Warren E. Burger: We’ll hear arguments next in 75-1453, Wooley against Maynard. Mr. Johnson, you may proceed whenever you’re ready.
Robert V. Johnson, II: Mr. Chief Justice and may it please the Court. I appear on behalf of the Chief of Police of Lebanon, New Hampshire, the Director of the New Hampshire State Police and the Commissioner of the New Hampshire Department of Motor Vehicles, all three of whom are the appellants herein. This case presents to this Court two general issues. The first, dealing with symbolic speech. The issue being whether consistent with the First and Fourteenth Amendments, the State of New Hampshire may prohibit by criminal sanction the knowing obscuration of the State motto, “Live Free or Die” on the license plates of registrants of motor vehicles in New Hampshire. The second issue is whether or not the appellees herein prior to the utilization of the United States District Court for the Federal District of New Hampshire were obligated or should have exhausted their State appellate remedies. In 1809, General John Stark of New Hampshire wrote a letter to his Vermont comrades declining for reasons of health to attend the 32nd reunion of the 1777 Battle of Bennington, Vermont in which General Stark had commanded the Continental troops against a decisive victory against the British and Germans. At the conclusion of his letter, General Stark wrote to his comrades a proposed toast for the reunion. The proposed toast was “Live Free or Die, death is not the worst of evils.” The toast obviously was reminiscent of the words of Patrick Henry back in 1775, “But as for me, give me liberty, or give me death.” 168 years after the Battle of Bennington, Vermont, the New Hampshire General Court or legislature adapted the words, “Life Free or Die” as the official State motto of the State of New Hampshire, 168 years after those words were said. In 1969, our legislature directed the Director of the Division of Motor Vehicles to place on all passenger vehicles registered in New Hampshire the State motto, “Live Free or Die.”
William H. Rehnquist: If you had kept it just seen at New Hampshire, you would have avoided this litigation, wouldn’t you?
Robert V. Johnson, II: I’m not so sure Justice Rehnquist. Those environmental purists may be here sitting on my right saying that since New Hampshire is no longer pure, we’re evading their First Amendment Rights.
Warren E. Burger: You might also have some copyright problems with the words of Patrick Henry on Virginia on --
Robert V. Johnson, II: I’m not sure [Laughter].
Harry A. Blackmun: General Johnson, why did it take the General Court 160 and some years to arrive at this conclusion? Usually, they’re more traditional than that of New Hampshire, aren’t they?
Robert V. Johnson, II: [Laughter] We adapted in New Hampshire a State song, a State seal, a State flower and a State tree as well as a State motto in accordance with the format of most states. And while New Hampshire was one of the original signatories of the decoration of independence, I don’t know the reason for the delay in the adoption of these State symbols but I think that they were adopted at a simultaneous period of time with the adoption by other states of State symbols. Whether our conservative nature had anything to do with it or not, I don’t know.
Warren E. Burger: Does your case depend upon this having been declared the motto of the State officially by the legislature?
Robert V. Johnson, II: I think, Mr. Chief Justice, that it does have some bearing because by the legislatures having so declared this to be the official State motto, the legislature has in effect said that the motto is of importance to the State of New Hampshire, which brings me to the interests of the State of New Hampshire in having the motto on its license plates. The motto not only symbolizes the heritage of New Hampshire, it fosters an appreciation of --
John Paul Stevens: General Johnson, could I interrupt before you get to the State interest? Do you challenge the District Court’s finding that the appellees’ motivation was based on a fundamental religious belief?
Robert V. Johnson, II: Yes, Mr. Justice.
John Paul Stevens: You challenge that it is clearly erroneous and you ask us to set this aside to you?
Robert V. Johnson, II: Yes, Mr. Justice.
John Paul Stevens: Did you write that in your brief?
Robert V. Johnson, II: We, in our brief questioned the sincerity of the appellees and you will find in the transcript of the hearing evidence that Mr. Maynard, while he purports to be a Jehovah’s Witness has been dis-fellowshipped from the Jehovah ’s Witnesses And in fact, one of the Jehovah’s Witnesses’ churches had at one time one or more criminal prosecutions against him. So, (a) we question Mr. Maynard’s sincerity and --
Thurgood Marshall: On a sincerity, he went jailed, didn’t he?
Robert V. Johnson, II: That is correct.
Thurgood Marshall: Well, do you -- usually, non-sincere people, they go up to closing of the door but they usually change, don’t they?
Robert V. Johnson, II: Well, the matter of sincerity, I think is two-barreled. The first is the question which a moment ago was placed to me, we have some doubts as to his sincerity. But even accepting his sincerity, we then get to the next issue which was what he communicated. A particularized statement capable of being understood as this Court held it must be in Spence versus Washington.
Thurgood Marshall: That’s a different question.(Inaudible)
John Paul Stevens: I would think so. I just want to be sure you’d disagree and there is evidence which you point out that may cast doubt on the District Court’s finding. But, is there not some evidence in the record which would require us to accept the finding as not being clearly erroneous? Didn’t he testify that it was a religious belief and so forth that’s illegal behind the District Court’s findings?
Robert V. Johnson, II: There is evidence both ways. The State --
John Paul Stevens: Well, if you concede that, don’t we have to accept the finding?
Robert V. Johnson, II: I do not concede the matter of sincerity. In Spence versus -- well again, I think the two questions are intertwined. The sincerity of Mr. Maynard at the time he undertook this act, I think there is evidence both ways as to whether or not he was undertaking this act on a religious, conscientious basis or whether it was a mere act of whimsy or bizarre activity. And I think there’s evidence in both ways.
Warren E. Burger: As Justice Marshall suggested in one of his questions, do people ordinarily go along and spend five days at a time in jail just to pamper a whimsy? That’s some evidence of a sincere belief, however, a misguided one might think it is and do you rest on the fact that he is departed from a particular faith that as a dissident as undermining his sincerity?
