BACHELLAR v. MARYLAND

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Argument of Anthony G. Amsterdam

Chief Justice Warren E. Burger: Number 729, Bachellar against Maryland.

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

Mr. Anthony G. Amsterdam: Mr. Chief Justice, may it please the Court.

This state disorderly conduct prosecution brings to the Court three issues of greatly varying breadth.

The narrowest relates simply to the jury instructions in this particular case.

And it is whether on this record and in light of the trial court's charge defining the offensive disorderly conduct.

The Court's failure to give certain instruction requested by the petitioner caused the case to go to the jury on a constitutionally impermissible basis.

The second and broader question is whether on this record, the conviction of these petitioners under the specific definition of disorderly conduct charged to the jury violates the First Amendment or in other words, whether the Maryland disorderly conduct statute has been unconstitutionally applied.

And the third question is whether the Maryland disorderly conduct statute is unconstitutional on its face by virtue of the First and Fourteenth Amendments.

Now, all three of these questions have in common, the language of the offense of disorderly conduct in Maryland, resolution of any of them requires careful attention to that language and I would like to start with it.

Justice Potter Stewart: Just before you do, Mr. Amsterdam, let me be sure that I understand the distinct categories into which you put your three issues in increasing breadths.

You said the last one was whether the statute on its face is unconstitutional as violation of the First and Fourteenth Amendment and you mean -- does this have to do with vagueness or breadth, over breadth or vagueness or does it have to do with what the statute explicitly prohibits and makes an offense?

Mr. Anthony G. Amsterdam: It has to do with the particularized standards of vagueness and over breadth applicable in the First Amendment area.

So, when I say unconstitutional on its face, I mean unconstitutional on its face in the same sense in which this Court has looked to the facial validity of statutes when applied in areas involving speech.

I am talking about a First Amendment contention, but it's not unrelated to the general doctrines of vagueness and over breadth.

There's a more particularized doctrine of vagueness and over breadth applicable in the First Amendment area.

It is that which we invoke.

Justice Potter Stewart: Alright.

Mr. Anthony G. Amsterdam: Now, it is not unusual that in the disorderly conduct area, the statute itself does not contain the exhaustive definition of the crime.

The statute is found on page 4 of our brief and it simply says, “Every person who shall be found acting in a disorderly manner to the disturbance of a public peace upon any street or highway or in other public places is guilty of the offense.”

However, the statute has been authoritatively construed by the Maryland Court of Appeals and at pages 30 and 31 of our brief, we both state those constructions and set forth the portions of the specific jury charge in this case which embody the Maryland doctrines of disorderly conduct.

And there are two distinct theories of disorderly conduct in Maryland.

The first as charged to petitioner's jury is, disorderly conduct is the doing or saying, or both, of that which offends, disturbs, incites, or tends to incite a number of people gathered in the same area.

It is conduct of such nature as to affect the peace and quiet of persons who may witness it and who maybe disturbed or provoked to resentment because of that.

Chief Justice Warren E. Burger: Now, the term peace and quiet, there is linked up directly with the incite, and the peace and quiet are linked, are they not?

Mr. Anthony G. Amsterdam: Well, it is unclear.

Again, it's of the nature of definitions of this sort that they don't make those linkages clear.

The -- the verbal terminology is--conduct of such nature as to affect the peace and quiet.

Now, I take it there's a relationship between that and inciting and disturbing, but the verbal mix is not direct.

The second -- for sure, I think it maybe helpful to call that the disturbing of public theory of disorderly conduct and I refer to it as that.

The second is that, disobeying a police order theory of disorderly conduct and that which charged the petitioner's jury as follows, “a refusal to obey a policemen's command to move on when not to do so may endanger the public peace.”

It may amount to disorderly conduct.

Now, having focused in on the language, I would propose very, very briefly to describe the facts of the case.

I know the Court is familiar with them.

I only want to touch the highlights in that brief briefly.

The case arises of course out of an antiwar demonstration in front of a recruiting center.

There were pickets in front of the recruiting center, marching in a line.

They had signs and placards.

The petitioners here were part of the picket line.

They joined that picket line and they marched with the placards in the line.

They then went into -- actually three of them, I don't regard this as material, three of the six went in to the recruiting office and asked the sergeant in charge to display their antiwar literature which he said, he had no authority to do and declined to do and explaining that to the mass on the lead.

They did not -- they remained and argued with him for a while but no attempt was made to remove them for the office until closing time, something more than an hour later.

At that time, the lines were drawn down, and after they were asked again to leave both by the recruiting sergeant and the United States Marshall and they declined to do so, they were removed.

Now at this point, the testimony begins to diverge in as many directions as there are witness.

They say they were taken out thrown bodily on the ground in a violent way.

The officer has testified that they were put outside.

Some of the officers admit putting them down of their backs.

Others say at least one landed on his feet, some say they were escorted out.

A photographer present says they were all carried out very close to the ground and dropped on their rears, but in any event, they ended up on the ground outside.

They may have sat down and they may have been dropped.

Justice Hugo L. Black: Is that dispute?

Does that dispute in evidence have any relevance to your point?

Mr. Anthony G. Amsterdam: Oh, it absolutely -- it does indeed Your Honor.

If this were a case in which we were just claiming that the petitioner's conduct was not constitutionally punishable, we would accept the findings of fact most favorable to the prosecution.

I would have stated this case entirely in terms of the prosecution's testimony.

But one of the major issues is, what instructions should have been given to the jury.

