GUNN v. UNIVERSITY COMMITTEE

About 60 days after, the complaint had been filed the events occurred, the defendants below, the law enforcement officers in Bell County and the county attorney moved to dismissed the complaint.

Now, certainly I think that based upon the allegations, the facts that were later shown in support of those of allegations at the time the complaint was filed, there was a clear case or controversy.

And to the extent that it is argued that the court did not have jurisdiction certainly at that point, the court clearly had jurisdiction.

Justice William J. Brennan: Well, the test in Zwickler was whether there is substantial controversy of sufficient immediacy in reality to warrant the issuance of a declaratory judgment.

I don't see that the opinion considered whether on the question of declaratory judgment.

This record then did show a substantial controversy of sufficient immediacy in reality.

What is it -- what do you rely that did exist such --

Mr. Sam Houston Clinton, Jr.: I don't know that the court put it in those terms, but --

Justice William J. Brennan: I don't read the opinion as having addressed itself to that at all.

Mr. Sam Houston Clinton, Jr.: We rely for immediacy and reality on the fact that charges that the disturbing of the complaints -- disturbing of the peace complaints that we're filed when it is obvious to anyone who knows anything about the facts that there was no chance of proven any guilt.

They were simply --

Justice William J. Brennan: But at the time as I understand it that at the time that the declaratory judgment -- of this opinion was filed following the hearing, those complaints had already been withdrawn.

Mr. Sam Houston Clinton, Jr.: Yes, but that's only the part of what we rely on.

We rely upon the harassing -- we rely upon the whole course of conduct in Bell County from that time right on down including all of the harassment, the handcuffing, the jailing, the frisking, the stripping, the threatening, the calling of traitors, all of those things plus the comments of the chief of police, get out of my town and don't come back.

Justice William J. Brennan: Did all of these antedate the dismissal of those charges?

Mr. Sam Houston Clinton, Jr.: Oh, yes it did.

Justice William J. Brennan: Anything at following the dismissal of the charges?

Mr. Sam Houston Clinton, Jr.: There's no evidence of that, no evidence whatsoever, one way or another.

We further plead below that the statute was unconstitutional.

We plead this acts of intimidation, harassment and so on ask for injunctive relief against them.

We think, I guess the showing of what the purpose of the University Committee is, and the chilling effect that it had and that these actions --

Justice William J. Brennan: May I ask, does the record show whether the Committee had demonstrated that any other place in that county except Fort Hood at anytime?

Mr. Sam Houston Clinton, Jr.: I'm not sure the record does show.

The record shows that the Committee has it its purpose.

The appearing for purposes of demonstration any place within the vicinity of 100 miles of the University where any representatives of the administration that we're promoting the foreign policy at which the Committee opposed would appear that it was their policy to do so, as far as the record was showing.

Justice William J. Brennan: But as far as the record is concerned, the only actual demonstration in Bell was this demonstration on the 12th of December when President was at Fort Hood?

Mr. Sam Houston Clinton, Jr.: That's correct.

Now, what we think the defendants really argued below and their motion says was a motion to dismiss, but it was based solely -- it was directed solely to the dismissal of that part of the injunctive -- on the prayer which sought injunctive relief against the pending charges.

The motion to dismiss was not specifically directed to that part of the prayer that sought the permanent relief of injunctive relief, of restraining enforcement of the declaratory judgment directing itself.

The court was aware of that and pointed out that it was perfectly clear in the court below that they no longer had to consider our prayer for temporary relief as to the pending charges since those hadn't been dismissed.

The court went on to say and we think quite correctly that the motion to dismiss was not specifically directed to the ultimate prayer of declaratory judgment or for permanent injunction against enforcement of this statute, and then the court went ahead to find that it was unconstitutional.

And to say that we were entitled to injunctive relief, but as I pointed out yesterday did not actually issue any order in the form of an injunction.

Now in connection with those pending charges --

Justice Byron R. White: The judgment for the declaratory judgment and the injunction stand on the same footing, I take it.

I mean, if there's a judgment for one, is the judgment for the other, isn't there?

Mr. Sam Houston Clinton, Jr.: I suppose we're dealing in semantics, the court handed down an opinion in which it said it detail in, the plaintiffs are entitled to their declaratory judgment and injunctive relief.

Now, following that there has never been any kind of paper entitled judgment --

Justice Byron R. White: But even to be -- even to be here, there has to be a judgment.

Mr. Sam Houston Clinton, Jr.: Oh, yes.

Justice Byron R. White: So, there is a judgment?

Mr. Sam Houston Clinton, Jr.: To the extent that it's in that opinion, there is a judgment.

Justice Byron R. White: And it's reviewable here.

But to the extent it's there, it's for both declaratory judgment and injunction?

Mr. Sam Houston Clinton, Jr.: Yes sir, without any specificity as to what they are joined from doing it.

Justice Byron R. White: But isn't the -- isn't under Zwickler the -- at least the not of the criminal charges are dismissed, doesn't the -- isn't the injunctive judgment at least an error?

Mr. Sam Houston Clinton, Jr.: The court only said we were entitled to an injunction.

They are not actually an issue and I think that -- frankly, the place to take care of that part of the case is back below if the court hopefully affirms and remands back for the actual preparation (Voice Overlap).

Justice Byron R. White: I know but there was a judgment for one, there's a judgment for the other.

There's a judgment that there isn't and that he's entitled to an injunction.

Mr. Sam Houston Clinton, Jr.: Yes, but --

Justice Byron R. White: But isn't that judgment wrong under Zwickler?

Mr. Sam Houston Clinton, Jr.: Well, no sir.

I don't think it's wrong. I think we've still shown it not only did the acts have a chilling effect, but to completely froze all the speech and activity and expression, and that we're -- if shown however, irreparable injury as stated in Dombrowski and also in Zwickler.

Justice Byron R. White: I thought that this is the matter of comity, you could expect the state courts to recognize that if this statute is bad as a declaratory judgment says it was, that the state court would enforce -- would recognize it was bad, and would recognize some constitutional defense to a prosecution.

