ORGANIZATION FOR A BETTER AUSTIN v. KEEFE
Legal provision: Amendment 1: Speech, Press, and Assembly
Argument of David C. Long
Chief Justice Warren E. Burger: We’ll hear arguments next in Number 135, Organization for Better Austin against Keefe.
Mr. Long, you may proceed whenever you’re ready.
Mr. David C. Long: Mr. Chief Justice and may it please the Court.
This case is on writ of certiorari to the appellate court of Illinois, first district.
That Court has approved an injunction which prohibits petitioners from passing up literature of any kind, and from picketing anywhere in the City of Westchester, Illinois.
This blanket prohibition on First Amendment activities has been in effect for now over three years.
Petitioner, the Organization for Better Austin, who I will refer to as the OBA is an integrated community organization in Austin which is a racially-changing neighborhood in the City of Chicago’s far west side.
The individual petitioners are certain officers and members of the OBA and the chairman of its Real Estate Practices Committee.
Justice Byron R. White: Mr. Long, can you give me a little geographic help, how close is Westchester to Austin?
Mr. David C. Long: Respondent’s brief refers to it as being seven miles.
There’s nothing in the record which indicates the exact distance but in general, the Austin community is the next Chicago community to Oak Park which is the first western suburb and then Westchester is further west than that.
Justice Byron R. White: Are the two adjacent?
Mr. David C. Long: They’re not adjacent.
Justice Byron R. White: Something in between?
Mr. David C. Long: They’re roughly connected by some side roads and a freeway.
Justice Byron R. White: How large is Westchester?
Mr. David C. Long: Westchester, according to the ‘60 Census is 18,000 persons, approximately.
Justice John M. Harlan: I know one of which you offer in your argument and I know of this brief by either of -- looking over these papers last night and the question that came to my mind, is there a final judgment here?
As a state case, you got a temporary injunction.
Your adversary, it says he wants to go trial without the facts, is this a final judgment?
Mr. David C. Long: Well, we --
Justice John M. Harlan: I don’t want to argue with that.
Mr. David C. Long: Briefly, we --
Justice John M. Harlan: I haven’t directed your mind or attention to it but I should think possibly you might want to --
Mr. David C. Long: Well, let me deal with it right now Mr. Justice Harlan.
In our petition for certiorari, we set out that this has been -- the injunction was issued although denominated temporary after a full hearing or at least as full hearing as the parties wished at that time which laid out the activities and the claim which Mr. -- the basis of Mr. Keefe’s claim that his rights have been invaded.
We admitted the activities in the trial court.
As a matter of fact, most of the pamphlets which are in evidence were submitted by defendants because defendants firmly believed that all of this material was protected by the First Amendment and attempted, we were candid about their activities.
Also, we indicated that our sole client, our sole defense was First Amendment and I’ll call Your Honor’s attention to the Logan Valley case, the Food Employees versus Logan Valley case which arose in almost in identical factual situation.
I believe it was an interlocutory or temporary injunction which was considered final by this Court because it remained in effect until modified by the Court and the same is true as we’ve set out in our reply brief with respect to temporary injunctions under Illinois law.
Chief Justice Warren E. Burger: Are you arguing in effect that if the Court, that this injunction is much the same as one which by its terms was given a three-year life that is that this activity was enjoined for a period of three years.
Mr. David C. Long: Well, if that --
Chief Justice Warren E. Burger: If that would then be final enough for review even though there might be another stage proceeding?
Mr. David C. Long: Well, according to, as I read the Logan Valley case, it’s final because it remains in effect until it could be modified.
Also we have no other defense but the First Amendment defense.
So, for our purposes, --
Chief Justice Warren E. Burger: You're really arguing for a theory of degrees of finality and this is final enough for review because it has restrained the First Amendment Rights for three years.
Mr. David C. Long: That’s correct and it would be speculation on my part to suggest to the Court what the result would have been one way or the other if it had gone to a final --
Justice John M. Harlan: Of course when you lose this --
Mr. David C. Long: Hearings.
Justice John M. Harlan: (Voice Overlap) --
Mr. David C. Long: The case will be remanded and under Illinois procedures, I suppose we could move to dissolve or the respondent could move to ask that the final order be entered, a permanent injunction.
Justice John M. Harlan: (Inaudible)
Mr. David C. Long: Factually, I don’t believe there’s any dispute between the parties that there are additional facts, material facts which we would attempt to get before this Court if it came here again.
Justice John M. Harlan: Well, I just wondered if I could point -- .
Mr. David C. Long: The respondent Jerome Keefe is a real estate broker.
It has business in petitioner’s neighborhood in Austin and the OBA believed that his active solicitation of persons who lived in the neighborhood to sell their homes constituted,-- contributed to the rapid change over of portions of the community from integrated to all black.
