COATES v. CITY OF CINCINNATI

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Argument of Robert R. Lavercombe

Chief Justice Warren E. Burger: We’ll hear arguments next in number 117, Coates against the City of Cincinnati.

Mr. Lavercombe, you may proceed whenever you’re ready.

Mr. Robert R. Lavercombe: Thank you sir.

Mr. Chief Justice and may it please the Court.

This appeal concerns a Cincinnati ordinance which is called the loitering ordinance, but which is really more an unlawful assembly type piece of legislation.

The ordinance provides that when in the company of two or more other people, one so conducts himself as to annoy persons passing by, a crime is committed, unless that conduct takes place at the public meeting of citizens, in which case, it is not crime.

Hamilton County, Ohio includes Cincinnati and the number of other municipalities and several of them have also had ordinances using similar language.

In the 1940, the common police court for Hamilton County which has county wide jurisdiction held that the language used made the legislation unconstitutional.

All over Ohio, the courts reached the same conclusion through the years and in 1968, the appeals court for the Cleveland area wrote in detail at length and with emphasis how the lack of ascertainable standards made the annoyance test in the Cleveland ordinance cause it to represent an unconstitutional exercise of the police power, and it was therefore void for vagueness.

That opinion is quoted at length at pages 5 and 6 in our jurisdictional statement and was written by the same judge who in 1970, he wrote so strongly to the opposite effect in a 4 to 3 decision of the Ohio Supreme Court in this case of Coates versus Cincinnati.

But at least between 1940 and 1968, the annoyance test was considered to be void for vagueness.

Indeed in 1962, the Supreme Court of Ohio held that a dog barking ordinance which used the annoyance test was void for vagueness.

But in 1967 during the summer, Cincinnati along with many other areas had racial disturbances, and the police and perhaps more significantly, other city officials frequently found themselves irritated or provoked, annoyed by the conduct of those who complained and those who disturbed.

And members of the city Government including police were not able to charge many of those who irritated them with trespass or assault and battery or profanity or disorderly conduct.

So the officials and the police who were beset by annoyance which Webster’s collegiate dictionary in the 7th Edition defines as a wearing on the nerves by persistent petty unpleasantness, they arrested those who provoke them and hold them away and that ended the annoyance for a very short time, because that use of that legislative language making annoyance a crime, directly results in contempt for our system of law and order, or I think more properly law and order with the justice.

Justice Byron R. White: Was there a conviction in this case?

Mr. Robert R. Lavercombe: Yes sir.

Justice Byron R. White: And was there a trial?

Mr. Robert R. Lavercombe: Yes sir.

There was a trial.

Actually, there are two --

Justice Byron R. White: How about the evidence?

Mr. Robert R. Lavercombe: At the trial, the --

Justice Byron R. White: It was directly?

Mr. Robert R. Lavercombe: No.

There was evidence of the type Your Honor, means refers to presented.

The case did not come up on the facts.

The only -- I believe Mr. Nichols can correct me, I believe the facts -- I have to correct myself -- I believe the facts were presented to the trial court to some degree but no effort was made to incorporate them in the Bill of Exceptions and they have not going to part of the appeal.

Justice Byron R. White: Certainly, evidence must have represented by the state to --

Mr. Robert R. Lavercombe: Yes.

That’s why I had to correct myself when I was addressing myself to what we have here and we have not come up on any facts, if Your Honor please.

Other then --

Justice Byron R. White: You don’t know what conduct the appellant’s were found guilty of?

Mr. Robert R. Lavercombe: That is correct.

Justice Byron R. White: And although would you suggest that there are some facts in the world that anybody could realize or might be covered by the statute?

Mr. Robert R. Lavercombe: Yes, yes, I certainly do.

But I maintain this statute is so broad and I’ve attempted to cite the cases that illustrate that the cases -- decisions of this Court.

I maintain that that annoyance is so broad that even though there maybe factual circumstances which could properly be used for a valid conviction, we can’t take a chance on that.

It’s too dangerous to allow this annoyance thing and the inconvenient --

Justice Byron R. White: What if your clients were guilty of precisely that conduct which any fool would know would violate the statute?

Mr. Robert R. Lavercombe: If I understand you correctly, then they should have been charged with it, whether be obscene discourse or disorderly conduct or assault and battery or --

Justice Byron R. White: But where -- they were charged under the statute and let’s assume the evidence at the trial showed the conduct which anybody would know was covered by the statute, there couldn’t be much doubt about it?

Mr. Robert R. Lavercombe: I have to disagree, Your Honor.

I don’t see how anybody can just find what annoyance is.

I’m sure you and I would have difference standards of annoyance.

Justice Byron R. White: So, your answer really is that there is nothing, no conduct that you can think of that would be annoying?

Mr. Robert R. Lavercombe: I think we have to apply a certain degree of reason there.

I’m sure that you and I or anyone in this room could designate certain conduct as annoying.

Justice Byron R. White: Well, let’s assume your clients gathered on the street and engaged in precisely that conduct?

Mr. Robert R. Lavercombe: Right.

Then, they should have been -- that conduct would then have also been as I understand the basic idea of criminal law only those acts which in legislation are crimes.

Justice Byron R. White: Well, I agree that it may -- that conduct may have violated some other statutes, but the question is whether it violated this one?

Mr. Robert R. Lavercombe: Right.

Justice Byron R. White: And that conduct you concede that anybody would say was annoying?

Mr. Robert R. Lavercombe: Right.

Justice Byron R. White: And so, there wouldn’t be any doubt in the minds of someone engaging in that conduct that it was the kind of conduct that was clearly proscribed by the statute?

Mr. Robert R. Lavercombe: Right.

I agree with that.

But I say that that does not of itself granting which Your Honor says --

Justice Byron R. White: Well then how could -- oh, go ahead.

Mr. Robert R. Lavercombe: -- granting what Your Honor says.

I say it is too dangerous to allow that broad general characterization of conduct to be a tool in the hands if you will of lazy policemen, who were still on the level of official.

Justice Byron R. White: Well, that’s the different -- that’s a -- I understand that argument.

What you really saying that is that even if, even if this defendant knew precisely and had plenty of notice that his conduct was covered by the statute, nevertheless the contours of annoyance are so vague in general that the statute should be stricken down and the state should not even be able to prosecute under the statute?

Mr. Robert R. Lavercombe: I think I’ve to --

Justice Byron R. White: Those people whose conduct is clearly covered by it?

Mr. Robert R. Lavercombe: I think I have to agree completely with what you just said, yes sir.

And in that connection, there are number of decisions of this Court over the years which go in two different areas.

One is the area that you have just alluded to, and the other is the area where there is a permissible interpretation, and that those cases are far more sophisticated than the argument I’m attempting to present here.

I’m trying to state the single issue you phrased.

Justice Byron R. White: Why didn’t you bring the -- why is it, why does that the record have the facts in?

Mr. Robert R. Lavercombe: I find that a very difficult question which I’ve been anticipating for some months.

