BOYLE v. LANDRY

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Argument of Ronald Butler

Chief Justice Earl Warren: Number 244, John S. Boyle, Chief Judge of the Circuit Court of Cook County, Illinois et al, appellants versus Lawrence Landry et al.

Mr. Ronald Butler: Mr. Chief Justice --

Chief Justice Earl Warren: Mr. Butler.

Mr. Ronald Butler: Mr. Chief Justice, Your Honors, this is an appeal from a permanent injunctive order issued by a three-judge court in Northern District of Illinois which order for purposes of this appeal held unconstitutional one sub-section of the Illinois intimidation statute.

Illinois Revised Statutes, Chapter 38, Section 12-6 (a) (3).

Jurisdiction is conferred upon this Court by a Title 28, Section 1253 and 2281.

Probable jurisdiction was noted on the 9th of December 1968.

The posture of this case in the lower court is as follows: A complaint was filed by the plaintiffs purported alleging a conspiracy to violate the plaintiffs' constitutional right and setting forth that by the use of unconstitutional statutes on their face or statute or the misuse of statutes which would be otherwise constitutional that the plaintiff's' constitutional rights were violated.

The defendants' filed a motion to dismiss initially alleging four basic grounds.

First, lack of jurisdiction, second, no relief upon which your claim can be granted, third, as to those sub-classifications of plaintiffs who had been arrested prior to the filing of the complaint for federal equitable jurisdiction the bar of 28 U.S.C. 2283.

And lastly, as to those class of plaintiffs who had not been arrested but who were plaintiffs in the case the claim that the lack of specificity in the complaint takes jurisdiction away from the District Court.

The single trial judge dismissed the motion to dismiss filed by the defendants.

In doing so, he stated that the plaintiffs did have proper standing that the question of 2283 was a premature question because that statute was not jurisdictional that a three-judge court would be convened and the first order of business upon convening the three-judge court would be to determine the threshold question of constitutionality with respect to the five enumerated statutes which the plaintiffs have challenged.

The appellants thereby filed an answer, denying the material allegations of the complaint and specifically in an affirmative series of affirmative defenses setting forth those statements which we made in a motion to dismiss.

Now, the statue in question reads as follows: a person commits intimidation when with intent to cause another to perform or to omit the performance of an act he communicates to another a threat to perform without lawful authority anyone of the following acts in sub-section 3 commit a criminal offense.

The lower court held that the statute in question was overbroad because it prohibited insubstantial evil.

They said that the commission of offenses against public order only is not such a substantial evil that the state may prohibit the threat of it and they further stated that the prohibition of insubstantial evil is outweighed by legitimate political discussion on a wide birth.

There are two issues presented for review in this case.

One, whether the plaintiffs have sufficient requisites standing to entitle them to determination of the constitutionality of the intimidation statute and two, if they do have such standing whether the First Amendment prohibition against the abridgement of speech is violated by a state statute which prohibits threats to commit a criminal offense where the intention is to force another to surrender his freedom of choice.

Now, as to the standing point, the complaint shows the constitutional validity of five Illinois statutes: the map violating statute, resisting arrest, aggravated assault, aggravated battery, and intimidation.

There are seven sub-classes of plaintiffs.

Six of the sub-classes have been arrested in incidents prior to the filing of the federal declaratory complaint and whose cases were presently pending at the time that the federal declaratory suit was filed.

Justice Byron R. White: What are the -- were any of those suits under the intimidation statute?

Mr. Ronald Butler: None were under the intimidation statute, Your Honor.

Now, as far as the complainants who were not arrested but who were party's plaintiff, the complaint is the appellants' view it show no specificity with respect to the -- with respect to any factual allegations which can be shown to depict a depravation of constitutional right.

In my view, reading the 37 paragraph complaint there are six paragraphs which have anything at all to do with the intimidation statute and with the sub-classification of the plaintiffs who have challenged the statute under it.

That was paragraphs 8, 24, and 25, paragraphs 34, 37 (b) and 37 (f) but in each of those six paragraphs, the complaint is devoid of any specificity effect.

All we see are conclusory allegations.

I am intimidated because of the intimidation statute.

Now, the purported foundation for this case lies in two cases, Dombrowski versus Pfister and Zwickler versus Koota but in both of those cases, Your Honors, there were specificity effects at least in Dombrowski there were affidavits filed, there were offers of proof made in both Dombrowski and in Zwickler.

We have situations where there were prior arrests even though the arrests were not pending at the time of the federal declaratory relief.

And lastly, there was in the complaint a specific contention shown by the defendants to future arrest, to future violation of the plaintiffs' constitutional rights.

I submit that this case does not fall within the precept of Dombrowski and Zwickler but rather falls with the concept of DuBois versus Clark and the recent case of Golden versus Zwickler.

In DuBois, this Court declined to hear a situation where they said that the -- were just this Court said that the no specificity at all is shown.

In Golden versus Zwickler, we had a situation where the Court stated that the complaint failed to present probably because of the specificity -- lack of specificity of the complaint fail to present an actual case or controversy.

It is our opinion that the present complaint fails both to shows specificity or to show an actual case or controversy.

Justice William J. Brennan: Now, is the situation different at the time of the judgment you were calling Golden and we felt that the three-judge court had erred in making this determination of case of controversy on the allegations alone rather than on the situation as it's existed at the time of the remain?

Mr. Ronald Butler: Yes.

Well, --

Justice William J. Brennan: And what's your position?

Mr. Ronald Butler: We don't have any facts, Your Honor.

We have no facts.

Justice William J. Brennan: So that we do have to go back then to the complaint itself?

Mr. Ronald Butler: We have to go back to the complaint itself for purpose of the jurisdictional argument, yes.

We would be in the same situation as Zwickler versus Golden before this Court's second try.

Justice William J. Brennan: Well, I know but this argument based on Golden that's what I'm trying to get clear.

Mr. Ronald Butler: Yes.

Yes.

Justice William J. Brennan: Is this an argument that even on the face of the complaint there's no case of controversy in the sense of a live fight alleged within the four corners of the complaint?

Mr. Ronald Butler: That's our allegation, --

Justice William J. Brennan: Alright.

Mr. Ronald Butler: -- yes.

Unless this Court is prepared to allow that much more wide of latitude than it seemed that the intendment of Dombrowski was designed to protect.

Yes.

Secondly, as to the issue on the merits, the appellants contend that a statute which prohibits threats to commit a criminal offense where the threats are intended to force another, to surrender their freedom of choice is not within the purview of the First Amendment.

We contend this upon two factors.

First, in analysis of the thrust of the statute; and secondly the scope of the First Amendment with respect to threaten conduct where the intention is to force another to surrender their freedom of choice.

The lower court in this case in a very fine opinion found that the intimidation statute as a whole was designed to protect communications intended to compel another to act against his will.

The Court defined a threat then and they said a threat was an expression of an intention to inflict harm or evil against another.

They said that it was more than a mere intention however that it was a menace that it must unsettle the mind of the person on whom it operates and then it must take away from his acts that free and voluntary choice which would alone constitute consent.

They set further that the expression of that threat must have a reasonable tendency to be carried out by the threatener according to its tenor.

This is the definition of threat, this is a definition we abide by now yet when the lower court approach to sub-section involved it shifted its emphasis from the substantiality of the threat to the substantiality of the crime.

This, we feel is what precipitated the error in the lower court's decision.

The lower court itself stated earlier that the substantiality of the crime was not really the important thing because they said that a mere expression of intent to commit a criminal act was not itself sufficient under the statute that we need the final element of extortion which completes the prohibited act, which is the taking away of that free and voluntary action which alone constitutes consent.

So the substantiality of the evil must go to the threat and to the fear committed by that threat as far as the object of the threat is concerned, the victim, and not to the substantiality or the insubstantiality of the crime threat.

The Court made three illustrations to justify proposed -- their proposed opinion and the three illustrations were the following: a group of dissidents who asked for certain things or will commit disorderly conduct, people in a high crime neighborhood who asked for more police protection are failing to get a threat and to carry conceal weapons, and finally, group of mothers who threatened to block a highway should they not get a traffic regulatory signal.

And the lower court was of the opinion that since those crimes that they threaten was so insubstantial when measured against legitimate political discussion on a wide birth that the First Amendment should then protect those statements.

In those examples, the Court in looking to the crime threat failed to observe the main purpose in spirit of the statute toward the person threatened.

The substantiality of the threat could be great and the substantiality of the crime need not be great, need be insignificant and can be insignificant.

One example of this would be a threat by an individual to burn two pieces of lumber placed together in the form of a cross in an open field next to a school which is to be integrated the next day.

A situation involving a substantial threat, but yet of an insubstantial crime.

A further example individuals on a campus who approach the chancellor and tell the chancellor that unless their demands are met within five days, that they are going to disrupt classes, that they are going to take over his office, they're not going to threaten him personally or physically, they're not going to destroy the building but they're just going to make it impossible for the school to function.

This would be a situation where the threat would be very substantial but yet the crime might be nothing more than disorderly conduct.

It is appellant's contention that this type of examples along with the example cited by the lower court which fall within the purview in concept to this statute and that the statute is valid.

In essence then with the lower court seems to be saying is that the threat of an insignificant crime when they said that the threat of an insignificant crime should not be punished, they are really saying that a little bit of illegality is not so bad and can be protected by the First Amendment so long as speech is involved.

In examining this issue in the light of First Amendment protections, it doesn't seem to meet the category of the First Amendment preserves.

An extortion by threat is not the advocacy of ideas, it's not the teaching of ideas and it's not the exposition of ideas.

It's not legitimate political discussion on a wide birth.

The entire history of the cases of this Court from Baldwin versus Robertson in 1896, to the statement made in Carroll versus President and Board of Commissioners of Saint Anne's County late last year seem to indicate that speech uttered in a context of violence or speech uttered to follow an illegal course of conduct are not prohibited -- are prohibited rather by the First Amendment.

The First Amendment should not protect that type of conduct.

And on our brief on page 18 and 19, we have set forth a myriad of cases respecting this point.

I should just like to mention a few.

In Bridges versus California where this Court a contempt case where this Court reversed the contempt conviction, this Court was very clear to point out that under no construction therefore and I'm quoting directly, “under no construction therefore, can we take the telegram of Bridges to be a threat to follow an illegal course of conduct?”

In Chaplinsky versus New Hampshire where this Court said fighting words are no essential part of any exposition of ideas.

In American Communications versus Douds where the majority set the Government may cutoff a speaker only when his views are no longer merely views but threatened clearly and imminently to ripen into conduct into which the public has a right to protect.

And even Roth and Smith in the concurring and dissenting opinions, the dissenters or the individuals who concurred stated that freedom of expression can be suppressed if and to the extent, it is so closely brigaded with illegal action as to be an inseparable part of it.

Your Honors, the approval of a little bit of illegality constitutes the doctrine of permissive lawlessness which this Court has never sanctioned and which I hope it never will.

How can we allow individuals or pressure groups to exact gain from others based upon the threat to commit a criminal offense and at the same time maintain that we lived under a system of order, under a system where First Amendment rights are protected under a system or individual rights are first and foremost?

I don't think we could live with the opinion of the lower court in so state.

In conclusion, the effect of the decision of the lower court is to insulate via the First Amendment threatened acts which force other individuals to surrender their freedom of choice.