Now, of course it is the function of instructions to the jury to have them decide on the facts of the whole record which category, a prosecution verdict or a defense verdict the case falls in.

So of course, defense evidence is relevant and conflicts of the evidence are irrelevant on the question what instruction should have been given to the jury.

Justice Hugo L. Black: I think that I didn't make my question clear.

I understand your arguing now on the unconstitutionality of the statute on its face.

Mr. Anthony G. Amsterdam: No, that is one of three contentions and at the moment, I am not addressing my --

Justice Hugo L. Black: Suppose they were there wrongfully and they had a right to put them out and they did put them out.

What would be the relevance of the way they put them out, in your case?

Mr. Anthony G. Amsterdam: Excuse me.

Justice Hugo L. Black: I don't know which is right or wrong on the violation of the law.

Mr. Anthony G. Amsterdam: It would have no relevance whatever if they were charged with disorderly conduct in the recruiting center.

They were not.

That is very plain.

The statute does not apply to disorderly conduct except on a public street and in certain places which does not include a recruiting officer.

At the close of the case, the trial judge formally announced that nothing that they had done in the recruiting office was the basis of this charge.

Whatever they may have done in there, the scene and if that's what it was has nothing to do with their conviction of disorderly conduct.

That has been plain from the beginning of this case.

Chief Justice Warren E. Burger: Does it have some relationship in the flow and sequence of events to what happened before they went in and after they came out?

Mr. Anthony G. Amsterdam: Absolutely, there is no question about that and I am not arguing for one moment that the court below could not take account in determining whether what they were charged with was disorderly conduct as its conduct on the street with their conduct before they went in and while they went in and after they came out.

That is no -- that's exactly why I'm describing these facts.

Justice Potter Stewart: You don't think the statute covers the conduct in the recruiting office itself?

Mr. Anthony G. Amsterdam: Pardon me, Mr. Justice.

Justice Potter Stewart: I'm just looking at the statute.

It talks about any public street or highway and various other places and it says or in any elevator, lobby, or corridor of any office building that would not in your submission include the recruiting office?

Mr. Anthony G. Amsterdam: I am quite sure that the interior of a business office is not an elevator, lobby or corridor of an office building.

This is a storefront office.

This is not a public building with public cars.

Justice Potter Stewart: An office building, if it's a building with an office in it, I suppose, isn't it?

Mr. Anthony G. Amsterdam: Well, but this requires that it be the elevator, lobby or corridor of an office building.

And what we have simply is a storefront, all of the space within which is working space.

This is an office.

It is not public space in an office building.

In any event, if I may Mr. Justice Stewart, simply refer Your Honor to the view the trial took of this case.

I think it is quite important.

If you look at our brief at page 25 in the run over footnote, at the conclusion of the testimony, the trial court declared that the offense of disorderly conduct with which they are charged does not relate to anything that took place inside the office.

Now, this was in connection with a defense request to charge to that effect.

The project said he would charge to that effect.

He did in fact neglect the charge to that effect.

But that's not the claim we bear at this point.

We raised that claim below that he should've as a matter of state law.

But his ruling is quite plain.

He didn't think that anything that went on inside the office was part of the offense.

Indeed, the Chief Justice's point came up at the trial.

It is whether we took the position that what went on inside the office was totally immaterial.

Defendant's trial counsel did take that position and answer the testimony be strict and I do not, at this point take that position.

I think that the testimony was relevant background.

The Court rejected that position.

But the Court rejected it specifically on the ground that this was relevant background and not that the conduct inside the office was disorderly.

And in fact, if you take a look at the trial record, you will see that the prosecution hurried through the testimony as to what went on in the office.

That testimony is quite unclear.

There was no cross examination on it by defense counsel precisely because these events separately were not and everybody realized they were not.

At trial, what the basis of the charge was.

The charge had to do with what happened on the street.

Justice Potter Stewart: Now, there were 25 or 30 other people who had been picketing on the street for fairly long period of time while your clients were in the office, is that correct?

Mr. Anthony G. Amsterdam: That's correct.

Both before and after the picketers included the six defendant's petitioners here.

And then when they went in they were in, remember for about an hour.

Picketing continued and indeed, from what it appears, the petitioners were in and out and other people were in and out.

The six petitioners end up here because they were lashed in the office at five.

They were the ones who had stayed.

Justice Potter Stewart: At closing time?

Mr. Anthony G. Amsterdam: And then they were thrown out.

Now, the point is, I think --

Chief Justice Warren E. Burger: You spoke of their marching in a line, now some of the pictures indeed show they were marching in a line, but Exhibit 9 which is, one of the exhibits here is not much of a line, would you say, this is a crowd in front of the store spilling out onto the street.

Indeed, spilling out to the point where although there are parking meters there, no car could be parked there at the time this activity was going on.

Mr. Anthony G. Amsterdam: Let us be clear in timing Mr. Chief Justice.

I was responding to that question.

I was talking about the picketing.

The picketing had seized by the time of Exhibit 9.

Exhibit 9 refers to the time --

Chief Justice Warren E. Burger: What was going on that time at 9:00?

Mr. Anthony G. Amsterdam: The six petitioners had been thrown out of the office and were on the sidewalk, in front of it.

At that point, a crowd composed of the other demonstrators -- that is the picketers and onlookers, gathered around to watch.

It is unclear on the record, whether or not that crowd of onlookers was already obstructing the sidewalk in the way in which you see at 9:00 before they were thrown out, or whether that happened when they were thrown out.