It’s easy for me to say Your Honor that I didn’t get the hold of this case until the Supreme Court of Ohio decided, but candor compels me to indicate that I’ve a -- it seems to me that if this ordinance, not statute, these are ordinance, if this ordinance was ever to get an authoritative interpretation, it had to come up on the law alone and not on the facts because for years, the local officials have been running people and holding them and turning them lose and the local -- the lower courts have been finding them not guilty on the facts.

The perfect example is the Lathan Johnson case which is in appendix to my brief here.

It’s a very short opinion and that’s the one who started all this.

It arose out of the 1967 racial disturbances, and I tried that case and the state Court of Appeals said when they reversed, they said, this is probably unconstitutional this ordinance but we don’t have to decide that and you see by doing that, they --

Justice Byron R. White: That’s the ordinance that it didn’t reach the facts then?

Mr. Robert R. Lavercombe: No.

We have the facts there and they said there weren't any facts to support the conviction.

I tried that case -- it came up on full Bill of Exceptions.

But you see, that’s the pernicious part of this thing by having that weapon and having lower court judges who are disposed to leave that there, everyone knows is a practical matter that after the this fellow is hauled away from the area where he’s annoying somebody is either going to get dismissed in the police court the following morning or be it as it more worried about a full trial, he’s going to get dismissed eventually or if a trial court judge is so imbued with this ultra strictness that pervaded our community at the time these decisions were coming down, then the Court of Appeals is going to reverse.

And the only way this case ever got to the Supreme Court of Ohio were to our intense surprise, it was held constitutional was by not having any facts that they’re not.

I’m bothered but that’s the answer I must give you.

I don’t like it, but that’s the way it --

Justice John M. Harlan: You think the state court’s opinion reflects on the easiness to the fact that it had no facts before?

What the underlying --

Mr. Robert R. Lavercombe: The state court’s opinion by the majority, the four -- four-judge decision complaints I would say rather bitterly Your Honor about that.

The dissenting opinion says they don’t need any facts.

They said it’s solely a constitutional question on the language of the face of the ordinance.

It’s a four to three decision there.

Justice Harry A. Blackmun: Mr. Lavercombe --

Mr. Robert R. Lavercombe: I hope I address myself to your question.

Justice Harry A. Blackmun: Mr. Lavercombe, let me ask, try to get at it in the backward manner.

There is a statement of facts and the brief filed by the city in the Ohio Court of Appeals.

My question is so far as your -- you are concerned, is that a correct and acceptable statement of facts?

Mr. Robert R. Lavercombe: I’m embarrassed to say I don’t know what it says in there.

I’ve read it for several weeks and I just don’t know Your Honor.

The only facts that I’ve attempted to present is that the appellant Coates was a student demonstrator and the other appellants were pickets in labor dispute.

Justice Harry A. Blackmun: Let's go further, was traffic flow have actually impeded?

Mr. Robert R. Lavercombe: There’s a reference to that in my appendix.

The judge in passing sentence referred to that in the -- in our brown appendix Your Honor, but it doesn’t’ reach a conclusion.

He says well, there may have been traffic flow, and if there was as I recall his statement, there may have been traffic flow impeded and after was, they should have charged him under -- they could have charged him under that.

But I must say, I cannot answer you with -- I cannot represent that I’m completely up on that point.

Justice Harry A. Blackmun: Well you are here, really not knowing what the facts of case are?

Mr. Robert R. Lavercombe: I’m deliberately sir, deliberately.

Justice Byron R. White: Let’s assume that -- let’s assume then that the --

Mr. Robert R. Lavercombe: Excuse me if I may.

There was a very important to me at least to answer I wanted to give.

I’m here on the same assumption of the minority of judges of the Supreme Court of Ohio Mr. Justice Blackmun.

Justice Byron R. White: Let’s assume for the moment that the gathering in this case was in the middle of the street in the rush hour, it did impede traffic and they were charge under this particular ordinance?

Mr. Robert R. Lavercombe: I’ve been trying cases for so long that I’ve to discipline myself not to speak outside the record.

Of course, I know what happened Your Honor.

I know what happened.

I know where Coates is marching up and down on main street in the city of Cincinnati on the flag with a bunch of student demonstrators and they were dirty, unkempt, unshaven any college demonstrators.

I know that, and I know the rest of these appellants.

I’ve never met them, but I made inquiry.

Obviously and I know that they were at a labor dispute.

I’m quite sure was the General Electric plant in one of the suburbs of Cincinnati, and the employer, the – management got mad at him and have him arrested for loitering.

I’m sorry to misled Your Honor.

I’ve difficulty transposing from what’s on the record and what’s not on the record.

None of which is on the record and we didn’t attempt to bring up on the record.

Justice Byron R. White: But on the assumption there was plain obstruction of traffic and they were charge and convicted and in this ordinance, you would -- and if those facts where in the record, you’d still be making precisely the same argument you’re making now?

Mr. Robert R. Lavercombe: Yes, yes.

And of course, they would apply to only four of the five too.

Justice Byron R. White: Even though this was annoyance and everybody knew it --

Mr. Robert R. Lavercombe: That’s correct.

That’s correct.

Justice Byron R. White: -- nevertheless, you cannot use this particular ordinance against this kind --

Mr. Robert R. Lavercombe: The Government has more clearly defined the wrong doing.

If the blocking traffic should be a crime, and let’s say, it’s a crime; let’s pass an ordinance prohibiting a blocking of traffic.

Justice Byron R. White: Well, they have said it, its annoyance.

Everybody knows its annoyance?

Mr. Robert R. Lavercombe: Sorry, well -- were now at the point Your Honor believes one thing and not --

Justice Byron R. White: No, no, I have to find out what’s your argument is.

Mr. Robert R. Lavercombe: Alright.

I don’t -- I just don’t agree with you.

I think annoyance is so vague.

Well, I’ve already said and answer your previous question.

Justice Byron R. White: You don’t have control it.

You certainly don’t lose your case just because you say or concede even for blood that blocking traffic is annoyance that any fool would know.

Mr. Robert R. Lavercombe: Well, I thought you’re approaching on the more broad basis.

I understood you to say anything, let’s agree that some set of circumstances is annoyance and anybody will agree to that.

Justice Byron R. White: Well then tell me why can’t a man who engages in that conduct be convicted under this statute?

Mr. Robert R. Lavercombe: Because who knows what a particular policeman or particular police court judge is going to decide on a particular morning is that annoyance?

Justice Byron R. White: In some other case?

Mr. Robert R. Lavercombe: Yes.

Justice Byron R. White: Not this one?

Mr. Robert R. Lavercombe: Since we’ve already -- you and I have already stipulated that these facts are so atrocious that everybody would be annoyed, I have to say yes, right.

Justice Byron R. White: -- in some other case?

Mr. Robert R. Lavercombe: Yes sir.

Justice Byron R. White: And that’s enough for you to think that the ordinance should be stricken down to its face?

Mr. Robert R. Lavercombe: Right and I think I’ve cited precedents for that -- from this Court’s opinion.

