CAREY v. BROWN

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Argument of Ellen G. Robinson

Chief Justice Warren E. Burger: We'll hear arguments next in Carey against Brown.

Ms. Robinson.

Ms Ellen G. Robinson: Mr. Chief Justice and may it please the Court.

This is a residential picketing case and appealed to this Court from the Seventh Circuit.

In this case, like the Fourth Amendment case announced today by Mr. Justice Stevens, raises important questions concerning the nature and the scope of residential privacy.

I'm here to argue on behalf of the Illinois Residential Picketing Statute which prohibits all picketing of homes which are used only as places of residences, but it allows labor dispute picketing of houses and homes which also function as a place or the location of an employment relationship.

The narrow --

Chief Justice Warren E. Burger: Does that mean -- does that mean some kind of an industrial or a commercial activity or does it include a house where they have a housemaid?

Ms Ellen G. Robinson: Yes, I would say that is does, Your Honor.

Chief Justice Warren E. Burger: So it does include the house, whether --

Ms Ellen G. Robinson: Yes.

In fact, I would say that the labor dispute exception is focused to deal with that kind of employment relationship.

Chief Justice Warren E. Burger: But in order to have the picketing then there would have to be a dispute between the housemaid and the housewife, is -- is that so?

Ms Ellen G. Robinson: Well, yes.

Chief Justice Warren E. Burger: So just the existence of employment on the premises is not enough.

Ms Ellen G. Robinson: There would -- yes.

Justice William H. Rehnquist: I suppose conceivably, there might be a movement among housemaids to organize and that picketing would take place at sites of -- where housemaids were employed.

Ms Ellen G. Robinson: That's correct, Your Honor.

The picketing could concern the employment relationship by -- have third persons concerning the employment relationship as well as the employee him or herself.

The narrow question in this --

Justice John Paul Stevens: And that was in the history -- to get the scope of the -- the ordinance in my residence or dwelling, would that include a dwelling such as Lake Point Towers or one of the very large high-rise apartment in it?

Ms Ellen G. Robinson: That's a difficult question, Your Honor.

The -- the statute has never been construed by any state court and the state courts apparently have never had an opportunity to construe the statute on its face and read in terms of common understanding, I would answer yes.

Justice John Paul Stevens: And there are in Chicago, I take it, some large buildings that include even supermarkets and -- and various kinds of stores as well as apartments.

Ms Ellen G. Robinson: Of course.

Justice John Paul Stevens: So that you -- there -- there you could have customary kinds of labor disputes --

Ms Ellen G. Robinson: Yes.

Justice John Paul Stevens: -- by other than housemaids.

Ms Ellen G. Robinson: Yes absolutely, but of course, the statute accepts from the overall ban on picketing residences which are used as places of business and that's a separate exception than the labor dispute exception, so any common place of business can have any kind of picketing.

Justice John Paul Stevens: No, I was -- I was referring to a building that contained a large number of dwellings such as an apartment building and also contained places of business.

This ordinance would apply to that -- that structure and would permit labor dispute picketing but would ban all other picketing.

Ms Ellen G. Robinson: No, I don't think so.

If understand your -- your question correctly, the statute on its face permits all picketing of buildings, of residences which are used as places of business.

So if you have a -- a big building that has a supermarket on the ground floor, I -- I think under the terms of the statute given their common meaning that you could picket it without reliance on the labor dispute exception.

Justice Potter Stewart: Well, that would depend upon whether you -- whether the residence is thought to be the whole apartment building or one of the apartments in it.

Ms Ellen G. Robinson: I think you --

Justice William H. Rehnquist: Illinois court could construe it either way, I suppose and without being off the wall?

Ms Ellen G. Robinson: Of course.

Certainly, in light of the purposes of the statute, we assume that it would give it a fairly narrow construction.

The -- as I say, the question in this appeal is a very narrow one and that is whether because of the labor dispute exception to the overall prohibition on residential picketing, the statute violates the Equal Protection Clause.

The facts in the case are uncontroverted.

One, the plaintiffs are all members of the civil rights organization, and one evening in 1977 about 20 men, members of this organization went to the single family home of the then Mayor of Chicago to picket his house to protest his position on school busing.

Most of the people who were picketing were arrested and charged with violating the residential picketing statute.

They were -- they pleaded guilty and they were sentenced to periods of supervision.

When the periods of supervision had concluded, they filed a suit in Federal District Court in Chicago seeking a declaratory judgment and an injunction claiming that the statute violated both their First Amendment rights and their equal protection rights.

Justice William H. Rehnquist: Did they seek to set aside their guilty pleading?

Ms Ellen G. Robinson: No, they did not in any way attempt to collaterally attack their former state court conviction.

The District Court ruled on cross motions for summary judgment with the only evidence in the record being the affidavits of the plaintiffs regarding their intentions to picket in the future.

They allege that they wanted in the future to picket the Mayor of Chicago again as well as various other residences in Chicago neighborhoods.

The District Court upheld the statue on both First Amendment grounds and on equal protection grounds.

The plaintiff appealed and the Seventh Circuit reversed without reaching the First Amendment issues raised.

That Court struck the statute on equal protection grounds.

The Seventh Circuit was impressed by the similarities between the residential picketing statute and the school picketing statute that this Court held unconstitutional in Mosley.

They noted that each statutes were -- was -- contained a general prohibition of picketing in a certain place with a labor dispute exception.

And because of these similarities, the Seventh Circuit wrote that it could find no principle basis of distinction between the two statutes.

We appealed because we think that there's an important difference between a statute which protects quiet classrooms and one which promotes residential privacy.

And we think that this aspect of the appeal is going to turn on the critical and important differences between homes and between schools.

Mosley was a regulation passed by the City of Chicago to protect quiet schools and it prohibited all picketing around schools when schools were in session except for labor dispute picketing.

But as the Court noted in its opinion, both labor picketing and non-labor picketing are equally disruptive of quiet classrooms and the State couldn't offer any good reason why it would tolerate one kind of decept -- deceptive picketing but not another.

Because of this arbitrary choice, the statute was held unconstitutional on equal protection grounds.

But Mosley didn't create a per se rule against every labor dispute exception in a picketing statute.

It -- in fact the opinion itself specifically sets forth the circumstances under which such an exception would be constitutional and that would be what was narrowly tailored and reflected an important state interest that was -- the State was trying to further.

And we think that the residential picketing statute is just such a statute.

This statute protects all of our rights to be let alone in our own homes.

And the legislature of Illinois found that this right is disrupted when people picket our homes.

But the legislature also recognized that the resident doesn't have the same right to be let alone in his own home by a stranger who invites him to his house for an employment relationship.