That is not a picket line, Your Honor, that is a crowd that is watching.

Chief Justice Warren E. Burger: It's a crowd?

Mr. Anthony G. Amsterdam: That is certainly --

Chief Justice Warren E. Burger: It's a crowd of people.

No picketing in the sense you were talking about at all except that your clients was still engaged in their demonstration, aren't they?

Mr. Anthony G. Amsterdam: They are at that point depending on the view one takes to the testimony which was never resolved by the jury.

Either still engaged in a demonstration were lying on the ground where they were thrown because they haven't yet a change to pick themselves up.

If that issue had been resolved by the jury, we would have a different case.

Chief Justice Warren E. Burger: Isn't the whole idea of a disorderly conduct statute to preclude and prevent the kind of collection and episodes that are involved in Exhibit 9?

Mr. Anthony G. Amsterdam: No, I don't think it is by any means.

Certainly not this disorderly conduct statute and in any event --

Chief Justice Warren E. Burger: Doesn't it refer in terms to the responses of others.

Now, the response of others here sometimes is peaceful, just curiosity, interest in what's going on, and sometimes it might be more than that.

But the response is part of the statute, is it not?

Mr. Anthony G. Amsterdam: There is no doubt about that, unless the public responds -- well, I better not go that far.

It is not clear to me whether that so.

Let me take the statute apart and see.

In one sense response is necessary.

That is, under the definition of disorderly conduct which involves doing something which offends, disturbs or incites, the reaction of the crowd is relevant.

What I'm concerned about is whether it tends to incite may not turn the liability on actual reaction by the crowd.

Chief Justice Warren E. Burger: Was anyone arrested while the picketing was going on in the orderly way?

Mr. Anthony G. Amsterdam: No.

Chief Justice Warren E. Burger: Indeed, the police afforded protection to them, did they not?

Mr. Anthony G. Amsterdam: They did indeed.

Chief Justice Warren E. Burger: They were there to guarantee their right to picket and parade up and down in front of the recruiting office.

Mr. Anthony G. Amsterdam: Absolutely, no question about it.

Your Honor, I want to make it very clear our position here which both the court below misunderstood and respondent appears to misunderstand.

We are not contending that these petitioners were arrested because the police disagreed with their views, they were not.

We don't suggest that for one moment.

What we suggest is two things.

First of all, what is an issue before this Court is not the reason for their arrest.

What's involved before this Court is a basis for their conviction and they were convicted on the theory that they did something which offended, disturbed or incited.

It had nothing to do with obstructing the sidewalk or any basis for the police arrest.

Secondly, the offense disturbing and inciting has to do with the crowd's response to their ideas.

We're not saying the police disagreed with their ideas.

What we're saying is that police arrested them because they disturbed the crowd.

What Your Honor is saying, Mr. Chief Justice, is exactly is right, that this offense turns in large part, if not exclusively on a crowd's reaction.

And what has happened in this case is, that the crowd reacted with hostility to the petitioners.

Why?

Not because of their position on the street, because of their position in Vietnam, that's plain and that's plain on the state's own testimony.

And as a result of that hostility, the police then proceeded to arrest them for creating a disturbance.

Now, it is the purpose of disorderly conduct was, to prevent the public from being upset, and it is the purpose of the First Amendment to prevent disorderly conduct laws from allowing convictions where the offset is ideological.

That is the essence of our submission in this case.

Now, I want to be very clear about the issues presented because in my view, the respondent takes a very different issue -- very different view of the issues than petitioner.

And I think who is ultimately right on the merits of this case depends on large part if not exclusively and whose formulation of the issues is the correct one.

For that reason, I wanted to tell the Court exactly what I think the issues are.

The question here is not whether these petitioners had done something for which Maryland can constitutionally punish.

More specifically, it is not whether they have a right to sit in on a recruiting office.

It is not whether they have a right to sit down on the sidewalk.

It is not whether they have a right to obstruct the sidewalk.

I am not asserting that they have any of those rights.

What they have a right to is a fair trial on the issue whether they did any of those things under a statute which in terms punishes doing those things.

So that the issues submitted to the jury and fairly decided by the jury would be whether the petitioners did anything that Maryland had a constitutional right to punish.

Now, that is not this trial and that is not this statute.

And it is for this reason that we profoundly disagree with the respondent's statement of the issues in this case.

The respondents make it a simple case.

Petitioners obstructed the sidewalk, they were told to move on, therefore they were charged with refusing to move on after being told that this is so because they were obstructing the sidewalk and that's a perfectly constitutional charge.

The trouble with that is that the first time petitioners have been charged with that is in this Court, and if I may refer to the record, I think I can satisfy the Court pretty squarely on that point.

What the respondents say specifically in their brief is, petitioners were arrested for blocking the sidewalk and for failure to obey a policeman's command to move on, when not to do so may endanger the public peace.

An examination of the record clearly discloses that obstruction of the sidewalk was a prevailing factor because they arrested petitioners not disagreement with their ideas.

I think I've already pointed out that the issue here is not what they were arrested for, it's what they've been convicted for.

And at this point, when we want to ask what they were convicted for, and I want to look at another aspect of the respondent's brief.

The respondent point's out at page 42 that the prosecutor elected not to proceed under the Maryland statute governing obstruction of the streets.

The respondent suggested it's immaterial that the state didn't proceed under that statute.