Mr. Sam Houston Clinton, Jr.: A state court it's conceivable might do that, and that's one reason I say we think that we need to take that up with the court below, but there's no assurance that the defendant, Sheriff Gunn, will do that or that the justice of the peace will not again require them to post the $500.00 bond and to go through all of those things before we ever get to a court of record who would be aware of decisions of this Court and follow them, and in that connection, I made a mistake with yesterday as I want to correct.

I indicated an answer to a question, I actually I kind of volunteered that the trial in a JP court was on an information following the complaint, it's not correct.

The trial in the county court is on the information.

In the JP court is tried upon a complaint, then we're entitled to appeal de novo --

Justice William J. Brennan: Have they tried on the complaint?

Mr. Sam Houston Clinton, Jr.: That is actually appended to, yes sir.

It's in the record.

In the JP court from which if convicted, we have an appeal to a county court;

in county court, proceedings about information --

Justice William J. Brennan: (Inaudible)

Mr. Sam Houston Clinton, Jr.: The information would not come into play until we appeal to the county court in where we have our trial de novo.

Justice William J. Brennan: I see.

Mr. Sam Houston Clinton, Jr.: Oh, I think the question really is after the charges have been dismissed whether the matter became moot, and it seems to me that this Court's very recent decision in Carroll versus The President and Commissioners of Princess Anne answers that question in our favor.

We view it as authority for us rather than counsel does as thought it for them for there clearly, you have similar situation and that the underlying controversy between our committee and its members and the law enforcement officers in Bell County continues to exist.

There's nothing in this record that suggest that the Sheriff of Bell County would not once again enforce or attempt to enforce against the plaintiffs.

Article 474, if they went back up there and anywhere in Bell County and to the contrary, the sheriff has said don't come back to my county, I don't want to see you faces here again.

Much the same situation that existed in Princess Anne there, there was a temporary injunction at issue that was the cause of the chilling effect on the amendment rights.

Moreover, another case referred to in that opinion was the situation in -- to the situation of ICC orders where they were only issued for a short time and then could be reissued and in that fashion, review is precluded.

I say to the court is not a thing in the world to prevent the sheriff and the county attorney from doing the same thing here.

Charges as they did and then when we get to the proposition that we were trying to defend our case, turned around and dismiss complaints again and try to deny us any kind of found determination that this statute is unconstitutional and should be in forward.

Justice Abe Fortas: Counsel, did you say tell us whether this Committee still exists and is it active?

Mr. Sam Houston Clinton, Jr.: I will say to the court that it does exist (Voice Overlap) and it is active although I must admit the record does not show anything.

Justice Abe Fortas: What is the meaning of that statement that it is still exists?

Mr. Sam Houston Clinton, Jr.: It exists as an approved on campus group at the University of Texas.

It continues to hold meetings in the university areas, it continues to distribute.

I don't know about the distribution by like handbilling but through the mail and through advertisements, it continues to state its positions on things in the university area.

For whatever its worth, I again emphasize that it is a group that is approved an all campus group at the University of Texas.

I'm not sure how much time I have made, but I'd like to spend that talking just a little bit about Article 474.

Justice William J. Brennan: Before you get to that, may I just ask one question.

Are their findings of fact that the sheriff and JP said the things that you've been telling us about?

Mr. Sam Houston Clinton, Jr.: No sir, there are not.

Justice William J. Brennan: Those are just in the affidavits?

Mr. Sam Houston Clinton, Jr.: They are in the affidavits, yes sir.

Justice Byron R. White: And there are no findings other than those that you can glean from the opinion?

Mr. Sam Houston Clinton, Jr.: The court below rendered the main opinion, then something called addendum on motion for new trial, but those are the only two papers handed down by the three-judge court.

And whatever actual findings, in fact there are or in one or another by those opinions.

In that connection, it is perfectly clear that the court below was satisfied from the evidence through affidavits that the University Committee members, the named plaintiffs, some of whom were not members of the University Committee, but rather sympathizers, supporters, and associates that all of them had seized certainly in Bell County any type of activity, peaceful activity designed to carry out the purposes of the Committee.

One or two of the plaintiffs indicated that he had seized all activity everywhere because he said this was a state statute and he was afraid that the same thing would happen to him in any county if he engage in similar protest activity as it happened in the Bell County and he did not again want to be subjected to charges, to making bonds and to court appearances and things of that nature and accordingly, he had seized all activities by way of freedom of expression.

Article 474 I think, clearly on its face and in view of decisions of this Court from Cantwell versus Connecticut to Ashton versus Kentucky.

Article 474 must follow because of that phrase in there, “loud or vociferous language or indecent.”

Whatever it is, the operative things, then going down to calculated to disturb the inhabitance of the place where the event takes place.

Certainly, 1966 in Ashton versus Kentucky, in almost identical terms, calculated, I believe was there said calculated to create a disturbance or breach of peace and here, we have calculated to disturb.

This Court said that that sort of a standard, at least wide open, the standard of responsibility and involves calculation as to the boiling point and does not in any way involved in appraisal of the comments per se.

That's the same fault that Article 474 has.

It is vague because of that language.

It will leave to the police officer, to the deputy sheriff a determination at that moment as to whether the language is such as to create the boiling point on water more of the listeners involved and it is overbroad because it obviously includes expression.

Therefore, it must fall under Terminiello and Edwards v. Cox.

It is a combination of both overbreadth and vagueness and as we think essentially, the same -- it presents the same type of problem that this Court resolved easily in the Cox versus Louisiana in which the breach of the peace statute there was condemned, where the Louisiana court had held that it was -- it meant to breach of the peace to agitate, to disquiet, to arouse from a state of repose that those were terms were both vague and overly broad, and that they would sweep within their scope, permissible activities under the First Amendment.

The state here that tries to defend Article 474 by saying that it only prohibits or proscribes conducts in which there is involved so great in amount of noise that is calculated to disturb.