In short, petitioners claim that respondent was a panic peddler.
In the OBA, at a meeting in Austin to which respondent cane asked questions to the respondent and asked him to sign on a solicitation agreement.
Respondent refused and it’s following that refusal that the literature distribution in question here took place.
Some members of the OBA distributed literature by hand in the Westchester community in which the respondent lived.
The trial court made a finding with respect to this distribution after the evidentiary hearing which is as follows that the petitioner’s distribution of leaflets and I quote “was in all occasions conducted in a peaceful and orderly manner, did not caused any disruption of pedestrian or vehicular traffic and did not precipitate any fights, disturbances or other breaches of the peace.
This literature was distributed on five different occasions over a two-month period and it was distributed by leaving it at the doorsteps or in the handle of the screen door in various residence in respondent’s neighborhood.
Unlike Martin v. Struthers, I might add parenthetically, no residents were summoned to the door to receive them and there are no complaints from these residents that they were in any way disturbed.
They were distributed at the shopping center and they were distributed in front of a church to which respondent says he belongs.
However, irrespective of this finding that there was no disruption, no disturbance whatsoever.
The trial court have enjoined petitioners and I quote “from passing of pamphlets, leaflets or literature of any kind and from picketing anywhere in the City or Westchester, Illinois.”
This is the injunction which has been in effect now for three years.
However, while refusing to enjoin picketing, peaceful picketing at respondent’s office in Austin, the trial court did enjoin all picketing in the City of Westchester and it did this absent any evidence that petitioners had engaged in any picketing in Westchester.
The Appellate Court of Illinois sustained its blanket injunction which the trial court had entered and came to the unprecedented conclusion in sustaining it that petitioners had no First Amendment rights.
There were no First Amendment rights involved here and the appellate court justified this conclusion on two basis.
First, I quote, “the purpose of the defendants was not to inform the public of a matter of public interest but the sole purpose was to force plaintiff to sign a no-solicitation agreement.”
The Court did not consider relevant to its determination on this issue whether the subject of respondent’s real estate activities in a racially changing area was a matter of public interest or public concern.
The appellate court also justified making Westchester off limits to petitioner’s distribution of leaflets on the basis of a determination that respondent’s right of privacy was invaded by this distribution.
And finally, the appellate court held that the scope of this restraint namely everywhere in the city of 18,000 persons on both literature distribution and picketing, was not overly broad.
I’d like to treat first that liberty which the Constitution has traditionally afforded to the peaceful and orderly distribution of literature by hand, the doctrine of no-prior restraint, then consider how the appellate court’s justification where its conclusion that the right free speech is not involved here, does not comport with the long history of decisions involving the First Amendment by this Court.
Justice Potter Stewart: You didn’t succeed in getting to the Illinois Supreme Court?
Mr. David C. Long: We filed a petition for leave to appeal which was denied in January 1970, following that, we petitioned for certiorari.
Historically, the liberty of press and freedom of speech has embraced pamphlets and leaflets as well as books and newspapers.
Leaflets distributed on streets and sidewalks, door-to-door and in shopping centers have been the backbone of political campaigns, religious evangelism, and have played a major role in the advocacy of social, political and economic causes.
Restraints such as imposed here on the distribution of non-commercial literature at such places have been uniformly held unconstitutional.
In the past states who attempted to justify outright prohibition and various other less serious restraints in terms of the one here on a variety of grounds to prevent littering as the Schneider case because it’s unpopular, annoying or distasteful which is Murdoch because of privacy Martin v. Struther or the possibility of fraud which is Schneider and Talley.
The various restraints which have been held unconstitutional have included of course outright prohibition which is what is before the Court today.
Outright prohibition within a whole town, the Schneider case was by ordinance, here it’s by injunction.
But it’s also struck down numerous, less serious and less complete restraints.
License requirements and Lovell, taxation in Murdoch or by it has held unconstitutional provision on anonymity, the Talley case.
And all of these have been less serious except for the outright prohibition which is equivalent to this restraint here.
Moreover, of all the forums of restraint which have been held unconstitutional, that which has been considered most serious and most irreparable as prior restraint.
Indeed, the landmark case of Near versus Minnesota condemned the very type of restraint which has been been imposed here, where it was an injunction against the future publication and circulation of alleged, malicious, scandalous and defamatory newspapers.
Justice Potter Stewart: Your argument then does go to saying that even if the leaflets clearly were defamatory charging person with crime that the only remedy is to damage his remedy or a damage remedy, that damage action rather than any kind of an injunction.
Mr. David C. Long: That’s true and the damage remedy would of course be subject to the New York Times standard.
The petitioner certainly has thrust himself under the vortex, so to speak, the public life and the public issues of Austin qualifying for a public figure but that issue is of course not before the Courts since there has been no finding of falsity that we’re dealing with --
Justice Potter Stewart: But will be just going to the reach of your prior restraint argument.