I suggest that the fact that the state didn't proceed under that statute is the essence of this case because what the charge was, it was in fact may, was the broad general disorderly charge under Section 123.

Now that charge as I've said has two aspects.

Doing or saying or both of anything that offends, disturbs or incites.

Now, with regard to that charge, I want to point out, that there's not only nothing in it about obstructing sidewalks but there's nothing in it about disobeying a police order.

And this was put before the jury as a separate ground of conviction, with all the facts including Chief Justice Burger, the background facts like the fact that these people were walking with signs and that they were singing “We Shall Overcome” and they were on the street.

Now, the state even in this Court caused their singing on the sidewalk, misplaced, vocalizing and suggested that it was disorderly because it prevented them for hearing police orders.

And that's why I think that this Court has to focus in this case not on the question of whether they were obstructing a sidewalk or anything else.

Certain of their conduct was clearly protected by the First Amendment.

The picketing was with the placards and with the signs and singing “We Shall Overcome,” not all of it, but some parts of it.

The state's charge here was a blunderbuss.

It was a charge that they did offend, disturb, and incite a crowd of people.

That's the issue which was submitted to the jury.

Now, for the state then to abandon that up in this Court for the first time, to say that that head of liability which it insisted on to get these convictions and then in its brief in the Court of Appeals -- pardon me, in the Court of Special Appeals stood on to get the conviction affirmed is now to be abandoned, and this is to turn into an obstructing the sidewalk case, is to do precisely what this Court in Gregory and a number or other cases has said cannot be done.

Justice Byron R. White: Mr. Amsterdam, do you -- are you saying also that no one could possibly know from the statute that sitting down and blocking a sidewalk was covered by statute?

Mr. Anthony G. Amsterdam: I am most certainly am saying that no one could know that.

Justice Byron R. White: That's part of your vagueness argument?

Mr. Anthony G. Amsterdam: Yes, but Mr. Justice White, let me explain why I'm saying that.

A -- As I read the statute on the constructions put on it below.

I can sit down and block the sidewalk all I want and I don't violate the statute.

Unless I offend, disturb, incite or tend to incite a number of people or disobey a police order when not to move on may endanger the public peace, I have not violated the statute.

Now, if I sit down on the sidewalk --

Justice Byron R. White: You don't think I'm disturbing anybody who wants to use the sidewalk if I block the sidewalk completely?

Mr. Anthony G. Amsterdam: I have no doubt that you would be disturbing those people who wants to use --

Justice Byron R. White: Well, why isn't that covered by the statute?

Mr. Anthony G. Amsterdam: Because the statute --

Justice Byron R. White: And why wouldn't you have notice that -- sitting down on the sidewalk and blocking the passage would disturb people?

Mr. Anthony G. Amsterdam: Well, even on the face of the statute itself, it's not simply a matter of disturbing, it is a matter of acting in a disorderly manner to the disturbance of the public peace.

That doesn't simply mean disturbing any individual from engaging in his own pursuits.

The notion of disturbing a public peace is one with which courts have struggled for a long time and this Court witnessed state court definitions of disturbance of the peace in Cox, in Edwards and a number of other cases, the very different thing from simply disturbing somebody who wants to walk along the street.

And in any event, the whole purpose of the petitioner's request to the jury, request to charge the jury would have been to limit the statute to exactly that.

We admit that the statute is not clear in what it means.

I do think that one would not know that sitting down is a violation of the statute.

But in any event, I am clear on one thing, that the jury should know what is and what is not a violation of the statute, when it comes time to try the case.

And that when the trial judge submits the issue in terms of generally disturbing, offending and inciting, and we asked for instructions that say, it's only if you disturb people by obstructing the sidewalk.

Justice Byron R. White: I understand --

Mr. Anthony G. Amsterdam: That you're guilty.

Justice Byron R. White: I understand that you have far more to your case than just saying that sitting down on the sidewalk isn't covered by the statute because even if it is, well, you still have a lot of your case left, because it covers a lot of other things too.

Mr. Anthony G. Amsterdam: There is one other thing I should respond Mr. Justice White, your question assumes something that I think the Court may well assume when it comes to this case and I want to be very clear, I don't think it's a fair assumption.

That is the assumption that these people sat on the sidewalk.

Now, I'm not as I said in the brief, I'm not going to be evasive about that.

That issue was not fairly tried below and I think this would be a different case if the way this case had gone to jury, the question presented was allow the jury to resolve whether they did or didn't sit on the sidewalk.

Justice Byron R. White: You don't -- you don't think they had any chance at all to get up before they were arrested?

Mr. Anthony G. Amsterdam: I think that the testimony is conflicting on that.

And I think that is was --

Chief Justice Warren E. Burger: And did not resolve by a verdict?

Aren't conflicts resolved by jury verdicts?

Mr. Anthony G. Amsterdam: Pardon me.

Chief Justice Warren E. Burger: Aren't conflicts in testimony always resolved by jury verdicts, not up of this Court.

Mr. Anthony G. Amsterdam: Only of the issues that was submitted to the jury for their resolution.

When the trial court submits to the jury the question whether or not the defendant's conduct offended, disturbed or incited a crowd, to take the jury's verdict then settling a proposition that they sat on the sidewalk would be totally incomprehensible.

If the trial court had said to the jury, did they or did they not willfully, indeed we submit an instruction.

I think if the court will take a look at our proposed instructions.

We submitted instructions at page 15, 16, 17 which would have allowed the definition of the offense in exactly those terms.

An alternative instruction I-A had three heads of liability.