The statute under consideration when measured by the scope of the decisions of this Court failed to transgress upon the sanctity of free expression of ideas, since the protection of the right of another as freedom of choice stands upon as equal footing as the right of the speaker to say it.

Justice John M. Harlan: Could I ask you a question going back to your standing point?

Mr. Ronald Butler: Yes, sir.

Justice John M. Harlan: Your statement that find on its face fails to say any charge formal or informal of a particular statute the District Court held the Constitution in the particular section, is that challenged by your opponent?

Mr. Ronald Butler: Yes, he challenges, yes.

Did you ask if my opponent challenged it, Your Honor?

Justice John M. Harlan: Yes.

Mr. Ronald Butler: Yes, he says that there is sufficient standard.

Justice John M. Harlan: I understand that but I understood your statement was that as to the group of that that you were charged formally charged or something this particular statute District Court relied on the intimidation statute was not involved and you're charged?

Mr. Ronald Butler: That's correct.

No one was --

Justice John M. Harlan: I understood you to say that the defendants who were not properly charged.

There is no allegation in the complaint that they were threatened.

Mr. Ronald Butler: There's an allegation -- yes, there is an allegation that they were threatened but it is our contention that the allegation and the complaint is conclusion only.

There are no facts to support that.

They said that they were threatened, yes.

Justice John M. Harlan: In my recollection, the complaint is perhaps I'm wrong is that in one general allegation beginning they list this intimidation statute among the others when --

Mr. Ronald Butler: Yes.

Justice John M. Harlan: -- they come down to say what specific defendants are complaining about this intimidation statute is not the first.

Mr. Ronald Butler: That's correct.

Justice John M. Harlan: Am I right?

Mr. Ronald Butler: That's correct although later on they then restate in a conclusory fashion that they are intimidated and harassed by the intimidation statute, yes.

Justice Byron R. White: No, but they don't allege any state officer actually threaten them with prosecution --

Mr. Ronald Butler: No.

Justice Byron R. White: -- to the statute?

Mr. Ronald Butler: No, they don't Your Honor.

Justice John M. Harlan: Of anything?

Mr. Ronald Butler: That's correct.

Justice Byron R. White: They alleged that they feel threatened?

Mr. Ronald Butler: They alleged that they feel threatened, yes.

That's my reading of the complaint, yes.

Justice Byron R. White: And as a matter of fact they say they are deterred from --

Mr. Ronald Butler: Yes.

Justice Byron R. White: -- advice in their (Voice Overlap).

Mr. Ronald Butler: Yes, that's correct.

Justice Byron R. White: Now, is that conclusory?

Mr. Ronald Butler: I think it's conclusory, yes.

I think we need something along the lines of Dombrowski in the sense of when and how and where, how did this happen, can you just say that I have been intimidated?

Justice Byron R. White: Well, can you say there are some demonstrations that I would engaged in except for this statutes, is that (Voice Overlap) for you?

Mr. Ronald Butler: I think there are many demonstrations that one could engage in and still live with the statute, Your Honor.

Justice Byron R. White: No, that's not my question?

Mr. Ronald Butler: Maybe I didn't understand.

Justice Byron R. White: Well, they say there are some demonstrations that we would engage in except for the statute, is that too general an allegation satisfied?

Mr. Ronald Butler: I think it is, yes.

I think it's quite general.

Justice Byron R. White: Can you say on there was a demonstration on such and such a date that I did engage in?

Mr. Ronald Butler: No, I think it would be -- I think it would be more valid to say that we were going to involve ourselves in the demonstration that we have been specifically harassed by police officers --

Justice Byron R. White: You mean it has to be specific action by the state under the statutes?

Mr. Ronald Butler: I would think that there should be, yes.

Yes.

Justice Byron R. White: Some allegation?

Mr. Ronald Butler: Some allegation of it, yes.

Justice Abe Fortas: Is this the only statute in the State of Illinois that covers some intimidation, commercial intimidation for example that suppose hey, a gangster goes to a store, the owner of a store and says unless you pay me hundred dollars a week we'll burn your store?

Mr. Ronald Butler: Yes, this is the only statute with its seven sub points, one of which is (Voice Overlap) --

Justice Abe Fortas: How do you construe the effect of the Court's judgment here?

The Court says, as I understand it, that this statute is hereby declared unconstitutional, null and void and then it violates the Due Process Clause of the Fourteenth Amendment of the Constitution, is that right?

Mr. Ronald Butler: Well, they -- no, no, no.

Well, they said it was maybe that's true but the basis of it is it violates the Fourteenth Amendment because it's overbroad because it sweeps unnecessary broadly over (Voice Overlap) --

Justice Abe Fortas: Now does that, as you understand it would that mean the Court's judgment here mean that the statutes unavailable to the state and situation that I have discussed?

Mr. Ronald Butler: Yes, absolutely with respect to sub-section (a) (3), yes.

Justice Abe Fortas: Sub-section (a) (3)?

Mr. Ronald Butler: Which is the only sub-section on appeal before this Court, yes, but the --

Justice Abe Fortas: And that this is not equivalent to a holding confined of the First Amendment area.

Mr. Ronald Butler: I couldn't believe that that's true Your Honor.

Justice Abe Fortas: Because there's nothing to do with any -- with the application of the statute.

Mr. Ronald Butler: That would be correct, yes.

Thank you, Your Honor.

Chief Justice Earl Warren: So, if you -- in your opinion if the decision below is sustained even a substantial threat a serious threat or a serious crime would not be punishable under this section?

Mr. Ronald Butler: That's correct.

It would have to come under one of the other sections and may I state to the Court that there are other specifically enumerated crimes such as bribery, perjury, theft, pass of anything which conspires concealed weapons are concerned which be within the confines of sub-section (a) (3) but not within the confines of sub-sections (1), (2), (4), (5), (6) and (7) which would fall as well along with this legitimate political discussion.

Chief Justice Earl Warren: I think these crimes that once bothered American City so much like the rush -- the extortion racket and the cleaners-and-dyers racket and all those others, do you think so far as this sub-section was concerned those prosecutions would be wiped out?

Mr. Ronald Butler: I believe so, Your Honor.

I think the legislature try to make specific wherever they can and each of the sub-sections and then they put in the final section which still was narrow limited to the prevention of threats to commit a crime and still take in the areas which were not covered by the other sub-sections.

Justice Byron R. White: But you do have some independent criminal statutes that -- against extortion?

Mr. Ronald Butler: No, not against the extortion, Your Honor.

We have the specific criminal sections when the Act is completed as far as the extortion is concerned --

Justice Byron R. White: But this is the only threat?

Mr. Ronald Butler: Except for Section 33 (3) which have to do with extortion by public officials which is the old common law extortion.

That's the only other extortion intimidation statute we have, yes.

Thank you, Your Honor.

Chief Justice Earl Warren: Mr. Reid.

Argument of Ellis E. Reid

Mr. Ellis E. Reid: Mr. Chief Justice, may it please the Court.

Basically, to begin I'd like to point out and quote from the page 8 of my brief “legitimate political expression intended to secure changes in society's legal, political, social, or economic structure.

Frequently, takes the form of expressions about future events or conditions such expression may be in the form of promises, predictions, or warnings, or threats of an unlawful -- threats of lawful action.

Now, apparently the basis of this appeal is that the court below deemed it inappropriate to circumscribe a threat of miniscule illegal activity but what we have here is really a collision between the right of certain individuals in this society to exercise what has been historical and classical First Amendment freedoms and the right of a state to protect itself and to protect the order of liberty which -- without which we would not have any freedom of speech.

So, we've always -- we always do have a conflict in this area and this Court has in many -- on many occasions try to resolve a conflict but now we have a statute before this Court which the state contends is an extortion statute in the classic sense, it is not.

This statute does not require the defendant to take or to attempt to take anything of value from the purported victim.

I say it's not an extortion statute.

It is overbroad and extortion statute could've been drawn to protect a state against that evil and in fact, you have Section (a) (1) of that statute which is not here on appeal and which would remain valid which says of course the threat of inflicting physical harm on the person threatened or any other person or on property.

Now, if they want to protect people from extortion, I say well, in good the state has an interest in that which is substantial but when you deal with what they term as the right of a public official to have freedom of choice, I say you made the statute so broad as to really put a five year news or a $5,000.00 fine around anyone's neck would have it to merit to publicly utter that we will march around Mayor Daley's house and violate let's say an ordinance which would maybe cause us to pay a hundred dollar fine at the most.

Now, we must face five years in the penitentiary or pay a forfeit $5,000.00.

This is the real guts of this particular case.

The statute also makes criminal the threat to commit a criminal offense without regard to the degree of the threat.

This is the point I'm making.

In other words, if you carry out the threat in its final analysis and its one to violate a misdemeanor and it will be punishable only by fine, why then when you take it one step back and say, I'm going to do this tomorrow?

Now, you face five years in the penitentiary.

I suggest to you that this is the reason that the court below struck this particular portion of this statute.

Now, --

Justice Abe Fortas: Don't you have to have another element under this statute which is take your example in Mayor Daley unless you fire the superintendent of schools we're going to commit this misdemeanor --

Mr. Ellis E. Reid: Yes.

Justice Abe Fortas: -- around your house?

Mr. Ellis E. Reid: That's correct and I think that --

Justice Abe Fortas: But in that element of the threat is not part and lets say part of the suppose misdemeanor.

Mr. Ellis E. Reid: That's correct.

In other words, in every form of let's say direct action protest there is always an evil that you're trying to get rid off or there is always some change in the society that you're trying to bring above.

So I'm saying that this statute when you take just historical direct action protest it elevates what has been the exposure of using misdemeanors and punishment by fine or short detention to the area of a felony and I think that it puts a chill on legitimate free expression of ideas and a chill on the right of individuals to determine that they will do something in a way to bring about legitimate change.

Justice Abe Fortas: Has there been to get around of the first question which I assume you're going to make?

Has there been any threat of invoking this statute against any of the plaintiffs here?

Mr. Ellis E. Reid: Well, in --

Justice Abe Fortas: (Voice Overlap) of the appellees here?

Mr. Ellis E. Reid: Yes in the complaint, we alleged a scheme and we alleged a conspiracy and alleged the chronology of events.

But most of which in fact all of which took place in 1967.

There were a series of mass arrest in Chicago involving about three or four incidents separate distinct incidents.

There are seven sub-classes in the total class action presented to the court below.

Justice Abe Fortas: But nobody then used the intimidation statute.

Mr. Ellis E. Reid: They did not arrest anybody for the intimidation statute but we alleged they threatened to do so and it would be a question of whether or not we could prove that they in fact threatened to use this particular statute but we were going to prove that there were meetings of officials and they have set about a scheme of high bonds and to use everything at this disposal including the statute.

Justice Abe Fortas: Did you specifically allege a threat to prosecute under this statute?

Mr. Ellis E. Reid: I believe we did.

Now, whether or not it is a conclusion as my opposing counsel said I would say that we alleged it as a fact and --

Justice Abe Fortas: Well, I missed that if you did and I haven't seen that and I'd like to be directed to it if there is such an allegation.

Mr. Ellis E. Reid: Pursuant to, this is page 17 of the appendix and this is paragraph 34 of the complaint.