This -- this invitation springing in of a stranger dilutes his right of residential privacy as to that stranger and it also creates the mere act of forming the employment relationship, creates rights under state law to picket the place of employment in case a labor dispute arises.

Because these two factors are present, the dilution and the creation of the substantive right in the employee to picket, it's reasonable to let the residential employee, but nobody else picket a home which is also a place of employment.

And in contrast then to the labor dispute exception in the Mosley ordinance which didn't -- didn't have a -- any clear reason.

In fact, there's a clear reason for allowing a labor dispute exception in a residential picketing statute which protects residential privacy.

We think that the reason that the Seventh Circuit couldn't find a basis of a distinction then between this statute and the Mosley ordinance was that the Seventh Circuit focused on the conduct or the picketing that was being prohibited, instead at looking at the interests that the State was trying to protect.

Now, having shown what the differences are between the Mosley ordinance and the residential picketing statute, I had planned to talk more about the right of residential privacy and about the judgments about that right that the Illinois legislature made in the statute.

In light of the appeal -- the New York Fourth Amendment opinions announced today, I don't think that all elaborate on residential privacy too much but I will note that the Court has been no less solicitous of this interest of being let alone in our own homes in First Amendment cases than it was today in Fourth Amendment case.

Justice John Paul Stevens: May -- may I interrupt to ask you a question about the comparison between this case and -- and Mosley?

If I understand your argument, you're saying in Mosley, you had schools that may -- and there are difference between just on the kind of picketing.

Whereas here, you got pure homes and homes that are partly homes and partly places of employment and it's fair to distinguish between those two.

But isn't there still another problem and that is that within the category of homes which are also places of employment, you have some picketing that's prohibited and yet labor picketing is permitted.

So is there not the same problem that you had in Mosley if you just focus on the -- those homes that are also places of employment.

That the picketing as to those draws a distinction based on content.

Ms Ellen G. Robinson: Well, the -- the conduct -- as to the aspect of the conduct which is being prohibited, yes, sir, it's a direct correlation between our statute and the Mosley ordinance.

Our -- our point is that because the interest which are being protected are so different and so differently affected by the two kinds of picketing that we have -- being prohibited that this statute is distinguishable from Mosley.

Justice Byron R. White: You -- you say that if there are two pickets in front of a -- of a house that's partly a place of employment, one of the pickets is a non-labor picket and one is a labor picket that the ordinance is perfectly valid -- would be perfectly -- you may arrest the one but not the other.

Ms Ellen G. Robinson: Yes, that's correct.

Justice Byron R. White: And that -- that's a -- that you think that a rationale or subject -- that you've got a good enough reason for distinguishing (Voice Overlap) --

Ms Ellen G. Robinson: Right.

Justice Byron R. White: -- pickets to sustain the order.

Ms Ellen G. Robinson: That's right.

The reason is basically because Illinois has always -- is being zealous to protect the rights of people to be let alone in their homes while at the same time being careful to -- to not unfairly limit the rights of employees to picket their place of employment --

Justice Byron R. White: What if we agree with you on the equal protection ground, what do we do then?

Ms Ellen G. Robinson: Well, that would leave open the traditional First Amendment question which is irrespective of the distinction --

Justice Byron R. White: What will -- what will we do, remand?

Ms Ellen G. Robinson: You could.

We would urge you not to remand.

The issue is fully briefed.

There was a full opinion by the District Court.

The questions are so closely intertwined and both the First Amendment and equal protection question both require an inquiry into the scope and the nature of residential privacy which is before the Court.

So we would urge you to -- also to consider the broad First Amendment question raised.

Justice John Paul Stevens: May I ask you one other question?

Ms Ellen G. Robinson: Please.

Justice John Paul Stevens: In the Court of Appeals, as I remember the case, you questioned the standing of these litigants to challenge the distinction as between different kinds of picketing in a place that is used for employment.

I don't understand you to be making the same argument here.

Ms Ellen G. Robinson: We -- we don't make that argument to this Court.

We agree with the Seventh Circuit that the statute regulates -- doesn't regulate a place as in the sense of the geographical –

Justice John Paul Stevens: Right.

Ms Ellen G. Robinson: -- location, but merely a home with two different functions.

Justice John Paul Stevens: Thank you.

Justice Potter Stewart: What do you suppose, Ms. Robinson, the legislature had in mind when it exempted from this legislation a person peacefully picketing in his own residence, what kind of a situation would that be as a matter --

Ms Ellen G. Robinson: If I -- if I may go outside the record a little bit, Your Honor, in Illinois, there's no legislative history of this kind of statute but there is a -- a report about it and the -- the -- according to the report, the thought was that this would allow some tenants to picket the place where they lived in order to protest the --

Justice Potter Stewart: Protesting the landlord.

Ms Ellen G. Robinson: -- terrible conditions, right.

Justice Potter Stewart: I see.

Chief Justice Earl Warren: In the hypothetical that Mr. Justice White just put you about the two people, one, a labor picketing and the other some political issue of picketing, it would be necessary I take it under the -- under the ordinance here, under the statute that there'd be a labor dispute between the homeowner and the person picketing, is that correct?

Ms Ellen G. Robinson: Yes, but the labor dispute could exist even if the employee wasn't part of the dispute.

For example, if you have a condominium that employees non-union janitors and the -- non-janitors perfectly happy to be there, conceivably union janitors could engage in picketing very much like the traditional labor -- labor law case.

Just briefly to note the cases, the two cases which we feel are the most important in the First -- regarding First Amendment rights and residential privacy, I would suggest that both Roane and -- the Roane case and FCC versus Pacifica Foundation, are the most important cases for a -- for establishing the power of states to protect people's rights to be let alone in their homes as against unwarranted and uninvited intrusions.

In Roane, a post office regulation which allowed the post office not to deliver mail which a homeowner found intrusive or in fact offensive was upheld.

And in Pacifica Foundation, the FCC's censure of a broadcast of a comedian's offensive monologue was upheld.

The appellees would suggest that these are really just dirty words cases, but we think that these cases turned on the fact that one of the targets of the communications with people in their homes and that the cases stand for the proposition that Government has special power to protect people when they're in their homes.

After all, both the communications in Roane and Pacifica Foundation would've been fully protected if they had been broadcast to a person on the street or in some other public place.

There's a suggestion by the appellees that picketing may not be disruptive of residential privacy.

Well, the Illinois legislature found that it was and the District Court agreed that this finding was a reasonable finding.