Chief Justice Warren E. Burger: What is different, what is different about the situation you just alluded to that is what some policeman evaluates at a particular time in this context and the policeman who stops a person for speeding and it’s his opinion version of the speed against the drivers, or he arrests him for weaving in traffic and changing lanes, is there anything really --

Mr. Robert R. Lavercombe: Yes.

Both of those are clearly defined.

Chief Justice Warren E. Burger: Yes, clearly defined, but is there any difference -- any difference on this key thing that you emphasize, namely that it comes down to what annoys a policeman and why is that any different from what the policeman thinks is weaving in traffic or speeding?

Mr. Robert R. Lavercombe: Surely, because what annoys a policeman is not susceptible to same definition for all policemen.

But what is speeding in traffic is 35 miles or an hour or 38 miles an hour and that is susceptible to exact definition and weaving, I submit to you as virtually the same, accordingly the weaving doesn’t --

Chief Justice Warren E. Burger: The definition is quite is true, the definition, but I’m talking about the evaluation process that leads the policeman to making the arrest and almost invariably then in turn leads to a conviction because there are only two witnesses, the driver and the policeman.

Mr. Robert R. Lavercombe: Yes.

Chief Justice Warren E. Burger: Now, doesn’t all this in any area come down to a very large amount of judgment on the part of the arresting officer?

Mr. Robert R. Lavercombe: I believe so.

I think I’ve to answer it you by saying we have to look to our courts to tell us -- there’s going to be a dividing line somewhere and I think that’s we’re here for.

It's for you to decide whether this is on one side or the other, the dividing line.

I think and I’m urging that annoyance is too far, too far from the center or too far from a clearly definable dividing line within the context of the attempt on making to answer your question.

I think annoyance is just to vague and I’ve attempt to do -- cite some authorities to that effect and --

Chief Justice Warren E. Burger: Would you agree or not that in shaping ordinances of this kind, in this general area of behavior which can’t be precisely defined, that the public authority, the legislative body is trying to make an accommodation between having conduct which is identified as subject to a penalty in order to prevent any victims in this case, the person’s annoyed or upset or aggravated from taking the line with their own hands and engaging in a street riot --

Mr. Robert R. Lavercombe: Oh!

I think there would be a broad purpose of the legislature to do that, yes sir.

Chief Justice Warren E. Burger: But it’s better if -- it’s better for public authority to make that decision and let -- let us say for example, a group of working men on the one hand or students on the other annoy and aggravate each other?

Mr. Robert R. Lavercombe: No.

I’m leaving you now Your Honor.

You -- it’s not appropriate for --

Chief Justice Warren E. Burger: But you don’t agree with the basic principle that this is a matter of accommodation in balance?

Mr. Robert R. Lavercombe: I’m very strongly in favor both emotionally and -- in this case with the principle of accommodation in balance.

I do not think that this test is annoyance test is properly within a goodwill application of that concept for want of a more thought out phrase.

I don’t think a legislature can or the court should approve a -- an attempt to accommodate that is -- that leaves that much up to guess work.

Who would know in advance -- Mr. Justice White was asking about this atrocious event?

Well, let’s get --for a moment, let’s get away from the atrocious of event.

Let’s get to one that’s almost atrocious.

Well, who knows in advance when he’s going down the street, whether -- if you’re a policeman, whether you’re going to find that annoying or whereas a different policeman who had a different set of circumstances when he left home that morning or a different degree of comfort -- comfort would be equally annoyed?

That’s the area that I pursue to be the danger here.

And by doing that, you see, that leads me to the what I consider to be one of the most important points here, that leads me into what I conceive to be this contempt that this thing develops and promotes contempt for the law.

Justice Thurgood Marshall: Suppose some people deliberately blocked traffic, would there be any doubt that they deliberately were doing an act that was annoying to the people in those cars?

Mr. Robert R. Lavercombe: I would certainly consider it annoying and I think we would all agree that would be annoying.

I think they should be charged with blocking traffic.

Justice Thurgood Marshall: Well, suppose you don’t -- do you have a blocking traffic?

Mr. Robert R. Lavercombe: I don’t think so Your Honor.

Yes.

Justice Thurgood Marshall: You don’t think?

Mr. Robert R. Lavercombe: I don’t think we do.

But there’s one.

Justice Thurgood Marshall: Where there some facts here, all we have is an ordinance, we don’t have anything else?

Mr. Robert R. Lavercombe: That’s correct and I think this under the decisions of this Court, I think that ordinance is so broad that must not be permitted to stand and that’s the argument that was urged by the --

Justice Thurgood Marshall: Where is the case in this Court where all we had is the ordinance?

Mr. Robert R. Lavercombe: I beg your pardon sir?

Justice Thurgood Marshall: Which case was it that all this Court had was the ordinance and no record at all?

Mr. Robert R. Lavercombe: I believe, I can refer to one quickly here.

I’m afraid I’m going to have to search longer than I can just grab it out of here Your Honor.

Justice Potter Stewart: Well, in the case like Cramp, Cramp against the Board of Public Instruction in Florida, what we had was the language of the state statute.

That involved a so called loyalty oath which people refused to take and all we had there was the language of the statute.

Now, the case that comes to mind in a quite a different area, the First Amendment area, is Times Film against Chicago where deliberately again, counsel very deliberately kept all the facts away from the courts all the way through up to and including this Court and we just had the language in the statute that involved prior restraint of the motion picture film. So, there have been cases.

Mr. Robert R. Lavercombe: I hesitate to guess Your Honor which I am thank you for the citation Mr. Justice Stewart.

I’m confident that what I’m saying is correct, but I can’t pull the names to this citation.

Justice Hugo L. Black: Why is that all we have here?

Mr. Robert R. Lavercombe: I --

Justice Hugo L. Black: The statute?

Mr. Robert R. Lavercombe: My -- another person, another attorney in my office handled this case up to the Supreme Court of Ohio, and I’m -- I believe that he has felt so strongly about this that with his client’s permission, he was permitted to bring this thing up on the legal question only.

Justice Hugo L. Black: Was there evidence and was there a fine or cost?

Mr. Robert R. Lavercombe: I think the cost remitted in most of the cases and one of them had a relatively small fine Your Honor.

Justice Hugo L. Black: How much, do you know?

Mr. Robert R. Lavercombe: $30.00 I believe.

Justice Hugo L. Black: One of them had a $30.00 fine?

Mr. Robert R. Lavercombe: I believe so sir.

Justice Hugo L. Black: And it was based on evidence

Mr. Robert R. Lavercombe: My understanding, yes that it was, yes sir.

Justice Hugo L. Black: Well, why shouldn’t we have that and determine what this Court was deciding was annoying?

Mr. Robert R. Lavercombe: I’ll be most happy for you to have had it, but I think the answer to that is no, I never expected this case to get to the Supreme Court of the United States.

We expected an intermediate court in Ohio to strike this down as all other intermediate courts had done on the similar language in the 20 years between 1940 and 1968.