Mr. David C. Long: That’s correct.
Justice Potter Stewart: And would your prior restraint argument report to eliminate any criminal appendage for a libel or slander?
Mr. David C. Long: I wouldn't purport to attempt to answer that Your Honor.
The basic evil of the prior restraint is that as in this case, regardless whether where you have a wrong -- if you have a wrongful restraint and the injunction is reversed on appeal, that injunction will still have prohibited the conduct which is subsequently held to be protected by the First Amendment for the duration of the time it took to appeal it.
This was the situation in the Birmingham cases, Shuttlesworth versus Birmingham and the Walker versus Birmingham where the state, a state law which can prohibit a person, who is held in or was brought before the Court in a contempt proceeding from raising the constitutional issue has been held to be a valid exercise of state power.
Turning now to the appellate court’s justification for this sweeping prior restraint, I would like to first examine the Court’s determination that there was an invasion of privacy.
Given the scope of the injunction here, namely anywhere in Westchester, it is implicit that the appellate court made the determination that all of Westchester is within a zone of privacy, personal to respondent.
Justice Hugo L. Black: (Inaudible)
Mr. David C. Long: And that within this zone of privacy petitioner’s First Amendment activities of passing out literature in an orderly and peaceful manner critical of respondent’s real estate activities in Austin violated his privacy.
Indeed, it is implicit that any literature regardless of its content given the fact that the injunction goes to all literature regardless of what it says would have invaded respondent’s privacy if distributed by respondents.
In so doing, the --
Justice William O. Douglas: You’ve given us the 18,000 figure, does the record the squirm mileage of Westchester?
Mr. David C. Long: No it does not and I have no idea what it is.
Justice William O. Douglas: Could be small place; could be a large one, geographically?
Mr. David C. Long: From my knowledge of the western suburbs, these are all single-family houses, so I would assume that it was a quite a low density area perhaps with a few apartments but certainly not of urban density.
I believe that the Illinois Courts in this determination of privacy have disregarded the authority of Time v. Hill which held that the First Amendment rights are applicable where the state attempts to create rights of privacy.
Chief Justice Warren E. Burger: Wasn’t Time against Hill a libel act?
Mr. David C. Long: Your Honor, Time v. Hill was, I believe a privacy action where the Court said that the nature of the harm which the plaintiff sought to redress was emotional harm to himself rather than based on damage to his reputation which is one of the classic formulations of the privacy action and --
Chief Justice Warren E. Burger: Well, it wasn’t a prior restraint case in the sense of Near against Minnesota?
Mr. David C. Long: No, that’s correct and we’re using Time in an a fortiori sense that if a restraint cannot be justified in the context of subsequent punishment, it certainly cannot be justified in terms of a more serious restraint which is prior restraint.
Chief Justice Warren E. Burger: Has there been any state prior restraint case since Near against Minnesota that represented the classic features of Near against Minnesota?
Mr. David C. Long: I know of no case which is near Near versus Minnesota.
Cases which the respondent has cited which were involved in injunction have all been picketing cases and respondents ask this Court to declare that the distribution of literature is equivalent to picketing.
Something which is contrary to the long established precedence of the Court and I would also point out that in Time, the First Amendment standards which overcame the privacy cause of action there were in the context of false statements or as I’ve indicated, there’s been no finding of falsity here.
Furthermore, the Illinois has created a new and surprising definition of privacy to justify this restraint on First Amendment conduct.
The law of privacy has here before never purported to prohibit the distribution of written materials concerning a person’s business activities which relate to public issues of interest and concern.
Taking two heads of privacy which respondent may argue are applicable here which have traditionally been brought within the notions of privacy in its brief history since Warren-Brandeis article, that is first there has been interference with respondent’s peaceful enjoinment of his home and property.
Here, the distribution was the third persons in Westchester, in a shopping center, door-to-door.
There has been no unreasonable publicity given to his private life another head, traditional privacy law.
Not just the matter of public interest but it concerned respondents’ public activities.
Indeed, activities which he went to a public meeting in Austin to discuss.
The appellate court’s opinion gives us an indication of what the nature of this newly created Illinois privacy right is when it says there’s no evidence to show that plaintiff was engaged in panic peddling in Westchester or that he intended to do business in Westchester.
The appellate court is apparently making a determination that the subject of respondent’s activities in Austin is inappropriate for Westchester in the distribution of leaflets on this subject does invade respondent’s privacy.
It’s significant to note however that the Court refused to enjoin picketing in Austin.
So, presumably, the subject matter of respondent’s activities was considered appropriate for Austin but not for Westchester which even attempting to use the unlawful purpose doctrine announced in a number of picketing cases would create the anomalous situation of -- if not being against public policy to talk about or to distribute material concerning a particular issue in one place but in another, absence of determination that the manner itself was somehow objectionable.