And we think surely that if under Roane, a piece of mail which could be easily thrown away and under Pacifica Foundation, a radio broadcast which could be simply turned off, were found sufficiently disruptive of our rights to be let alone, then clearly, a picket or patrolling at our front doorstep should be sufficiently disruptive to sustain state regulation.

Justice Thurgood Marshall: Would this apply even nobody in the house?

Of course it would.

Ms Ellen G. Robinson: We, on -- on its face, it would Your Honor and it's -- and I repeat only that the statute has not been construed by the state courts.

Justice Thurgood Marshall: The -- and -- it doesn't apply when there's nobody there?

Ms Ellen G. Robinson: On its face, it appears to, on its face.

I would suggest of course that we don't have a picketing with nobody in the house on the facts of this case.

We have 20 people picketing a home and as to -- in the pleadings, there's no allegations whether the Mayor and his wife and a baby were at home or not.

Justice Thurgood Marshall: Well, you could -- you could restrict the number of pickets.

Ms Ellen G. Robinson: Yes, they could.

Justice Thurgood Marshall: What -- why certainly.

Ms Ellen G. Robinson: Yes, that would've been my point.

Justice Thurgood Marshall: (Inaudible) in labor disputes?

Ms Ellen G. Robinson: That would've been one way to handle the case.

Justice Thurgood Marshall: Well, don't they?

They do it regularly.

Ms Ellen G. Robinson: Yes.

Justice Thurgood Marshall: And it was good if they didn't say a word.

Ms Ellen G. Robinson: On --

Justice Thurgood Marshall: -- when they find out that they're sound asleep.

Ms Ellen G. Robinson: On its face.

On its face, it would, Your Honor.

We would submit, Your Honor that this would not be a proper case given the pleadings as they exist to strike this ordinance as unconstitutional on its face under the First Amendment.

As it might hypothetically be applied to the conduct, you have suggested in many, many other ideas that the appellees raise in their briefs.

We have here a statute which protects conduct and -- I mean what regulates conduct and not merely pure speech.

We have a statute that is clearly susceptible to a narrow state constitution -- construction and we have here plaintiffs who when they had the opportunity to seek in narrowing construction from the state court, voluntarily forwent that opportunity in order to plead guilty to escape what might have been a more harsh sentence.

So I would urge that the -- that the question only be -- the First Amendment question only be as applied to the plaintiffs that the -- to the conduct that the plaintiffs actually engaged in, and that's in the record.

As to the traditional First Amendment question which I was asked about, the issue of course would be whether irrespective above the distinction between labor and non-labor picketing, Illinois can prohibit picketing at a home and we know of course that the State can regulate picketing on sidewalks where that conduct is inconsistent with the use of the surrounding areas and that the case would resolve into a very traditional balancing between the rights of the picketers and the rights of the homeowners.

And we think that the key in this case to that balancing would be the District Court's finding that the picketers here have alternative places where they could've picketed the Mayor.

They could've picketed him at the city hall or at any of the other public places that he went to in the course of performing his official duties.

Justice Potter Stewart: The Gregory case from your City of Chicago.

Ms Ellen G. Robinson: Yes, it did.

Justice Potter Stewart: And what -- what were the facts of that case?

Ms Ellen G. Robinson: That -- that case concerned a merge around a four-square block area in the Mayor's neighborhood and the holding of the Court was, was that the -- Mr. Gregory and his -- and his group had been arrested and charged for disorderly conduct and the holding was that the facts as presented to the trial court, did not support a disorderly conduct.

And we think that that's a very important case because of Mr. Justice Black and Douglas' concurrence where it invites states to pass ordi -- ordinances just like the regulation that Illinois has passed here to protect the rights of people to be let alone in their homes and free from picketers who would interrupt their -- their privacy.

So the picketers here have different places where they can picket and if they nevertheless want to insist on their right to communicate with people when they're on -- in their own homes, there's other and less at -- lessened intrusive ways they can do it.

They could do door to door solicitation, they could write letters, they could have phone calls, they could call -- call at their homes.

Justice William H. Rehnquist: Well, they could climb in the windows if they wanted to.

I suppose they insisted.

Ms Ellen G. Robinson: I -- I suppose that they could.

That of course would --

Justice William H. Rehnquist: Would raise a question?

Ms Ellen G. Robinson: Raise -- [Attempt to Laughter] right and each of those methods would be far more preferable than picketing because the resident can control each of those messages.

He can throw away mail that he doesn't want and hang up on a phone call or -- and he can post a sign to deter door to door solicitation like the Court invited the residents to do in the Stromberg case which it recently decided.

Justice John Paul Stevens: Of course he do all those things that unless he has non-union janitors that -- and there -- and the union doesn't like that.

Ms Ellen G. Robinson: To that extent though, Your Honor, the resident has waived his right to be entirely let alone by these employees and people who want to communicate with or about the employees to the extent that he is knowingly and voluntarily lived in a place or created an employment relationship within his own home.

If --

Justice Lewis F. Powell: Can I ask a question --

Ms Ellen G. Robinson: yes.

Justice Lewis F. Powell: I'm not entirely clear yet as to who may picket a residence.

Let's assume that the Fifth -- that the 20 people who were picketing this residence were all employed in the neighborhood, say as domestics, but only one of the 20 was employed in the residence of the Mayor and he or she had a disagreement with the Mayor or his wife.

Did all 20 continued to picket?

Ms Ellen G. Robinson: I think on its face, if the 19 were picketing in support of the one employee, that the statute that would apply to allow the picketing of the entire group.

Justice Lewis F. Powell: Would the 19 have to be domestics employed somewhere or could -- could the -- the one domestic recruit, 19 friends from all over the city and bring them there.

Ms Ellen G. Robinson: Yes.

As to your second hypothetical, I think the answer is clearly yes.

Justice Lewis F. Powell: So that it could be 100 instead of 19.

Ms Ellen G. Robinson: As long as they were all picketing about the labor dispute and the labor relationship which was at the situs of the home, which was situs at the home.

Justice Potter Stewart: Of course the statute read literally, can be read at least as not to require that the picketing be concerning the labor dispute?

Ms Ellen G. Robinson: That's correct, Your Honor.

But throughout this litigation, all the courts and all the parties have treated this to mean the same as the Mosley ordinance, mean which – is that it only allows labor dispute picketing.

As according --

Justice Potter Stewart: In other words -- in other words, in answer then to my brother Powell's question, the answer would be I suppose that so long as the picketing concerned not labor relations but are labor dispute but rather quite a different subject that nobody could be allowed to -- allowed to do it.

Ms Ellen G. Robinson: That's --

Justice Potter Stewart: Even if one of them were the butler of the Mayor --

Ms Ellen G. Robinson: That's correct.