Pursuant to the aforesaid plan or scheme, defendants have threatened to continue -- no, strike that, have threatened and continue to threaten to enforce the said unconstitutional, void and illegal statutes and ordinances against the plaintiffs herein for the sole purpose of arresting, intimidating, subjecting and causing to be subjected plaintiffs and their members.

Now, I suggest to you that this statement met all of the statutes including the intimidation statute and I would like to point out.

I think at the page 18 also which is paragraph 37 (a) where we alleged as a result of those threats.

Now, we never really dug down to the factual issues because we felt that we could prove that there were meetings of the chief judge, meetings of the states attorney's office and that they had gone over all of these statutes and we didn't just pull the statutes on that.

These were the statutes that we had on information and believed that they were going to use in the scheme of dealing with so-called mass arrest situations.

Now, we alleged that threat.

Now, I -- we didn't name names or dates and meeting places --

Justice William J. Brennan: Well, may I understand this?

Your proofs would've gone only so far as to show that there had been as I understand you meetings of these various law enforcement authorities where there had been discussion each of the statutes.

Mr. Ellis E. Reid: That's correct.

Justice William J. Brennan: Now, that they in the event certain things happened they would bring to bear these statutes, is that it?

Mr. Ellis E. Reid: That's correct.

Justice William J. Brennan: But was there ever anything in the way of coming anyone of these appellees and saying in this is what we're going to do if you do that?

Mr. Ellis E. Reid: Well, I would suggest no.

No one ever pointed a finger at us and said they were going to do it directly to us.

Justice William J. Brennan: And you don't have any allegation in here do you that that threat of the kind that I've just suggested was ever made?

Mr. Ellis E. Reid: No, not a direct threat by suggest to the Court that a threat can be just as ominous if it's indirect and it gets back to you by a third party as if the finger was pointing in your faces that we're going to do this to you.

Justice William J. Brennan: Well, I would suppose law enforcement authorities must be doing this sort of thing everything in the week, aren't they?

They got anticipate if certain things arise they may have to bring the bear in the circumstances particular statutes, don't they?

Mr. Ellis E. Reid: But the question here is one of standing in one of chill and one of (Voice Overlap) --

Justice William J. Brennan: Well, it might be not what I'm telling -- I'm not thinking to those so much as I can the issue which of course we dealt with here only in Golden since --

Mr. Ellis E. Reid: Yes, but I would --

Justice William J. Brennan: And the issue where I don't see how you frankly how this alleges within the principle of Golden, a case of controversy.

Mr. Ellis E. Reid: Well, in Golden, the language that I've picked out of Golden states that the difference between an abstract question and a controversy contemplated by the Declaratory Judgment Act is necessarily one of degree and it would be difficult if it would be possible to fashion a precise test for determining in every case whether there is such a controversy.

Basically, the question in each case is whether the facts alleged under all these circumstances show that there is a substantial controversy between the parties having adverse legal interest of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.

Now, I'm asking this Court to take into account the fact that you have to look at all of the facts and circumstances as to what is alleged in the complaint.

Here, we have had experienced with the circumstances that we contend with or that we contended with in the mass arrest circumstances.

We have under gone the mass arrest of 60 people some of which were on their front porche.

Justice Thurgood Marshall: Mr. Reid, what experience did any of these people have with the statute that was held unconstitutional in this case?

Mr. Ellis E. Reid: What is it Your Honor?

I didn't under the question.

Justice Thurgood Marshall: What experience did any of your people had with the enforcement of this statute which was declared unconstitutional in this case?

Mr. Ellis E. Reid: With the intimidation statute only.

Actually, no one was ever charged so we had no experience other than let's say an indirect threat that the next time around will not only use mob-action but we're going to use the intimidation statute as well.

Justice Thurgood Marshall: An indirect threat?

Mr. Ellis E. Reid: Yes.

Justice Thurgood Marshall: That's sufficient to declare a statute unconstitutional?

Mr. Ellis E. Reid: I would say when -- whether or not the threat is indirect or direct it is still a threat and either I am going to be chilled in my feelings that I can go out and exert my First Amendment freedoms or not.

Justice Thurgood Marshall: Could you be chilled by rumor?

Mr. Ellis E. Reid: Well, I would suggest this was more than rumor.

Justice Thurgood Marshall: Well, weren't you chilled when the statute was passed?

Mr. Ellis E. Reid: Yes, we were but as a question of degree, Your Honor, and I'm saying we're little bit closer to this in to the spectrum.

Justice Thurgood Marshall: You just found it, didn't you?

Mr. Ellis E. Reid: What did you say?

Justice Thurgood Marshall: You just found the statute?

Mr. Ellis E. Reid: I didn't hear you.

Justice Thurgood Marshall: You just found the statute before this was filed?

Mr. Ellis E. Reid: Did we just find statute?

Justice Thurgood Marshall: Yes, sir.

Mr. Ellis E. Reid: Well, you mean so far as our drafting the complaint?

Justice Thurgood Marshall: Yes, sir.

Mr. Ellis E. Reid: Well, I would suggest it didn't start from our end as to which statutes we were going to sit down and try to get the Court to define to be unconstitutional.

I suggest that in light of what was happening and in light of what we felt was going to happen to our plaintiffs below and appellees here that we said in light of these statutes where they have already taken action and we have this history behind us now and in light of the fact that we're being threatened in the future by the intimidation statute, let's file a complaint taking care what has gone before, the mob-action, disorderly conduct as well as intimidation because we want perspective relief as well as -- I mean you know as well as dealing with history, and then --

Justice William J. Brennan: And then everyone of this case is so far Mr. Reid I think this is right, isn't it in the Golden, Zwickler had been arrested and convicted on one occasion --

Mr. Ellis E. Reid: That's correct.

Justice William J. Brennan: -- violation of the statute involved.

In Cameron and Johnson after the statute was enacted the police came down and they arrested all of the picketers.

In Dombrowski, we had raids on the plaintiffs' offices and the call and taking all that papers and all of the rest of it.

And I guess actual indictments of them under some of those Louisiana's statutes.

Now, you're carrying us pretty far, aren't you?

We suggest that merely, merely because officers get together and decide that they're going to cope with this developing situation by applying this and not any of statute but no threat of any kind to any particular individual under your client was in fact threatened to the prosecution under this or in fact threatened that the statute will be brought to bear if he carried on misconduct.

We don't have anything like that.

Mr. Ellis E. Reid: Well, I'm suggesting to the Court that, Your Honors, and from your question I can take the attitude or the idea from that that you feel that a police officer must first come down or a state's attorney and say, I'm going to charge you Ellis Reid.

Justice William J. Brennan: Now, what I'm suggesting Mr. Reid is that the cases where --

Mr. Ellis E. Reid: I understand.

Justice William J. Brennan: -- this issue or isn't have all been cases where on the fact the statute was actually applied against the plaintiff who sought the relief, the declaratory relief.

Mr. Ellis E. Reid: That's correct and I would --

Justice William J. Brennan: And here, at least we don't have that factual situation.

Mr. Ellis E. Reid: That is a difference.

But I'm suggesting that even though that is the difference and I recognize that to be a difference, I'm not trying to minimize that I'm saying when you put you can't try this case in a vacuum surely if you said nothing else that happened before.

You might be right, it would be pretty remote but when you have the chronology and the dealing with the plaintiffs below with the other statutes they were in fact applied.

I think that they -- the threat became so imminent and immediate and there wasn't actual controversy between live litigants at that point although the indictment had not fall.

And no one had come down to make an arrest.

I still think although we were in court perhaps early I don't think we were in court too early as to make the issue one that would be not an actual case of controversy and I'm asking you to really look at the factual circumstance involving the mass arrest situation where the use of the statutes and we cannot divorce this statute from the total scheme of things.

I'm saying, it's the total scheme of things.

Justice Byron R. White: Well, did this case come up on a motion to dismiss?

Mr. Ellis E. Reid: I did.

Justice Byron R. White: But it was –- they're after an answer?

Mr. Ellis E. Reid: No, they came up on a motion to dismiss before Judge Will alone and it was denied.

Justice Byron R. White: He denied -- that denied motion to dismiss?

Mr. Ellis E. Reid: That's correct.

He felt that there was subs -- sufficient allegations to state a claim and of course now that point we were not split off between intimidation mob-action, disorderly conduct (Voice Overlap) --

Justice Byron R. White: There's never been any facts.

Mr. Ellis E. Reid: -- for this arrest.

Justice Byron R. White: Never been any facts in this case at anyway?

Mr. Ellis E. Reid: Other than on -- in some other circumstances what Judge Will termed as ad hoc hearings involving whether or not he would enjoin particular prosecutions which came at a subsequent point in time.

There were of course facts but there was never been a evidentiary hearing dealing with the threat or the nature of the threat involved in this intimidation statute.

Justice Byron R. White: Now, I take it that the state is saying that your allegation in section -- in paragraph 34 which is an expressed allegation that the defendants have threatened the plaintiffs, was not a sufficient allegation to sustain -- to survive a motion to dismiss?

Mr. Ellis E. Reid: That's what they're saying and of course the court below sought our way that it was substantial and it's the question of semantics whether or not this is a conclusion.

Justice Byron R. White: Well, I know but whatever the actual facts were is another matter, the question is sufficiency of this allegation?

Mr. Ellis E. Reid: That's correct.

Justice Byron R. White: When you -- the question is whether you must not only say you've been threatened but then go on and allege specifically how you been threatened on a certain day or by a certain letter or by words or telephone call or what?

Mr. Ellis E. Reid: That's the issue and of course we contend that in the totality of the complaint that we have made out a case on the pleadings when you read the complaint as a whole not picking out certain portions and forgetting others but when you take it as a whole that we have stated a cause of action upon which relief could be granted and that's the way the case was presented below and I would urge the Court to deal with it in that fashion here.

Justice Thurgood Marshall: Well, what to do we do with the states specific denial of 34?

Mr. Ellis E. Reid: Well, I would say that --

Justice Thurgood Marshall: What did they do with that?

Mr. Ellis E. Reid: -- at that point, we did not really get to an evidentiary hearing because basically the --

Justice Thurgood Marshall: Did you say -- you say you were threatened and the states say you were not threatened?

Mr. Ellis E. Reid: That's correct.

Justice Thurgood Marshall: Now, on basis of that that's all the Court had to go?

Mr. Ellis E. Reid: That's what the Court had before, yes.

But specifically, though I have raised the point in my brief and I would like to just to point out to the Court now though I see that the Court has a great deal of interest in this point probably in light of Golden.

But I perhaps I was in error when I pointed out that this matter comes here really on a direct appeal and in their jurisdictional statement it is our contention that this issue was not fairly complies with in that jurisdictional statement and therefore this particular issue is not before the Court.

Now, I'll -- I understand that if the Court wants to deal with this as a jurisdictional requisite then the doctrine of waiver may not apply but it's our contention that this particular standing argument has been waived because it was one wherein an appeal should've been taken directly to the Court of Appeals because it was based on a decision of a single judge.

Justice Byron R. White: But you don't waive that's the jurisdictional matter, isn't it?

Mr. Ellis E. Reid: Well, that's why I'm saying if that is a matter of jurisdiction then I would say that it would not be one that could be waived but I don't feel that under the circumstances here that it would be a matter of jurisdiction.

Justice Byron R. White: Did the state ever move to dismiss or one of jurisdiction or did they just move to failure to state of claim?