Justice William O. Douglas: Mr. Long, does the record contained evidence that leaflets were distributed at his church on Sunday?
Mr. David C. Long: Yes it does.
Justice William O. Douglas: Do you have any comment as to the propriety of that particular aspect of your leafleting?
Mr. David C. Long: Your Honor, I would refrain from commenting on the propriety of that.
I think, the issue would have to be posed assuming there was a charge of privacy violation in terms of was respondent there, didn’t interfere with his worship.
That is whether there was a conflict between his right to worship and First Amendment rights because I don’t think that a person going to and from a church service out on a sidewalk has a right to be free from the distribution of leaflets or a newspaper critical of a respondent, if you will, a written material.
Respondent indeed never brought this to the attention of the Court.
This was petitioners who said, “We did this.”
And respondent doesn’t say he was there.
So there’s --
Justice John M. Harlan: So that’s something that might be sharpened up on nearing to make this injunction apparent?
Mr. David C. Long: I don’t believe so, Your Honor.
I believe that respondent had an opportunity at that hearing to tell the Court what the harm was to him.
Justice John M. Harlan: Well, this is the only temporary injunction, you don't necessarily put in the whole case or he get a temporary?
Mr. David C. Long: No, that’s true.
The issue certainly is that we’re proposing to the Court is whether the evidence justifies this type of sweeping injunction.
I think ’sperhaps speculative to consider at this point what evidence might justify such an injunction, suffice to say that no facts justifying it here in your position.
What the Court has done has set up a suburban enclave into which certain subject matter or the distribution of literature by hand cannot enter.
Furthermore, it has granted him censorship power both over the literature which petitioners can distribute and over the literature which other residents of Westchester can receive.
Now, aside from the asserted invasion of privacy here, the other justification for the injunction is that the distribution was not deemed to for proper purpose.
The appellate court says in its opinion, I quote, “the purpose of the defendants was not to inform the public of a matter of public interest but the sole purpose was to force plaintiff to sign a no-solicitation agreement.”
That is an agreement that he would not solicit sellers to sell their homes in Austin.
But speech does not lose its protection of speech because it seeks to influence events or persuade to lawful action.
Indeed, this Court in the recent Brandenburg case reaffirmed the right advocate unlawful action except where that advocacy is directed to producing immanent lawless action and where it is likely to insight or produce such action.
Justice Byron R. White: Is it your position that you’re entitled to picket persons’ residential area in any situation, you can picket his business?
Mr. David C. Long: Mr. Justice White, --
Justice Byron R. White: In any situation where the First Amendment would protect your picketing his business, could you also picket his home?
Mr. David C. Long: Under it -- I’m trying to -- I’m sorry if I haven’t made it clear but I have been trying to confine my present remarks to the distribution of literature.
Our position with respect to picketing is that it’s overbroad.
We’re not taking the position that picketing in all cases cannot be enjoined.
Justice Byron R. White: Well, then I’ll ask you, do you think that in any situation where you could distribute handbills in front of his place of business, you could distribute handbills in front of his home?
Mr. David C. Long: I think it would depend on the conduct which is in addition to the literature distributed.
Justice Byron R. White: Well, then there is no conduct except there’s standing in front of his home distributing a handbill.
Mr. David C. Long: For example, it might depend on the number of people.
Justice Byron R. White: One person distributing handbill.
Mr. David C. Long: Then I think there’s a clear right.
Justice Byron R. White: In any situation that the same person could stand in front of his business and distribute handbill.
Mr. David C. Long: I know of no authority which would justify any other conclusion but the written material cannot be enjoined when it’s distributed by hand and that wasn’t the case here in terms of the facts.
There’s no evidence that they were standing in front of his house.
Justice Byron R. White: But there is evidence that they distributed to his neighbors.
Mr. David C. Long: To his neighbors.
Justice Byron R. White: Yes.
Mr. David C. Long: Just leaving it at the doorstep.
Justice Byron R. White: And you would carry it one step further if he had a summer place up at Lake Geneva, Wisconsin?
Mr. David C. Long: I would think certainly his neighbors could be apprised of his public activities by the distribution of leaflets in the same manner that they could be apprised by newspapers of such activities.
Justice Byron R. White: Or in the Colorado Mountains.
Mr. David C. Long: Well, there it might be more difficult -- well, assuming if his neighbors had homes and I should think they would be subject to receiving literature and have that literature be protected by the First Amendment as anywhere else.
Again, I’m referring to a situation which does not amount to picketing.
That is patrolling of the person upon which the criticism is made about.
Yes, I would say that.
And that’s how I read the prior decisions of this Court.