Justice Potter Stewart: To have an argument with -- with his employer, the Mayor and his wife.

Ms Ellen G. Robinson: Thank you for clarifying that.

Justice Potter Stewart: Is that correct?

Ms Ellen G. Robinson: That's correct.

Justice John Paul Stevens: In other words, the permissibility that picketing depends entirely on the content of what they're saying.

If they're objecting to the -- the boss' position with respect to the butler, it's permissible but f they're objecting to his position on bussing, it's prohibited.

Ms Ellen G. Robinson: That's correct and we -- and of course our position again is that that kind of content regulation is perfectly permissible under Mosley because of the nature of the state interest, his residential privacy right which is diluted as well as -- which is being protected as well as the employees' rights to picket at the place of the employment relationship if he gets into a dispute.

It's -- it's really just a perfect example like in the Tree Fruits kind of situation in pure labor picketing cases of the State trying to protect two interests at the same time, a resident's right to be let alone and the employee's right to picket his place of employment when he gets into a dispute and -- and our assertion is -- is that this is a perfectly reasonable balance that the Illinois legislature has struck.

Justice John Paul Stevens: To make that argument, don't you have to say there's a greater right to be let alone at home than there is at school?

Ms Ellen G. Robinson: Not greater in the sense of volume but different in the sense that -- first of all, every school is a place of employment.

So the interest in residence -- in a quiet classrooms is not in anyway affected by creating or not creating an employment relationship in the school, it's there, but the only homes which are -- are those in which the resident has voluntarily brought a stranger into his home for the employment relationship.

If the Court has no further questions, I'll reserve the rest.

Chief Justice Warren E. Burger: Very well, Ms. Robinson.

Mr. Arnolds.

Argument of Edward Burke Arnolds

Mr. Edward Burke Arnolds: Thank you Mr. Chief Justice and may it please the Court.

Your Honors, what is -- what wrong fundamentally with the Illinois residential picketing statute is simply that it is not narrowly drawn.

Because it not narrowly drawn, it is under inclusive and it is over inclusive and it is vague and it violates the rights of free speech and equal protection and due process of law.

Your Honors, the issue in this case is not whether Illinois can constitutionally and by a narrowly drawn statute, protect residential privacy from invasion by noisy tramping, threatening picketers.

Chief Justice Warren E. Burger: Would you care to suggest if you could do it very briefly without using too much of your time, what kind of a narrowing would make it past muster?

Mr. Edward Burke Arnolds: Your Honor, I think that constitutionally, Illinois could put -- limit on the number of pickets.

I think they could --

Chief Justice Warren E. Burger: But -- but it couldn't eliminate them entirely, is that your point?

Mr. Edward Burke Arnolds: Yes.

We -- our -- our contention is that Illinois could not constitutionally prohibit all picketing -- all picketing --

Chief Justice Warren E. Burger: Well, then that's narrower than --

Mr. Edward Burke Arnolds: -- from streets and sidewalks.(Voice Overlap) --

Justice William H. Rehnquist: Even all residential picketing?

Mr. Edward Burke Arnolds: Yes, Your Honor.

We think that there is no compelling reason for eliminating even all -- all residential picketing that they could -- that the State's interest in preserving the right to quiet enjoyment of the home is not sufficient to justify the elimination even of all residential picketing because limits could be put -- more narrow limits could put in this kind of picketing.

Justice William H. Rehnquist: Of course, that -- that -- that's always been the argument of people who challenge statutes on equal protection grounds is that you can't do it this way but you could've done it another way.

I mean it -- it's not a very novel argument to say they didn't do it quite right here.

Mr. Edward Burke Arnolds: Well, Your Honor, I think there's a difference between disputing exactly what the limits are and how many people can picket, at what times, in that sort of thing and disputing the State's right to totally limit this First Amendment protected activity from the residential streets and sidewalks in -- in the State.

Justice William H. Rehnquist: No, but you -- you are conceding I take it that they could have -- Illinois could have regulated residential picketing in -- in a way more -- as you put it, narrowly drawn here.

And my comment to you was that this is probably the classic argument of any person assailing a statute or ordinance on equal protection grounds is that -- not that you couldn't do it at all but that you just should've done it a little differently or a little more narrowly or a lot -- or a lot a little more latitudely.

Mr. Edward Burke Arnolds: Well, I agree that that is the argument, Your Honor.

They -- go here, they have totally banned it and the contention is they -- they did not have to totally ban it in order to safeguard any interest they might have in protecting residential privacy.

However, this is really our -- our second argument, our contention that the statute is over inclusive.

I think our -- our principal argument is that the statute violates equal protection in the First Amendment because it is not under inclusive.

That is because it makes an exception for labor picketing and -- and that distinction is clearly a content based distinction.

The --

Justice Harry A. Blackmun: Mr. Arnolds, what we -- that your advise as to this, I'm going to quote to you a federal statute.

Mr. Edward Burke Arnolds: Yes, sir.

Justice Harry A. Blackmun: “Whoever, with the intent of influencing any judge pickets in or near a residence occupied or used by such judge shall be” -- and so forth.

If you prevail here, will that federal statute also go down the drain?

Mr. Edward Burke Arnolds: Your Honor, I don't believe so necessarily because I believe the object of the picketing in that case is what is traditionally been regarded an illegal object, an intent to obstruct justice or to influence justice and in that case, I think certainly a distinction can be made.

Justice Harry A. Blackmun: Well, is there a difference between influencing an injustice and influencing legislation then?

Mr. Edward Burke Arnolds: Well, I think that with their -- if the intent of the picketing is to -- is -- is to interfere with -- with justice -- with the process of justice or to influence justice in some way because I think the argument really -- the rationale behind Cox versus Louisiana if I understand it is that picketing there was -- was aimed at an illegal -- had an -- really an illegal object and that the preservation of -- of really the right to a fair trial of justice that was uninfluenced by things that should not influence the decisions of the courts, really was a compelling reason for prohibiting the picketing in that circumstance.

Justice William H. Rehnquist: Do you think Illinois could've enacted a statute assuming Illinois elects judges they would've prohibited the picketing of the residence of a judge?

Mr. Edward Burke Arnolds: Your Honor, it would -- I -- if Illinois could -- could show that by -- that picketing the residence of a judge was -- was likely to result in the obstruction of justice or likely to impair the quality of justice in Illinois, then I think they would have at least an argument.

They would have a compelling reason or -- for arguably a compelling reason if they could show that.

Justice William H. Rehnquist: Well, supposing the -- it was clear, this picketing was just designed to have the judge come out a certain way in a very controversial case at a time close to the time to which he was up for a reelection.