Mr. Ellis E. Reid: That's what based; they move a failure to state of claim and the Court decided against it.

Justice Byron R. White: And they thereby admitted rule --- their allegations of 34, did they?

Mr. Ellis E. Reid: They did what?

Justice Byron R. White: They must have admitted --

Mr. Ellis E. Reid: Well, I don't have a copy of the answer before me now but and of course unfortunately Mr. Tucker below argued the matter --

Justice Byron R. White: -- what to dismiss before Judge Will as dissenting judge.

Mr. Ellis E. Reid: Yes.

Justice Byron R. White: That was just a motion to dismiss and prepare the state of cause of action?

Mr. Ellis E. Reid: That's correct.

Justice Byron R. White: And for that -- for those purposes they admitted your allegations?

Mr. Ellis E. Reid: That's correct, for those purposes and they have never really --

Justice Byron R. White: And they never move to dismiss for one of jurisdiction?

Mr. Ellis E. Reid: That's correct.

I would say that if you read their motion to dismiss it does not really articulate one of jurisdiction.

I think it's found beginning at page 30 of the appendix.

Justice Byron R. White: But then after the three-judge court was convened they didn't file their answer denying 34?

Mr. Ellis E. Reid: That's correct and then the three-judge court ruled.

Justice Abe Fortas: Now you challenged quite a lot of statutes didn't you in your initial complaint?

Did you challenge all of those statutes that listed beginning on page 25 of the transcript in record of the appendix?

Page 25.

Mr. Ellis E. Reid: 25 of the appendix?

Justice Abe Fortas: Yes.

Mr. Ellis E. Reid: Let's see.

Justice Abe Fortas: Did you challenge all those?

Mr. Ellis E. Reid: No.

Well, basically, no.

We challenged the disorderly conduct ordinance 93-1 -- 193-1.

We challenged the mob-action statute.

We challenged the intimidation statute and I believe the resisting arrest ordinance and there were some few others which we -- I don't have a copy and see where which we withdrew more or less are challenged for the court below.

Basically, it was two ordinances and two statutes and that were challenged below.

Justice Hugo L. Black: Which two?

Mr. Ellis E. Reid: Two statutes were mob-action and the intimidation statute which is before this particular Court.

The other ordinances were dealt with by the single judge, Judge Will below.

He separated them saying that they felt that it was not for a three-judge court being that they were only ordinances of lawful application.

Justice Potter Stewart: How did this list on page 25 get in this appendix, there are some (Voice Overlap)?

Mr. Ellis E. Reid: I don't know.

I did not make a point of it, I read it but I really -- I guess what this is on page 25 is really a listing of the grand page of the city counsel of the ordinances that fall under Chapter 193 of the Municipal Code of Chicago that obviously --

Justice Abe Fortas: But that attached to your complaint, wouldn't it?

Mr. Ellis E. Reid: I just -- I don't think this was attached on plaintiff.

We said out if I have the -- I have not looked at it.

Justice Abe Fortas: As part of exhibit (a) as I see it to your complain here in statutes and ordinance --

Mr. Ellis E. Reid: Well, I would say this although it might've been it was just an index or maybe all of the available ordinances under Chapter 193 but we only challenge 193 (Voice Overlap).

Justice Abe Fortas: (Voice Overlap) Do you contend that you really are in danger of being arrested for advertising psychic or magical powers or for promotion of marriage or spiritualism and fortune telling, do you?

Mr. Ellis E. Reid: Well, basically, this, I guess when we realize that many of these ordinances that were passed was specific reasons all of which or some of which have long since cease to have any meaning.

Maybe I did not -- I would say deal with this particular portion of a complaint and I don't know why it was put in there.

Maybe it was to show that they have many, many ways to control us and what we specifically were dealing with disorderly conduct.

Justice Abe Fortas: Well, the real problem it's not merely matter amuses me but it sort of highlights the real what is a real problem in this case to me which is whether you can go through a statute book and without any specific or explicit basis and threats of enforcement you say against you whether you can just go through a statute book and pick out statutes that might conceivably be used by the police and a civil rights demonstration and then bring an action based on Dombrowski seeking relief or whether you've got to have a specific basis and specific threats, specific harassment, specific action taken under a specific statute before you can utilize Dombrowski.

That's the issue here and this long list is merely a humorous illustration of a kind of intellectual problem and legal problem that I suspect is very real in this case.

Mr. Ellis E. Reid: Well, I would ask the Court to reach a middle ground from what you've said.

I think there is a point in between those two poles, in other words, I would agree this Court should not sit to hear contrive not substantial litigation where one would go to a statute book and dig them out.

But I think also we should not in the area of the First Amendment freedoms and this is why I think this is unique.

And this I think is the reason for Dombrowski, wait until someone has been tried and convicted before they would have standing before this Court.

I think that this particular case presents a factual circumstance of that middle ground.

There was a scheme that was entered into and upon where we were arrest, where we were intimidated, where we were thrown into jail with high bonds and where there were meetings and where the police prosecutors start going to the statute book and we heard about it and we got to Court before they did.

Now, I don't think that we lose our standing by beating them to Court and that's what the issue I'm trying to impress upon this Court.

I think that when I say look at the totality of the chronology of events.

Justice Abe Fortas: Yes, but the question perhaps is whether you have this by general allegation listing some general statutes and then inserting a general allegation that you're threatened with harassment under those statutes, that's your paragraph 34.

Mr. Ellis E. Reid: Well, Mr. Justice --

Justice Abe Fortas: Whether you made out a basis saying whether you made out -- whether you got a complaint that really comes under Dombrowski.

And on Dombrowski is quite a different kind of case when it's at least arguable that Dombrowski is quite a different kind of case then you've been presenting to us with respect to the intimidation statute because all you have alleged here is very general statement embracing a number of statutes without any particularization and embracing and alleging a general danger of prosecution again so far as this statute is concerned without any particularization.

Mr. Ellis E. Reid: Yes, I can see your concern but again I'm saying that had nothing occurred, had no one been arrested other than the many, many people who were arrested perhaps you would be right.

But here, we had a serious of arrest, mass arrest and here, we had all be -- other statutes and ordinances as used.

It showed a scheme to deal with this type of protest activity in a certain way.

I think then we're in a different position and we then perhaps and I'll urged upon the Court, I think we would have the right to then alleged they're not only going to use the ones they've already arrested us on but we might it call it pendent jurisdiction or whatever you want to deal with but I'm saying to deal -- to get away from securities litigation.

That's deal with the total problem now because they now or threaten now used mob-action in disorderly conduct.

They have threatening to use intimidation too.

So, we therefore put it in as part and parcel of this complaint and therefore I feel that the court below had jurisdiction and I feel that as I stand here now, I have standing to sue and to the right to attack the intimidation statute also as well as the ones that we've attacked below with proper standing and I'd say well, with no allegation below that we did not have proper standing.

Basically, for those reasons I'd like to urge that the Court affirmed the court below because unless we have a basis for dealing with these matters with in the framer of the courts.

All of those things which they urged about taking to the streets in a righteous way may come to pass.

And I would suggest that when we tighten the news around people's neck and it become frustrated.

They have no way to go but the mostly illegal way.

Thank you for listening.

Chief Justice Earl Warren: Mr. Butler.

Rebuttal of Ronald Butler

Mr. Ronald Butler: Several short points on rebuttal, Your Honor.

Chief Justice Earl Warren: Very well.

Mr. Ronald Butler: First of all in answer to Mr. Justice White's question with respect to the pleadings on page 30 of the appendix, first point under the motion to dismiss is that this Court has no jurisdiction and it's been re-alleged --

Justice William J. Brennan: And was that argued in the context of case of controversy?

Mr. Ronald Butler: It was argued in the context of case of controversy and the memorandum that was filed, yes which is not a part of the appendix.

Justice William J. Brennan: It doesn't appear on this Judge Will's opinion on motion to dismiss.

Have you dealt with this in the context of declaratory judgment but rather in the injunctive relief?

Mr. Ronald Butler: He dealt with in the context of Dombrowski generally, Your Honor where there is a statement I believe on page 487 of Dombrowski which said that the minimum requirements of standing I have been lessen and the Court -- the three-judge court on page 64 of the appendix footnotes 25 and 26 repeated that statement and in the manner and which seem to indicate that the standing requirement was lessened.

Justice Byron R. White: Yes.

But at least you never did address himself specifically to the elements of either injunction of declaratory judgment with respect to the intimidation or to the threat statute?

Mr. Ronald Butler: Yes, I believe and I'll furnish to him.

I believe he tried to attribute it toward the declaratory judgment face not the injunctive face.

I think he is --

Justice Byron R. White: Well, I don't see him even mentioned declaratory.

Mr. Ronald Butler: Well, no.

Well, maybe not in the opinion I mean probably not in the record but I was cognizant at least --

Justice Byron R. White: But either declaratory general injunction was not in either aspect you didn't talk about --

Mr. Ronald Butler: No, that's --

Justice Byron R. White: -- statute?

Mr. Ronald Butler: That's correct but we must remember that Zwickler versus Koota had been decided at the time of this and he was cognizant though but although it doesn't appear.

Also as far as paragraph 34 is concern, Your Honor, I see no different between the allegations which I can contend that conclusory in that respect or in a civil case where I state that some else was negligent and someone else committed it toward against me.

I think that's conclusory, I don't think that has any kind of even quasi-specificity and I think I could take paragraph 34 and I've as have been pointed out by one of the justices earlier and include every single state of Illinois criminal statute in paragraph 34 because all I have to say that I'm in fear.

Justice Byron R. White: Does the 34 says more than that?

34 says defendants have threatened.

Mr. Ronald Butler: Well, I think that's the same allegation could be made.

The defendants have threatened to use every single statute.

Justice Byron R. White: Do you think that on a motion to dismiss for failure to state -- an equitable claim that you could say that you have threatened these people?

Mr. Ronald Butler: I think so, yes.

Because a motion to dismiss admits all well pleaded allegations but the question is whether that's well pleaded.

Justice Byron R. White: So you wouldn't admitted by that motion to threat anybody?

Mr. Ronald Butler: No, I would admit only well pleaded allegations and something says I've been threaten, it's the same of saying I've had it toward committed against me.

Justice Byron R. White: Well, I know but --

Mr. Ronald Butler: Someone has been negligent.

Justice Byron R. White: This says defendants have threatened and continued to threaten.

Mr. Ronald Butler: When someone says a defendant is threatened, that's a conclusion.

How did the threat come above?

That's a conclusion based upon something else with something else is not involved here.

Justice Byron R. White: That's just a general description of facts isn't a conclusion.

Mr. Ronald Butler: I respectfully disagree with as far as that's concern.

I think it's not.

Justice Byron R. White: Yes.

What do you think a conclusion is?

Mr. Ronald Butler: I think a conclusion is something that's based upon series of other statements.

I can't say that I committed a negligent act against you and have a complaint with stand and motion to dismiss.

I can say that you injured me as far as certain time and place in automobile when you went into the back of my automobile.

I could make a conclusion from the basis of those statements but I can't just make the statement and expect to withstand a motion to dismiss.

Justice Byron R. White: Do you have any cases indicating this kind of a -- allegation as insufficient?

Mr. Ronald Butler: No, I have no cases Your Honor.

I --

Justice Byron R. White: Anywhere?