We submit that that is not a saving interpretation at all.

It would outlaw practically all modern demonstrations, some of which had been approved by this Court.

In Edwards versus South Carolina, there was singing, handclapping, marching, and things of that nature.

Clearly, a lot amount of noise and no doubt as I believe the record shown in that case, there were some people disturbed.

Justice Byron R. White: Both of those were public places, I take it.

Mr. Sam Houston Clinton, Jr.: Yes sir.

Edwards v. South Carolina --

Justice Byron R. White: Do you any of the cases in which there's -- in which the court said that First Amendment protects loud or vociferous conduct or noises in your private law?

Mr. Sam Houston Clinton, Jr.: No, but we don't have that here.

These events in case, these events took place clearly in the public place.

Justice Byron R. White: Where did they take place?

Mr. Sam Houston Clinton, Jr.: College campus.

Justice Byron R. White: Where are the college campuses?

Mr. Sam Houston Clinton, Jr.: Well, it was right adjacent to the parking lot --

Justice Byron R. White: Do you think there's any distinguished, anything that distinguished between college campus and a street?

Mr. Sam Houston Clinton, Jr.: Not in the particular incidence (Voice Overlap) or where there was a public program in some 30,000 other people or various attendants.

Justice Byron R. White: What campus was it?

Mr. Sam Houston Clinton, Jr.: This Campus of the Central Texas College near Collin, Texas.

Justice Byron R. White: Public knowledge?

Mr. Sam Houston Clinton, Jr.: Well, I don't believe the records shows, but I assume that it is.

It's (Voice Overlap) private sectarian college.

Justice Byron R. White: It is or not?

Mr. Sam Houston Clinton, Jr.: No, it is not a private sectarian.

I'm satisfied as a public college and since the tax money are there.

The record doesn't show of any of that, but the record does show that on this occasion, there were some 30,000 people there.

Justice Byron R. White: Would you think just because a crowd of people are invited on a certain piece of property that another crowd of people can come on and make all the noise that they want?

Mr. Sam Houston Clinton, Jr.: I think in this instance under these circumstances that these plaintiffs could come on as they intended to do what merely display signs, yes sir.

Justice Byron R. White: I know you say that, if you mean just in these circumstances?

Mr. Sam Houston Clinton, Jr.: In these circumstances, sir.

Chief Justice Earl Warren: Mr. Louisell.

Argument of David W. Louisell

Mr. David W. Louisell: May it please the Court, of course, the situation in the Princess Anne County just referred to by counsel was that there was an extent injunction that was a precedent and that the officials were relying upon to prevent another meeting before this Court struck down that injunction.

In submitting this case, Your Honors, I have only two points to make at this time.

Far from sustaining the heavy burden of showing a Texas policy to use Article 474 to staple speech, I don't think I exaggerate when I say there's hardly any showing of such a policy, except the conclusory statements in the affidavits that their rights are chilled because of what took place.

Justice Hugo L. Black: Can you say to what temperature are?

Mr. David W. Louisell: I beg your pardon?

Justice Hugo L. Black: Does it indicate to what temperature the rights are chilled?

Mr. David W. Louisell: What if that was chilled to any extent Your Honor.

They must be very chillable people.

Justice Byron R. White: Would you suppose there's more of a real controversy here though than there was in Epperson case?

Mr. David W. Louisell: In the Epperson case however as the court very carefully pointed out, it was from a state court where the trial court had granted the relief, where the appellate court of the state wrote that two sentence opinion, and where as the writer of this Court's opinion say of the case is here from a state court which we think is an entirely distinguishable situation.

Now in this case, there is no suspicion, there's even no possibility of suspecting racial prejudice in the case at bar because local counsel inform me all the persons involved were white people.

If you go to all the Texas cases in both of our brief, you won't find I don't believe Your Honors, one, that even concerns the content of speech, except one involving cursing, and there the court said, isn't enough show cursing to justify a conviction, the cursing must be shown to have done -- have been done in a manner reasonably calculated to disturb the peace.

I think we can almost take.

I don't exaggerate when I say we can almost take judicial notice that protesting, including protesting about Vietnam is as open, uninhibited at the University of Texas in Austin as it is in Berkley, California.

Chief Justice Earl Warren: Professor, I'm just wondering in view of your statement that this was not a lawful procedure, this arrest that was made, and that therefore, haven't been dismissed and none of that was forced, what is there to prevent the same people from doing what they said they would do, just to piss saying, you stay out of our county, we don't want people like you, and the chief of police calling them traitors and telling what he would do.

What is there to prevent those people from doing the same thing they did here, and then when the -- on the ordinances attack for the better in which is being used to dismiss it again and put them to that trouble again, and give them a $500.00 bail from the maximum punishment was $200.00?

Mr. David W. Louisell: It was a $400.00 bail Your Honor, where the maximum (Voice Overlap) punishment --

Chief Justice Earl Warren: -- four is still twice as much (Voice Overlap).

Mr. David W. Louisell: Twice as much and of course, nobody would justify that Your Honor.

No sensible person would stand before this tribunal and justify that.

When you take into account, the circumstances though, if there was overreaction here Your Honor, the tremendous nerve-racking circumstances of that event, will that be likely to reoccur again?

These local people, a lay justice of the peace, and if there is that kind of abuse, it is with pride that I can say that this Court had made clear the right to a remedy under the Civil Rights Act in Monroe against Pape.

Justice Thurgood Marshall: Is there one word in the record by affidavit or anything else from the chief of police, the sheriff or anybody that said they won't do this again?

Mr. David W. Louisell: There is nothing to that effect, but there is in the affidavits of the sheriff and the deputy sheriffs any deny – denial of any mistreatment. (Voice Overlap)

Justice Thurgood Marshall: But is there anything using those words?

Mr. David W. Louisell: I don't believe that those words.