Mr. Edward Burke Arnolds: In --

Chief Justice Warren E. Burger: In other words, could you -- let's -- let's take it into the right to this case too as a -- as an additional question.

Could you have picketed Judge Tone down in the Seventh Circuit while this case was under advisement in the Court?

Mr. Edward Burke Arnolds: Could we have picketed -- could someone had picketed (Voice Overlap) --

Chief Justice Warren E. Burger: Residential picketing him around at his home, yes.

Mr. Edward Burke Arnolds: I believe --

Chief Justice Warren E. Burger: We -- we're not so respondent, Mr. Justice Rehnquist on an elective judge who might or might not be more responsive.

Mr. Edward Burke Arnolds: Your Honor, under -- under the Illinois statute, picketing Judge Tone's home in this case would've been prohibited.

The statute would've prohibited it.

Chief Justice Warren E. Burger: Yes, the statute.

Justice William H. Rehnquist: How about constitutionally?

Justice Potter Stewart: You say the statutes are invalid and that you have --

Mr. Edward Burke Arnolds: Yes.

Justice Potter Stewart: -- a constitutional --

Mr. Edward Burke Arnolds: Right.

Now, --

Justice Potter Stewart: -- freedom to do it.

Mr. Edward Burke Arnolds: We've -- our position would be that Illinois could -- my position would be that Illinois could not constitutionally prohibit picketing Judge Tone's home without making some showing that that kind of picketing was -- was actually going to result in the -- in influencing decisions.

Now, it may not be that they have to show an effort --

Justice Potter Stewart: Showing that in a particular case, showing in a particular case or showing generally supporting the legislation?

Mr. Edward Burke Arnolds: I think showing generally supporting the legislation that -- I -- I doubt if we can judge --

Justice Potter Stewart: Because Kemp against Florida and other cases say the judges are supposed to be resolute and strong-minded people who weren't affected by these things.

Mr. Edward Burke Arnolds: In -- indeed, I'm sure they are generally but I believe that if Illinois could make that showing, then they would have at least arguably --

Justice Potter Stewart: As to a mere finding by a legislative -- legislature wouldn't be enough.

Mr. Edward Burke Arnolds: I don't believe a mere statement of the legislature that this is --

Justice Potter Stewart: So you'd have to show it in the litigation --

Mr. Edward Burke Arnolds: It would be my --

Justice Potter Stewart: -- in your submission.

Mr. Edward Burke Arnolds: Yes.

At least the mere finding --

Justice Potter Stewart: Would it vary from judge to judge?

Mr. Edward Burke Arnolds: I'm sorry, Your Honor?

Justice Potter Stewart: Would it vary from judge to judge?

Mr. Edward Burke Arnolds: No, I -- I would not think so in -- insofar as the question of the constitutionality of the statute was concerned.

In this case, there is no legislative history that shows --

Justice Potter Stewart: Some judges might be lighter sleepers than others for example?

Mr. Edward Burke Arnolds: Your Honor, I'm not contending that in order -- that if such a statute were passed in order for it to be upheld constitutionally, it would have to be shown in every case that the picketing was reasonably likely to influence the judge in anyway.

I -- I do say -- I simply say that I think that the -- the hypothetical statute can -- can be distinguished from this case and because there, there would be at least arguably some compelling reason for the distinction, whereas in this case, there is no compel -- there is no reason for allowing labor picketing and for not allowing any other form of picketing.

The only distinction between this case and --

Justice Potter Stewart: Well, that's -- that's your equal protection argument.

Mr. Edward Burke Arnolds: Yes, sir.

Justice Potter Stewart: I thought we were talking about your First Amendment argument, but perhaps I was mistaken.

Mr. Edward Burke Arnolds: Perhaps the --

Justice Potter Stewart: You have two separate arguments, two separate attacks on this --

Mr. Edward Burke Arnolds: Yes, the first --

Justice Potter Stewart: -- legislation, do you not?

Mr. Edward Burke Arnolds: Actually, we have three.

Chief Justice Earl Warren: Three due process also?

Mr. Edward Burke Arnolds: Yes.

And the third goes to the vagueness of the statute.

Justice Potter Stewart: Oh, yes.

Mr. Edward Burke Arnolds: And that the first attack is based on the content discrimination which I believe maybe characterized as either a Fourteenth Amendment attack -- attack or a First Amendment (Voice Overlap) --

Justice Potter Stewart: Well, they're both Fourteenth Amendment attacks, aren't they, this -- this State legislation?

Mr. Edward Burke Arnolds: Yes, the one under the Equal Protection Clause.

Justice Potter Stewart: Alright.

Mr. Edward Burke Arnolds: And so I believe this can be characterize -- Our first argument maybe properly characterized as an equal protection argument and a First Amendment argument because there is no compelling reason for discriminating among the pickets and also the control -- the statute attempts to control the content of the message on the picket signs.

The second argument is a First Amendment argument is applied to the States by the Fourteenth Amendment Due Process Clause.

Your Honors, the only -- the only distinction that the State can draw between this case and the Mosley case is that you do -- instead, the ordinance in Mosley you attempted to safeguard the right of the quiet classrooms and in this case, the right is quite enjoinment of the home.

I submit that that difference makes absolutely no difference in terms of the equal protection argument.

There is no more reason for allowing labor picketing in a school and prohibiting all other picketing than there is for allowing a labor picketing at a residence and allowing all of the other picketing.

Justice Potter Stewart: I suppose most residences these days, most dwellings, are not places of employment, are they?

Mr. Edward Burke Arnolds: Well, it depends, Your Honor what the term places of employment includes.

Most residences I -- I assume do not have maids or gardeners.

On the other hand --

Justice Potter Stewart: Household employees, home employees --

Mr. Edward Burke Arnolds: Domestic employees.

On the other hand, they do -- most homes do bring in workmen and under this statute, it seems to me that if a workman is working at the home that the home is a place of employment and if he's a non-union workman, the union can picket both the workman and the homeowner.

Justice William H. Rehnquist: And certainly, one doesn't think of schools as places of -- of “privacy” as -- as they do of homes, do they?

It may serve an equal or perhaps more important value, but isn't that in large part for the State to decide?

Mr. Edward Burke Arnolds: Your Honor, I don't think so in terms of equal protection, in terms the difference between labor picketing and all other picketing.

I will agree that the right that -- that schools are different from residences and the right of privacy, residential privacy is certainly different from the right of quiet classrooms in the interest of maintaining quiet classrooms.

But in terms -- but that is no justification for allowing only labor picketing in one case and not allowing only labor picketing in the other case.