What the Illinois Appellate Court has done is decide that it is not approved that First Amendment activities engaged in for certain purposes.
That Court’s determination clearly violates the First Amendment because this Court in Near has indicated that they have to satisfy a judge that speech is published with good motives and for justifiable ends is the essence of censorship.
We believe that in this case, there has been censorship and outright prohibition for three years.
Both of the appellate court’s justifications for this prohibition on literature distribution are dangerous precedent.
This precedent could form the basis for an effective system of censorship and could justify criminal penalties or damage award for those that speaker right and distribute literature for unapproved purposes or in public places within this widely defined zone of privacy.
This is precedent which licenses that unfortunate human tendency which is the antithesis of an open society namely, the desire to suppress the critic, the advocative change and the controversy.
For all the reasons presented here today in the petitioner’s brief, we respectfully request the Court to hold the prohibition, this prohibition by injunction on First Amendment rights unconstitutional and order that it be dissolved.
Justice William O. Douglas: Well, doesn’t your argument really come down the geography because you were permitted to distribute leaflets in Austin and what you’re really complaining about is Westchester?
Mr. David C. Long: That’s true.
Justice William O. Douglas: So, it seems to me, it is a geographical argument rather than one of such broader breadth as your last remarks were.
Mr. David C. Long: Well, the notion of residence first is not a clearly defined concept.
People live throughout any urban area, so in the sense that it is protecting a broadly defined residential right of privacy, here a city of 18,000 is being within that zone.
It’s precedent for defining other areas which constituted residences, as for example in Chicago or in the cities or in the city or Outer Drive East where Lake Point Towers are certainly residential areas and I think it would justify enjoining the distribution of literature to persons who were going to and from work from those large tower apartments.
Justice Byron R. White: Well, suppose he lived next door to his place of business, do you think that the injunction would have prevented you from distributing leaflets down the whole block?
Mr. David C. Long: I don’t know Your Honor because the Court didn’t have before it that situation and I don’t know what it would’ve done in that case but I think, I do think that the presidential value of this decision is far broader than just the geographic scope.
I see it as relating to a court deciding that certain purposes are unapproved or be it for a certain geographical area to talk about certain things in and I think the notion of privacy here is extremely dangerous.
Chief Justice Warren E. Burger: Mr. McNamara.
Argument of Thomas W. Mcnamara
Mr. Thomas W. Mcnamara: Mr. Chief Justice, may it please the Court.
I would like to comment briefly on the point raised by Mr. Justice Harlan and that is whether this matter is right for decision.
There is some confusion in the record whether the court below had entered a temporary restraining order which is of 10 days duration and would expire automatically by its terms or whether it had entered a preliminary injunction which remains in force and effect until dissolved or until there’s been a hearing on the merits.
Even though I think this point may not be perfectly clear from the record, the parties have treated this as a preliminary injunction and have assumed that the injunction and prohibition is still in effect.
The parties further, however, have assumed that there would be additional evidence presented when there was a full-hearing on the merits of this matter and I would direct the Court’s attention to page 66 of the appendix for certain remarks on that regard.
Chief Justice Warren E. Burger: Those remarks were made contemporaneously, were they not at the time of hearing?
Mr. Thomas W. Mcnamara: Yes, at the time the trial court indicated he would deny the one request for an injunction and grant the others.
Chief Justice Warren E. Burger: Well, at that time do you suppose the people present anticipated that this temporary restraints would be in effect for three years?
Mr. Thomas W. Mcnamara: I’m sure they did not, Your Honor.
Normally, there would a hearing in the matter of weeks or months after a temporary injunction.
The purpose of this of course is to keep the matter in status quo until there can be a full hearing on the merits of the complaint which normally would occur in a very short period of time.
Chief Justice Warren E. Burger: Who could have brought that on for a hearing on (Voice Overlap)?
Mr. Thomas W. Mcnamara: Well, once a notice of appeal has -- once the appeal was taken in the jurisdiction that was transferred from the trial courts, so it’s in effect then the appeals that have delayed the --
Chief Justice Warren E. Burger: How long after the entry of the order was the appeal noted?
Mr. Thomas W. Mcnamara: I think it was within 30 days, appeal of this character you have to file your notice for appeal within 30 days.
The Illinois Appellate Court has had a tremendous backlog of cases and it’s not unusual to have 16 to 18 months between the time of appeal and the time of disposition.
So, that accounts, I think for a great deal of the delay here.
Justice Thurgood Marshall: Mr. McNamara, what about this page 68, Mr. Long, I take this appendix to raise that the Court, who knows law and follows the law and this is a temporary injunction.
What is the law in the Illinois as to a temporary injunction?
Mr. Thomas W. Mcnamara: Well, by statute, there are two different restraining orders of a preliminary nature.