One of which was knowingly and purposely engaging in acts which they had no lawful right to do, which obstructed or hinder pedestrians and traffic.

Over on the next page 16 of the appendix, our instruction would have defined in precisely Mr. Justice White's terms obstructing traffic.

If those instructions had been given and the jury had voted against these petitioners, we wouldn't be here.

That wouldn't be this case.

But what was submitted to the jury was not the question of whether or not the petitioners sat on the sidewalk but a broader one.

Now, there is one aspect of the Court's charge that may seem to submit that question.

It is not in the portion defining the offense, but it is on page 157 where in describing the defense case, and I want to -- taking aside one moment to point out that, the Court summarized the evidence here as well as giving instructions on the law.

When it summarized the prosecution's case, where you would think at least it would mention obstruction, if obstruction was an issue even though that was an illegal element.

The court didn't even talk about obstruction.

There is nothing either in the instructions to the jury on the law nor on summary even of the prosecutor's case would suggest that obstruction was an issue here.

And therefore, Mr. Chief Justice, the question of whether they sat there, whether they have obstructed anything was not resolved by the jury.

Now, the one quibble that one might have with that is this, there is instating the defense case a statement that, the position of the defense is that, they didn't here the command of the officers to get up and move on.

If that is the case, they had a right to sit on the sidewalk or in the case of one or two of them restrained there by the end of office.

But notice that the general jury charge submits two theories of liability.

Offending, disturbing and inciting is one and the other is refusing to move on.

This says that they had a right to sit on the sidewalk, i.e. not to move on, if they didn't hear the instruction of the officers.

It doesn't say anything about whether they're guilty or not guilty under the first theory.

And it is perfectly consistent that the jury in resolving this case, Mr. Chief Justice found that although they did not willfully sit down, they were thrown there by the officers.

Although, they did not have a chance to get up, or although they were held down which is their testimony that nevertheless they did something which offended, disturbed and incited a crowd to with the misplaced vocalizing which the state now talks about singing “We Shall Overcome.”

The total current text of that activity which Your Honor really are suggested, picketing outside, going into a recruiting office, presenting literature and then refusing to leave the office and then getting out on the street, I think the jury in fact didn't resolve these conflicts.

I think it would be impossible for this Court to say it did.

The jury took this case the way the state submitted.

Justice Potter Stewart: Is this still the law in Maryland, Mr. Amsterdam, that –- rather peculiar law in Maryland that the jury is the judge both with the facts and the law?

Mr. Anthony G. Amsterdam: Yes, Your Honor.

There is such a rule in Maryland.

Justice Potter Stewart: So what relevance here are the instructions of the trial judge?

Mr. Anthony G. Amsterdam: They are supposed to be merely advisory.

But in as much as the Court of Appeals of Maryland has held that a conviction is reversible if the advisory instructions are wrong, it seems very clear that this Court would have to say as a matter of federal law whether the instructions were wrong.

And if they were wrong, then the judgment would have to be reversed.

Justice Potter Stewart: Well, I just wonder in the case, and I think perhaps the unique situation of Maryland where the jury is made the judge of both facts and the law, whether our decisions of coming from other jurisdictions, where that is far from true, are completely relevant.

Mr. Anthony G. Amsterdam: I have no doubt that if the Court were disposed to treat Maryland differently than any other jurisdiction for that purpose, that Maryland's whole law disorderly conduct would have to be unconstitutional because what that would do would be to deprive this Court of imposing legal restrictions on the formulation of rules in the First Amendment area.

And that very deprivation would cause inevitably the kind of vagueness and over breadth which this Court has held bad when applied to First Amendment conduct if it really is true and I simply do not take it seriously, because frankly, the Maryland Court of Appeals doesn't take it seriously, that the jury is judge to the fact.

For all ordinary trial purposes, it isn't.

Counsel can get up and argue when the jury is told that they are in that sort of things.

But as this Court pointed out in Brady and as the (Inaudible) opinion that it refers to in Brady pointed out, only ordinary rules of review are applicable in Maryland.

If the instruction is wrong, the jury judgment gets reversed.

That's all that's in issue here.

Was as a matter of federal constitutional law, this instruction wrong and rendered wrong because of refusal to give the requested charges, and if so, Maryland law itself says that this judgment has to be reversed.

Chief Justice Warren E. Burger: Thank you, Mr. Amsterdam.

Mr. Lentz.

Argument of H. Edgar Lentz

Mr. H. Edgar Lentz: Mr. Chief Justice, so as the Justices, may it please the Court.

Before addressing myself to the principal issue raised by petitioners namely, that they were tried for the wrong crime, it would assist the state's presentation if the Court would permit the state to present it, their argument first from the stand point of the application of the statute to the petitioners by reviewing the actual facts involved.

Secondly, considering the issue of vagueness which the petitioners raised and finally, from the instructions to jury.

Chief Justice Warren E. Burger: Speak up a little -- Mr. Lentz, would you just raise your voice a little certainly.

Mr. H. Edgar Lentz: This is not a complicated case.

However, the facts must be considered in detail to present a prompt and to arrive at a proper legal determination.

The state anticipates emphasizing in its argument that this is a disorderly conduct case, not a freedom of speech case.

The arrest and prosecution of petitioners was based on their disorderly conduct which caused a disturbance of the public peace on a street in the City of Baltimore.

Petitioners were a portion of a group demonstrating against United States policy in Vietnam.

However, their political views and ideas did not cause their arrest and prosecution.