I forget exactly to whom was attributed of the word traitor, but I don't think --

Chief Justice Earl Warren: I think that was chief of police if I remember correctly, and I think the justice of peace was accused of saying that he put the bail at $400.00 because he wanted to see that they came back and he could try them for the offense and that they didn't want people of that kind in the county.

Mr. David W. Louisell: For that reprehensible conduct, there is an adequate remedy under this Court's decisions in Monroe against Pape, but the remedy isn't Your Honor to reach out and declare unconstitutional statute in the abstract.

If this -- if the court below is right about 474, Article 474 in declaring in the abstract for facial unconstitutionality so-called, I submit to this Court as far as I can find every disturbing of the peace, every breach of the peace and probably every disorderly conduct statute in this country would fall.

Can society afford that?

This free speech required that.

Chief Justice Earl Warren: Is it necessary to declare this ordinance unconstitutional on its face in order to get a declaratory judgment, an injunction against this kind of conduct on the part of the chief of police and the justice of peace?

Mr. David W. Louisell: Why, no?

If the judge is being willing to go into the question, the lower court judge, the three-judge, if they had been willing to go into it, but they deliberately said we won't examine into the application of the statute to the facts here.

We insist upon doing this in the abstract.

Now Your Honor, I see my time is up and in submitting this case, I just want to say this, --

Justice Hugo L. Black: May I ask you one question?

Mr. David W. Louisell: Yes, sir.

Justice Hugo L. Black: You said yesterday but I didn't exactly get it.

Whom do you represent?

Mr. David W. Louisell: I represent the three appellants; the sheriff, the justice of the peace, and the county attorney of the county involved.

The state came into the --

Justice Hugo L. Black: Is that in effect the State of Texas?

Mr. David W. Louisell: The State of Texas is in no way a party.

The Attorney General as the senior law officer of the state in view of the nature of this attack on the statute of the state took part in assisted in the defense of these three appellants.

Chief Justice Earl Warren: It is view -- I mean on the record in this Court, the Attorney General?

Mr. David W. Louisell: Yes Your Honor, that is the at least the Assistant Attorney General, the act of trial counsel in this case is a party to the brief in this Court, yes.

When a group for example comes to a classroom door or window, and by shrieky and raising a great den disrupts that class with the purpose of doing that; is that free speech?

Your Honors, that is the thing that prevents free speech, and it is exactly at that type of failure that 474, Article 474 is aimed in order to continue a civilization that will make free speech.

Chief Justice Earl Warren: Do we have the -- professor, do we to justify that kind of conduct in order to consider this justiciable today and to grant some relief to this man?

Mr. David W. Louisell: There is no question.

If their allegations however deny they are by the affidavits of the sheriff and the deputies and so forth, if those allegations are in good faith allegations, if in fact they are true, they have every right to relief.

In fact, the complaint presumably also seeks a relief in dollars.

They have every right under the Monroe case, if there is any truth at all to those allegations.

And I wouldn't for a moment deny, but to reach out and declare in the abstract a statute is unconstitutional that would strike down every other statute in the union of a comparable nature, I submit is not in the interest of free speech in any possible way.

Print this transcript Transcript:

Argument of David W. Louisell

Chief Justice Earl Warren: Number 269, Lester Gunn et al., appellants versus University Committee to End the War in Vietnam et al.

Mr. Louisell?

Mr. David W. Louisell: Mr. Chief Justice and may it please the Court.

Few cases that I have seen in recent years, so much invoke the ancient admonition owe to distinguish the reality of things from the tyranny of labels, or as this Court put it I believe in Trop against Dulles, how simple would be the task of constitution of adjudication if the decision of specific problems were a matter of selecting the labels pasted upon them.

We respectfully submit Your Honors that the court, the three-judge District Court below in the Western District of Texas by seizing upon the label of Dombrowski against Pfister without penetrating through to the context and the meaning in context of that teaching of this Court that the three-judge court has done violence to the realities of the situation as defied logic experience and history and requires reversal.

Now, our facts here Your Honors are from a stipulation between the appellants and the appellees counsel and from the affidavits filed by the individual plaintiffs and the few of their fellow students and the affidavits of the sheriff of Bell County, Texas and his deputies.

That's the source of the facts here, those stipulation and affidavits.

Very briefly on December 12, 1967, just a little more than four years within the shadow of Dallas, the President went to Central Texas College to make a dedicatory speech.

The night before his arrival, the secret service had a conference with the local police officers of the surrounding cities, with the sheriffs of both counties, the land involved here lies in both Bell and Coryell counties had a conference soliciting cooperation in protection of the defendant -- in protection of the president.

On the morning of December 12, the plaintiffs and others, member of the committee, our associates, hearing that this event was going to take place started out from Austin about 60 or 70 miles from Collin and proceeded to the neighborhood of Collin, Texas.

This college is near Collin. Collin serves one of the biggest military reservations in the United States Fort Hood, thousands of troops stationed there, many of them on the way to Vietnam, many of them just returned from Vietnam.

These people at least seven in number and at least in two automobiles proceeded to the area of the college where the president was to speak and when they arrived there, he had begun to speak or was about to begin.

They have their signs, their signs of protest against the war in Vietnam.

Very shortly, almost immediately I think I can say, after their arrival on the scene, violence broke out.

I think I can put in a nutshell the condition of the violence by reference to one item in the evidence, a big burly sergeant was heard to remark, “Let me add them, they'd never seen blood.”

There were 50 cops, their signs were torn to shreds, it was a dangerous situation.

Justice Potter Stewart: On the basis of those of facts, I have a little difficulty seeing how they fit within the language of the Texas statute appearing on the bottom of page 3 and the top of page -- above page 2 and the top of page 3 of your brief.

Mr. David W. Louisell: That is correct.

I don't see how it was possible.

Of course, we are dealing here with the rural area, a non-lawyer justice of the peace and so forth, how it was possible to concede that that statute would have any application anything that these plaintiffs had been involved in.

Justice Potter Stewart: Because --

Mr. David W. Louisell: I want to enlarge if I may.

Justice Potter Stewart: The statute seems to require at least some kind of noise, doesn't it?