Robert V. Johnson, II: No, I don’t believe and I don’t want to make this particular issue greater than it is necessary to the appellant’s case. While we question the sincerity of Mr. Maynard, I would submit that his sincerity is not going to resolve the issues before this Court. And while I say that there is evidence both ways, assuming arguendo the sincerity of Mr. Maynard, I would then argue that his conduct is not in fact symbolic speech.
Warren E. Burger: Do you think the State of New Hampshire could require citizens to carry signs, picket signs, to support the United Nations in a sincere belief by the legislature of the State that it was very important to support the efforts and work of the United Nations?
Robert V. Johnson, II: My answer to that is no and for a variety of reasons. The first is that your hypothetical is a more poignant message in my mind than the motto, “Live Free or Die.” Secondly, the motto “Live Free or Die” and its requirement that it’d be placed upon motor vehicle license plates has to do with the registration of motor vehicles, the use of the highways, and efficient registration system of motor vehicles and other recognizable interests of the State of New Hampshire which I think are more important than those that I could enunciate to support your question, Mr. Chief Justice.
Warren E. Burger: Could the State just as well offer its citizens, its automobile owners, an option, but if they did not want that motto on the license, they could be omitted?
Robert V. Johnson, II: This matter was raised at the District Court and the Commissioner of the Department of Motor Vehicles testified in effect that it would raise havoc with the printing of the motor vehicle registration plates, which is one of the --
Potter Stewart: Where are these plates made, in the State prisons?
Robert V. Johnson, II: That is correct, Mr. Justice.
Potter Stewart: Kind of an IRA, isn’t it?[Laughter]
Robert V. Johnson, II: It is.[Laughter] On the other hand, if the death penalty for violation of our statute relative to the obscuration of the motor vehicle license plates were to be the death penalty perhaps sincerity of persons would be more questionable.
Thurgood Marshall: Do you mean that if we rule in favor of the appellees, then everybody would take it over and (Inaudible)?
Robert V. Johnson, II: This is another matter, Mr. Justice Marshall.
Thurgood Marshall: If everybody’s in favor of getting rid of it, you ought to get rid of it.
Robert V. Johnson, II: This is not a burning issue within the State of New Hampshire and this is one of the basis on which I would distinguish this case from the flag cases. Mr. Chief Justice Burger has remarked this past summer, I believe, at the commencement address at one of our national universities --
Warren E. Burger: I was speaking all alone there. I didn’t have a college talking about my decision?[Laughter]
John Paul Stevens: And it was burning enough for you to appeal, I think, wasn’t it?(Inaudible)
Robert V. Johnson, II: I believe that that was at the University of Pennsylvania in which you drew the distinction between the strong dissent of the 1960’s and the World Peace of Today. This is not a burning issue, Mr. Justice Marshall, in New Hampshire. Prior to this particular case, there were two combined cases before the New Hampshire Supreme Court cited in the State’s brief, the State versus Hoskin and Eli in which the defendants therein had taped over the State motto. This --
Thurgood Marshall: Then I understand that the Attorney General’s offer doesn’t have anything else to do that’s why they brought it up here?
Robert V. Johnson, II: We have sufficient work in New Hampshire --
Thurgood Marshall: Well, is it important in the State of New Hampshire or not?
Robert V. Johnson, II: It is very important, Mr. Justice Marshall.
Thurgood Marshall: But it’s not a burning issue?
Robert V. Johnson, II: It’s not a burning issue from the standpoint that when one goes to New Hampshire, one sees the motto taped over. If I may introduce a piece of evidence not before the Court in my travels around the State of New Hampshire since this case first was instituted, I personally have yet to see within the State of New Hampshire a license plate with the State motto either cut out or taped over.
Thurgood Marshall: Since you speak as an individual, the first time I noticed the motto was after this case was filed. I have never paid any attention to it. I mean, New Hampshire license, (Inaudible) New Hampshire, but I didn’t live or die about it.[Laughter]
Robert V. Johnson, II: Well, most people in New Hampshire don’t either. They accept it as the fact that it is required to be placed on their license plates by the legislature in New Hampshire which is one of the fundamental basis upon which the State, the appellants herein say that by no stretch of the imagination can the appellees be said to agree with the State motto merely because it’s required to be placed on their license plates. Every --
Warren E. Burger: Well, what if the legislature had required them to take a choice or to put on the license plate on van or bussing, do you regard that as somewhat controversial, wouldn’t you?
Robert V. Johnson, II: Certainly.
Warren E. Burger: Suppose on the other hand, it was -- bussing is beautiful. Would you think that was controversial?
Robert V. Johnson, II: There certainly would be people who would be here before this Court holding that it was controversial. It’s a --
Warren E. Burger: What difference does it make if the particular person finds that obnoxious and objectionable or whether it’s approved by a majority and disapproved by only a small minority?
Robert V. Johnson, II: Well, I think then, we get down to a balancing issue, balancing the interest of the State versus the eccentric feelings of a very small minority.
William H. Rehnquist: Do you think it’s likely that either the hypotheticals put to you by the Chief Justice would be adopted by the New Hampshire legislature of the State motto or --
Robert V. Johnson, II: No, Mr. Justice Rehnquist. We have adopted our motto and I don’t believe it would be changed.
Thurgood Marshall: Mr. Attorney General, a minute ago, you said that it would be very troublesome to issue license plates without the sign. I saw a license plate in New Hampshire a week ago that had letters “ER” on it, or “AB” or something, with two letters, that was pretty special, wasn’t it?
Robert V. Johnson, II: Our motor vehicle registration --
Thurgood Marshall: Doesn’t that stand special?
Robert V. Johnson, II: Each plate has its own numbers and each plate has its own letters.