This position is established by the recognition that a minimum of 35 to 40 demonstrators whose activities were peaceful were not arrested but on the contrary, they received police protection and were granted complete freedom to picket an army recruiting office and distribute literature to unsympathetic onlookers.

Only when the petitioners sat down on a 10 to 12-foot wide sidewalk, in a commercial section in the city, blocked it as public passageway, refused officer’s request to move, were they arrested for disorderly conduct.

These demonstrators could still be picketing, if the petitioners had not laid down on the sidewalk.

Justice Hugo L. Black: I take it that you -- that Baltimore has no anti-picketing law.

Mr. H. Edgar Lentz: That is correct to the best of my knowledge, Your Honor.

Justice Hugo L. Black: But the state has one.

Mr. H. Edgar Lentz: That's correct sir.

Justice Thurgood Marshall: Is there law or ordinance about disobeying an order of an officer?

Mr. H. Edgar Lentz: No, Your Honor.

There is a state law which is embodied in the interpretation affixed to Article 27, Section 123 which is your state disorderly conduct statute.

Justice Thurgood Marshall: But there isn't a separate one just for that alone?

Mr. H. Edgar Lentz: Not to my knowledge, no sir.

Justice Potter Stewart: But there is a separate one as I understand it, making an offense to obstruct the street or sidewalk?

Mr. H. Edgar Lentz: Yes.

There is a Section 121 of Article 27 I think.

Now, the thrust of petitioner's argument is that the arrest and prosecution was based on expression of their political views and ideas.

The respondent of course argues that the arrest and their conviction was based on disorderly conduct and the vehicle used for the prosecution namely Article 27 Section 123 is a valid constitutional vehicle.

At the outset, the respondent would emphasize to the Court that this case does not present the “fighting words” of Chaplinski.

It is not a racial arrest that was patently illegal such as we had Shuttlesworth, Cox and Edwards.

It is not a pure speech case such as we had in Terminiello.

It is not a peaceful picketing as was in Gregory.

The case is purely and simply an instance where the conduct of the six petitioners was disorderly.

Justice Byron R. White: Well, could I ask you then, surely the statute and the instructions to the jury would permit the convictions for saying anything that disturbs someone?

Mr. H. Edgar Lentz: Yes.

Justice Byron R. White: And the instructions specifically permitted the jury to convict on that basis?

Mr. H. Edgar Lentz: Yes.

Justice Byron R. White: Now, if there's any evidence in the case on which imaginably or rationally, the jury could have convicted for saying something --

Mr. H. Edgar Lentz: None -- none whatsoever, Your Honor.

There was no testimony offered either for the prosecution or by the defense that any verbal remarks, any words were used.

Justice Byron R. White: What do you -- you mean that time they, you mean at time they were arrested right then?

Mr. H. Edgar Lentz: At any time during outside of the singing that went on.

Justice Byron R. White: But weren't these petitioners among those who had been carrying signs?

Mr. H. Edgar Lentz: Yes.

Justice Byron R. White: Weren't they carrying handbills inside the --

Mr. H. Edgar Lentz: Yes, well, the evidence does not indicate whether they were then carrying handbills inside.

They had a large poster --

Justice Byron R. White: They wanted to display their posters, aren't they?

Mr. H. Edgar Lentz: That's correct.

That they wanted to place inside in the window.

Justice Byron R. White: And then you say there is no evidence in this record from which anybody could rightfully infer that the jury might have convicted these petitioners for what they said?

Mr. H. Edgar Lentz: That is correct, Your Honor.

The only words --

Justice Byron R. White: Let's assume there was, let's assume there was --

Mr. H. Edgar Lentz: Well, alright, let's assume there was.

Justice Byron R. White: There was something in this record from which it could be inferred that, it could be rationally -- that the jury could rationally convict them for speaking, and the instructions authorized them to do so.

And we don't know on what basis they convicted them, do we?

Mr. H. Edgar Lentz: There would be no basis for arriving at that level, Your Honor because the only words brought out were the singing that was done.

But there were signs carried by the picketers.

There was a sign that the petitioners attempted to have place inside the recruiting office.

Justice Byron R. White: Well, if these petitioners have been carrying a sign at the time they were arrested or had the signs in their hands at the time they were arrested, and the jury might have convicted them for speaking in a way that disturbed people, what would you think about their convictions?

Mr. H. Edgar Lentz: Well, this court has ruled that picketing is not pure speech so that we get in that never, never land, that gray area where it's not purely covered by the First Amendment umbrella of protection.

We might have symbolically perforated umbrella that we're going to call and bring in to play if we're going to get into an area than carrying signs.

But I don't think the Court need reach, need confront itself with that problem because there is no testimony in the transcript to indicate that when the petitioners left or were ejected from the recruiting office, that any signs were in their hands, Mr. Justice White.

Approaching the position, when the petitioners were in the recruiting office and for a period of two hours remain, while peaceful picketing and this is very emphatically demonstrated by referring to the state's Exhibits 4, 5, 6, 7 and 8 demonstrates the peaceful picketing outside the recruiting office.

It indicates that there are no crowd had gathered on the sidewalk.

It indicates that police protection was afforded these picketers for a two-hour period on state's Exhibit number 8 which is on page 169, on the left hand side, the uniformed policeman would be observed, noticing the peaceful picketing that is transpired.

And of course the sidewalk is perfectly clear, one half of the sidewalk approximately seems to be utilized by the picketers, whereas the other half permits free passage by pedestrians.