Mr. David W. Louisell: Precisely.

It just had nothing to do with this particular statute with any of the facts that the record shows.

Justice Potter Stewart: It either noise or something it can -- indecent exposure.

Mr. David W. Louisell: That's precisely right.

Justice Potter Stewart: Or they displaying of a weapon.

Mr. David W. Louisell: Whoever as the statute reads, whoever shall go into or near any public place or into or near any private house and shall use loud and vociferous or obscene vulgar or indecent language, or swear or curse, or yell or shriek, or expose his or her person to another person at the age of 16 years or over.

Another statute of course rules under 16 or rudely display any pistol or deadly weapon in a manner calculated to disturb the person of person's present at such place or house shall be punished by a fine not exceeding $200.00.

Justice Potter Stewart: I suppose that could be argued that the use of not of loud and vociferous certainly, but the use of obscene vulgar or indecent language could be by writing rather than orally.

Mr. David W. Louisell: Oh!

Undoubtedly but there's no indication that there was any obscenity involved in the language here or any indecent protest involved in the language.

The important thing to stress it seems to me in the study of the facts here that despite of the occasion and there were about 25,000 --

Justice William J. Brennan: Who do you represent counsel?

Mr. David W. Louisell: I represent the appellants, the sheriff, the county attorney and the justice of the peace. Despite --

Justice William J. Brennan: I confess I'm confused.

You just conceded with statute and the lack of ability.

Mr. David W. Louisell: I say that they were charged.

The charge under the statute did not cover any of the conduct that the record alleges.

Justice William J. Brennan: I thought the three-judge court would struck down the statute for overbreadth, did they?

Mr. David W. Louisell: It struck down the statute as nearly as one can tell for overbreadth and it struck it down in the abstract and it's specifically said it wasn't examining into the application of the statute.

Justice William J. Brennan: Well, your position that is, is what?

Mr. David W. Louisell: Our position is twofold.

First of all, that in the situation that developed here with a dismissal of these foolish criminal charges under the so-called “disturb or dist the peace” complaint that had been filed.

The dismissal of those charges and the complete absence of the scintilla of indication that the State of Texas was using this statute to repress freedom of speech rendered the case surely an advisory proposition, and that the three-judge court should have grant the motion to dismissed.

That's the first proposition.

The second proposition is that if you do have to reach the question of the statutes constitutionality or if the court below had to on its face did as clearly nothing unconstitutional statute as vague or overbroad.

Chief Justice Earl Warren: Do you conceive that as it was interpreted the law that it was unconstitutional?

Mr. David W. Louisell: They didn't interpret it below Your Honor.

That -- I will excuse that, I mean they didn't apply it to the facts.

You will note from the opinion of the court below on page 89, the court said before we discuss the issues presented as to the merits of this controversy, it may be wise to state what is not involved, at the top of page 89.

This case does not involve in any way an appraisal of the constitutionality of the application of the statutes to the plaintiffs.

We do not evaluate whether Article 474 was constitutionally applied to these plaintiff's activity.

Our sole concern is the determination of whether Article 474 on its face is -- and so forth unconstitutional.

Justice William J. Brennan: But with the injunction --

Mr. David W. Louisell: The injunction and I must admit it is couched in very unusual format.

The injunction comes at the very end of that opinion on page 92 at the very bottom of the page.

Justice William J. Brennan: There is probably a declaratory judgment that the statute is impermissibly and constantly broad and to injunctive relief against the enforcement of Article 474 is not worthy insofar as any specialized guarantee under circumstances, is that it?

Mr. David W. Louisell: That is correct.

And it --

Justice William J. Brennan: Is that all you gamble the way with orders?

Mr. David W. Louisell: That is all we have by way of a judgment in this case.

Justice William J. Brennan: And is that what you recourse for review?

Mr. David W. Louisell: And that is why it's here, that is the appeal was taken.

Justice William J. Brennan: And you say that what we should do is reverse that order that you brought it, and what, remand the direction to dismiss the complaint?

Mr. David W. Louisell: That would be the correct procedure, reverse with instructions to dismiss the complaint as utterly a non-existent controversy.

Justice William J. Brennan: We never reverse the case of a moot case and vacate it.

Mr. David W. Louisell: I believe -- yes Your Honor.

But, it would be --

Justice William J. Brennan: This is a non-existence of a non-existing controversy?

Mr. David W. Louisell: That is precisely right, and I think that can be shown by -- if you wish, I get right into that.

I might just mention a little more of the chronology here in case it isn't completely clear, the point I wanted to stress about the facts is that no state official, no state trooper, no sheriff, no city policemen did anything to inhibit these people coming in making their protest.

Justice Abe Fortas: Counsel, may I ask you this question.

You have two problems here as I understand this case.

One is the Dombrowski issue of jurisdiction, the other is a question as to whether this statutes unconstitutional on its face.

Now, what actually happened here is that there was a criminal prosecution of these people who are here as appellants, and that was dismissed.

No basis for them and the statute according to the Texas courts, that's not this case.

Subsequently --

Mr. David W. Louisell: May I just state the exact thesis of the dismissal logs that it took place on the federal enclave and was not even within the jurisdiction.

Justice Abe Fortas: Alright, subsequently, this suit was instituted by the people who appear here as appellees.

Mr. David W. Louisell: Correct.

Justice Abe Fortas: And the -- before three-judge court, that three-judge court granted a declaratory judgment and entered the order that you said, men said we state the mandate and we won't actually enter an order of injunction right now but a declaratory judgment was granted, is that right?

Mr. David W. Louisell: Well, they said they would await any further injunctive order until a meeting of the Texas legislature, which legislature has convene --

Justice Abe Fortas: Alright, they grant -- they did say that plaintiffs are entitled to a declaratory judgment and that they won't do anything further by way of injunction until after the Texas legislature met, is that right?

Mr. David W. Louisell: But they also said that plaintiffs were entitled to an injunction.