One is a temporary restraining order which –- and the notice requirements are different which would expire in 10 days automatically.
Justice Thurgood Marshall: And the temporary injunction is what under Illinois law?
Mr. Thomas W. Mcnamara: Well, I think, a preliminary injunction is what I would more normally call it --
Justice Thurgood Marshall: This says the Court calls this a temporary injunction.
Mr. Thomas W. Mcnamara: I think it was a loose labeling there, Your Honor.
I think what the parties have understood it to be and treated it as is a preliminary injunction which has been in effect until dissolved.
I think there are several facts which have to be highlighted here in considering the propriety of what the Court did below.
First, Mr. Keefe’s real estate business and activities were solely confined to the west side of Chicago.
He did no business in Westchester.
He did not use his personal residence in any way in connection with his business.
He did not solicit his neighbors for listings.
His only relationship with these people in his immediate community was that typical neighbor relationship, the social relationship, the relationships we all have with the people we reside nearby.
Chief Justice Warren E. Burger: Well, suppose there was a radio station which served this 18,000 community where he lived, that 18,000 figure represents the community in which his residence was located, is that right?
Mr. Thomas W. Mcnamara: That is correct, Your Honor.
Chief Justice Warren E. Burger: And suppose there was a small weekly newspaper, is often in a community of that size, and each them, the radio station and the newspaper had said in their way everything that was said here.
Would that be subject to any injunction?
Mr. Thomas W. Mcnamara: No, indeed Your Honor.
That is in part the case here.
There is a local newspaper, the Westchester News which spread it and as part of the record here a telegram about Mr. Keefe from the Organization for Better Austin.
Chief Justice Warren E. Burger: But they’re not parties here, are they?
Mr. Thomas W. Mcnamara: Who was that --
Chief Justice Warren E. Burger: (Voice Overlap) the newspaper.
Mr. Thomas W. Mcnamara: No.
Your Honor, there has been never been any claim made or attempt to enjoin, prohibit or otherwise interfere in anyway with the newspaper publication.
We recognize, I believe a different standard there.
Chief Justice Warren E. Burger: A different standard for a newspaper and a private party?
Mr. Thomas W. Mcnamara: No, no, a different standard between publications Your Honor by newspaper and by the distributions of the nature that occurred here of handbills.
Now, there’s an invasion of privacy in a sense, in a newspaper publication that's derogatory.
Obviously, your neighbors are exposed to facts you would prefer that they not see.
Chief Justice Warren E. Burger: Well, in the Near case, Mr. Near did not publish a newspaper.
All Mr. Near did was periodically get out what amount to pamphlets.
They looked somewhat like a newspaper but they were not regular publications.
Mr. Thomas W. Mcnamara: Here, Your Honor, I think, you have a situation where there has been a calculated invasion of privacy for the purpose of course in action which I do not think was the Near case.
Here, they said, we’re going to get Keefe where he’s most vulnerable.
We’re going to go where we can have some influence on his neighbors and on his family and get him to bend to our will.
So, I think you had a -- the medium was the message really was the problem here.
You had a use of handbills to in effect bludgeon Keefe in to conduct with just the incidental point of communicating to his neighbors.
The record shows that they first went out to the house with the handbills in hand and met with Mrs. Keefe, his wife and said, “Unless Mr. Keefe will meet with us, we’re going out and distribute these to your neighbors.”
And that point in time, a meeting took place.
Justice Byron R. White: Do you think the newspaper which published -- could be enjoined from publishing a special story on --
Mr. Thomas W. Mcnamara: Absolutely not, Your Honor, under no circumstances.
Justice Byron R. White: Even though the newspaper was doing it deliberately to influence his neighbors or to influence him.
Mr. Thomas W. Mcnamara: I have not -- I think, first, there are two matters of distinction there.
I think our policy of a free press has a greater and more overriding importance than the policy of permitting a protester’s access to a residential neighborhood.
I think there’s no element of personal confrontation in newspaper distribution.
Justice Byron R. White: So, you would permit -- you would’ve permitted -- you would say you could not enjoin the mailing of these same leaflets to Mr. Keefe’s neighbors?
Mr. Thomas W. Mcnamara: I think I would have to agree with that, Your Honor, because the element of personal confrontation here.
Although, I do think when we consider privacy and the right of privacy, it’s hard to describe for all time what is unreasonably intrusive conduct.
Justice Byron R. White: So, you would say that these people could’ve been enjoined from talking personally to his neighbors.
Mr. Thomas W. Mcnamara: For instance Your Honor, let’s say, they started --
Justice Byron R. White: Putting leaflets wholly aside, they could be enjoined from talking to Mr. Keefe’s neighbors.
Mr. Thomas W. Mcnamara: In fact, yeah, let me give you an example if I might, Your Honor.