Thurgood Marshall: What I mean, they go from 1 to 9000, that’s a machine job, but the letters “ER” is not a machine job?
Robert V. Johnson, II: I believe --
Thurgood Marshall: And no computer runs on ER?
Robert V. Johnson, II: In a sense -- I believe that it does because the letters in New Hampshire stand generally for our nine counties, and so the counties do have significance.
Thurgood Marshall: Well, this didn't have any numbers behind it, it just had letters.
Robert V. Johnson, II: Well then, that is what is called in New Hampshire a Vanity Plate.
Thurgood Marshall: Yes.
Robert V. Johnson, II: And that --
Thurgood Marshall: Well, couldn't you make a vanity plate for this man, if he’d pay for it and leave --
Robert V. Johnson, II: Unfortunately, all vanity plates in New Hampshire have the State motto on it, but your question is, could we --
Thurgood Marshall: Yes, but couldn’t you make a vanity plate without the motto?
Robert V. Johnson, II: Well then, we come to the issue of whether the State of New Hampshire is obligated to do so, the legislature having authorized the motto to appear on all passenger vehicles.
Thurgood Marshall: All I’m saying is it wouldn’t be any harder than just set the vanity plates. I’m not arguing the law about it. I’m arguing the (Voice Overlap).
Robert V. Johnson, II: The State has conceded, Mr. Justice Marshall, in its brief that the State of New Hampshire can undertake a workable system of motor vehicle registration without having the motto on its plates. We concede that, but we are here on the more fundamental constitutional issue as to whether or not in day and age, in the 1970’s, the State motto may not be required to be placed on motor vehicle license plates. On the front of this particular building is a slogan, is a motto “Equal Justice Under Law” and I would submit to this Court with my utmost respect that the work of this Court may go on without that motto being on the front of this building. In the same way as I concur with Mr. Justice Marshall that the State of New Hampshire may undertake a workable motor vehicle registration system without having the motto on our license plates.
John Paul Stevens: General Johnson, just to give you a question somewhat like the one that the Chief Justice asked. Supposing the State of Utah adopted a motto, “The Mormon State” and then tried to put that on its license plates, would that be permissible? And if not, why not?
Robert V. Johnson, II: I think that it would be a closer issue. The reason being that I would submit the words “Live Free or Die” do not have the significant meaning that the words “The Mormon State” has.
John Paul Stevens: Well, I suppose, if one was a Christian scientist and didn’t believe in death, it might have (Voice Overlap).
Robert V. Johnson, II: That is correct and I would point out that almost every State in the union has mottos or slogans on its license plates and --
John Paul Stevens: Are there any other states that have mottos that profess the belief in death? And why a belief in death any different from a belief in the Mormon religion?
Robert V. Johnson, II: With respect to the first portion of your question, no. There is no other license plate professing a belief in death. With respect to the second aspect of your question, I think that the more particularized the message becomes then perhaps the more weight has to be given to the State interests.
Thurgood Marshall: Well, what if you do it like we do it in Virginia? We don’t have it on our license plates, but we have stickers I see a lot of people paste it on the bumper “Virginia is for Lovers”.
Robert V. Johnson, II: [Laughters]
Thurgood Marshall: But, they didn’t put it on the license plate?
Robert V. Johnson, II: Well, this --
Thurgood Marshall: You could buy the sticker and say what you want.
Robert V. Johnson, II: This is exactly another fundamental case.
Thurgood Marshall: And in that case, the appellee here wouldn’t have any trouble, would he?
Robert V. Johnson, II: Well, the appellate herein is a printer by trade and one of the arguments of the State of New Hampshire herein is that the statute under which he is being prosecuted does not penalize him for any disparagement of the motto of the State of New Hampshire other than a physical act upon a license plate which is in a sense still a property of the State of New Hampshire. There is nothing in our statute which precludes Mr. Maynard from verbalizing either by the spoken or written word his objections and dissent to the State motto. There is nothing whatsoever to prohibit him from doing anything other than merely taping over or cutting out the State motto on our license plates. And with respect to other statements on license plates, I could run through the variety of them as up here on the license plates of various states. Nebraska, “The Cornhusker State,” does everyone seen a vehicle from Nebraska reasonably believe that the registrant of that vehicle necessarily himself believes that Nebraska is a cornhusker state or that everyone in Nebraska is a cornhusker?
William J. Brennan, Jr.: What about the New Jersey license “The Garden State”? Do you think any resident of New Jersey believes it is?[Laughter]
Robert V. Johnson, II: I certainly would be hesitant having driven through New Jersey with all due respect to New Jersey. A license plate hangs out at the end of the vehicle and nobody can reasonably say that this is an affirmation of faith, a required affirmation of belief on the part of the registrant of a motor vehicle. It’s different than a flag burning case. It’s different than other symbols and mottos. It doesn’t have the emotional charge of a flag or even the emotional charge of a draft card and the appellants herein would ask this Court to draw an analogy between the burning of a draft card in the O’Brien case and the destruction of a duly issued motor vehicle registration by the State of New Hampshire in the instant case.
William H. Rehnquist: The flags and the flag burning cases were all the property of the person who burned them, were they not?
Robert V. Johnson, II: That is correct, Mr. Justice Rehnquist.
Harry A. Blackmun: General Johnson, there are some New Hampshire plates that don’t carry the motto, aren’t there?
Robert V. Johnson, II: There are.
Harry A. Blackmun: And what is the explanation for that?
Robert V. Johnson, II: By supplementary statement in --
Harry A. Blackmun: There are sets (Voice Overlap) exhibit eight on the page 66 of the record.
Robert V. Johnson, II: That is correct.
Harry A. Blackmun: Is it because they have to designate commercial or tractor or junk or whatever it is they want?