Justice Abe Fortas: I understand that.

Now, what your argument here is that there was no jurisdiction under Dombrowski to entertain this action, is that right?

Mr. David W. Louisell: That is correct.

Justice Abe Fortas: And do you also argue that if jurisdiction lies and nevertheless a statute is not unconstitutional on its face?

Mr. David W. Louisell: Precisely, those were the two points that I wish to emphasize.

Now, to make the rest of the chronology very brief, remember if I may say this that it was the military police who detain these plaintiffs, and it was only after they had detained and that they were brought into the presence of the state people that they were taken by the state people to the jail were this charge which it hadn't been dismissed because of the federal enclave, certainly, would have had to be dismissed for the reasons already suggested from the bench.

They were release on bail.

Their attorney promptly came and got them release on bail, and it was on December 21st that they started this three-judge suit.

On February 13 as I already mentioned, all these criminal charges were dismissed, February 13, 1968.

On February 15 therefore, the defendants, the appellants here, defendants in the three-judge suit move to dismiss the suit for the reasons already suggested from the bench.

Counsel for these appellants wanted the motion, in fact, he made a special motion to have his motion to dismiss her at first, but the court insisted on merging the motion to dismiss with a hearing on the merits and filed the opinion that we've just read from that concluding order part of it on April 10th.

There was a motion for a new trial that was denied a so-called the addendum opinion written and the appeal was taken to this Court.

Justice William J. Brennan: On page 18, I gather, those are the copies of the plaintiff files --

Mr. David W. Louisell: That is correct.

Justice William J. Brennan: Now I am just confused.

Are you saying that that complaint is not taking charge of the Section 474?

Mr. David W. Louisell: I'm saying that I cannot concede how that complaint would make a charge that is a sustainable charge under 474.

Justice William J. Brennan: (Inaudible) lawfully and willfully, I guess that may disturb the peace, is that right?

Mr. David W. Louisell: That's right.

Remember, this was a form of course in print, it looks as though it were a new document, but it was a form merely filled in by the justice with those --

Justice William J. Brennan: Well, this is not a charge of 474, was it?

Mr. David W. Louisell: Well, Your Honor, it was intended undoubtedly by the lay justice of the peace to be in charge, but you don't charge a person with disturbing peace.

You may as a preliminary matter hoping for a plea of guilty, but his sustainable legal charge would have to be in the language that you're complaining about, that they did viably and vociferously in a public place and so forth.

Just like you don't charge a man with murder, you charge him with having on such and such a date.

Justice William J. Brennan: I know.

What I was trying to get at, are you telling us there's no reason Rule 6 -- 474 before us and never has been a rule of case, is that right?

Mr. David W. Louisell: That it never was a valid criminal charge.

Justice William J. Brennan: I know.

Mr. David W. Louisell: -- made against these people.

Justice William J. Brennan: That's not my question.

Are you telling us that this complaint makes no charge in the 474 and therefore, no question about it based otherwise that 474 is even in this litigation?

Mr. David W. Louisell: I'd say that 4 -- this was not a sustainable legal charge under 474 in my judgment.

But I don't suppose that's too important because in any event, this was dismissed.

This was dismissed because of the federal enclave proposition.

But have not been dismissed Your Honor because of the federal enclave.

It seems to me that the justice unless it where amended correctly to state a charge, would have had to throw it all upon motion of the defendants, and he didn't certainly the criminal Court of Appeals would've thrown that.

And therefore when they come into federal court, with a three-judge suit, there's just no real fight of any true kind to complain about.

Now, if I may come to the substance of the case as already been indicated from the bench from a legal viewpoint, this really merges into the two points you indicated Mr. Justice Fortas, the advisory point and the question of the official so-called unconstitutionality of the statute.

In addition to the cases in our brief on the advisory point, this Court will remember just of the last term that comprehensive review of the whole Frothingham problem in Flast against Cohen where the court had occasioned to go, I think to the philosophic depths of the whole notion of justiciability and the advisory opinion as a function of it.

And in addition to the case as cited to in the brief, I invite particular attention to cases as old as the famous Muskrat case and even older, the case cited in the Flast against Cohen opinion, California against the San Pablo Railroad, and the other case cited in the Flast opinion.

But if really seems to me, it really seems to me that the most recent cases of this Court just the Princess Anne County Commission case decided at this very term wherein even tending order was set aside because it was ex parte with no chance for an advisory exchange.

That case although brought up by the appellees I think is excellent authority where realistic appraisal of whether there was any contest, any genuine justiciable controversy before the federal three-judge court.

On the constitutionality of the statute, if that has to be reached, let me just say that if this statute is on Constitution when he brought is guilty of overbreadth or of vagueness, what about our California comparable Section 415 of the Penal Code?

What about the New York's Section on disorderly conduct revised as recently as 1965, Section 24.20 of McKinney's New York statute?

What about the Connecticut statute that is set forth in detail in the case we cite, the case of Barber against Kinsella?

What about the Minnesota statute to pick up the western jurisdiction?

Minnesota statutes annotated Section 609.72 even the American High Institute hasn't been able to do anything much more satisfactory than this Texas language.

In its proposed Section 250.2 on disorderly conduct makes unreasonable annoy or offensively course utterance and so forth.

I submit in confidence that a condemnation of the Texas statute written of course not scientific judge and not so many decibels, but in the common part of the country, it's perfectly beyond the path on its face as unconstitutional.

If it's even a been or it can ever it is applied in such a way is to deny people their first amendment rights or to inhibit in any realistic sense, not only this Texas law, but federal law under this Court's holding Monroe against Pape provides a very fine remedy --

Justice William J. Brennan: Well, since that (Voice Overlap) this complaint was dismissed wherein the course of this civil proceeding in California, are you also making the argument that in mere fact that the dismissal now remove any basis upon which three-judge court that either render a declaratory judgment or a comfortable relief there's nothing will enjoin, no prosecution to enjoin and nothing about what's to give a declaratory judgment since there was no threat of invoking the statute against these people, did you notice that?