In other words, the fact that the rights that -- it just doesn't make any sense to say that that -- that justifies discrimination in favor of labor picketing in a residential situation, but doesn't justify it in a school situation.

Justice William H. Rehnquist: But in a residential situation as I understand it, the statute says, “Only when the owner has allowed other people or strangers to him on the premises is labor picketing allowed,” as it's used as a place of business?

Mr. Edward Burke Arnolds: The -- the point is that that -- there is no compelling reason for making that distinction.

What the statute says in effect is that if you -- if you bring a -- a non-union carpenter in to work on your roof, you have waived the right to -- your right to privacy insofar as labor picketing is concerned.

But if your -- if your home is a landmark and you attempt to alter it, the -- that does not waive your right of privacy insofar as the historical society is concerned.

And they cannot come in and picket because you are altering a landmark.

Our position is there -- there is no -- no reason and certainly no compelling reason for making that discrimination in favor of labor disputes and -- and against everyone else.

Chief Justice Warren E. Burger: Who decides whether the place is a landmark, the picketers or some public body?

You -- you used the phrase landmark.

Mr. Edward Burke Arnolds: Yes, Your Honor.

I was assuming in my hypothetical that it -- everyone would concede that it was a landmark, perhaps the public.

Chief Justice Warren E. Burger: Everyone -- everyone except the owner.

Mr. Edward Burke Arnolds: Well, then I -- even if it was not clearly a landmark, if the picketers picket --

Chief Justice Warren E. Burger: If they want to make it a landmark, could they picket?

They're trying to persuade somebody to make it a landmark?

Mr. Edward Burke Arnolds: I suppose that that would -- that hypothetical would work also they're not quite as well for me.

The --

Chief Justice Warren E. Burger: Well, then -- then of course --

Mr. Edward Burke Arnolds: -- interest --

Chief Justice Warren E. Burger: -- a bunch of picketers could go out and picket in this case of yours and say, “We -- we really didn't want to make Judge Tone's home a landmark and that's what we're picketing for.”

Are you suggesting that would be a basis for picketing?

Mr. Edward Burke Arnolds: No.

Your Honor, what I'm suggesting is that there is no reason for allowing -- for saying that the homeowner waives his right to privacy if he -- if he brings a workman into his home and not saying that he waives that right of privacy for the myriad other purposes about which people might picket him.

For example, if he puts in opposing candidate's political poster in the window of his home, the opposite party is not allowed to carry a sign in front of the -- in front of the home in favor of -- of some other candidate.

And yet, why if he brings a workman into his home does he waive the -- waive his right to privacy, but he doesn't waive that right if he -- if he puts a political poster in the window.

There should -- there is simply no compelling reason for making that distinction.

It's -- it is -- that moreover, I -- in this case, we have a legislative statement of legislative finding and intent and nowhere in the statement of legislative finding on intent, is there any indication that the Illinois legislature was -- was interested in providing a forum for labor picketing.

In fact, in the statement of -- of intent, the Illinois legislature declares that they find all residential picketing and no matter how -- just the cause to be disruptive.

There is nothing to show that they were intending to afford a forum for labor disputes and not for anything else.

Justice Potter Stewart: We don't know anything about the legislative history of this more, do we?

Mr. Edward Burke Arnolds: Yes.

Justice Potter Stewart: Whether or not it was amended after the processes of enactment.

Mr. Edward Burke Arnolds: There -- there is no -- there is no official history, Your Honor.

The only -- there is an article that appears in -- it's cited in our brief and appears at 61 Nw. U. L. Rev.

It does indicate some history.

Chief Justice Warren E. Burger: Well, resume there at 1 o'clock.

Mr. Edward Burke Arnolds: Thank you.

Print this transcript Transcript: 

Argument of Edward Burke Arnolds

Chief Justice Warren E. Burger: Mr. Arnolds you may continue.

Mr. Edward Burke Arnolds: Mr. Chief Justice thank you, may it please the Court.

A couple of questions Your Honors were addressed to Ms. Robinson that I would I like to comment on.

Mr. Justice Stewart, I believe you asked a question about the Gregory case.

Justice Potter Stewart: Yes.

Mr. Edward Burke Arnolds: And I would simply like to note that it's clear from the appendix in the Gregory case that the marching parading in that case took place in exactly the same neighborhood as in this case.

That the -- while not the same Mayor was involved, the Mayor of the city of Chicago was a -- the residence of the Mayor of the city of Chicago was the target of the picketing and the -- in addition to that the message was the same that you have picketing concerning desegregation of the Chicago public schools.

Justice Potter Stewart: That was a different Mayor but they live in the same neighborhood?

Mr. Edward Burke Arnolds: That's correct.

The --

Chief Justice Warren E. Burger: Was the -- was there a parade permit in the Gregory case of any kind?

Mr. Edward Burke Arnolds: I -- I -- I'm not sure Your Honor but I don't believe so.

I don't believe the permit was involved.

I'm maybe wrong about that.

Chief Justice Warren E. Burger: Wouldn't it make a difference if there was an ordinance which said you can do something if you get a parade permit but impliedly you can't do that if you don't get a permit.

Mr. Edward Burke Arnolds: I -- I think that it's -- that the parade permit ordinance would be constitutional -- could be constitutional if the discrimination -- if -- if there -- if it were no way based on content, in other words, if the -- if a permits were awarded in a totally content free manner.

I think if the -- if the permit ordinance required that the content of the message be reviewed before the permit was granted --

Chief Justice Warren E. Burger: But permit ordinances are usually neutral in the sense of simply requiring notice so that they can handle traffic problems and that sort of thing.

Mr. Edward Burke Arnolds: And that I believe that when they are, they are generally upheld as being constitutional.

Chief Justice Warren E. Burger: No parade permit has ever been upheld here as it that mentioned as the matter of content?

Mr. Edward Burke Arnolds: Not that I am aware, no sir.

What I wish to point out about the Gregory case was that this Court in Gregory specifically said that if the parading and marching in that case was peaceful.

It was certainly protected by the Fist Amendment.

And the State has conceded in this case that both of past conduct of the points of appellees and their proposed conduct is peaceful, therefore, we conclude that under Gregory, their conduct is protected by the Fist Amendment.

Mr. Justice Stevens I believe you asked a question going to the place of business exception in the statute.

It is not clear, our position is that it is not clear from the statute just exactly what picketing is allowed at the place of business.

For example, if the high raise Lakepoint Towers has a restaurant in the building, it is clear that the restaurant maybe picketing, and not only for a labor matters but for other matters.

It is not clear whether the residences that are also located in Lakepoint Towers maybe picketed by for anything other than labor disputes.