Justice Hugo L. Black: That is just on the language of the statute, but it’s -- I presume, you would agree that the Supreme Court of Ohio, we should give a narrowing definition to the words annoying, so that it included nothing except somebody standing on the street and blocking people passing by on the street, and that would make the statute valid, wouldn’t it, if the court limited it to that?

Mr. Robert R. Lavercombe: I think under the decision of this Court; that would be correct.

That would be -- the historical development of the point, yes sir, I believe so.

Justice Hugo L. Black: What I’m worried about is how do we know that that wasn’t here?

Mr. Robert R. Lavercombe: I think the only answer that suggests itself to me immediately on that is that the Supreme Court of Ohio had an equal burden with us to make you aware of that if that was the case.

Their opinion says that they didn’t have any facts.

So, to your precise question, that’s not involved here because --

Justice John M. Harlan: An undertaking of the narrow construction?

Mr. Robert R. Lavercombe: No sir.

They did not attempt to.

Justice John M. Harlan: You just said annoying was --

Mr. Robert R. Lavercombe: And the dissenting opinion of course did say they didn’t feel that is the -- just three dissenting judges didn’t go --

Justice John M. Harlan: The trial record actually uses --

Mr. Robert R. Lavercombe: I’m not aware of it.

Justice John M. Harlan: Shows the evidence.

Mr. Robert R. Lavercombe: I’m not aware of it sir, no.

I’m sure, the -- I know a record was taken and we could get -- I know the shorthand reporter.

We could get her original notes if that was relevant.

Justice Potter Stewart: Except Mr. Lavercombe under Ohio practice unless it's change, you have made up as your Bill of Exceptions only that part of the record that you wanted the reviewing courts to consider?

Mr. Robert R. Lavercombe: That’s right.

It’s in our appendix here, yes sir.

Justice Potter Stewart: And that’s all that the courts passed -- that’s the only record that’s been before any of the reviewing courts.

Mr. Robert R. Lavercombe: Any of the courts.

That’s why the difficulty with his Honor’s question over here, when he said rather of sure, I know what the facts are, but they’re not properly --

Justice Potter Stewart: Right.

Mr. Robert R. Lavercombe: -- in my opinion been presented to any court.

Justice Hugo L. Black: Well, if they had been there and not only disturbed the blocks sidewalk, hit people passing by, I presume that would be sufficient to hold that the statute’s valid, as applied to those facts whether the court said it was narrowing or not?

Mr. Robert R. Lavercombe: Well, I don’t think that situation would arise Your Honor because I think there would have been assault and battery or some other type of arrest.

Justice Hugo L. Black: There might not have been.

I presume that the state could --

Mr. Robert R. Lavercombe: Yes.

Justice Hugo L. Black: -- make that a crime of loitering or blocking the streets like it had it here.

Mr. Robert R. Lavercombe: I think we would all agree with that, yes sir.

And you’re saying that --

Justice Hugo L. Black: But why shouldn’t we have some knowledge, have some knowledge about the evidence to see what will you’re construing, the statute applied to so is to make it valid?

Mr. Robert R. Lavercombe: Well, I can only answer that.

I’d be delighted to have this Court have a full record that the method in which this case grew as such that it just was never anticipated and it was deliberately anticipated the other way as I’ve attempted to explain earlier because up until this case, no Ohio court has ever upheld a conviction under this language.

They’ve either found it unconstitutional or reserved on the facts.

Justice Hugo L. Black: Is the total amount involved in this case $30.00?

Justice Potter Stewart: $50.00.

Mr. Robert R. Lavercombe: $50.00-fine and the --

Justice Potter Stewart: Judge Luber fined at least one of them $50.00.

Mr. Robert R. Lavercombe: Yes sir, and then remitted all, but one I believe.

Justice Hugo L. Black: Remitted them all, but one?

Mr. Robert R. Lavercombe: All but one.

I believe that’s correct.

Justice Potter Stewart: I suppose in eccentric prosecutor if he chose could let say three or four people who stood on a street corner and proceeded to commit first degree murder?

Mr. Robert R. Lavercombe: And called annoyance.

Justice Potter Stewart: I suppose he could have proceeded under the statute, couldn’t he --

Mr. Robert R. Lavercombe: Right.

Justice Potter Stewart: That would be called annoying?

Mr. Robert R. Lavercombe: Yes sir.

And of course, the other side of that is the pernicious event and how about an American legion convention where there’s no restrictions at all and the people who are the day before arrested for annoyance under this and some relatively an innocuous sort of circumstances, see that no attempt is made to enforce this as opposed to a rowdy convention for example or a group of less offensive people, yes sir.

Chief Justice Warren E. Burger: But some times American legionnaires do get arrested on these circumstances too, don’t they?

Mr. Robert R. Lavercombe: Well, I don’t think they get arrested for the Cincinnati loitering ordinance Your Honor.

Justice Potter Stewart: The point is we don’t know in this case really, I mean, just as a matter absurd theory perhaps that these people didn’t commit the equivalent of first degree murder?

Mr. Robert R. Lavercombe: No.

Indeed, you don’t.

No, you don’t.

And surely, you couldn’t -- I surely, none of us would then attempt to say that this ordinance can be used for all crimes because if it is, then we can throw all the other ordinances out.

This would be the only one we need then.

We could do away with the murder and speeding and all the other type of ordinances.

That’s --

Justice Hugo L. Black: I imagine the state wouldn’t let that work very long?

Mr. Robert R. Lavercombe: I’m sorry sir.

Justice Hugo L. Black: I imagine the state wouldn’t let that work very long, because somebody would be pleading from a jeopardy on murder?

Mr. Robert R. Lavercombe: Right, right.

But I think just to reverse this true.

I think that this is -- this permits sloppy, ill-defined -- sloppy work and ill-defined charges.

And I think it tends to deteriorate the system because people gain disrespect for a system which is so subject to the whims of a particular policeman or an individual judge.

Justice Hugo L. Black: But the thing it bothers me in the argument is that you agree and I think correct that a statute can be construed on its face and as applied to the facts and there were some facts here that they heard, and we don’t know what there where?

Mr. Robert R. Lavercombe: Oh, I think the Supreme Court of Ohio should have said that too Your Honor.

I think that they didn’t choose to affirm this constitutionality on that basis.

Justice Hugo L. Black: But the appellant should have it somewhere, shouldn’t he?

Mr. Robert R. Lavercombe: Oh -- in the ordinary course clearly.

Justice Hugo L. Black: Who appealed?

Mr. Robert R. Lavercombe: Sir?

Justice Hugo L. Black: Who appealed?

Mr. Robert R. Lavercombe: All these people.

This is a straight appeal all the way.

There’s been the reversal any way on -- anywhere on this thing.

The appeal was to the state --

Chief Justice Warren E. Burger: I understood you for you’ve told us at the outset of your argument that your side of this case whether you or not deliberately made the choice to abandon the facts and gamble on getting the holding of this Court that this statute is void on its face for vagueness?

Mr. Robert R. Lavercombe: Not this Court.