Mr. Ronald Butler: No, I've been -- Dombrowski and Zwickler and the rest of the cases have been quite difficult and up until Golden versus Zwickler was taken, I didn't know myself whether standing argument would be sufficient in this case.

Justice Thurgood Marshall: What about a civil court action in which the allegation is made that the six defendants threatened to be with vital harm, do you think they would stand that?

Mr. Ronald Butler: I think there would have to be something more Your Honor.

Justice Thurgood Marshall: Like what?

Mr. Ronald Butler: Like time, like place --

Justice Thurgood Marshall: Which is evidence?

Mr. Ronald Butler: Well, --

Justice Thurgood Marshall: Which you don't use to plea.

Mr. Ronald Butler: It can, yes.

It can be over this time.

Justice Thurgood Marshall: Why do you run off the point that you filed an answer and denied it?

Mr. Ronald Butler: No, I'm not running away from it, Your Honor.

I'm not running away from it at all.

The answer was filed, there was a denial.

Chief Justice Earl Warren: Very well.

Print this transcript Transcript: 

Argument of Dean H. Bilton

Chief Justice Warren E. Burger: We'll hear the arguments in number 6, Boyle against Landry.

Mr. Bilton, you may proceed whenever you're ready.

Mr. Dean H. Bilton: Mr. Chief Justice and may it please the Court.

This is an appeal from the entry of interlocutory injunction by a three-judge court after that three-judge court found one subsection of the Illinois intimidation statute unconstitutional on its face.

That court said that the statue was over broad.

The statute is part of the Illinois Criminal Code, Chapter 38, Section 12-6 (a) (3) and it's a rather short statute and may I just read it to you.

It says that a person commits intimidation when with the intent to cause another to perform or to omit the performance of any act, he communicates to another a threat to perform without lawful authority any of the following acts, and the part that we are involved with today is a threat to commit any criminal offense.

I was quite shocked this morning when I opened up the Washington Post and found out that this was supposed to be a case that dealt with violence and some kind of mob action and for a year and so in the Law Week they ascribe this is some kind of a statute that prohibits threats.

This statute does not prohibit threats, it is not a public order statute.

This statute is a crime against a person and it's so codified in Illinois.

This is an extortion statute, an extortion is a robbery.

The only difference between extortion and robbery -- robbery is, "give me your money or I'll do something to you right now" and extortion is, "give me your money or I'll do something to you in a short while or a little bit later."

And I see that this morning we are joined here with the Younger case which is the Criminal Syndicalism case and the Samuels' case and Fernando's, all of them involving anarchy and public order.

The gun case coming up tomorrow is disorderly conduct case, Dyson and Karalexis are obscenity cases.

This case is quite, quite different.

This is a crime against a person and the object of protection here is the person and his right to keep his money in his pocket and we think that threats to take that man's money away or threats being used as weapons to remove that money are never considered free speech and for that reason of course, we feel that very initially this statute is just not unconstitutional, it's being a violation of the First Amendment.

We may have misled this Court in reaching these conclusions about this being a statute that prohibits threats when we set out our question presented on page 4 of our brief.

Our question presented said that this statute is an extortion statute that deals with threats to commit crimes.

A more accurate statement would be that this was a statute that prohibits one from taking or attempting to take the property or to protect the rights of another through the use of threats to commit crimes.

And we think it's in that light that this statute ought be viewed.

The very first issue in this case is one of standing.

The plaintiffs here were seven subclasses of black people in Chicago, all claiming to be black activists and all under certain pending state charges and the defendants here were all, who are the appellants in this case, all members of the official dome of the City of Chicago in the County of Cook who were charged with the prosecution of the appellees.

None of the appellees were charged with this intimidation statute at anytime and there are no pending state charges against the appellees.

The appellees in their complaint stated that all the statutes involved and there were five of them including violence, resisting arrest, aggravated assault, aggravated battery and intimidation were all being used by the defendants in furtherance of a bad-faith conspiracy to keep these appellees from exercising their First Amendment rights and they used the Dombrowski allegations of a chilling effect and bad-faith conspiracy and they say these words.

There was an answer filed denying the existence of this conspiracy and a three-judge court sat and heard the threshold question of the constitutionality of this statute on its face.

By the way, there never has been a trial and onto the merits of this complaint there has be no proof of any bad-faith conspiracy existing among these appellants, defendants below to do the acts of which they were accused in the complaint.

Justice John M. Harlan: Would the three-judge court (Inaudible)

Mr. Dean H. Bilton: The three-judge court issued a declaratory judgment and then it issued pursuant to that declaration that this subsection of the Intimidation Act was unconstitutional.

It then issued a blanket injunction stopping state attorney's office of Cook County for prosecuting anybody under this particular intimidation subsection.

It didn't --

Justice John M. Harlan: (Inaudible)

Mr. Dean H. Bilton: Right, there are never was any prosecution of any plaintiff here under the section at all.

Chief Justice Warren E. Burger: It was a declaratory judgment in the broadest advisory sense, was it not?

Mr. Dean H. Bilton: In a very pure broad abstract sense, that's correct.

By the way the one subsection of the intimidation said statute that was said out in the complaint was a section that refers to intimidation by public officials.

It wouldn't have applied to the plaintiff's at all.

It was intimidations by a public official in withholding his own action or doing something that he shouldn't have done.

So truly, when we went to our hearing before the three-judge court, no one under -- really understood what was the problem with the intimidation statute?

It wasn't until after the three-judge court opinion that we find out and discover that the court thought that this one subsection is over broad.

Now, looking at standing, the court said that the plaintiffs had standing because they were not charged with any of the offenses here and that therefore they came under the right of the Dombrowski case and the Zwickler case to give such people declaratory judgments when they claim that their First Amendment rights are being infringed upon.

We submit to this Court that both Dombrowski and Zwickler are quite distinguishable.

In both Dombrowski and Zwickler, the plaintiffs there had a history in Louisiana and in New York of having the statutes that they complained about being used against them.

Mr. Dombrowski held up his organization in Louisiana and he was arrested and he was charged with violating a Louisiana sedition statute and then a motion of quash stopped that prosecution against Mr. Dombrowski.

He then went into the federal district court and sought relief to stop future prosecutions under that over broad statute.

So, we had a history of facts that he could point to and said, "Look, are they going to do that to me again."

And in fact, the State of Louisiana (Inaudible) Mr. Dombrowski by rating him shortly after he filed his complaint in the District Court and indicted him for the sedition statute.

And in Zwickler case, a New York man who was distributing handbills anonymously, he was arrested and he was found guilty under a New York statute that said, "You can't distribute election campaign literature anonymously in quantity."

His conviction was later overturned by the New York Supreme Court on the criminal elements but didn't reach the constitutional points.

Zwickler, then went to the US District Court, filed his complaint for declaratory judgment and said, "I'm going to do the same thing in the next election and they're going to apply the statute to me again in the next election."

So, he too had some facts that he could point to justify his conclusions that the state was going to apply this over broad statute against him.

Now, in our case none of the 15 or so named plaintiffs nor the Organization Act or any of the plaintiffs that joined in later on or ever were charged with this intimidation statute.

They didn't even set it out in their complaint.

So, we don't believe that a person has the right to come in to the District Court and to say the magic words, to say that my First Amendment rights are being chilled and that gives him an automatic right to get a declaratory judgment of any statute that he still chooses and that's what happened in this case.

So, for those reasons we do not believe that the plaintiffs here in the first place had standing to challenge the act that they did.

I will admit however that both Dombrowski and Zwickler do give the federal courts jurisdiction to sit in declaratory judgments when a person is not charged with a pending state case.

Now, looking at the statute itself or on its merits, we do not believe the statute is unconstitutional and our brief from pages 13 to page 20, we have a compilation of the First Amendment cases as best we could and we drew two conclusions and that is one, that First Amendment cases are treated on a case by case basis.

The rule of law seems to be that to balance the interest of the speaker against whatever state interest is involved.

Well, in this statute the interest of the speaker is that of a thief.

He is attempting to take something from another person by the use of threats and the protected interest involved is the states' right to protect individuals in their person and in their safety and in their possessions.

We don't think there's any -- there's no contest here.

On those -- on that test alone, the statute should be considered a valid exercise of the states' power and not over broad statute.

I believe that the three-judge court misunderstood the statute because it said that the statute was over broad because it prohibited threats of insubstantial evil.

Well, this is incorrect in two ways.

First of all, the statute doesn't prohibit threats.

It prohibits extortion by threats, it prohibits robbery by threats, but it doesn't prohibit threats in the abstract.

People can get up and speak about advocating crime.

They can get up and threaten all they want.

If there is no extortion element present, this statute doesn't prohibit that kind of conduct.

Chief Justice Warren E. Burger: Would kidnapping with a demand for ransom come under the statute?

Mr. Dean H. Bilton: "Give me your money or I will commit a kidnapping," yes.

Chief Justice Warren E. Burger: Or "Give me your money because I have your child."

Mr. Dean H. Bilton: Well, give me your money because --

Chief Justice Warren E. Burger: Because this overlap with the kidnapping statutes?

Mr. Dean H. Bilton: It probably be -- in that sense, it probably would overlap with kidnapping and certainly overlaps with robbery because it's at the same kind of statute depending how close the intimidating factor is.

If I hold a gun in your head and say, "Give me your money or I'll kill you in five minutes," I might be committing extortion or I might be committing robbery, depending on whether or not the incidence of violence is immediate or delayed.

Extortion is that statute which picks up where robbery leaves off.

Yes, I believe that there is an overlapping here with other state statutes.

Secondly, that the court in that one statement about the statute prohibiting threats of insubstantial evil, this idea of insubstantial evil was a question that even victim has to answer.

What might be a very small weapon to a court might be a very major weapon to the victim.

So, when the court said that there are little crimes which might not be too scary to a person they did not -- the court didn't place itself in the shoes of that victim.

He might be just the kind of a person that would be intimidated by a small offense.

Now, the point that the court I believe did loss sight of the object of the protection of the statute and thought that this was a public order statute, I'd like to just point to the opinion that's set out in page 94 of our appendix and may I just read these two sentences here or three sentences.

The court said, "Indeed, the phrase, commit any criminal offense is so broad as to include threats to commit misdemeanors punishable by fine only.

These evils are not so substantial that the state's interest in prohibiting the threat of them outweighs the public interest in giving legitimate political discussion a wide birth.

Since the language of subparagraph a (3) is an over broad restriction and the freedom of speech is invalid, obviously however, if the threat is carried out, the persons who violate the criminal law by their acts are subject to punishment."

Well, this notion that it is better to let man threaten and speak to preserve the First Amendment and then arrest him when he commits action is a good notion for statutes that protect public order, but if I say to you, "Give me your money or I will break your windows later on" and you give me your money, I never carry out the threat.

So, the action here, the threat here is a weapon and the weapon --

Chief Justice Warren E. Burger: So, are you saying that the insubstantiality of the Criminal Act threaten is irrelevant?

Mr. Dean H. Bilton: Of course, just as the caliber of the weapon used in a robbery is irrelevant.

I presume you could commit a robbery with a gun or a pea shooter.

The pea shooter doesn't seem to be very dangerous, but when held up next to someone's eye might be just enough to make the man part with his wallet and you can commit a robbery by not pulling the trigger of the gun.

You can hold the gun and say, "Here I have a gun, give me your money."