And I think it is near as it clear if a high raise contains only condominiums or apartments whether that -- whether or not that building is a place of business.

In addition, I don't believe it's clear whether the --

Justice William H. Rehnquist: It -- it is a vagueness argument?

Mr. Edward Burke Arnolds: Yes, Your Honor, our -- our third argument is bigness argument; I believe the question that went to that argument.

Justice William H. Rehnquist: Is -- so it's not strictly speaking equal protection argument?

Mr. Edward Burke Arnolds: No sir.

Justice John Paul Stevens: Well I think in my question went to the equal protection point to, because it's in the area of -- as I understand the ordinance of dwellings where there are employees that should get the situation that Mr. Justice White described where one picket carrying a sign this -- it's unfair of the Union can do so and another picket saying it's unfair not to bus can not do so.

And I was trying to figure and think through the scope of how many places are there that are dwellings of that category.

And you are saying if -- if I understand you I haven't thought if that before that any dwelling really could be because if you bring a plumber in his presumably a member of the Union and he does some work there and while he is there I guess the ordinance applies to him as your argument.

That applies to that residence?

Mr. Edward Burke Arnolds: Yes.

Justice John Paul Stevens: Yes.

Of -- of course in any apartment house where they have janitors and people who -- who keep place warm and electricians and all would be covered I suppose?

Mr. Edward Burke Arnolds: Yes.

And I think it's important to point out that the -- that both the employee and the employer maybe the target of -- of the picketing under the exception to.

In other the Union --

Justice John Paul Stevens: You may have non-union employees and the union wants to organize it.

Mr. Edward Burke Arnolds: So that the statute does not afford a forum simply for an employee to picket.

Justice John Paul Stevens: Yes.

Justice William H. Rehnquist: If it is true the ordinance is permitting the picketing say of a whole of an apartment building where an a plumber is inside or simply the outside entrance of the apartment building?

Mr. Edward Burke Arnolds: Your Honor we -- in this case the plaintiffs were always on public property, the public -- the streets and sidewalks in front of the residence and the statute is being enforced against persons on public streets and sidewalks.

We are not would -- now it is not clear whether the statute would permit a picketing -- also prohibit residential picketing, if that picketing occurred private property with the concern of the owner --

Justice William H. Rehnquist: You don't have standing to rise that or least you don't raise it I take it?

Mr. Edward Burke Arnolds: We do raise, we do raise the argument and we argue that the we, although it was not involve in our case because the picketers in -- in our case we are not on private property they were and public property, we do argue that this Court can consider the facial over breadth of the statute because the statute infringes on Fist Amendment protected conduct.

Justice William H. Rehnquist: So that's a First Amendment argument then?

Mr. Edward Burke Arnolds: Yes, Your Honor.

I would also like comment the -- the State has mentioned that FCC versus Pacifica in the Rowan case have only been distinguished on the grounds that they are dirty words cases.

They certainly are dirty words cases, but in addition in both those cases there was a actual, physical intrusion if you will, into the -- into the residence and into the home and that is not the case here where the plaintiffs are on public streets and sidewalks.

Justice Potter Stewart: Well, except -- neither those cases involved of physical intrusion of people.

One was, radio or television said only if the householder turned it on and kept on that channel or wave length station and the other was piece of mail, wasn't it?

Mr. Edward Burke Arnolds: Yes.

Justice Potter Stewart: And also there was free to throw away.

Here the -- while outside these are as human beings and the householder can't change the channel sort of speak.

Chief Justice Warren E. Burger: But in -- but in Rowan it wasn't just a matter of throwing away their mail, it was the statutory – the householder to stop the mail from it ever coming into his mail box, that's even a little different from -- either the (Inaudible) isn't it?

Mr. Edward Burke Arnolds: Yes, and I certainly concede that there are differences between the cases.

Chief Justice Warren E. Burger: The Rowan is more comfortable to stopping the picketing perhaps.

Mr. Edward Burke Arnolds: Well, I would contend that the -- that it is if the line has to be drawn and I think lines do have to be drawn that while the residential privacy it is certainly is a compelling reason for keeping any intrusion anyone from intruding into the residence.

Justice Potter Stewart: There was a trespass to take of that, aren't there?

Mr. Edward Burke Arnolds: Yes, Your Honor.

Justice Potter Stewart: You don't need an ordinance like this?

Mr. Edward Burke Arnolds: No.

Chief Justice Warren E. Burger: But the -- the claim in the Rowan case was that every person had a First Amendment right to mail -- any mail he wanted to, to any person wanted to and Congress said there are limits and Court sustained those limits that you've can not mail everything and anything you want?

Mr. Edward Burke Arnolds: Certainly that the -- that the -- the householder had a right to request that the erotic and sexually provocative material not be mailed into his home.

I don't think it would -- perhaps extend if the matter that contained in the mailing list is political material.

And in this case we have the message clearly is in very heart of -- of political speech.

Your Honors our first argument was that by allowing peaceful labor picketing and totally prohibiting all other picketing the statute violated both the equal protection and the First Amendment because its discrimination is based solely on the content of speech and there is no compelling reason for the discrimination, as in Mosley the statute's exception for labor picketing --

Justice Byron R. White: But that's a -- did you find the word compelling in Mosley?

Mr. Edward Burke Arnolds: No, Your Honor.

In the --

Justice Byron R. White: So what -- what is this, what do you think the Mosley standard is for justification?

Mr. Edward Burke Arnolds: I think the most – Mosley states that there is no reason for content control of messages.

At least on -- at least to the extent that Government said (Voice Overlap) --

Justice Byron R. White: Do think -- do think Mosley said it is never permitted?

Mr. Edward Burke Arnolds: I don't -- I don't think Mosley should be interpreted Your Honor as saying that it is absolutely never permitted in the sense that perhaps in time of war troop movements could – letting out information about time the troops were going to sail might -- might be prohibited and I suppose to a certain extent that is based on content.

I don't think I would want to make the statement absolutely.

I do think however that in absolute statement -- close to an absolute statement can be made that Government can not control what the public issues maybe discus in public forums and I think that what -- that is the problem that we have in this case and I think as in Mosley the statute's exception for labor picketing really fatally impeached any -- any rationale that the statute might have for prohibiting all other peaceful picketing and in this case the -- the state is conceded that the -- that the picketing is peaceful.

Justice Byron R. White: But you don't -- you don't deny that -- that the state has some extra -- some additional reason for permitting labor picketing than other kinds of picketing.

At least there is a reason but you are – you are suggesting it just is inadequate.

Mr. Edward Burke Arnolds: Yes.