Robert V. Johnson, II: There are general rules, motor vehicle regulations relating to different types of vehicles, and that is one of the basic reasons why some plates are designated commercial or some plates are designated tractor. A commercial vehicle or an agricultural vehicle for instance may travel only 15 miles from its usual place of resting.
Harry A. Blackmun: Yes, but a commercial vehicle, a big truck van might go to California?
Robert V. Johnson, II: That is correct, but it’s designated as commercial and has to pay highway usage taxes and so forth which a passenger vehicle does not. In other words, the various designations are in response to various motor vehicle laws relative to those particular types of vehicles.
Lewis F. Powell, Jr.: Mr. Johnson, you’ve devoted your argument up to this time to the constitutional issue. Are you going to address the Younger-Huffman issue that you raise in your brief?
Robert V. Johnson, II: Thank you, Mr. Justice Powell. The State relies primarily on Younger versus Harris and Huffman versus Pursue. In this particular case, we do not believe that there is any necessity for the Federal District Court having become involved. The appellee, Mr. Maynard, in each of the three cases in which he appeared before the lowest of our courts in New Hampshire, had the alternative of having an appeal by trial de novo before jury in the Superior Court of asking that questions of law be transferred to the New Hampshire Supreme Court and he undertook none of those available remedies. In Huffman versus Pursue, this Court held that even where a criminal action has been commenced and has terminated, federal intervention carries with it all those disadvantages that it would if a criminal proceeding were still ongoing. Federal intervention in this particular case, for example, is an aspersion upon the abilities of the Courts of New Hampshire to resolve constitutional issues and Mr. Justice Brennan in May before the New Jersey Bar Association pointed out that in this day and age, the State Courts are protecting the rights of citizens to even a greater State extent than the Federal Courts. And I would submit to Your Honors that these Courts of the State of New Hampshire are just as capable of interpreting the Federal Constitution and our own constitution as the United States District Court for the District of New Hampshire.
William H. Rehnquist: You would have to --
Warren E. Burger: Jurisdictional issue, are not the husband and the wife here in somewhat different positions? The husband has already been prosecuted and that case is closed. All appeals are no longer available, but the wife has never been prosecuted, has she?
Robert V. Johnson, II: The wife has never been prosecuted. I would point out that --
Warren E. Burger: Would it not be reasonable for her to assume that she may be subject to the same kind of prosecution as her husband?
Robert V. Johnson, II: I would submit that under Doran versus Salem Inn, Inc., and under Ellis versus Dyson that there is no controversy pending and that the parties are so closely related that they should be treated as one entity. I would respectfully request that my remaining minute or two be reserved.
Warren E. Burger: Very well. Mr. Kohn.
Richard S. Kohn: Mr. Chief Justice and may it please the Court. I would like to address the Younger abstention issue first. The purpose behind the Younger v. Harris and the other cases that the Court has decided, expanding Younger, has been to permit the State Courts to try cases free from the interference of the Federal Courts. In this case, there was no interference with any state litigation. At the time the suit was filed in Federal Court, there were no pending prosecutions. This was not a collateral attack on any of Mr. Maynard’s prior convictions and it was not an attempt to use the Federal Courts --
Byron R. White: Although the latest proceeding hadn’t terminated yet, had it?
Richard S. Kohn: That’s correct, Your Honor and I should say --
Byron R. White: Was the suit to aimed that latest proceeding or not?
Richard S. Kohn: No, sir. As a matter of fact, at the time I filed the federal suit, I did not know about the third conviction for which Mr. Maynard had received a disposition of continued first sentence. I didn’t find out about that and so --
Byron R. White: And that still stands now?
Richard S. Kohn: Yes, sir. But at the hearing before the three-judge court, the State stipulated that under New Hampshire practice, that is a final disposition.
Byron R. White: So your assertion is that this suit was wholly prospective. It wasn’t aimed at any criminal proceeding and didn’t attempt to upset any possible acts.
Richard S. Kohn: That’s absolutely correct, Your Honor.
Potter Stewart: It certainly didn’t purport to try to enjoin any State proceeding?
Richard S. Kohn: No, only we asked for prospect of injunctive relief.
Potter Stewart: Yes, but is there’s a joint injunctive relief?
Richard S. Kohn: That’s correct, Your Honor.
Potter Stewart: Why was this a case of controversy in the Federal Court under the -- what was under companion case of Younger from the Seventh Circuit?
Richard S. Kohn: Samuels v. Mackell, Your Honor.
Potter Stewart: Yes, Samuels against Mackell.
Richard S. Kohn: Well, Samuels v. Mackell, Your Honor, was a case where the Federal plaintiffs were seeking a declaratory judgment that the statute was unconstitutional at the same time that there was an ongoing State prosecution.
Potter Stewart: I’m thinking of the case where there was no prosecution ongoing?
William H. Rehnquist: Boyle against Landry.
Potter Stewart: Boyle against Landry, was that it?
Richard S. Kohn: I believe so, Your Honor. And the Court --
Potter Stewart: (Voice Overlap)
Richard S. Kohn: Yes, Your Honor. The Court did address the question of standing in that case. But in Boyle, the Court characterized the plaintiff’s standing as a search through the statute books to try to find the statute to attack, if I remember the case correctly. In this case, Mr. Maynard had been prosecuted. At the time I filed the federal action, I knew at least two times that there was no question that he was not going to alter his religious beliefs and that unless we filed the suit and got an injunction, he would either not be able to use his car or be subject to more criminal prosecutions. Mr. Maynard was in a situation where because of his religious beliefs, he was going to be subject to a series of repeated prosecutions unless the Court intervened and stopped it.
Potter Stewart: You alleged that in your complaint, didn’t you?
Richard S. Kohn: Yes, Your Honor. I believe I did.
Lewis F. Powell, Jr.: Mr. Kohn, in Dyson, there was an attempt in the prayer as I recall to expunge a prior conviction?