You pay the man your money and he does not shoot you.

So, this notion in First Amendment cases that we can wait until the threat or act doesn't apply to cases involved in protection of the individual because --

Justice John M. Harlan: And it has a little chilling effect on the victim?

Mr. Dean H. Bilton: Oh!

Yes, it has a chilling effect on the victim, yes [Attempt to Laughter].

So, for that reason we believed that court was misconstruing this statute in such away so that that they believe it was a public order statute.

When I talked about legitimate political discussion to this day, I fail to see how intimidating a person to either take his vote by threatening crimes against him or intimidating a public official by taking away his freedom of speech by threatening crimes against him can be considered legitimate political discussion.

Telling a congressman, Mr. Congressman vote for my program or advocate my program or I will commit an act of violence or I will kill you.

This certainly is pretty powerful lobbying and I don't believe that this ought to be protected free speech.

The court said in holding the statute unconstitutional that the statute was not vague, but it was over broad because it had little crimes included in the threats of the criminal conduct.

The definition of what is and what is not over broad was set out by this Court in the Zwickler case and this Court said that over breadth is that which is the constitutional principle that a governmental purpose to control or prevent activities causing subject to state regulation may not be achieved by means where a sweep unnecessarily broadly and thereby invade the area of protected freedoms.

There seems to be two factors in this concept of over breath; one is this wide sweep and one is the invasion of the area of protected freedoms.

Initially, we do not think that the thief has any protected freedom to try to take property from another by threatening crimes.

An as far as this wide sweep is concerns, we have said out in our brief a comparison of this statute with the federal extortion statutes and all the state extortion statutes.

Justice Thurgood Marshall: Mr. Bilton, suppose a man walks into a stores and says, "If you don't hire Negroes, I will see to it that you get no more profits."

Mr. Dean H. Bilton: It does not violate this section.

Justice Thurgood Marshall: Why not?

Mr. Dean H. Bilton: I'll see to it that you get no more profits is not a crime (Voice Overlaps) --

Justice Thurgood Marshall: Well, if he walks in his dog and says, "Either you give me some money or I'm going to shoot you," that takes his profit.

Mr. Dean H. Bilton: But you didn't include that last factor of committing a crime.

Your first example Mr. Justice Marshall, you said that if you do not hire more Negroes we will see to it that you receive no more profits.

They might boycott the store, people might not shop there, that isn't a commission of a crime in Illinois.

Justice Thurgood Marshall: It's positive.

They say that we will make sure that you don't make a nickel.

Would that be covered by the statute?

Mr. Dean H. Bilton: Well, if those -- I believe you're trying to drive that those words being threatening words to commit a physical violence on the man.

Subtly, are you going to be making that subtly, they are saying, "Either you hire Negroes or we will hurt you," but they are saying that suddenly.

Justice Thurgood Marshall: He doesn't say any, he says that "Either you hire Negroes or you will make any money."

Mr. Dean H. Bilton: It's not covered by this section because this section only prohibits threats that commit crimes and since there is no threat there to commit a crime it would not be covered by this section.

Justice Thurgood Marshall: Well, I don't know what the crime in Illinois (Inaudible)

Mr. Dean H. Bilton: Well, I don't think it's a crime in Illinois to put another man out of business legally. [Attempt to Laughter]

Justice Potter Stewart: If the claim where -- if the statement where if "you don't hire a Negroes we'll murder you?" that would clearly be under the statute --

Mr. Dean H. Bilton: That's correct.

Justice Potter Stewart: -- threat to commit a crime.

If you don't hire Negroes we'll burglarize your store.

It would also come under.

Mr. Dean H. Bilton: That's correct.

Justice Potter Stewart: But if it's simply if you don't hire a Negro we'll see to it that you don't make a profit out of your store that would not come under this stage.

Mr. Dean H. Bilton: It would not come on the stage.

Justice Potter Stewart: Because that would implicitly be a threat of no more than not to patronize the store.

I suppose in the reason when infringe could be drown, would that be right?

Mr. Dean H. Bilton: That's correct!

Absolutely correct!

The threat here must be a threat to commit a crime and that was a section that was held to be over broad.

Chief Justice Warren E. Burger: Could a threat be brought within the statute by the innuendo, the implications or reasonable implications to be drown from the threat?

I recall for example, the cases back 20 some years ago in New York where the practice of the extortion in Brooklyn I think it was, was to go to storekeeper and say, You pay us $25.00 a week or you won't be able to get play plus insurance anymore.?

Mr. Dean H. Bilton: Yes, this --

Chief Justice Warren E. Burger: And the innuendo there was indirect that you won't be able to get the play plus insurance because there will be so much breakage that no one will ensure you, that was found to be something on which this conviction could be sustained.

Would it be sustained under the Illinois statute?

Mr. Dean H. Bilton: Yes, it would.

The only problem there is a problem of the prosecutor proving up all the elements of this crime beyond unreasonable doubt.

So, he must convince that jury that the words used beyond a reasonable doubt carry that innuendo to have violence connected with this threat.

It's true, it would cover direct threats and threats by innuendo.

We deal there though with problems of proof rather than the abstract cases that we have here.

Chief Justice Warren E. Burger: But the statute would not be over broad in your view because it permits proof of the innuendo?

Mr. Dean H. Bilton: No.

No, in that regard it -- in a sense with every other extortion statute in this country you need not tell a man directly that you intend to do him violence if he gets the message by innuendo.

What we're trying to protect is people from being relieved of their possessions if by force or by coercion.

Now we have set forth a comparison in our brief of relevant federal statutes including the Hubs Act and other state statutes involving extortion and we believe that our statute in Illinois is far narrower than those acts which committed extortion under the Hubs Act.

I direct Your Honors' attention to Nick versus the United States and US versus Campagna, both cited in our brief where a person committed extortion by threatening the movie industry to pull out the projection list unless he received an illegal payoff.

Well, here the act threatened were just to commit a tort or to commit an unfair labor of practice, an illegal strike.

In Illinois, of course we prohibit threats of crimes and to do a crime is do something which is far more narrower in scope than to commit torts.

Or they have said out the Communications Act in the federal government which prohibits extortion by telephoning a person and injuring the reputation, threatening to injure reputation of the person or another person either living or deceased which is certainly far broader in scope in the Illinois statute here.

Justice John M. Harlan: Of course if you prevail on your Dombrowski point without (Inaudible)

Mr. Dean H. Bilton: Well, if I prevail on my Dombrowski point that's true.

We're left then in the Illinois with unconstitutional declaration of a statute with the case reversed on other grounds.

Our statute as it sits right now, it has been declared by a three-judge court to be unconstitutional.

In all honesty, Mr. Zwickler was not under a pending state charge when he went into the court and neither was Mr. Dombrowski and for that reason the District Court in Illinois knowing full well that these people were not charged with the statute but seeing their complaint where they said that they were threatened by the application of the statute by a bad faith conspiracy said that they're still in the same position that Mr. Zwickler did.

Justice Potter Stewart: Well, the issuance of an injunction is what gives this Court appellate jurisdiction under Section 1253.

Mr. Dean H. Bilton: That's correct.

Justice Potter Stewart: And now, having jurisdiction of the case it would be nothing in the way of the Court holding and it was improper for the District Court not only to grant the injunction but also to issue a declaratory judgment under these circumstances and that's not here, the whole case is here.

Mr. Dean H. Bilton: I agree, yes.

Justice John M. Harlan: And do you think the District Court's opinion on the declaratory feature might chill the state courts?

Mr. Dean H. Bilton: Well, the opinion on the declaratory feature of course for all practical purposes takes away this particular statute from using Illinois.

It is however amiable statute, we have several other sections and we're not completely devoid of an extortion law in Illinois.

But this is a very important section though because it is the one that allows us to cope with new and inventive crooks.

The other subsections are ones that are the traditional extortion elements, the blackmail elements, the threats in the reputations.

This section is the one that allows us not to sit back and let a person commit extortion that isn't covered by the other section and if he commits, if he threatens a crime then we move in.

Chief Justice Warren E. Burger: Let me go back to your responds to Mr. Justice Stewart's question if by whatever process it is determined that the injunction that there was no jurisdiction issue an injunction here in the three-judge court then, there is nothing here on the declaratory judgment because that would not be here, would it?

Mr. Dean H. Bilton: Well, if this Court did rule that the appellants -- appellees had no standing to bring their complaint to the District Court --

Chief Justice Warren E. Burger: But they know you can't get a three-judge court for declaratory judgment standing alone, can you?

Mr. Dean H. Bilton: I beg your pardon, I didn't quite understand.

Chief Justice Warren E. Burger: You can't get a three-judge court case for a declaratory judgment alone?

Mr. Dean H. Bilton: No, you have to seek injunction which every declaratory judgment does, seeks the injunction.

Chief Justice Warren E. Burger: So, that the injunction falls everything falls with it?

Mr. Dean H. Bilton: Well, if the standing to bring the case to Court falls everything seems to fall with it, but for the fact that there are other people who will do the same thing again and might be charged with intimidation and we're back again to where we started, trying to support statute that's alleged to be over broad and we have holding in Illinois that the statute is over broad and the case was first on the grounds.

It would not help the appellants in this case at all.

Getting back to our comparison, we did compare this statute with all the other states.

We found 40 other states having broader threats than ours do and especially states such as Utah which prohibit coercion or extortion by threats of any nature.

We think our statute is quite narrowly drawn when compared to the statutes in the rest of the states and the statutes of the federal government.

Whatever time I have left, I'd like to reserve for rebuttal.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Bilton.

Argument of Ellis E. Reid

Mr. Ellis E. Reid: Mr. Chief Justice --

Chief Justice Warren E. Burger: Mr. Reid.

Mr. Ellis E. Reid: -- may it please the Court.

I'd like to first address myself to the standing issue and then to the issue on the merits of whether or not for an analysis of the statute it was over broad and deterred First Amendment freedoms.

First of all, I think Mr. Bilton got himself into a problem with the standing issue.

You see in this particular case, the history of this case is such that it's here only on one particle of a broad problem that was brought to court below.

This case grew out of a situation in 1967 where there were five mass arrest situations.

A committee of 22 lawyers of the local bar and some from out of town got together basically a Dombrowski complaint, taking from some of these mass arrest situations, sometimes there had been 55 people arrested and as many as 100 in other occasions and making them members or representatives of the class.

We have here seven subclasses of the total class.

One subclass was arrested as a group on August 01, 1967 charged with mini crimes, mob action and disorderly conduct being the main ones.

Another group was arrested on May 21th, 1967 also charged with mob action and disorderly conduct and resisting arrest and a few other charges.

September 14th, 1967, another group was arrested and charged with mob action, disorderly conduct and resisting arrest.

Now, -- then again, on August 23rd, 1967, another group was arrested and charged with mob action, resisting arrest and disorderly conduct.

And then to round off this particular plus -- also in August 4th, 1967, another group was arrested and charged with mob action, disorderly conduct and I believe also resisting arrest.

Now, we added also a group known as ACT which was an incorporated association which more or less advocated the confrontation of public issues in a forum of the streets.

We also added as members of the class individuals who had not been arrested and charged with anything, but merely were Negroes who wanted to speak out against what was happening in the City of Chicago at that time in 1967 and we put them in the class and alleged that their First Amendment rights were being chilled by this particular plan of action that was being perpetrated by the City of Chicago on people of arresting them with no hope of convictions, with high bonds and keeping them in jail.