When the point in time was reached that the petitioners were inside the office and requested to move by the sergeant, five o'clock arrived, they refused.

So certainly, if we did not have a trespass between three and five, a trespass certainly occurred at five o'clock.

I would submit that it was a reasonable removal since it was closing time.

The removal was accomplished --

Justice Potter Stewart: Mr. Lentz, I beg your pardon.

Mr. H. Edgar Lentz: I'm sorry.

Justice Potter Stewart: Before you leave these exhibits --

Mr. H. Edgar Lentz: I've got to clogged up your station tube, Your Honor, so that might account from me not hearing you.

Proceed if you will please.

Justice Potter Stewart: Before you leave these exhibits, is Exhibits 7 a picture taken inside the recruiting office?

Mr. H. Edgar Lentz: That's correct, yes, Your Honor.

Justice Potter Stewart: And so, the gentleman on the left there as you look at the picture is not a policeman.

He is a--

Mr. H. Edgar Lentz: That is Sergeant Ramley, the recruiting officer assigned to the recruiting office.

Justice Potter Stewart: Thank you.

Justice Thurgood Marshall: About what time is this Exhibit 9 taken?

Do you have any idea?

That's the last one with the big crowd.

Mr. H. Edgar Lentz: Exhibit 9 on page 170 Mr. Justice would have to be taken sometime between 5:00 and 5:15.

This was taken after the petitioners were ejected from the office.

Justice Thurgood Marshall: I see quite a few policemen in the middle there.

Mr. H. Edgar Lentz: Yes.

Justice Thurgood Marshall: Does that help you on the timing?

Mr. H. Edgar Lentz: No, as I say, the testimony indicates that Exhibit 9, this photograph was taken after the petitioners were ejected from the recruiting office.

Yes, there were police officers in the middle and this crowd is combined of -- and you might also refer to state Exhibits 2, Mr. Justice, on page 173 which gives a close up view of that.

Now, after the petitioners had been removed from the building, there was testimony indicating two petitioners tried to crawl back in.

There was an ample supply of police present.

As a matter of fact, one of the petitioners phoned the police department the day before the demonstration to advise them that such a demonstration would take place.

And I might add that this is a common occurrence.

There were officers from the two districts bordering on this particular locality, as well as officers from the traffic division.

Now, the state's position is that this disturbance on the sidewalk was caused directly by the petitioner's refusal to get up, stand and move.

This blockage of the sidewalk occurred when the petitioners refused to move.

As many as five requests were made, three by one officer, two by another.

The petitioners took the position that they did not hear the request.

An explanation is offered that possibly the singing at that time could have been of such volume that the petitioners did not hear the officer's request.

Nevertheless, a rebuttal witness when Fogerty, a newspaper reporter testified that he saw the officers standing at the feet of the petitioners talking to them.

Because of the noise of the crowd, he could not hear the words that were directed.

Now, we reached the level as to the particular crime with which the petitioners were charged.

Certainly, if our states attorney is to possess any degree of discretion, he is the one that makes the decision as to what particular statute he will charge the accused of.

We have not reached the point where the accused is going to select the statute that he wishes to be prosecuted by, certainly he was in violation of 121, the blockage of the sidewalk.

But certainly, he was in violation of 123, the disorderly conduct statute.

Number one, the disorderly conduct violation occurred when he hit the sidewalk and remained in that position, he could have stood, they could have stood, they could have joined their fellow picketers but they chose to flop on the sidewalk and prevent the use of the sidewalk with the purpose for which it was intended, namely the free passage by pedestrians.

Instead, they very selfishly chose to make use of their own purpose for utilizing the sidewalk.

Now, the Court will I'm sure consider the position that the police are placed at that time.

They must make a decision.

May they permit the petitioners to utilize the sidewalk for a purpose for which the sidewalk was not built and deny pedestrians the right to use the sidewalk for a purpose for which it was built.

And if they do make that determination, then it would follow that they would have to detour the pedestrians into the street.

And the problem that presents itself then is the danger, not only to pedestrians but also to the motorist as presented.

Another possible avenue of escape for the police officers at this point is to detour the pedestrian, so that they will avoid the area that is being blocked by the petitioners.

In which case, can they properly detour pedestrian traffic one block north and one block south of the location?

And if so, what position are the police in if one of the pedestrians refuses to follow the detour?

May that pedestrian be arrested for disorderly conduct?

And assume if you will that that procedure is followed, and again I call the Court's attentions to the exhibits and to the various shops that are on that side of the street are the rights of these shop owners denied, if the pedestrians are not permitted to use that side of the street?

All of these are practical problems with which the police were presented at that time.

However, returning to the question raised by petitioner at this time that the state's position is that the states attorney has a right.

He has a responsibility as to elect which particular violation that he decides to proceed under and he did so in this particular case by acting to proceed under the disorderly conduct statute.

A word on the vagueness of the Maryland statute as alleged by petitioners, assuming arguendo that the conditions as I have described and as the Maryland jury found to exist and as the Maryland Appellate Court found to exist, assuming arguendo that these conditions exist too, what tool did the Baltimore City police officer have to counteract this action.

And I submit it is Title 27 Article 23 the disorderly conduct statute and also of course, the blockage of the sidewalk, and so far as the vagueness of the statute is concerned and I am reading verbatim, “acting in a disorderly manner to the disturbance of the public peace upon any public street or highway in any city, town or county of the state, and the question is this statute as interpreted by the Maryland Court of Appeals void for vagueness.”