Let’s assume the OBA began to phone on a daily basis, everyone on Mr. Keefe’s block and said, when Mr. Keefe stops bothering us, we’ll stop bothering you.
Now, I think a telephone call is certainly a protected First Amendment activity, the right to communicate by telephone.
Chief Justice Warren E. Burger: Even if it becomes a nuisance?
Mr. Thomas W. Mcnamara: Well, this is the point I’m making Your Honor but it can lose -- I think the First Amendment protection of that type of harassment and conduct is so minimal that it should be weighed at the balance against the right of privacy and the parties concerned and not be permitted.
Justice Byron R. White: What is involved (Inaudible)
Mr. Thomas W. Mcnamara: This prevented --
Justice Byron R. White: (Inaudible)
Mr. Thomas W. Mcnamara: As I read it Mr. Justice White, it prevented the physical distribution by members of the OBA in the community of Westchester.
Justice Byron R. White: (Inaudible)
Mr. Thomas W. Mcnamara: Yes, passing out I believe is the word to the injunction order.
Justice Thurgood Marshall: Am I correct that under this first section, first paragraph of this injunction, no member of OBA prepares out leaflets in the City of Westchester, Illinois to advocate (Inaudible)?
Mr. Thomas W. Mcnamara: I don’t know that any of them have passed out such leaflets, Your Honor, but I think the --
Justice Thurgood Marshall: But does that prohibit them from doing it?
Mr. Thomas W. Mcnamara: I think the language was perhaps unduly broad there because obviously, it was Mr. Keefe’s activities at which this injunction order was directed and I’m sure that had matter been called to the trial court’s attention by either of the parties that the order would’ve been so limited.
Justice Thurgood Marshall: But it is before us.
Mr. Thomas W. Mcnamara: That is correct, Your Honor.
Justice Thurgood Marshall: It hasn’t been changed.
Mr. Thomas W. Mcnamara: Under Illinois law, it is held that a specific to orders of this character, if not made to the trial court could not later be raised on appeal.
Justice Thurgood Marshall: But what can we do with this?
Mr. Thomas W. Mcnamara: I think, interpret it, Your Honor as the parties have limited and prohibited only activities directed at Mr. Keefe.
Justice Thurgood Marshall: You mean the petitioner recognizes that?
Where did he recognize it?
Mr. Thomas W. Mcnamara: I have not seen anywhere in his argument and briefs that he’s filed to date Your Honor, I could be mistaken any reference to the fact that --
Justice Thurgood Marshall: But you want us to put our approval on an injunction that is this broad that says, a man as long as he lives may never (Inaudible) or pass out any literature including the Bible.
Mr. Thomas W. Mcnamara: But, I would say this, Mr. Justice Marshall, the --
Justice Thurgood Marshall: Including a sample ballot.
Mr. Thomas W. Mcnamara: I would not show this up as a model of draftsmanship but again, the parties involved here assume there would be a hearing on the merits within a space of weeks or months and a final order entered either granting or denying the injunction.
Justice Thurgood Marshall: But you haven’t objected to the jurisdiction of this Court, have you?
Mr. Thomas W. Mcnamara: No, Your Honor, I did in the response to the request for certiorari, I did raise the point that this was a preliminary injunction and it seemed to me somewhat unusual that at this stage the Court would consider a right for determination.
I would like to comment, if I could, on the – what I think is the real base of the activity in Westchester here.
We are all most vulnerable, I think, in our relationships with our families and with our neighbors.
And here I think is a very calculated attempt to play on this weakness and to direct activities at us that will compel us to take some action not because we’re persuaded it’s correct but simply because we need to buy peace.
We don’t want to cause embarrassment to our neighbors, we don’t want to see neighbor turned against neighbor.
We don’t want our families disrupted.
And I think we’re getting now at the areas that really go to the core of privacy.
If privacy means anything at all, it should grant us protection in the area of our homes, in the area of our relationships with our neighbors and our communal relationships.
The Organization for Better Austin takes the position that it has an absolute and unqualified right to hand bill whenever and wherever it intends for whatever purpose it cares to do it.
It seeks to treat hand billing under all circumstances as the equivalent of newspaper distribution and I think looking at what has occurred here, that that would be sloganeering to say that it is always entitled to that same protection.
I think there is hand billing in hand billing.
Certainly, in many, many instances, it is clearly entitled to full First Amendment protection but I think the conduct of the Organization for Better Austin here is more akin to our peaceful picketing cases, in which we have said certainly, this is a protected First Amendment activity.
It is communication but it is something more than communication and being something more than speech pure, we are entitled to reasonably regulate.
I think Hughes versus the Superior Court has decided some 20 years by this Court is a good example of such circumstances.
In the Hughes case, they enjoined peaceful picketing by Negroes who were seeking to urge a store at which they shopped to hire in proportion to their Negro trade.
