventresco principle indicates that not only were each of the subdivisions specified in that complaint, but the language of the complaint has one phrase at least dealing with each of them.
For example, did unlawfully congregate and assemble in the area obstructing the area to the exclusion of those wishing to use the same would indicate the reasonableness of the police order to move on.
As to the Subdivision 3, the last phrase says when ordered to move on, the defendants did fail to do so.
That is the substance of Subdivision 3.
Subdivision 2, the one that my adversary claims was not properly charged, I think is implicit in the phrase, “did delay vehicular traffic while carrying placards and using loud and boisterous language”.
And the only allegation of loud and boisterous language was the loud and boisterous language used by the defendants after the order to move on.
So that I say that not -- these are not mutually dependent subsections.
In other words, even as the police ordered to move on was not a reasonable order and of course the New York courts construed it as such.
The reaction of the defendants so far exceeded the proper resistance to such an unlawful order, that it in itself became a disorderly conduct.
In other words, although you are entitled to resist an unlawful order under the New York law and not move on when told unreasonably to do so, you cannot resist it in such a loud and boisterous manner as to create a breach of the peace or disturbance and annoyance to others.
Justice Byron R. White: Do you think -- being an order at all to violate that subdivision?
Mr. H. Richard Uviller: That's correct sir.
They're quite independent.
They're quite independent, even though as I say the actions in this case constituting the violation of Subdivision 2 occurred in point of time after the order.
The court -- the only court that wrote an opinion in this case was the appellate term, the court of first review.
And that court in a long opinion found that implicit in this complaint was the charge of the actions occurring after the order to disperse because it was charged that the defendants failed to move on when directed to do so.
That is really I think the principal point which is being made by my adversary, one of pleading.
I do not think that he can seriously contend that there was in this instance any reaction so long condemned by this Court to the content of the speech or an attempt to break up the meeting because the views being expressed were unpopular with the police or with the society the police represent.
This is indeed, I think, a pure instance of the type of situation which this Court I believe has in an unbroken line of authority and virtually every member of the court who has written on this subject has agreed is a proper police function.
And that is that the police have the right to regulate the manner of expression of speech consistent with the interests of society in maintaining free thoroughfare and the free use of the streets to those wishing to engage in ordinary commerce.
I do not think there can be any doubt at this point that such regulation of the manner, time, and place are expression of ideas or assembling does not constitute any First Amendment infringement.
Justice Hugo L. Black: But you do not have any statute or parliament which particularly attempts to do that, do you, by the legislative body, to leave it up to the -- you only rely on one, that depends on the policeman's order?
Am I right in that?
Mr. H. Richard Uviller: Well, there is actually one division of Subdivision of 722 of Disorderly Conduct does Subdivision 4.
One of those that the defendants was convicted of states that anyone who by his actions, tending to breach the peace, causes the crowd to collect other than while lawfully addressing a crowd is guilty of disorderly conduct.
Now, that Subdivision 4 may be still in this case and it may not be.
It was never considered by any of the lower courts writing on it -- on this case.
And indeed it has not been construed by our highest court.
So we have not relied on that statute nor has the defendant attacked the constitutionality of that statute on its face.
That is the only statute that makes any specific reference to an address to a public assembly.
In this instance, New York by -- by statute does leave to the police the discretion to decide when there has been an interference with vehicular traffic and that discretion is reviewable under the New York construction of 722 that his judgment must be reasonable under the circumstances.
Consequently, the statute on its face must be read in conjunction with the construing sections to limit this discretion to a reasonable order.
And I submit to the Court that as applied in this instance, we have a clear example of a reasonable order in the interest of vehicular and pedestrian free passage of where the police simply tried to convey and contain the group and when they fail to do so, to disperse the group which was a traffic menace, and did so without any regard to the content or substance of abuse that were being expressed, unlike the Feiner case.
I think that element is out of this case altogether.
Chief Justice Earl Warren: Mr. Fraenkel.
Argument of Osmonf Fraenkel
Mr. Osmonf Fraenkel: Just a few brief remarks.
In the first place, I think that Mr. Uviller is incorrect when he states that when the police captain and the inspector for the first time approach the speakers, they did not order the meeting to disperse, that only police officer who testified clearly on that subject was Officer Bear and at page 9 of the record, he says, “Are you giving your best to the court?
Are you giving your best recollection, the substance of what was said by the witness as correct?”
And then an objection was overruled and then the witness continued.
That in view of this interference with pedestrian and the vehicular traffic, that the meeting would have to be terminated at this location at this time.
So that was an order to terminate the meeting.
Now, that happened about two minutes after the meeting started as the Court will see, as the Court reads to itself aloud the recording which is in the record.
Moreover, I think Mr. Uviller --
Chief Justice Earl Warren: How was that inconsistent with what Mr. Uviller said?
Mr. Osmonf Fraenkel: Oh, he said the first time that the police captain said, “He merely talked about vehicular interference”, but did not tell him to stop the meeting.
But he didn't do that until he approach them the second time.
All I'm saying is that the police officer testified that the first time he approached them, he told them the meeting would have to stop, now that's an --
Chief Justice Earl Warren: They did -- he speak for the vehicular traffic (Voice Overlap) --
Mr. Osmonf Fraenkel: Oh yes -- find that it's opposite (Voice Overlap) according to this officer.
Now according to the -- disinterested witness, Mr. Lutherfield he did not mentioned vehicular traffic.
Now, it is also I think erroneous to say that the police had tried to get to people off -- the few people who were on the roadway off it, because two police officers were specifically questioned on that subject, whether they made any attempt to get to go back on the sidewalk and then both said no.
Now, one other thing, we are not claiming only that certain of these subdivisions should be disregarded.
We are claiming basically and that's my first -- my humble judgment, my main point in this case that this complaint did not indicate that there was any intention of charging these people with the acts which I can conceded yesterday were to some extent unlawful in resisting the order to disperse because the whole complaint proceeds on the basis that the police officers had told them to stop because the meeting was unlawful.
And our contention basically is that the meeting up to that point was not unlawful.
And that if there was any desire to prosecute any of these individuals for the wrongful things they did afterward, they should have been separately prosecuted for those because that was not a joint venture or a joint effort.
It was the reaction of the separate individuals according to their own temperaments to the situation that existed.
So it is not merely a matter of pleading in technical sense.
It's a matter of the fair intendment of a complaint putting the people unnoticed of what they were being charged with.
And here, we submit, they were charged in the holding on an unlawful meeting and there was at that time no unlawful meeting because we insist that there was no substantial evidence of interference with traffic up to that point.
The real interference of this traffic came afterward when the meeting spread out, people ran all over, the cars stopped.
Up to that point, all that happened was that a few people were in the roadway and that some cars had to move to avoid those few people.
Now, that's something that happens in New York all the time.
People cross the streets, cars have to swerve to avoid the people crossing the street.
That's not an interference with traffic in any sense.
It justifies in my opinion the ending of a lawful meeting.
Chief Justice Earl Warren: Very well.