A local Court of Appeals in Ohio to follow what at that time was a long line of Ohio decisions that it was void for vagueness and unconstitutional.

Chief Justice Warren E. Burger: But you made that decision at the outset, you committed yourself for the whole course of the litigation and when it came here, it came here on no facts at all, that’s correct, isn’t it?

Mr. Robert R. Lavercombe: I would not want to dispute that, even though there’s a little bit of factual situation in my filing -- my papers filed here.

I think a direct approach to your question is yes, right.

Justice Byron R. White: I think perhaps the most unfortunate part, of there not being any facts, is we can’t even tell whether this is a speech case or it isn’t a speech case.

Whether it’s in the area of communications or not and there are decisions that Court could say defendants have standing the challenge the application of statute to other people than themselves in speech cases, but the law is quite the contrary in non-speech case.

Mr. Robert R. Lavercombe: Yes, and this narrowing definition that which several of Your Honors have referred to is -- occurs frequently through decisions of this Court, but are also some cases where they’re just so broad.

I took a chance when I took a direct appeal rather a motion.

I guess my partner took a chance when he came up on the thing.

I believe and I believe emphatically that annoyance is too broad by any definition of annoyance, and I have to rely on that.

Justice Byron R. White: So, you really are talking vagueness and not overbreadth, is that what you’re talking about?

Because --

Mr. Robert R. Lavercombe: As I understand the case, I have to assert that I am talking both of them Your Honor, but I’m --

Justice Byron R. White: Because on vagueness, it seems to me --

Mr. Robert R. Lavercombe: That’s --

Justice Byron R. White: -- it’s easy to imagine things that anybody would agree is annoying?

Mr. Robert R. Lavercombe: It’s clear that I’m emphasizing vagueness.

Now, there’s no question about that, yes sir.

I think a man ought to be able to tell him in advance when his conduct is going to be a crime and you can’t tell it when annoyance is the test.

That’s the real --

Justice Byron R. White: But you can’t summon the fact that you know --

Mr. Robert R. Lavercombe: But some isn’t enough.

It’s going to be all in a criminal case Your Honor.

Justice Byron R. White: Except for that fellow moves to committing that before it happened?

Mr. Robert R. Lavercombe: Oh, he’s going to be judged -- he’s going to be judged by it, the police court judge the following morning on this very ill-defined or loose standard.

So I’ve to say that’s not enough.

At least, my argument for what is worth is that it’s any annoyance is too broad.

Chief Justice Warren E. Burger: Mr. Nichols?

Argument of A. David Nichols

Mr. A. David Nichols: Mr. Chief Justice and members of the Court.

The failure of the appellant here to present facts has been a problem for us as well in this matter, and with the permission of the Court very briefly, the broad statement that Mr. Lavercombe made with regard to the activity involved, is correct.

What happened was on December 7, 1967 with regard to the defendant Coates, he and several confederates gathered outside the United States Federal Building in Downtown, Cincinnati, which is directly across Main Street from the post office and courthouse.

And there Coates and his confederates where demonstrating against the Vietnamese war and the selective service system.

Their demonstration went so far as to block the doors to the federal building so that --

Justice Hugo L. Black: Are you reciting the facts in this case?

Mr. A. David Nichols: To assist the Court with regard to this matter because there was -- there were several questions with regards to the facts.

If Your Honors --

Justice Hugo L. Black: But they’re not in the record?

Mr. A. David Nichols: That’s correct Your Honor.

This is what -- as I indicated Your Honor, this is one of the problems that we as appellees have had with regard to this case.

On the face of the ordinance, which is the complaint that brings this case to this Court, we don’t think that Section 901-L6 of the Cincinnati Code of Ordinances is vague nor is it overbroad.

Speaking to that point --

Justice Thurgood Marshall: Do you have a disorderly conduct ordinance?

Mr. A. David Nichols: Yes, we do Your Honor.

Justice Thurgood Marshall: What’s the difference between that ordinance and this one?

Mr. A. David Nichols: Well, the language is different in that the disorderly conduct ordinance of the City of Cincinnati provides that it shall be unlawful for an individual to conduct himself in a noisy, rude, boisterous or insulting matter within the City of Cincinnati.

Justice Thurgood Marshall: And that’s different from this one?

Mr. A. David Nichols: Different in the sense that it’s -- that is one individual different in the language that it’s used.

Justice Potter Stewart: This requires a group doesn’t it --

Mr. A. David Nichols: This requires -- this might be classified, if it please Your Honors as perhaps a group disorderly conduct ordinance.

But I think, we have --

Justice Thurgood Marshall: Couldn’t three people simultaneously on the same corner be guilty of disorderly conduct?

Mr. A. David Nichols: Oh, I think they could Your Honor.

Justice Thurgood Marshall: Vow, what’s the difference between the statutes?

And the reason I’m saying this because this looks to me like a catch all for whatever might be missed, is that what it is?

Mr. A. David Nichols: Your Honor, I --

Justice Thurgood Marshall: Is this less than disorderly conduct?

Mr. A. David Nichols: I think its conduct which is troubling, annoying, vexatious conduct that blocks the street, stops commerce, stops pedestrians.

Justice Thurgood Marshall: Is there a situation where three people on the same corner could violate both ordinances at the same time?

Mr. A. David Nichols: Both ordinances at the same time?

I think, there are those situations probably --

Justice Thurgood Marshall: Well, could you prosecute them for both?

Mr. A. David Nichols: I would suggest that as a practical matter that would not happen.

Justice Thurgood Marshall: But could you?

Mr. A. David Nichols: I think we probably could Your Honor.

Justice Hugo L. Black: Why could you?

Mr. A. David Nichols: Pardon me?

Justice Hugo L. Black: Why could you if it’s the same conduct and it’s been tried or convicted with another?

Mr. A. David Nichols: Well, if they tried of --

Justice Hugo L. Black: Again by giving it a different name?

Mr. A. David Nichols: No.

I don’t think we could do that Your Honor in the sense that we stack up the charges one after the other and shotgun the case.

No.

I don’t think that’s all correct.

Chief Justice Warren E. Burger: I took you perhaps to be responding that you could charge them under either?

Mr. A. David Nichols: Either; correct.

Chief Justice Warren E. Burger: But not both?

Mr. A. David Nichols: I don’t think so or I don’t think we could try, that we can set a defender up and shoot him down like that if you will with the variety of charges, such as we often times find in the traffic area where over zealous police officers quite candidly, set somebody up with driving one of the influence of alcohol, reckless operation and a myriad of other things.

This is totally wrong.

I don’t think in this case that we could charge, nor could we try individuals engaged in that conduct for both disorderly conduct and loitering.

If I may respond just a bit further with regard to this ordinance.

This ordinance was drafted and passed on September 3, 1856, that’s about a 125 years ago.

At the time this ordinance was passed, of course, our constitutional was 60, 70 years old.

This ordinance historically seems to be the compilation out of Blackstone and Hawkins approach to unlawful assembly which I think Mr. Lavercombe alluded to.