The Court there held that such activity could be examined to see what the purpose of the picketing was.
The purpose having been examined and found to be improper, the Court said it was subject to reasonable regulation by the State of California.
Justice Byron R. White: Mr. McNamara, in your opposition to the petition for certiorari, you made the statement, it is only the physical presence of members of the OBA in Westchester that is enjoined.
They are at liberty to communicate with Mr. Keefe and his neighbors by letter, newspaper advertisement, telephone or any other form of communication which does not involved their bodily entrance into the community.
Do I understand that that in effect represents your position here today?
Mr. Thomas W. Mcnamara: Yes, Your Honor.
I believe the temporary order restricts only their physical presence in the community of Westchester.
I think one of the serious issues we have here is whether in contemporary America with our many confrontations, dissent, protest, that whether we will permit the residential neighborhood to become a part of the battlefield.
It is certainly true that it is the effective place to fight the battle.
Men who could not be persuaded by reasoning, men who could not be deterred by economic pressures may certainly be forced by pressure placed upon their family life and their communal relations to take acts which they would not otherwise be willing to take.
I think we should consider and look at this case the heavy burden upon our public servants that who guide our cities in the urban problems that they have.
It was not too long ago, this Court had before it the Gregory case which involved a march in the vicinity of Mayor Daley’s neighborhood and I think thought was given us to whether this type of activity should be encouraged or permitted which is so disruptive of family and neighborhood life.
I think the activity here by the Organization for Better Austin, in so far as it was directed towards the community at which Mr. Keefe resides suffers from the same vice.
Indeed, I would say, it resembles here residential picketing which in every reported case, it has been concluded that residential picketing has either been enjoined, it has either been made the subject of a criminal sanction or administrative cease and desist order.
There is no reported case that I have been able to find and I refer also to Professor Kayman’s article on residential picketing in the First Amendment.
Justice Potter Stewart: Is there residential picketing involved here?
Mr. Thomas W. Mcnamara: The injunction order, there had been no residential picketing in Westchester, Mr. Justice.
The injunction order --
Justice Byron R. White: I gather all that happened in Westchester, the distribution in the --
Mr. Thomas W. Mcnamara: In his neighborhood, at his church and in his shopping center of the handbills.
Justice Byron R. White: (Inaudible)
Mr. Thomas W. Mcnamara: That is correct.
Justice Byron R. White: We’re not dealing here with --
Mr. Thomas W. Mcnamara: I think we are to this extent.
When you consider what residential picketing is, it’s not typical picketing.
You are not trying to keep people from passing in or out of a residence.
There’s not the element of intimidation at least in the reported cases but you have one or a group of people standing in front of someone’s home with some form of message usually of a derogatory nature.
Now, I see no particular difference as far as the homeowner is concerned between having someone stand in from of his home with a derogatory placard that can only be seen by his neighbors for the most part and going door-to-door with that same message and distributing to them.
So, I think the conduct of the Organization for Better Austin here is very analogous to what our residential picketing situations are.
The Court recently in the Rowland case, the head occasion to consider in a different context of course, but the fact that there is a light to be let alone which must be balanced with the right of others to communicate.
And I think we are faced again with a similar resolution of conflicting rights here.
Chief Justice Warren E. Burger: Well, would that be relevant unless you had an injunction here that prohibited delivering any material to this man’s house?
That’s what was involved in Rowland.
Mr. Thomas W. Mcnamara: Yes, there you were involved with the mail order --
Chief Justice Warren E. Burger: If your injunction here just simply prohibited any activity by way of delivering pamphlets or written material to the home of your client, you might have a Rowland type of situation.
Mr. Thomas W. Mcnamara: Yes, I don’t claim Mr. Chief Justice that this is a analogy to the Rowland case but I do think the opinion expressed there that there must be a balancing in certain circumstances between the right to communicate on the one hand and the right to be left alone on the other has applicability to this case.
I might say parenthetically, the State of Illinois last December 15th has adopted a new Constitution which is part of its Bill of Rights has expressly provided for the right of privacy along with the -- as part of the search and seizure provision of the Act.
In summary, I would say because we accept and tolerate this part of our society, what I would consider incidental invasions of our privacy for a greater good because the freedom of the press, because of circulation of ideas.
I do not think that -- we must therefore legitimize direct, intentional invasions of privacy made for the purpose of coercing conduct which can’t -- cannot otherwise be secured where the purpose of communicating is obviously secondary.
I thank the Court for its attention.
Chief Justice Warren E. Burger: Thank you Mr. McNamara.
Your time is up Mr. Long but we would invite you to submit a memorandum on the finality issues and you may respond after you receive his memorandum on the subject of finality and whether we have an appealable order here.
Thank you, gentlemen.
The case is submitted.