Sometimes two weeks before we could go in on motions to reduce the bail or could get them out by raising the bail.

Now, this Court in the Golden v. Zwickler case set the following language with regard to issue of standing, although there probably they were addressing -- you were addressing yourselves to the issue of mootness.

But you said the difference between an abstract question and a controversy contemplated by the Declaratory Judgment Act is necessarily one of degree and it would difficult if it would be possible to fashion a precise test for determining in every case whether there is such a controversy.

Basically, the question in each case is whether there is a substantial controversy between parties having adverse legal interest of sufficient eminence, immediacy and reality to warrant the issuance of a declaratory judgment and you cited in support of that the Maryland case and the company case.

Now, in this particular case, you have to know something about the City of Chicago in order to understand how the intimidation statute gets here.

The City of Chicago has a large corporation of counsel's office which is charged with admitting instances among other things, the enforcement of the City's ordinances.

And in 1967, a gentleman named Richard Elrod who later became a state legislator with who was at that time in the ordinance enforcement division of the corporation of counsel's office was present at every major demonstration in the City of Chicago.

And he was the man on the scene charged with the duty of telling the Chicago police who they would arrest, when they would affect the arrest, and what charges would be brought against the alleged defendants.

Now, he was present at each and every one of these instances that I quoted to you in the complaint of the five groups of people that were arrested.

Some 50 people sometimes and sometimes as many as a hundred people in these mass arrest situations.

Now, it was Richard Elrod who dreamed of the notion to later use the intimidation statute which didn't carry just a year in jail and would carry five years in jail.

And when we as lawyers representing these people that were on this threat we beat him to the courthouse because we did not want anybody charged with a felony that carried five years for merely protesting in a peaceful way and trying to seek a readdress of their grievances.

Now, the reason that the standing issue was not raised in the jurisdictional statement and the reason it just came up in the brief of these particular appellants is that there were several groups of people below.

The state's attorney's office represented the defendants who were county officials and the corporation counsel's office represented the defendants who were city officials.

And Richard Elrod of course was the corporation counsel, the assistant in-charge of defending the city officials and it was Richard Elrod I tell you who dreamed up the intimidation statute.

So, the issue never came up because when the lawyers who tried the case and I'm one of the last of the 22 that are stuck with this case, we're in court with Mr. Elrod and with the other lawyers who represented the county officials, obviously, the issue never came up because we knew and everybody else knew that there was a substantial controversy about this intimidation statute that Mr. Elrod wanted to use it and we be in the court and the three-judge court agree that as the statute was perverted or could be read it was quite a chilling effect and had a chilling effect on First Amendment freedoms.

Now, Mr. Bilton has so appeared and told you about taking money from somebody.

I want to tell you how the statute was intended to be used and how you can read it and in plain English it would stick.

When you make a victim or a so-called a victim of that particular statute, a public official and then you read the statute that you will threaten him in order to get him to do something or to fail to do something by permitting a crime then I submit to you, you have to read the entire criminal code of the State of Illinois and also the ordinances of the City of Chicago and all of the other municipalities in the State of Illinois to determine whether or not they are threatening a crime.

For example, as the three-judge court said, if you say to a public official, either you will readdress our grievances or we will picket the city hall.

Now, if there is an ordinance in the City of Chicago that prohibits the picketing of the city hall, you have just put yourself in a five-year nuisance to stand trial for the intimidation statute.

And that is why we are here and that is why the three-judge court said clearly, this statute as read and it can be read that way is a quite a chilling statute so far as First Amendment freedoms are concerned.

And the court itself went to several examples which I can quote if I can find the examples of people blocking an intersection with baby carriages or people deciding to do things which in and off themselves would be misdemeanors if carried through to fruition and because you've threatened to do a misdemeanor to bring a public official into the public forum to do what he should do then you are charged with a crime that carries with a five-year penalty.

And I say to you that this statute on its face is void because it is over broad and as Your Honors got into the question with Mr. Bilton, there are many other statutes in the State of Illinois and many other ordinances of the City of Chicago which deal with conduct that may be antisocial or may create harm to property or to persons.

I say to you this is not such a statute as it is presently drafted.

And another thing back on the standing issue, Mr. Elrod himself when he became a member of the legislature after the initial three judge opinion in this case entered into the state legislature and had passed a bill repealing this particular statute.

And I don't know today whether or not the governor has signed that Repealer Bill, but I do know that a letter was sent to the governor's office asking him to hold up on signing the repealer because it would moot the issues before the court today and I say to you that what we are doing here in this issue of statute --

Chief Justice Warren E. Burger: Counsel, how do we know these facts Mr. Reid, where do they appeared in this record?

Mr. Ellis E. Reid: They don't appear in the record because the last time I was here to argue the case I didn't know that.

I found out after the first argument of this case.

Chief Justice Warren E. Burger: What is it that you want us to do with respect to this statute today?

Mr. Ellis E. Reid: Well, I think we would stipulate to the Court that a Bill was introduced and passed by the Illinois legislature of course it's a fact, repealing this section of the Intimidation Act of the State of Illinois.

Now, I don't know today whether or not the Governor has signed that Bill.

But I'm saying the gentleman who dreamed up this idea, Richard Elrod introduced and passed and saw that the Bill was passed.

Justice Byron R. White: What are the evidences in the record that you're arguing now?

Where is the evidence as --

Mr. Ellis E. Reid: Well, there is basically I maybe --

Justice Byron R. White: Do you mean, Mr. Elrod is present in all of these proceedings?

Mr. Ellis E. Reid: Mr. Elrod was the assistant corporation counsel.

Justice Byron R. White: Yes, I know.

Mr. Ellis E. Reid: Oh, I understand.

Justice Byron R. White: Is that in the record?

Mr. Ellis E. Reid: That is not in the record and other than the fact that if you read the record you may see that Mr. Eldrod was a party to this lawsuit so far as representing some of the defendants who are not here and they would be the city officials.

Justice Byron R. White: How do you know if Mr. Eldrod, doing thing we have that is for us, I think we was ever planning to use this statute against that (Voice Overlaps)?

Mr. Ellis E. Reid: Only by our complaint and our complaint is that the threat was made and it's a question of whether or not the word threat is a conclusion argued by counsel or whether it's a fact.

And I'm saying to you that the threat as used in the complaint to paragraph, aid of the complaint and again I believe 24 of the complaint, 25 of the complaint, paragraph 34 of the complaint and paragraph 37 of the complaint where we also say in all these paragraphs that we have been threatened by the use of these statutes and the threatened used of other statutes that have not yet been used.

Justice William J. Brennan: Yes Mr. Reid --

Mr. Ellis E. Reid: But the question --

Justice William J. Brennan: It was an absent by (Inaudible)

Mr. Ellis E. Reid: That's correct.

The only thing I'm saying to you is --

Justice William J. Brennan: Where are the two statements?

Mr. Ellis E. Reid: I'm saying that there is --

Justice William J. Brennan: How many in the state?

Mr. Ellis E. Reid: No, no and the reason is this question didn't even come up in the jurisdictional statement in this Court in violation of your rule 15.1 (c) and I make that a point in my brief.

In my brief I say the question was not set forth from jurisdictional statement or fairly compliance therein as required by rule 15.1 (c) of this Court.

Then I go on to say the question was one decided by a single judge from whose decision an appeal must be taken to the Court of Appeals.

Now, they filed a motion to dismiss and that's in the record.

That motion to dismiss was denied by Judge Will, sitting as one judge before he convened the three-judge court.

I'm saying that they at that point had a right to appeal that decision to the Court of Appeals for the Seventh Circuit.

They choose not to appeal and then when the three-judge court was convened, they went ahead and if the three-judge court decided that on the face of this particular statute it was over broad and therefore unconstitutional.

Now, I'm saying that when you have a situation like this where standing was never raised and I did and I must apologize, though all aside of the record, maybe to force the record to give you the background of this thing, show you the reason, the explanation for this.

It was never raised in the District Court before Judge Will, an appeal was never taken on the issue to the Seventh Circuit and then when the statute was knocked out on its face, then for the first time in their brief, even after filing the jurisdictional statement as an afterthought, perhaps and this was before the Golden case, they decided that perhaps they would have shot at us before this Court because of standing because no one was ever charged actually with the violation of the intimidation statute.

What I'm saying to you as you said in the Golden case, you must look at the totality of all the circumstances before the Court.

You cannot just pull out one element of this case.

Justice Thurgood Marshall: Well, what totality do we have?

As I see it, we have several allegations that people had been threatened.

Mr. Ellis E. Reid: That's correct.

Justice Thurgood Marshall: And I could read those in the text of the whole complaint that they are threatened merely by the presence of the statute.

Mr. Ellis E. Reid: Well, that maybe the way to read it.

The only thing I'm saying is --

Justice Thurgood Marshall: Well, what other way could I read it?

Mr. Ellis E. Reid: The only thing I'm saying is --

Justice Thurgood Marshall: Without some -- there's no specificity here at all.

Mr. Ellis E. Reid: Right.

Justice Thurgood Marshall: There are no facts in this record at all that anybody has been told that if you exercise your right of free speech, you will be charged with this crime.

There is not one word in the record.

Mr. Ellis E. Reid: May I answer that this way Your Honor?

Justice Thurgood Marshall: Sure.

Mr. Ellis E. Reid: That is whether or not you read the word "threat" as being an allegation of fact or as you read it as a conclusion by the pleader.

Now, I say to Your Honor, you have a perfect right to read that as a pleading of fact because it is a fact that we were threatened with the use of this statute and it is a pleading of a fact.

We were threatened by the use of this statute and there is a probably a problem in some matters as to whether or not you will understand the word as you hear a threat to be a conclusion.

Justice Thurgood Marshall: Well I mean, suppose a man in the sanitation department picking up garbage says, "If you don't give me cleaner garbage, I'm going to have you convicted under the statute, would you consider that as a threat."

Mr. Ellis E. Reid: Well, there must be very clear and present danger and apparent ability to carry out a threat and I went through the record only to explain that the person who made the threat was present in court.

When I make a threat I have the apparent ability to carry out the threat and so I say ---

Justice Thurgood Marshall: But my personal problem Mr. Reid is I have big difficulty in going outside of the record.

Mr. Ellis E. Reid: I understand Your Honor, but may I say this, Your Honor does not have to go outside the record to deal with this case and I will show you Your Honors how you don't have to do that.

In this particular case, the issue of whether or not there is standing is a factual issue.

And although it may result in a conclusion that may have jurisdictional effects, I'm still saying that initially it was a factual determination to be made initially by the district judge and I'm saying Your Honors that it was in fact made and that it was conceded and that either it was waived and I'm saying that Your Honors (Voice Overlaps) --

Justice Thurgood Marshall: I don't agree -- I don't agree that this suggests a question of standing, it seems like a question of whether you got a case of controversy?

Mr. Ellis E. Reid: That's correct Your Honor but that of course is the ultimate for using the word (Voice Overlaps) --

Justice Thurgood Marshall: That's not a problem.

Mr. Ellis E. Reid: --whether or not there's a sufficient case of controversy, but (Voice Overlaps) judgment and I'm only saying standing as a short pen method of saying that.