It was people gathering on the street, so as to put fear in the hearts of for early stout individuals within the community.

This was the opportunity for the community to protect itself against unlawful conduct; a conduct which was annoying because this was a river town.

This was a town we had a lot of individuals coming down the Ohio and becoming sometimes irresponsible in our community.

This was -- this is an ordinance which has continued since its passage and to the best of my knowledge, this is the first time that it’s reached, certainly this Court, and this is the first time to the best of my knowledge that I think it’s been tested in the Supreme Court of the State of Ohio.

I don’t think there’s anything difficult about the term annoying as used in the ordinance which Mr. Lavercombe and his clients make their initial thrust against.

They say annoying, we don’t understand what that means.

Examination of dictionaries used in our high schools, colleges, grammar schools indicates that annoying means to trouble, to vex, to impede, to incommode.

This is the same definition of the Ohio Supreme Court applied.

Justice Thurgood Marshall: Well suppose three people are standing outside of the house of some colleges to just despise the smoking and they’re smoking cigarettes, that would be annoying, wouldn’t it not?

Mr. A. David Nichols: No.

I --

Justice Thurgood Marshall: Oh!

You say wouldn’t?

Mr. A. David Nichols: Is your question, if three people stood outside a house and smoke cigarettes?

Justice Thurgood Marshall: Yes.

Mr. A. David Nichols: And the person inside determined that it was annoying, would they fall within this ordinance?

I don’t think so, Your Honor for this reason --

Justice Thurgood Marshall: I think, I would be annoying, wouldn’t it?

Mr. A. David Nichols: May it please the Court, based upon the common sense approach to a resolution of these cases as in People versus Harvey from the State of New York and the matter of United States versus Woodward, we’re not talking about the peculiar susceptibilities of some individuals to annoying.

What little --

Justice Thurgood Marshall: Well doesn't say the statute said annoying to the people in the house?

Mr. A. David Nichols: Yes, that’s correct.

Justice Thurgood Marshall: Annoying to person’s passing by or occupants of adjacent building.

Mr. A. David Nichols: That’s correct.

Justice Thurgood Marshall: That’s what the statute says.

Mr. A. David Nichols: That’s correct.

Justice Thurgood Marshall: So, if you’re smoking cigarettes outside of somebody’s house as opposed to smoking cigarettes and it was against smog and everything, it would be annoying, wouldn’t it?

Mr. A. David Nichols: Well Your Honor, may interpret it as annoying and I don’t interpret it the same way because I think that we are setting up a situation there where we’re appealing to a particular susceptitude or attitude of the individual involved.

What we’re talking about with regard to this law or any law Your Honor is common sense approach to law.

We’re not -- I don’t think that this ordinance or any statute or any law or any regulation with regard in control of conduct should be drafted so that you have to be a student of the Harvard Law School before you understood what was involved, and I don’t think that this ordinance requires that.

I think this is an ordinance drawn in --

Justice Thurgood Marshall: But don’t restrict your answer to Harvard, but take any school and tell me what annoying means?[Laughter]

Mr. A. David Nichols: Annoying --

Justice Thurgood Marshall: Any school, take anyone?

Mr. A. David Nichols: Annoying --

Justice Thurgood Marshall: That I as a citizen know the limits of annoying.

This is annoying and this is not. How many people you have in Cincinnati?

Mr. A. David Nichols: About a half a million.

Justice Thurgood Marshall: About a half a million people, because this is to the people in their individual house.

Now, if I’m standing on the corner here and I don’t know who lives in that house, how could I possibly know what would annoy them?

Mr. A. David Nichols: Mr. Justice Marshall, I don’t know.

If you would know what the individual inside that house would consider to be annoying, but I do know this.

Justice Thurgood Marshall: That there are some things that we all agree --

Mr. A. David Nichols: Are annoying, that’s correct.

And respectfully --

Justice Thurgood Marshall: How do you mean that respectfully?

Mr. A. David Nichols: Well, that is precisely why we’re fortunate enough to have courts such as this one and trial courts.

We’re here what three, four courts removed from the trial court.

I would like to think that as I started to say that ordinances are drawn and statutes are drawn, so that the common man in the street understands what’s involved.

I think, this is one of those statutes.

I think that under the circumstances that we have to reach down and redefine annoying, and then we come up with a definition of annoying, and then that has to be redefined, and then we come back to the court to redefine that.

Pretty soon, annoying which is perfectly good term to describe conduct is no longer understandable because it’s been defined four or five times.

And now people are the total loss as to what annoying really means.

And it’s --

Justice Hugo L. Black: Is there any of chance or any -- could it have gone into court anyway and put facts and say yes so that we could know what they have held was annoying?

Mr. A. David Nichols: Respectfully Your Honor as I recollect this case, a record was made.

However, only a portion of the record came up on appeal.

Justice Hugo L. Black: Couldn’t the city have brought up the other, suppose it had a motion to include the facts in the record? Couldn’t it not do so on the --

Mr. A. David Nichols: I think we could have certainly Your Honor.

Justice Hugo L. Black: You couldn’t have?

Mr. A. David Nichols: Could have, yes.

Justice Hugo L. Black: So that both of are to be blamed for not having the facts in here?

Mr. A. David Nichols: Well, I’ve to conceive, perhaps, that’s true.

Chief Justice Warren E. Burger: Ordinarily, the responsibility for the record -- stated the record when it gets to an appellant court is the responsibility of the person who brings this case here.

Mr. A. David Nichols: That’s correct.

Justice Hugo L. Black: That’s ordinarily true, but we frequently have the other side make motions to amend the record and something in it.

I’m not trying to impose any liability on the city, should be there.

But we have in the case where it seems that both sides had met that a statute maybe held constitutional on its face,constitutional as apply.

Here, you find that there are some things that could be annoying if it make the statute valid, some things or some people would feel annoyed and other wouldn’t that the court rule and make it valid.

And so, we’re here without any chance to determine whether or not the statute is valid as applied, aren’t we?

Mr. A. David Nichols: That’s correct Your Honor and based upon the posture of the case is it appears before you, it’s my request that you affirm the court below.

Justice Byron R. White: Will you -- you remember -- it seems they've been -- the state seems they’ve been willing to have the statute judged on its face without any reference to the facts since you never altered the facts, you never certified them to your state courts and you’re quite willing to have the decision made about the validity of the statute based just on its face?

Mr. A. David Nichols: That’s correct Your Honor.

Justice Byron R. White: And I take that you’re not only willing to have that done here, but you want the Supreme Court of Ohio heard?

Mr. A. David Nichols: That’s correct Your Honor.

Justice Byron R. White: On the face of the statute?

Mr. A. David Nichols: We think that these -- we think that the statute on it face is not vague, nor overbroad or does not suffer from any constitutional and infirmity.

Justice Byron R. White: You don’t concede at all that in some applications, somebody might have some real doubt about whether he was annoying somebody?

Mr. A. David Nichols: Your Honor, I concede that in all human events, we all must make judgments and have some doubt about what our position maybe.