Richard S. Kohn: Yes, sir.
Lewis F. Powell, Jr.: You didn’t seek that relief in this case?
Richard S. Kohn: No, Your Honor. Dyson in effect looked backwards. They were seeking an expungement of arrest records. They asked for an injunction to accomplish that. They also asked for declaratory judgment which looked to the future. Our case looked only to the future and that’s the distinction between ours and Dyson v. Ellis. The exhaustion requirement that the state would have the Court engraft onto 1983 action under these circumstances in effect would bring the exhaustion requirement that’s presently applied in habeas corpus actions into the 1983 area. Our response to that is to say that in the habeas corpus area, it makes sense to require a litigant to exhaust his state remedies because he’s seeking release from confinement and this Court has recognized that the State Court should have the first crack at resolving any constitutional difficulties along the way. But again, that is not the situation in our case. We are no way attacking or impugning the ability of the State Courts to resolve these issues and we are not seeking any relief with respect to prior convictions.
Thurgood Marshall: But, why didn’t you take the first case out?
Richard S. Kohn: Well, Your Honor, I did not represent Mr. Maynard in the State Court proceedings since he had a lawyer.
Thurgood Marshall: But why didn’t Maynard take it out?
Richard S. Kohn: After his first conviction on December 6, the sentence was suspended. There was no reason to appeal that. His second conviction occurred on January 31 and he was again ordered to pay a fine. The Judge then walked out of the Courtroom. Mr. Maynard explained that -- and at that point, the Judge advised Mr. Maynard that he had a right to appeal. The Judge then left the Courtroom. Mr. Maynard explained to the clerk that he could not pay the fines out of conscience.
Thurgood Marshall: No, he did not intend to pay it.
Richard S. Kohn: That’s correct, Your Honor, and at that point, the Judge returned and sentenced him to 15 days in prison and he was immediately taken to jail, so even if --
Thurgood Marshall: Couldn’t he appeal that?
Richard S. Kohn: Your Honor, under New Hampshire law, notice of an appeal to the Superior Court for trial de novo must be filed at the time sentence is declared. There is a provision for a late appeal which may be filed within three days after sentence is declared, and there is a further provision that you can petition the Superior Court for permission within 30 days after sentence is declared.
Thurgood Marshall: Well, the answer is they could have gone through all of the Courts --
Richard S. Kohn: He didn’t have a lawyer -- he could’ve, Your Honor. But for one thing, he didn’t have a lawyer and he --
Thurgood Marshall: Well, because he couldn’t afford a lawyer with two automobiles?
Richard S. Kohn: Well, Mr. Maynard told the Judge that he wanted to represent himself. He did not say he could not pay for a lawyer.
Thurgood Marshall: Well, he still had them all available to him and eventually, when he decided to abandon the New Hampshire Courts, he found a lawyer to get him into the Federal Court.
Richard S. Kohn: I don’t think that’s accurate at all, Your Honor. The fact of the matter is that when Mr. Maynard got out of jail, he made attempts to contact the American Civil Liberties Union. I think up until that point, he believed --
Thurgood Marshall: What’s that got to do with this case? The point was when he needed a lawyer, he got one.
Richard S. Kohn: Well, he had made attempts to contact the Civil Liberty Union (Voice Overlap)
Thurgood Marshall: Well, I couldn’t see how we could take all of these into effect. What I’m merely asking you, he had remedies available in the State Courts. Rather than to use those, he used the Federal Court and I’m not asking you a question. I’m telling you that’s what he did.
Richard S. Kohn: I think that I would agree with, Your Honor, that once I was retained, we chose the Federal Courts as our forum.
Thurgood Marshall: I don’t care on anything about you being retained. I’m talking about what the records show.
Richard S. Kohn: Well, there’s nothing in the record that suggest that Mr. Maynard with his ninth grade education would’ve known how to take an appeal up through the New Hampshire State Court.
Thurgood Marshall: There is something in the record that the Judge did advise him and that statutes do provide for it.
Richard S. Kohn: That is correct, Your Honor.
Thurgood Marshall: So, he had available to him a direct appeal in the machinery of the State.
Richard S. Kohn: Well, that may be true. The statutes are on the books.
Thurgood Marshall: Maybe? Is it or not true?
Richard S. Kohn: The statutes that were on the books that there was an appeal mechanism.
Thurgood Marshall: And the Judge advised it?
Richard S. Kohn: Yes, sir.
Thurgood Marshall: Now, what else was the State require to do?
Richard S. Kohn: Well, Your Honor, for one thing, taking his appeal up through the State Courts would not have solved Mr. Maynard’s problem. His problem was to obtain injunctive relief so he could drive his automobile. The New Hampshire system of appeals is a two-tier system which this Court is thoroughly familiar with where after your conviction in District Court, you can appeal for trial de novo in Superior Court. From the Superior Court, then you can go to the State Supreme Court. I’ve never heard of the case where a lower court in a criminal prosecution has issued an injunction against the State to prevent them from enforcing the statute which is at issue.
Potter Stewart: Was there also a transfer proceeding in New Hampshire?
Richard S. Kohn: Yes, sir. There is.
William H. Rehnquist: And the Supreme Court of New Hampshire said the statute was unconstitutional. Surely, the New Hampshire prosecutor wouldn’t continue to enforce it?
Richard S. Kohn: That’s correct, Your Honor, but that would’ve been after a substantial period of time. But when Mr. Maynard got out of jail on February 28, 1975, he didn’t use his car until the Federal Court action was filed and he would not have used his car until the constitutional issue was resolved in some Court. That could’ve been a matter of many months. And there is testimony in the transcript on our motion for temporary restraining order that this nonsense affected his ability to earn a livelihood and that was the critical thing for Mr. Maynard.(Voice Overlap)
Thurgood Marshall: When you say nonsense, what were you talking about?