The problem exists admittedly in drafting any disorderly conduct statute.

It is literally impossible to articulate with the utmost specificity all of the precise activities which are prescribed.

Disorderly conduct activity defines precise statutory definition.

The subject decides the greater specificity is not feasible.

Now, the state would submit that the interpretation given to the statute by Maryland Court of Appeals gives fair warning to the common man as to precisely what actions are prohibited.

And this interpretation is the gist of the crime of disorderly conduct and I am reading --

Chief Justice Warren E. Burger: Where are you reading?

Mr. H. Edgar Lentz: I am reading from my notes, Your Honor.

Justice Byron R. White: I know but --

Mr. H. Edgar Lentz: I'll refer you to --

Justice Byron R. White: If you can --

Mr. H. Edgar Lentz: -- page 29 of the respondent's brief at the bottom.

The gist of the crime of disorderly conduct as it was in the cases of common law predecessor crimes is a doing or saying or both of that which offends, disturbs, incites or tends to incite a number of people gathered in the same area.

Also it has been held the failure to obey a policeman's command to move on or not to do so may endanger the public peace amounts to disorderly conduct.

In considering whether this statute as interpreted, is sufficiently clear to a person of common intelligence, I would first remind the Court that the petitioners in this case are all college students or college graduates and no suggestions has been made that they lack common intelligence.

This Court moreover has twice considered the Maryland disorderly conduct statute in the Drews cases in ‘64 and ‘65 and no quarrel was found with its constitutionality on the vagueness issue.

The Court of Special Appeals of Maryland in deciding this case made specific reference to the findings of this Court in Drews.

Now, let's consider the other state, the other enactments of other states in an attempt to draw a comparison with the Maryland statute.

Set out on pages 55 thru 69 of the respondent's brief, the state has attempted to offer for this Court's consideration, the disorderly conduct statutes of all the states, and also the ALI model penal code disorderly conduct statute.

They all seem to be strikingly similar in their wording and I would certainly submit that the common man would have less difficulty considerable less difficulty in understanding, comprehending and applying this disorderly conduct statute to himself than he would to many, many other statutes including -- I might also suggest our income tax, regulations.

Simple generic terms had been used in the statute and this expressed to man of common intelligence what is necessary or what is prohibited.

I would suggest that the 10 Commandments are expressed in the simplest of terms, yet they're completely understandable to the sinner, although theologians might experience some difficulty in agreeing on interpretation.

The same might apply to the disorderly conduct statute, I don't think that the common man would experience difficulty in applying this statute, however, lawyers or judges might well contest its specific meaning as it had been doing for centuries over such terms as probable cause, due process, reasonable, competent, fair or proper.

I would refer this Court to words of Justice Frankfurter in Addison versus Holly Hill where he stated, “Legislation when not expressed in technical terms as addressed to the common realm of man as therefore to be understood according to the sense of the thing, as the ordinary man has a right to rely on ordinary words addressed to him.

This Court has in the recent past considered similar disorderly conduct statutes in Zwicker versus Boll in the Woodward case which is cited in the state's brief where the Seventh Circuit considered a similar Illinois statute and in neither instance, where these statutes held to be void for vagueness.

As recently as November 1969, in the O'Leary case where the issue was whether statutory over breadth in a Kentucky statute which prohibited “acts and words likely to produce violence and others” this language was upheld, well certainly was denied.

The final argument advanced by petitioners namely that the trial court erred in his charge to the jury and at that this charge was of constitutional dimensions.

I would point out that all instructions in criminal cases given by judges to juries in Maryland are advisory only.

Maryland is one of two states having this provision in its Constitution.

This Court has taken cognizance of this procedure in Brady versus Maryland and the Maryland rules of procedures specified that the Court need not grant any requested instruction if the matter is fairly covered, and I emphasized fairly covered, by the instructions actually given.

Decisions of the Maryland Courts permit counsel to argue to the jury the facts and the law even if it's contrary to the advisory instructions given by the trial judge.

And where the trial judge refuses to permit counsel to argue the law and the facts reversals have resulted.

Now, the requested instructions that the petitioners offered in number 1 thru 4 (a) and also 8, were properly covered by the instructions of the nisi prius jurors.

Instructions 5, 6 and 7, are all based on the expression of views or ideas theory.

These instructions were, it is true, refused by the Maryland trial judge and we feel properly refused.

And the reason for the refusal is found in the opinion of the Maryland Court of Special Appeals, I'm reading from page 180 of the transcript, the evidence before the trial court clearly established that the arrest and charges resulted from appellant's refusal to cease their obstruction of the sidewalk and result in public disturbance, and because they had refused to comply with the three lawful commands of the police officer --

Justice Byron R. White: Now, how do we know that there it was a general verdict here?

Mr. H. Edgar Lentz: It was a general verdict.

That's correct, Your Honor, and the instructions as given by the nisi prius jurors were to the effect that these are both questions that are open for resolution.

It is your responsibility to make the resolution on these two issues.

And that resolution would have had to be made in the affirmative by reason of the general verdict that followed.

We further note that the standing demonstration -- demonstrators were not arrested since the evidence adduced below rejected any substance to the allegations that the arrest were predicated upon suppression of political views, the instructions were properly rejected.

Rebuttal of Anthony G. Amsterdam

Mr. Anthony G. Amsterdam: Thank you Mr. Lentz.

Case is submitted gentlemen.