Certainly a -- a reason can be invented but it -- I think the reason does not even rise to the level of the rational reason, certainly not to a compelling reason and in no way can it be sufficient to -- to permit the state to control the content of speech in the sense that in no way should it be allowed to this judge sufficient to control the -- of what public issues maybe discussed in public forums.

Justice William H. Rehnquist: Well, in you argument is that Mayor Bilandic house is public forum?

Mr. Edward Burke Arnolds: No Your Honor, our argument is that the public streets and sidewalks in -- in the neighborhood in which Mayor Bilandic house is located is public forum.

Justice William H. Rehnquist: Well, the -- the sidewalk in front of this house is what we're talking about not just the general residential area he lived in, isn't it?

Mr. Edward Burke Arnolds: Well, it is the -- the statute does not prohibit picketing in the general residential area, it prohibits picketing before and about residences.

Justice William H. Rehnquist: Yes and -- and not in residential areas (Inaudible)

Mr. Edward Burke Arnolds: But in -- but the affective that statute if -- if it's upheld would be virtually to eliminate picketing in residence and public streets and sidewalks before and about residences which in residential area.

Chief Justice Warren E. Burger: Do you think -- would your view the statute be the same in application if instead of picketing Mayor -- the Mayor's place, the pickets just picket out arbitrarily some residential district, picketed for one hour in front of your house and one hour in front of someone else's house and just went down the line, no specific target.

Mr. Edward Burke Arnolds: In with -- with the message Your Honor or with just -- just (Voice Overlap) --

Chief Justice Warren E. Burger: Message, yes (Inaudible)

Mr. Edward Burke Arnolds: My position was --

Chief Justice Warren E. Burger: The same message as involved here.

Mr. Edward Burke Arnolds: Our position would that that picketing -- as long as it was peaceful would be protected (Voice Overlap) --

Chief Justice Warren E. Burger: That would be -- in the same category whether -- whether the Mayor was the target or just some taxpayer.

Mr. Edward Burke Arnolds: Well, this statute does not distinguish between public officials and purely private persons.

It's not nearly drawn in that way.

I don't think this case requires a decision about whether or not there is a difference.

Chief Justice Warren E. Burger: Very well.

Mr. Edward Burke Arnolds: Thank you very much.

Chief Justice Warren E. Burger: Do have any further Ms. Robinson?

Argument of Ellen G. Robinson

Ms Ellen G. Robinson: Just a couple of points.

At the out set I'm concerned the -- about the characterization that we've conceded the 20 people picketing in front a home at 6 o'clock was peaceful.

It's not in the record whether or not that particular picket was peaceful or not.

We have only conceded that the plaintiffs alleged that they intended to engage in future peaceful picketing if the statute were held unconstitutional.

Justice John Paul Stevens: Isn't that true that the statute has the same effect on peaceful picketing as it does are non-peaceful picketing?

Ms Ellen G. Robinson: On it's face it does Your Honor.

Justice Byron R. White: And now, I take that the -- I take it would just it -- it would prevent -- just marching with signs in any residential neighborhood?

Ms Ellen G. Robinson: On it's face Your Honor.

Justice Byron R. White: Well, I guess that's what we talking about, isn't it?

Ms Ellen G. Robinson: Well -- well I --

Justice Byron R. White: You know the picketing just doesn't mean to stopping -- picking out a target on it's face -- I suppose that -- if they just march --

Ms Ellen G. Robinson: But I'm --

Justice Byron R. White: -- how many people march in up and down a mile, they just -- they just made a circuit of the mile in the residential neighborhood.

They didn't have any by name they just -- just election hearings say.

Ms Ellen G. Robinson: I don't that would be picketing within the meaning of the statute.

I think that would be a march like we had in the Gregory case and I think that the Illinois Courts in light of their other decisions regarding picketing would construe picketing to mean patrolling back and forth in front of a single limited geographical area.

Justice Byron R. White: Well, how the -- a block, about a block?

Ms Ellen G. Robinson: When it says, -- I think the statute hasn't been construed on it's face and in light Illinois' other decisions regarding picketing.

I think -- and the purpose of the statute I think that the Courts would construe it to mean in front of a residence just the way picketers and this case were picketing right in front of the Mayor's house.

Justice Byron R. White: Well say that -- say the -- say the -- say that county political chairman that that -- and you just want to support with your candidate, so you -- you had a sign and you march up down in front of his house saying support so and so for sheriff, that's certainly covered?

Ms Ellen G. Robinson: Certainly within that yes.

The --

Chief Justice Warren E. Burger: Do you concede that's in the context of labor disputes -- the labor area generally there are special and different reasons to extend protection to labor picketing as distinguished from all other types?

Ms Ellen G. Robinson: Exactly Mr. Chief Justice, and as a matter of fact Illinois has the special statute which protects labor picketing at the situs of on employ -- of a employment relationship.

Chief Justice Warren E. Burger: So the -- analogies between labor picketing and other types aren't trivially helpful, are they?

Ms Ellen G. Robinson: I don't think so Your Honor not in this case.

Justice Byron R. White: Now, if the county chairman not only was is in his house but he had his district captains, they were having a meeting at his house and so they -- three or four pickets for the signs they support so and so for sheriff, that would be covered?

Ms Ellen G. Robinson: Yes, it would be (Voice Overlap) --

Justice Byron R. White: Even though -- even though he is certainly has invited a lot of people into his house that might -- that that -- and he might perhaps shouldn't expect the same kind of privacy as he --

Ms Ellen G. Robinson: Of course that's -- that's the contention of the appellees in the case, they said that, if we weave the right of residential privacy when we invite an employee then we should weave it as to everybody else who comes in.

Justice Byron R. White: -- and what's your answer to that (Voice Overlap) --

Ms Ellen G. Robinson: And my answer to that is it -- it's only the employees and the rights of the employees to picket that Illinois has given special legislative protection to and the separate disting -- statute to labor anti injunction of our labor dispute picketing statute which I set forth in my brief.

And because of the special protection that Illinois has always given to employees to picket at their -- their place of employment in case a labor dispute arises, it was reasonable for the Illinois legislature when they were deciding to protect residential privacy to also simultaneously protect the employee picketing.

Justice Thurgood Marshall: So that's in your mind -- I mean to show to have happen house and there was (Inaudible)

Ms Ellen G. Robinson: Yes sir, and then the other working person who has to help in the house.

Justice Harry A. Blackmun: But it may that the organized labor who is pretty in influential (Inaudible) when the statute is passed.

Ms Ellen G. Robinson: That may have been Your Honor.

If there are no further questions my time is up.

Chief Justice Warren E. Burger: Thank you counsel, the case is submitted.