Richard S. Kohn: That these repeated arrests of Mr. Maynard for taping over his license plate.
Thurgood Marshall: Well, how about his repeated violation of the law?
Richard S. Kohn: Yes, that’s correct.
Thurgood Marshall: Well, that could be nonsense too, couldn’t it?
Richard S. Kohn: Yes, Your Honor. I’d like to respond to Mr. Justice Stewart’s question about the transfer. There is a transfer procedure in New Hampshire and if the Justice of the District Court so permits, you can transfer a case direct to the State Supreme Court.
Potter Stewart: To determine a constitutional issue?
Richard S. Kohn: That’s correct, Your Honor. But District Courts in New Hampshire are not courts of record. You would have to go to the State Supreme Court without a record which in view of the State’s consistent attacks on Mr. Maynard’s sincerity in the Federal Courts I think would’ve been a very poor mistake. And this Court many times, has stated in its opinions that constitutional issues take on color from the factual surroundings in which they arise.
Lewis F. Powell, Jr.: Mr. Kohn.
Richard S. Kohn: Yes, sir.
Lewis F. Powell, Jr.: The Attorney General’s brief states that the constitutional issue was raised at the initial trial and was resolved in favor of the validity of the statute against this appellant, is that correct?
Richard S. Kohn: I believe it’s incorrect, Your Honor, and the Three-judge Court said that it was incorrect.
Lewis F. Powell, Jr.: If it were correct, would you be out in Court here?
Richard S. Kohn: Not on Younger principles, Your Honor. I think then the --
Lewis F. Powell, Jr.: Then on res judicata --
Richard S. Kohn: Res judicata which is what I think the State is really arguing in this case. Their whole Younger argument is really addressed at this res judicata. But our answer to that is that it was waived. Res judicata and collateral estoppel are affirmative defenses that have to be raised by the State and they did not do so in this case.
William H. Rehnquist: What if the State doesn’t raise them, but the District Court nonetheless passes on it as the District Court did here?
Richard S. Kohn: Well, the rules provide that -- first of all, Your Honor, the District Court did not pass on them. The District Court --
William H. Rehnquist: I would have read its opinion to pass on it.
Richard S. Kohn: I read its opinion as being strictly over the dictum that if the State had raised that argument, they would’ve rejected it, but I think that the burden is on the State or the defending party to raise its affirmative defenses in conformity to the Federal rules. So --
William H. Rehnquist: But we have lots of cases that under our rules, you must have raised a point, at the earliest possible point in State proceedings, but nonetheless, we’ve also held that if a State’s Supreme Court passes on the point even though it didn’t have to then the issue is open for --
Richard S. Kohn: Yes, sir. Well, not in my position but I would ask that if the Court feels that you want that the issue of whether res judicata and collateral estoppel apply to 1983 actions, then you direct the parties to brief that because the State hasn’t briefed it and we haven’t responded to it and it’s a question of infinite complexity that should receive full briefing.
John Paul Stevens: I’m a little puzzled about the res judicata argument because I don’t understand you to be attacking the judgments or any of those judgments that have been entering?
Richard S. Kohn: That’s correct, Your Honor. Res judicata wouldn’t apply in any event and they did waive that. They did raise collaterals --
John Paul Stevens: They didn’t waive it. You’re not attacking those judgments.
Richard S. Kohn: That’s correct. They did raise the collateral estoppel argument in a motion to dismiss in the District Court when we began the case and Judge Bownes --
John Paul Stevens: Well, does collateral estoppel apply to issues of law?
Richard S. Kohn: Well, I have assumed that in my brief, Your Honor. Although, I know that some Courts say it only applies to issues of fact. There are Federal Courts that have applied it to questions of law. But in any event, the State has not pursued that issue. They raised that before Judge Bownes. He decided against them. They did not raise it again before the three-judge court. As I note in my brief, there’s a question as to whether Judge Bownes should have denied that particular motion the way he did, but the fact of the matter is that the State abandoned it and the only time they’ve mentioned it since is in its brief and not as jurisdictional statement that was filed to this Court. And I would again ask that if the Court feels that that issue should be reached in this case that we should be able to brief it. There’s an additional question which the State sort of combined with its Younger argument, but which we feel is a separate question and that goes to the permanent injunctive relief that the District Court entered. Again, this is an issue we feel the State has waived and the District Court said that the State did not dispute it, that the Federal Court could issue an injunctive relief against threatened arrest and prosecutions and that’s what they did in this case. I would want to point out that there were no prosecutors or judges as defendants in this case. The reason we asked for an injunction against arrest and prosecution is in New Hampshire, frequently, police officers initiate prosecutions in District Court and the injunction that the Court issued only runs to those individuals. This was an extremely narrow injunction. It was nothing like the injunction that was issued in Rickshaw v. Good which involved the internal workings of a police department. All this injunction directed was that Maynards not to be arrested or prosecuted for the offense of taping over the motto on their license plates. The State has briefed another issue with respect to Mrs. Maynard and they’ve argued that her action be dismissed based on some language in Doran v. Salem Inn that she and her husband were so closely intertwined that if he is barred by Younger then she must be. The common law, a husband and wife are one and the husband was the one, but that is no longer the case. Mrs. Maynard’s action was not a subterfuge to circumvent Younger considerations. She had standing on her own. She was threatened with prosecution. She shares her husband’s religious beliefs and there’s no question but that she had Article 3 standing and we would argue that irrespective of whether Younger governs Mr. Maynard’s case, Mrs. Maynard must proceed to the merits. Central question in this case is whether the action of the Maynards in placing reflective tape over the State motto on their license plates is protected by the First Amendment as symbolic expression and whether the State’s interests are substantial enough to override that expression.
Speaker: Are there two rather separate First Amendment issues here? First, the one that you summarized, whether or not this was affirmative symbolic expression on the part of your clients?