But I further suggest to this Court that from the State of New York in the case of People versus Harvey to the State of California in the case of Fernandez versus Clinger, nobody has any trouble with annoying; maybe they do in Cincinnati.

But in those cases, though the term annoy was specifically under consideration, and in Fernandez versus Clinger, this Court denied certiorari in about 1966.

In that case, the court said the highest court for the State of California said with regard to term annoy and the citation is 346 F.2nd at page 212, “the words molest or annoy have accepted community meanings and are appropriate standards for a criminal statute.”

In People versus Harvey --

Justice Potter Stewart: What was that citation, 346 F.2d 212?

Mr. A. David Nichols: That’s correct Your Honor.

Justice Potter Stewart: And you have the other one, it isn’t cited in your brief either?

Mr. A. David Nichols: No, it’s not Your Honor.

Justice Potter Stewart: Harvey --

Mr. A. David Nichols: People versus Harvey, 307 New York 588, 1954.

Justice Potter Stewart: Okay.

Justice Hugo L. Black: I understand this is in part of labor dispute?

Mr. A. David Nichols: There are actually five defendants.

One of whom was a demonstrator against the Vietnamese war and the other four were on the picket line at a manufacturing company in Cincinnati.

Justice Hugo L. Black: I’m sure the picketing was annoying to the employer?

Mr. A. David Nichols: Well, the picketing was so -- was such that they blocked the public sidewalk, they blocked the street and driveways, would not allowed --

Justice Hugo L. Black: But we don’t have that.

Mr. A. David Nichols: That’s correct Your Honor.

Chief Justice Warren E. Burger: Let me ask you this question on this matter of vagueness.

I suppose as long as you got the half a million people down Cincinnati, you must have an ordinance about changing lanes in traffics so as to endanger the flow of traffic, that’s the way to put some times or changing lanes so as to create conditions for an accident.

Do you think that informs the drivers anymore than or any less than this ordinance informs people?

Mr. A. David Nichols: Responding to Your Honor’s first question Mr. Chief Justice, yes, we have such an ordinance, and I think that ordinance like this ordinance says to the operator of an automobile or one who wishes to harangue his brothers on the street, you must do so as a reasonable man.

You must operate within the limits of your demonstration.

You must operate within the limits of the reasonable man using due care with what you’re about.

There are -- I don’t know if I’ve totally respondent to you -- to your question Mr. Chief Justice other than to say that throughout the law, there are those areas which can’t be uniformly and minutely defined because when that happens, then nobody knows what the law is.

Judge White who is sitting as a district judge in a Northern District of Ohio, Western Division rendered in a decision on December 18, 1970 which I think carries some very good language with regard that what where about here today.

And in that case which is Steinberg versus Rhodes which has not been reported yet, but his case number C-70 289, December 18, 1970.

The case involved construction of language with regard to an abortion statute in the State of Ohio.

Judge White said on -- with regard to the approach of the plaintiffs in this case, he says that it appears to us that the vagueness which disturbs the plaintiffs herein results from their own strange construction of the language used, coupled with the modern notion among law review writers that anything that is not coached in numerous paragraphs of fine spun legal terminology is to imprecise to support a criminal conviction.

He went on to say the words of the Ohio statute in this particular case have over a long period of years proved entirely adequate to inform the public, both way and professional what is forbidden.

We think both of those points --

Justice Potter Stewart: Was he a member of the three-judge-court?

Mr. A. David Nichols: That’s correct Your Honor.

Justice Potter Stewart: In the Northern District of Ohio?

Mr. A. David Nichols: Western Division, yes Your Honor, and was sitting as one of a three-judge-court.

Justice Potter Stewart: Three-judge-court.

Mr. A. David Nichols: Three-judge-court.

We think that language has some significance because all through the law, its common sense and common sense as that you shall not annoy your neighbors.

Common sense also says your neighbors shall but not be so critical that he is going to apply an impossible standard.

That’s our whole judicial system.

Justice Hugo L. Black: But you’re not claiming your argument to the law would be good.

You made it a crime for one man to annoy his neighbors.

Mr. A. David Nichols: I’m sorry Your Honor, I didn’t --

Justice Hugo L. Black: You’re not claiming are you that would be a valid crime if it said nothing in the word except that it shall be a crime in the state for one man to annoy his neighbor?

Mr. A. David Nichols: No.

I’m not suggesting that it should just be -- that we can codify annoyance period as a crime.

Justice Hugo L. Black: What you have here is a case where the word could have a good meaning?

Mr. A. David Nichols: That’s correct.

Justice Hugo L. Black: And could make the statute valid under the rule, but you don’t have the facts?

Now the problem is what we do with a case like this?

Mr. A. David Nichols: Well, I humbly suggest that it was the appellant’s decision to come the road that they did and that we have responded and that this Court at this point should affirm the court of Ohio -- Supreme Court of Ohio.

Justice Hugo L. Black: Should we affirm it or to dismiss it?

Mr. A. David Nichols: Well, dismiss the case or affirm.

I think that the -- this Court should affirm the court below.

Justice Hugo L. Black: On what basis?

Mr. A. David Nichols: That the statute is not vague nor overbroad on its face.

Chief Justice Warren E. Burger: That’s the only issue presented here isn’t it in this appeal?

Mr. A. David Nichols: That’s correct.

Yes it is Mr. Chief Justice.

Justice John M. Harlan: Is it so that the -- (Inaudible) court in Ohio that’s upheld the statute?

Mr. A. David Nichols: I didn’t hear Your Honor.

Justice John M. Harlan: I say -- I thought your adversary said this is the first time that any Ohio court had upheld the statute?

Mr. A. David Nichols: This is the first time the highest court in the state, the Supreme Court of Ohio has ruled on this or any similar ordinance of its particular type.

There was one other case, that’s Beecher (ph) versus Columbus which was the loud dog barking case which did come up, and the court in that case held the law unconstitutional because it didn’t establish a vicinity of annoyance, that your going to have a barking dog on the East side of Columbus, somebody on the West side, get an affidavit that it was totally unworkable.

That’s not our case.

We’ve defined the area in which the activity is determined to be criminal with specificity.

Justice Hugo L. Black: But not the activity?

Mr. A. David Nichols: Your Honor, respectfully, I would say that the activity is defined as it relates to the relationship of one human being to another.

Justice Potter Stewart: Three or more --

Mr. A. David Nichols: Or three or more -- two plus one other, yes.

Justice Potter Stewart: Three or more --

Mr. A. David Nichols: Three or more --

Justice Potter Stewart: Before there can be any offense at all?

Mr. A. David Nichols: That’s correct.

If -- judgment, I think is perhaps an element here and this Court, Judge Holmes in the matter of Nash versus the United States which is not in our brief, but a case I ran across when preparing for argument here, that’s recorded in 229 United States 373.

It’s 1913 antitrust criminal case.

And in that case, this Court was faced with a determination as to whether the term unduly was a term that was so broad and vague that a man could act to his peril and face imprisonment because his activities were such that they unduly restrained trade.