Mr. David W. Louisell: Not precisely that because if in fact the threat of the statute's application to inhibit First Amendment rights, lurked in the background like in the Dombrowski case --

Justice William J. Brennan: What do you do with Zwickler and Krueger?

Zwickler and Krueger where we set wholly, when we set back to the three-judge court, you said no, this may not be a situation for declaratory judgment at all.

And there are elements required to maintain the declaratory judgment.

We told them they couldn't have any injunction in that case each time to post to a declaratory judgment but only if that's the proper suit or a declaratory judgment for such (Inaudible), well then the element is in control, is that what this is?

Mr. David W. Louisell: Not at all.

In that case, of course, there's a very serious basic substantive conflict of offering a free speech --

Justice William J. Brennan: What do you mean so anxiously to give us to say that they were wrong on reaching the constitutional question of this -- on the basis?

If it was, then it was not a proper suit for declaratory judgment or injunction otherwise, is that the end of the case?

Mr. David W. Louisell: That is, it isn't the proper suit.

Justice William J. Brennan: We don't have to say they were wrong or the statute and wholly that the statute is unconstitutional, that's the basic rules.

Mr. David W. Louisell: Well, I don't say you have to reach that question, no.

But if you do reach it, I do say the answer is very clear and I think that could a situation is very clearly distinguishable, there as I read the opinion of this Court.

Justice William J. Brennan: I don't understand why you want to distinguish it, I'm trying to help you.

Mr. David W. Louisell: Well, (Voice Overlap) the Krueger case has gone back to the District Court where there is relief --

Justice William J. Brennan: No, what you said and what we said included that.

Yes, in the way a declaratory judgment even though not to an injunction under the circumstances is not much different, unless what, it's not even entirely to the declaratory judgment unless you're satisfied with the elements which make up that, that's that true facts aren't satisfactory.

Mr. David W. Louisell: That is right.

I'd like to reserve the rest of my time for rebuttal.

Chief Justice Earl Warren: You may.

Mr. Clinton.

Argument of Sam Houston Clinton, Jr.

Mr. Sam Houston Clinton, Jr.: Mr. Chief Justice, may it please the Court.

I think in the essence what counsel was indicating when you said that this statute was not applicable, was that my clients were not guilty of violating the statute, and of course, that's clear.

It not been has much to do with the issue but I gather that's what he was saying, which brings us to what this lawsuit is all about, the University Committee and the named plaintiffs feeling that there was the chilling effect that this Court has spoken up in similar type cases.

A chilling effect on the exercise of their First Amendment rights, they sued in the court below and the three-judge court was convened.

They asked for three things essentially, declaratory relief that Article 474 was basically invalid.

Second --

Justice William J. Brennan: The question in fact where these complaints, these criminal complaints dismissed before that proceeding was concluded?

Mr. Sam Houston Clinton, Jr.: No sir -- oh, before it was concluded I'm sorry.

The underlying complaints were dismissed after the three-judge court had been convened and the manner was noticed for hearing.

Justice William J. Brennan: But before it?

Mr. Sam Houston Clinton, Jr.: But before we actually got before the court for our hearing.

Justice William J. Brennan: They got it for the price that they had been dismissed?

Mr. Sam Houston Clinton, Jr.: By motion (Voice Overlap) by motion, yes sir.

Justice William J. Brennan: Well, then what -- how do you justify the three-judge court going on with your case?

Mr. Sam Houston Clinton, Jr.: The same way that the three-judge court justified it with emphasis if I may.

The three-judge court found based upon uncontroverted evidence before it in this case in the form of agreed, a testimony in a form of agreed affidavits and if the people were in court so testified, this is what they testified to.

Not only the three plaintiffs, but the two appellants who were a part of the party of seven represented to the court under oath that they had felt the chilling effect of these prosecutions and worse and had seized all activities in behalf of the University Committee to End the War in Vietnam that they knew others who had done so and it was all for this reason that the court said we do have a not just a broad curtailment of activities, but a suspension of expression altogether, and went on to find that the dispute was the liable, a very liable because here people, we're saying to the court were no longer taking part in these activities that we have before.

We were handled in the way we were handled up in Bell County.

Justice William J. Brennan: Was there anything the stipulation whether there was any subjective if the statute was going to be enforced against others in this situation, a protest against Vietnam?

Mr. Sam Houston Clinton, Jr.: There was a suggestion in two ways;

One, in the pattern of a conduct of at least two of the defendants -- I'm sorry, the appellants here who were the defendants below.

The sheriff and the justice of the peace that well, to put bluntly the sheriff said in the record that, you folks get out of my county and don't come back, we don't like people like you around here.

The JP said, the justice of the peace said, when the people come before him, we don't like traitors in this county and I'm setting a $500.00-bond on your case although the maximum fine was $200.00 to make sure that you come back because I want to try this case.

There are other matters --

Justice William J. Brennan: I suppose that all was flat on the complaint to dismiss --

Mr. Sam Houston Clinton, Jr.: Well, that particular part collapse, but the court -- but you were asking about any continuing threat, and here, they're telling them don't come back.

If you do, we're in effect I think --

Justice William J. Brennan: Is there anything happens then -- where any of these folks prosecuted for anything?

Mr. Sam Houston Clinton, Jr.: There's no evidence that any --

Justice William J. Brennan: Any demonstrations?

Mr. Sam Houston Clinton, Jr.: Well, the people say they are not going to demonstrate in Bell County as long as the sheriff acts like he does and the JP puts the on the $500.00 invokes the statutes the counsel now tells the court we're in no manner guilty of, and that's the thrust of their basis of saying that they are therefore not.

Justice Thurgood Marshall: Is this declaratory judgment stop him from saying I don't want you in my county.

If you come near again, I will give you $500.00 fine?

Mr. Sam Houston Clinton, Jr.: No sir, declaratory judgment that -- may I preface to that answer by saying actually the court I think has not -- the court below has not issued either declaratory judgment or an injunction.