Richard S. Kohn: Yes sir.
Speaker: And isn’t the second issue, whether the person can be compelled to advertise a relief in which she does not believe.
Richard S. Kohn: That’s correct, Your Honor. As a matter of fact, --
Speaker: Are they not rather separable?
Richard S. Kohn: Definitely and I would argue that there is a third separate issue which involves the free exercise clause because Mr. Maynard’s belief and Mrs. Maynard’s belief is religiously-based. And I would see those as three separate arguments.
Speaker: What’s the third? I want to be sure about it.
Richard S. Kohn: The free exercise clause, Your Honor.
Speaker: And why?
Richard S. Kohn: Because Mr. Maynard’s beliefs are religiously-based and that the imposition by the State of this motto upon him which is offensive to those beliefs violates his freedom of exercise.
Potter Stewart: Well, that’s really the same as the second except one is involved on the free expression and the other free exercise clause.
Richard S. Kohn: That’s correct, Your Honor.
Potter Stewart: It’s compelling somebody to advertise a belief in which he doesn’t believe either because -- to which he doesn’t subscribe either because of religious reasons or political or philosophical reasons?
Richard S. Kohn: That’s correct. Yes, sir.
Warren E. Burger: Could the State compel a person to advertise a neutral concept that did not offend the religion clauses?
Richard S. Kohn: Well, I think that would fall within -- most of the mottos that appear on State license plates. If a State wants to advertise it --
Warren E. Burger: You’re not conceding that they’re all valid, are you?
Richard S. Kohn: No. Absolutely not. North Carolina is first in freedom and I know there had been problems with respect to that. But nevertheless, most of the slogans that appear on license plates advertise a State as a vacation land or a sportsman’s paradise or it’s a tourist attraction or something that is neutral and --
William H. Rehnquist: What if Nevada said “Gambler’s Paradise” and Nevada citizen said, “I am just that I’m very fundamentally opposed to gambling.”
Richard S. Kohn: I think that’s right. I think that if he taped over the gambling, that would be an exercise of symbolic expression and I think before the issue of the environmentalist came up, if a State advertises itself as a “Garden State” or a scenic state and someone is deeply offended by that, I think that is symbolic expression. Our case is much stronger because Mr. Maynard’s beliefs are religiously-based.
Thurgood Marshall: Mr. Kohn, then you don’t agree that the license plates belong to the State?
Richard S. Kohn: That is correct, Your Honor.
Thurgood Marshall: I assumed so.
Richard S. Kohn: That is correct. As a matter of fact, seven States; North Dakota, South Dakota, Vermont, Delaware, Puerto Rico and North Carolina specifically say in their statutes that the State retains title to a license plate while it’s in the possession of the individual. In New Hampshire it does not.
Warren E. Burger: That still wouldn’t avoid the problem under the power of the State to compel a citizen to carry picket signs?
Richard S. Kohn: No. And I wouldn’t want to suggest that if someone came into this Court next week with a North Carolina license plate that the case should turn on whether the State asserts title or not. Needless that --
John Paul Stevens: Mt. Kohn, do you think an atheist could cross out the words or tape over the words “In God We Trust” on an American currency?
Richard S. Kohn: Well, Your Honor, I think that --
John Paul Stevens: You have constitutional right to do that as well?
Richard S. Kohn: There are at least two answers to that, Your Honor. First of all, the statute which makes that a crime require a fraudulent intent, so I don’t think there would be a violation of law at least under the present statute that we’re dealing.
John Paul Stevens: Let’s assume the statute is revised.
Richard S. Kohn: Secondly, if someone chose to really object to the motto “In God We Trust” and put tape over it, the way Mr. Maynard does to his license plates, I do not think that he could be criminally punished for that.
Thurgood Marshall: But the statute was mutilated?
Richard S. Kohn: This is not mutilation, Your Honor. This is exactly what the Court was talking about in Spence.
Thurgood Marshall: I’ll put cut out words with a razor blade “In God We Trust,” would that be mutilation?
Richard S. Kohn: I think it might, Your Honor. Well, I know it would be mutilation and I think that the State could probably make that a criminal offense.
John Paul Stevens: (Voice Overlap) prosecutions, didn’t he deface the plate?
Richard S. Kohn: In the beginning, yes Your Honor. He has to tape the motto over and neighborhood children would cut out the words “or dies,” or neighborhood children would pull the tape off. So eventually, he cut out the words “or die” and then put the tape over the whole thing. But when we filed our suit, he have just been issued a new plates for 1975 and we have never suggested that he’d be able to cut out or actually physically mutilate the license plates. That is not an issue.
Harry A. Blackmun: There’s one other thing that I’m little confused in the record because it seems to me that it’s inconsistent. Were the Maynards willing or unwilling to purchase a vanity plate?
Richard S. Kohn: They stated that they were willing to purchase a license plate that did not contain the motto “Live Free or Die.”
Harry A. Blackmun: But they did not?
Richard S. Kohn: They were not offered that opportunity by the State, Your Honor.
Harry A. Blackmun: Well, wasn’t anyone privileged to do that?