And judge -- Justice Holmes said, the law is full of instances where a man’s fate depends upon his judgment.

And he went on to say that a man must estimate rightly, correctly, and that is as the jury subsequently estimates that conduct.

And that if that individual fails in judging his conduct by contemporary standards, he may not only suffer a fine or imprisonment, but he may lose his life.

What we’re talking about here is the judgment of an individual in the intercourse social activity within his community based upon contemporary standards, and I submit that if we constantly have to redefine each and every term, which is a term of I think common understanding as the court in Fernandez versus Clinger and People versus Harvey thought it was, then, we’ll have even more problems across this land because people will say does annoy really mean what Webster’s says or it does means something else or what’s it all about.

Justice Hugo L. Black: Suppose it means exactly about Webster says, you think that all things that were annoyed people, two or three people would make -- could be made a crime?

Suppose it means exactly what Webster says?

Mr. A. David Nichols: Your question is do I think that everything that I might consider to be annoying would be a crime?

Justice Hugo L. Black: Yes.

Mr. A. David Nichols: No.

Justice Hugo L. Black: And you fine -- you finally get back to finding at --

Mr. A. David Nichols: But base upon contemporary standards as to what a reasonable man who would be law abiding with common intelligence will consider.

I think is the issue as in --

Justice Hugo L. Black: There’s a lot of reasonable man, I think they’re reasonable throughout the country.

Mr. A. David Nichols: Thank you very much.

Justice Hugo L. Black: Take my Brother Marshall’s suggestion would -- a very much annoyed by people smoking cigarettes in there presence?

Could that be made a crime?

Mr. A. David Nichols: I think if the ordinance or statute were drafted in that manner, yes.

I think under the contemporary standards --

Justice Hugo L. Black: Just the word annoy would be enough?

Mr. A. David Nichols: Pardon me?

Justice Hugo L. Black: Just the word annoyed would be enough?

Mr. A. David Nichols: No.

I don’t think just the word annoy.

But if one were to draw an ordinance --

Justice Hugo L. Black: And so, you’re talking now but as applied?

Mr. A. David Nichols: That’s correct.

Chief Justice Warren E. Burger: But many cities do have ordinances which make it criminal act to smoke in restaurant or an elevator or a store or a public building, but that saying that direct act, it isn’t cast in terms of annoying, isn’t it?

Mr. A. David Nichols: That’s right.

Chief Justice Warren E. Burger: We’ve had one in my home city of St. Paul for 25 years, and --

Justice Hugo L. Black: That’s a definite state which said conduct to a crime.

Chief Justice Warren E. Burger: Definite statute and is quite widely accepted it?

Justice Thurgood Marshall: Mr. Nichols, how loud would I have to be talking on your corner with two others of us before I would annoy you, under this statute?

Mr. A. David Nichols: Respectfully Your Honor, loudness or the decibel level which you would have to reach, I think would again based upon the reasonable man test would depend on where you were.

If you are in the ball park and cheering your team --

Justice Thurgood Marshall: No, mine is on your pavement, if front of your house.

Mr. A. David Nichols: Yes.

Justice Thurgood Marshall: And wasn’t that decibel level be different right across the street?

Mr. A. David Nichols: Not if across the street was a residential -- I’m not sure I understand you question.

Justice Thurgood Marshall: This is a neighborhood of people, all middle class people living side by side.

Some people are deaf that they could turn their hearing aid off, and the others are so sensible that any sound will awaken them.

Wouldn’t each one of them have a different level of annoyance under the statute?

Mr. A. David Nichols: Oh, I think it’s conceivable that there could be people within the neighborhood you describe who would have a different of tolerance for annoyance.

But that doesn’t mean that because their tolerance is a one level or another that the activity is in of itself a criminal.

Justice Thurgood Marshall: Assuming I’m sitting as a trial judge in Cincinnati, how would I decide whether it was too loud or not loud enough?

Mr. A. David Nichols: I think Your Honor --

Justice Thurgood Marshall: There isn’t really yard stick; you have to agree on it.

There is no yard stick.

Mr. A. David Nichols: Nope, only --

Justice Thurgood Marshall: But once you agree that there’s not yard stick as to how loud in order to be annoyance, aren’t you getting in trouble?

That’s my only point.

Mr. A. David Nichols: Well, I would say this that there’s no yard stick with regard to the decibel level outside your house in that neighborhood, nor if I lived across the street outside my house.

Justice Potter Stewart: I suppose if you read the words of the statute that if a person who would pass by or a person who is an occupant of an adjacent building -- simply testified that these three defendants assembled on a sidewalk or a street corner or vacant lot or mouth of an alley, adjacent to the building where I live or in a vicinity where I pass by, and annoyed me, the defendants would be guilty wouldn’t they?

Mr. A. David Nichols: I certainly should think so.

Justice Potter Stewart: Wouldn’t’ be up to the court to consider decibel level or anything else by only that the sworn statement of this passerby or an occupant of an adjacent building that he was annoyed, that would be enough to lead for a conviction, wouldn’t it?

Mr. A. David Nichols: No, I don’t’ believe so.

No not --

Justice Potter Stewart: That’s the ordinance says.

Mr. A. David Nichols: Not just to that degree because if your position was that my mere walking by and if I had the clicking of my heels was annoying to you, I think that’s totally --

Justice Potter Stewart: No, I’m talking about the three people, they have to give it.

Mr. A. David Nichols: Or --

Justice Potter Stewart: Or in order to be a violation, they have to be three people?

Mr. A. David Nichols: That’s correct.

Justice Potter Stewart: Three defendants, and then the passerby says those defendants were standing on the street corner and I passed by and they annoyed me.

Now, that’s the end of case, $50.00 fine.

Isn’t it under the way of the statute is written?

Mr. A. David Nichols: No, I don’t think that’s the test because if that were the test, that’s exactly the problem we’re having here.

Justice Potter Stewart: Absolutely.

That’s the way --

Mr. A. David Nichols: To say --

Justice Potter Stewart: -- the wording of the statute read, aren’t they?

Mr. A. David Nichols: But the merely -- well, respectfully if I may please Your Honor, I think we have to have some more facts than just that you are merely annoyed.

I don’t think that that conclusion reaches the conviction.

Thank you.

Chief Justice Warren E. Burger: This takes us right back to the fact situation.

This must -- this kind of situation first goes to a policeman, he must make a value of judgment that he will make an arrest, then goes to a judge or a magistrate and he make a value of judgment and we can’t make any value of judgment about this -- of that character without any facts.

All we can do is pass on the statute on its face, isn’t that right?

Mr. A. David Nichols: That’s our feeling Your Honor.

Chief Justice Warren E. Burger: Thank you.

You’ve --

Rebuttal of Robert R. Lavercombe

Mr. Robert R. Lavercombe: That’s all we’re asking you to do.

I think candor compels us, we’re asking you to rule on the face -- the ordinance on the face of it Your Honor.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.