They have said in an opinion that we are entitled to it, but there's been -- they've state their mandate, pending the --

Justice Byron R. White: That's the final judgment?

Mr. Sam Houston Clinton, Jr.: I beg your pardon?

Justice Byron R. White: Do you think there's a final judgment or purpose to sustain any jurisdiction?

Mr. Sam Houston Clinton, Jr.: Well, I mentioned that it -- at the beginning of my motion to affirm, but since it has been used in other this similar type thing has happened in particularly some reapportionment cases, I figure that it was probably fine when the court kind of thought so too.

Justice Thurgood Marshall: Well, there's a judgment here.

Mr. Sam Houston Clinton, Jr.: There's the opinion -- we have not entered any kind of order of injunction.

There's no language agreed upon as to some sort of order that would follow the opinion.

The reason that the court did that, it sets out they state their mandate because the legislature was coming into session.

They wanted to give the Texas legislature a chance to work on the statute.

Then, the legislature it happened almost coincidentally.

It met in special session as distinguished from regular session and adjourned without taking any action because of the limited nature of that section.

Before then we could go back to the three-judge court for any further action, papers where filed in this Court and the mandate was state further.

And so, that's the situation as far as the outstanding nature of any kind of order, there just isn't any way we have the opinion and it's been state, the mandate was state first by the court below would now by this Court.

Justice William J. Brennan: I would like to see -- are you suggesting if the law enforcement with authority of the county, that would demonstrate they now looked at you, we don't like that space and if you try to demonstrate here we're going to prosecute you under the statute that in and of itself, that's not to authorize a kind of District Court that would consider the constitutionality of the statute mentioned by the law enforcements, and if they found it unconstitutional on its face to enjoin its (Inaudible), is that it?

Mr. Sam Houston Clinton, Jr.: Well, though I think there's more to it.

There's more to this case than that.

Justice William J. Brennan: Well, it wasn't the beginning but what was their absent complaint more than that?

Mr. Sam Houston Clinton, Jr.: I'm satisfied that the court below took into consideration, perhaps the good faith of even the dismissal of the complaints for example.

You see, there is absolutely no evidence in this record that these events did in fact take place on what is now described as a federal enclave.

There is simply no evidence that that's so.

In fact, circumstantially is if counsel says, the military police first put their hands on the protesters and then delivered them into the hands of the deputy sheriff while still on a college campus suggest it, maybe it wasn't truly on the federal enclave where criminal jurisdiction have been ceded.

And so I say first that I think the court below may be looked at the timing of the filing of a motion to dismiss and the grounds of the motion to dismiss and the fact that there was no evidence in support of it, plus the court obviously looked to the things that I'm suggesting should be looked to the continuing suspension by these persons of their own activities in Bell County, particularly.

And I think it ought to be said about Bell County that housing or being the home as it is all Fort Hood and being a military installation, this particular committee that I represent looks upon it as a proper place in which to spread its views, and so, it is more than just borrowing or these people feeling they can't go to Bell County but the Bell County is a place that they think they ought to be, as distinguished from even some of the adjoining counties, it is of special significance to the --

Justice Byron R. White: That statute is the only breach of peace statute?

Mr. Sam Houston Clinton, Jr.: It's the -- it no, it is not the only one.

It is the general statute --

Justice Byron R. White: How could they charge that kind of statutes?

Mr. Sam Houston Clinton, Jr.: Well, we allege that that's what we involved and the appellants here denied in their answer that the 474 was unconstitutional and we stipulated in that stipulation that what was in issue was Article 474.

All of which, it was raised before the three-judge court on the motion to a new trial analyzed by a three-judge court and the three-judge court says clearly, we've been litigate in Article 474 here, we would have been here to start with.

Justice Byron R. White: (Inaudible)

Mr. Sam Houston Clinton, Jr.: No sir.

But I want to answer the other question because behind Article 474, there are other statutes that may be said to relate to breach of peace but this is the one that is -- has the short title, disturbing the peace, and this is the one that we've all agreed that was raised here and was involved.

One other sort of technical matter, what you have before you or what we have before us, it was dismissed was a complaint filed by the sheriff or a deputy sheriff before the justice of the peace, and that insofar as counsel says that it is inadequate to allege an offense, of course we don't stand trial necessarily on the offense, we stand trial on any information that is later issued by the county attorney based upon that charge has been found.

We have to make bond, we go -- we put to jail on the charge and we have to make bond to be release from the charge.

Justice William J. Brennan: And you don't get to know the facts until the only information.

Mr. Sam Houston Clinton, Jr.: I'm sorry?

Justice William J. Brennan: You would not know until the information what charge you have to defend against.

Mr. Sam Houston Clinton, Jr.: Right.

What's specific part of that very broad and multi-positive --

Justice William J. Brennan: What court will the information be charged?

Mr. Sam Houston Clinton, Jr.: The justice of the peace in this instance, the same justice of the peace who made -- who --

Justice William J. Brennan: And that was, is there appeal de novo or something?

Mr. Sam Houston Clinton, Jr.: To the -- no, there's -- yes.

There is an appealed novo, I'm sorry.

It depends on the amount of fine as to which direction you go.

Let's say generally, they would be an appeal de novo.

Justice William J. Brennan: No indication that the justice of the peace had filed before him or on the appeal de novo that any defense, constitutional or otherwise would not be entertained?

Mr. Sam Houston Clinton, Jr.: Well, after the justice of the peace was saying what he had done, we didn't look forward to a trial before him.

He said it to as soon as they were brought before him that he didn't like traitors in his county, and then he put -- imposed -- he said well, you can plead guilty and the fine would be $200.00 which is the maximum incidentally.

Or you can make a bond of $500.00.

And when our plaintiffs -- I'm sorry, when the appellees who are plaintiffs below protested that that was rather excessive, he said well, I just want to make sure you're here so I can try this case.

I want to be -- they did not believe that they had much future here before him.

Chief Justice Earl Warren: We'll recess now.