Well, I'm saying that --

Justice Thurgood Marshall: Well, what about your fifth class which is a class of all these people that they haven't participated in anything yet?

Mr. Ellis E. Reid: They were chilled and their First Amendment rights were -- but whenever you do this Your Honor at the back I'm saying there is a distinct difference that this Court has recognized in this particular area between cases that deal with the First Amendment freedoms and all other classes of cases.

Now, and the reason for that is quite important.

If we don't have an effective and quick method to effectively deal with and protect First Amendment freedoms --

Justice Thurgood Marshall: Well, then --

Mr. Ellis E. Reid: -- (Inaudible) will not -- they'll be dead when you get to this Court in the wrong way.

Justice Thurgood Marshall: I assume that anybody in Chicago could've filed this suit?

Mr. Ellis E. Reid: No, Your Honor, this --

Justice Thurgood Marshall: But what difference is this group you mentioned?

Mr. Ellis E. Reid: Well, they might be put in and you might even say that they came in under pendent jurisdiction and we have the substantial controversy between the first five groups -- the people who were arrested.

There's no question that there was a substantial controversy going on at that time between the mass arrest situations and the City of Chicago.

Now, all that controversy as a result of what was happening to the people that were arrested.

In our humble opinion they were the people who were standing on the sidelines, who might have wanted to picket, who were not picketing because they felt, oh look what's happening to these people, there in there picketing and they're getting the heads beat in and they're being arrested and they're being kept in jail.

Now, why should I go out there and picket peacefully and go to jail for two weeks before I can even post bond.

Now, it is these people that I think this Court should address itself too because it is these people who then after seeing the suppression of the other people who are the activists, stand silent and stand to moot and that's the danger to order liberty and that is the sole reason why this Court has made a distinction between First Amendment cases and all other cases.

Chief Justice Warren E. Burger: And what is there in this record that tells us that people get beat over the head, at least for picketing, in this record counsel?

Mr. Ellis E. Reid: No, Mr. Judge, I was speaking fast then you came out.

I apologize for there's nothing in this record.

These people were arrested, they were held on bond as the record shows and they were later discharged and we're saying that because these people in the first five subclasses were dealt with in this manner with no --

Chief Justice Warren E. Burger: It will be more helpful to the Court Mr. Reid if you keep your factual development within the records, so that we know that you're talking about this case and not some other hypothetical case.

Mr. Ellis E. Reid: In this particular case, there were four or five groups arrested and we picked some of the people out of these groups as representative of the class.

Now, we added it and in an answer to Justice Marshall's answered question, people who were never arrested, but who wanted to speak out and use speech in all of the matter.

Now, I'm saying to the Court that this --

Chief Justice Warren E. Burger: Well, does this record show, does this record tell us somewhere that the people in this class had been arrested at some time?

Is that by --

Mr. Ellis E. Reid: Yes, in that point Your Honor which starts -- in the appendix started at page four, paragraph 8 plaintiff Lawrence --

Chief Justice Warren E. Burger: Well, is that an allegation of the complaint or it's the evidence?

Mr. Ellis E. Reid: It's in the complaint.

Chief Justice Warren E. Burger: Was it denied?

Mr. Ellis E. Reid: It was -- no, paragraph 8 I think was denied.

No, paragraph 8 was admitted I believe and we find the answer.

Chief Justice Warren E. Burger: Well, I don't want to hold you up now you might --

Mr. Ellis E. Reid: In any event, there was no question about who the subclasses were.

Justice John M. Harlan: There is one thing you're off the record discussion with this and you need to be pertinent, you said this statute had been repealed by the legislature and you didn't know whether it had been signed and if it had been signed this will moot the case --

Mr. Ellis E. Reid: Mr. Bilton has to be, no.

He said the bill has been --

Justice John M. Harlan: (Voice Overlaps)

Mr. Ellis E. Reid: The bill has a veto.

I just got this note from Mr. Bilton two minutes ago.

Justice John M. Harlan: Alright.

Mr. Ellis E. Reid: So, it is not moot, but the only thing I'm saying is that when you look at whether or not there is a case in controversy, I think you have to relax your standard so far as First Amendment cases are concerned because this Court has said and I think that we can't cross over this, that we are not really dealing so much with the people that want to break the law.

There are statutes on the books that are available to give these people their just rights and to put them in jail, commensurate with the crime that they have perpetuated in their actions.

But when they backup a step and say that when you use language and you verbalize your grievances open in a public forum and you address them to a public official and you say, "Do something for us please or we will do X" and it turns out that analysis of all the statutes they're been contemplating X is applied, that you're then subject to five years imprisonment.

I say this runs smack down into what we are trying to start out with in this country of having truly conflicting interests balanced and I'm saying that they're always on a collision course that anytime that you take to the public forum and say, "Do something for us --"

Chief Justice Warren E. Burger: We'll suspend and you'll have seven minutes left after lunch Mr. Reid.

Mr. Ellis E. Reid: Okay.

Chief Justice Warren E. Burger: Mr. Reid, you may continue whenever you are ready.

Mr. Ellis E. Reid: Thank you Your Honor.

Mr. Chief Justice may it please the Court.

I would like to at this point just digress and point out to Your Honors the problem I think that was bothering this particular Court and that is that I feel and I have a feeling that you have a fear of being inundated by this type of case.

If you relax the standing required in a declaratory judgment action to the degree that we feel is necessary in order to protect First Amendment freedoms, but I would like to say two things and try to make this clear to the Court so that you understand it from really a practicing lawyer's point of view, one who is concerned with First Amendment freedoms.

First of all, I would like to say to you what I feel would have happened had the state in this particular proceeding one to race to the courthouse.

Now, it has been called in many circles that this is the so-called race to the courthouse whether or not the state will file the charge or whether we will get to court and ask for declaratory judgment on these over broad statutes first in federal forum.

I like to say that this is from the lawyer's point of view, had the state in this particular proceeding won the race to the courthouse in addition to the complex, legal, and factual issues that I have had to address myself to hear, myself to hear over the last three years.

I would have then had to deal with in another forum also the issue of bail, the issue of defense in a criminal case, the issue of being prepared to try the case if it was not enjoined and also the anti-injunction statute in the federal system.

Chief Justice Warren E. Burger: Well, isn't that the normal course of litigation in the whole general scheme of things?.

Mr. Ellis E. Reid: Well, I'm saying it does not have to be for the future.

We have a problem here and I think that the Court is trying to address itself to that problem because in Dombrowski and in Zwickler, this Court said that it would be enough to have a threat of arrest under the proper facts and circumstances.

And I detect from not only some of the questions today, but the previous time I argued this case that this Court also is dealing in its own mind with the floodgate problem and that is whether or not it should be inundated with this type of litigation if we're able to sit back in our office and go through the Criminal Code and say, "That's a good statute, that's a bad statute.

We'll file a suit on the bad statutes and then come to court."

I don't think it's going to happen that way because these cases are expensive.

These cases are varietous and they take as you can see in this case three to four years of a lawyer's time and that's one issue.

But on the other hand, if the state wins the race to the courthouse and there is a threat and we have to wait even though they are threatening us like today to file a suit tomorrow and then we have to wait until tomorrow when suit is actually filed, then in addition to the complex problems in this type of case, in this federal forum I'm also put to the task of dealing with the complex legal and factual issues in the state court.

So, I'm saying to Your Honors that the floodgate argument that might be thrust upon you today will be found to be wanting in this particular type of case because it is a very burdensome type of litigation.

And number one, you must get one judge of a District Court to hear your case, look at your complaint and decide whether or not in his discretion he will convene a three-judge court as was done in this case and motions for this dismissal of your complaint may be found as they were found in this case.

And I like to point out that these issues were met ahead on, on a motion to dismiss filed in this particular case and I'd like to in the time I have remaining address myself to four portions of the appendix which I think are important, which are four specific portions of the three-judge court's opinion.

Now, at page 57 of the appendix the court said as follows.

It said, "Plaintiff's filed their complaint on October 27th, 1967.

Simultaneously, they moved that a three-judge court be convened to hear and determine the issues presented therein.

Shortly thereafter both the state and city defendants moved to dismiss, contending interalia that the complaint failed to disclose a basis for equitable relief and the adoption of federal abstention should be utilized to allow the state courts an opportunity to adjudicate the issues presented in the complaint.

An opinion dealing with these motions was issued on December 28, 1967.

The defendant's motion to dismiss were denied."

Now, at page 62 of the same opinion, it's found on page 62 of the appendix, the court there said as follows, "The principles announced by the Supreme Court in Dombrowski and Zwickler appear clearly applicable in the instant case.

Plaintiffs claim that statute is invalid because of vagueness, indebtedness and over breadth, have been used by defendants in furtherance of a scheme to discourage plaintiff's legitimate exercise of First Amendment rights.

In Dombrowski, the court indicated that defense in a state criminal prosecution is not sufficient to correct either of these evils.

Arrest, detention, and threats of prosecution may have an interim effect on free expression where prosecutions are instituted in bad-faith in furtherance of a scheme to discourage protected activities, the ultimate success of the defendant does not alter the impropriety of the unconstitutional scheme.

The adjudication simply resolves the guilt or innocence of the defendant.

It does not purge the scheme of its impact upon federally protected rights."

And then at page 94, the same court, the three judges continues and they say there, "The provision is not vague.

It is however over broad, I am speaking now of the particular statute, since it prohibits threats of insubstantial evil, the commission of criminal offenses against persons or property is a substantial evil and the state may legitimately proscribe the making of threats to commit such offenses.

The commission of offenses against public order only however is not such a substantial evil that the state may prohibit the threat of it."

And then they go on to deal with the statute to show examples as to how you can commit disorderly conduct and because of this statute end up with five years imprisonment.

Now, back -- I'd like to go back on page 84 of the appendix, page 88 excuse me where the court points out this and I think this is important.

On page 88 and they say, "However, at the outset of this analysis it should be recognized that Illinois has no legitimate interest in proscribing as intimidation statements that have no reasonable tendency to coerce or statements which although alarming are not expressions of an intent to act.

Legitimate political expression intended to secure a changes in a society's legal, political, social, or economic structure frequently to take the form of expressions about future events or conditions.

Such expressions may be in the form of promises, predictions, or warnings or threats of lawful action.

And I know my time is up but I like to say here this is the trust of this particular statute that we contend as unconstitutional and because of that we feel this court has a duty to affirm the court below.

Chief Justice Warren E. Burger: Thank you Mr. Reid.

You have four minutes left Mr. Bilton.

Rebuttal of Dean H. Bilton

Mr. Dean H. Bilton: I only wish to rebut one statement.

Mr. Reid just said that in Illinois you can threaten to commit a disorderly conduct and wind up in prison for five years.

You can only do that in Illinois if you threaten to commit disorderly conduct while you are attempting to steal from a person or while you are attempting to rob from a person or why you are attempting to extort something from that person.

Threats of disorderly conduct in the abstract are not prohibited by this statute or whatsoever because this is not a public order statute, this is the statute which protects the person.

Other than that I think that my argument in chief covered all the points that Mr. Reid talked about and I have no further rebuttal but just to respectfully request this Court to reverse the three-judge court below and restore the Illinois statute that we feel is very important in our scheme about Criminal Code.

Thank you very much.

Chief Justice Warren E. Burger: Thank you Mr. Bilton.

Thank you Mr. Reid.

The case is submitted.