Richard S. Kohn: Well, the vanity plates in New Hampshire is they’re currently printed up all contain the motto “Live Free or Die” and it would’ve required removing the “die” that says “Live Free or Die” and there is testimony in the transcript that that could be done without a lot of difficulty but the State never said that that could be done. As matter of fact, I think they said it couldn’t be done. I believe I’m accurately stating the State’s position. The first issue under the symbolic speech question is whether there was an intent to convey a particularized message and whether that message is likely to be understood. Contrary to what the State has represented here, this issue of “Live Free or Die” on the license plates is a very hot issue in New Hampshire. It has been to the New Hampshire Supreme Court. This very case was delayed for eight months while the legislature considered a bill that would’ve made inclusion of the State motto optional. People are well aware in New Hampshire about the controversy around the motto and there’s testimony in the record on page 29, for example, by Mr. Maynard that people would stop him when they saw the tape over his license plate and that would give him an opportunity to talk to them about his beliefs. I don’t think there’s any question but that this was a -- that he had a particularized intent and the people would understand the message. The State interests that have been advanced by New Hampshire prior to individualism, history and tourism as the District Court held are not unrelated to the suppression of expression. For the obvious reason that it’s only by conveying the message that the State gets the point across, whatever the point may be. Orthodoxy of thought can be fostered not only by penalizing those who are deviant in their expressions, but also by granting special privilege and special status to messages that meet the State’s approval and this is very much like the Schacht case where there was a statute that permitted the American uniform to be worn in theatrical productions that glorified or appraised the military but not otherwise and that is what the State has done here. They’ve selected a message which they want to project, they select a billboard as it will appear on all non-commercial license plates in State and then they make it a criminal offense to cover that over. So, it’s not unrelated to the suppression of expression and unless the State can come up with some compelling need or unless they can show a clear and present danger that their interest cannot be served otherwise then that is not a valid justification. The other interest they advanced is that it helps their system of motor vehicle registration, but the motto is nonfunctional. It does not serve any purpose on the license plate unlike the numbers or the name of the State or the date. And it’s our position that the State lacks the power to require its citizens to bear this sort of motto. And as the Chief Justice was asking before, I think that if the Court were to uphold this sort of thing, then the State could require all citizens to wear a pin or an armband or they could require you to have a plat on your door next your address saying “Live Free or Die.” I’m sorry. Do you have a question Your Honor? And beyond that, there’s evidence in the record that, at least with regard to the Maynard’s plate, there’s no duplicate plate in the State of New Hampshire, so it would not present any problem of identification. This is not an O’Brien case as my brother counsel said before. O’Brien involved the war power, one of the most pervasive powers that you could imagine under our system of government. Also, O’Brien destroyed and mutilated his draft card. That was the whole point of the exercise. Mr. Maynard is not destroying the plate. The war power is not involved here.
William H. Rehnquist: You say that the State is more limited on the exercise of its residual powers than Congress is when it’s exercising the war power each one confronted by the same constitutional guarantee?
Richard S. Kohn: Well, Your Honor, I just think that the interest of the State is advanced in this particular case come no where near the war power. It may be that the State has other powers under its police power or powers dealing with the welfare of its citizens that could be equatable with the war powers compared with National Government, but certainly, in terms of the interest that the State has advanced in this case, there’s no comparison.
Warren E. Burger: Do you think all your arguments would apply with equal force if the motto on a license plate was “Don’t Litter”
Richard S. Kohn: [Laughters] I think that would be --
Warren E. Burger: I think everyone would agree with that?
Richard S. Kohn: That would be a tough one. I think everyone would agree with that.[Laughter]
Warren E. Burger: Maybe some people would think the right of privacy permits any person to throw any garbage or junk anywhere he wants to?
Richard S. Kohn: Yes, sir. I think that you do reach a point. I’m sure my brother counsel would argue that some people would disagree that some State is a vacation land or that Mississippi is the hospitality state. I guess I would have to say that if someone has a conscientious opposition to this, thinks that it isn’t true, that would be a case of symbolic expression if they taped it over. And unless the State can show some overriding need for that motto, then there can be no criminal penalties that attach. And, I should make another point in connection with that. It’s essential to understand this case that it is criminal penalties that are involved.
William J. Brennan, Jr.: How about a license that says, “Wear your seatbelts?” Does that involve liberty?
Richard S. Kohn: [Laughter Attempt] I suppose it does, Your Honor. I suppose it does. It does involve liberty and I think that it probably would be protected expression if someone covered it. In any event, I would argue that the motto in this particular case is so different from these that it almost stands sui generis. “Live Free or Die” or “The Mormon State” or “Amnesty Now” or any politically loaded message that is bound to offend sensibilities cannot withstand a First Amendment attack. With respect to the Barnette issue which Mr. Justice Stewart mentioned, the State’s response to this and they didn’t actually briefed this, but they relied on the New Hampshire Supreme Court’s decision in Hoskin was that, well, everybody knows that the State motto is required, therefore, it can’t offend the Barnett principle, but I find that totally un-understandable. Barnett itself could have been explained on those grounds. Everyone knows that children have to salute the flags, so it doesn’t matter. Well, that’s not the issue in these cases. The issue is whether it’s an affront to the particular individual’s deeply held beliefs. I think that that concludes my presentation Mr. Chief Justice.
Warren E. Burger: Very well the. Thank you counsel.
Richard S. Kohn: Thank you.
Warren E. Burger: Mr. Johnson, do you have anything further?
Robert V. Johnson, II: Very briefly Mr. Chief Justice and Justices. During my direct remarks, I was inquired as to whether the State of New Hampshire is before this Court seriously. We are here seriously. There are many mottos which we have in this country and I think this is an important case. “In God We Trust” is upon our coins and currency. “E Pluribus Unum” is upon our coins and currency. “Equal Justice under Law” is upon the edifice in which we appear today. I think there is something to be said for the preservation of certain slogans and mottos. Next, I would point out that we lawyers are required to be members of bar associations in many states and yet by that requirement, it is not implicit that we agree with what the bar association in each State says or stands for. When we place postage stamps on our envelopes, those postage stamps contain symbols and mottos. “Liberty depends on Freedom of the Press” issued November 13, 1975 by the United States Government and I’m not sure whether every member of the judiciary necessarily would believe in that particular motto. And certainly, if a member of the judiciary were to place a stamp bearing that motto, “Liberty Depends on Freedom of the Press” upon a letter, no one reasonably would believe that he necessarily concurs with the sentence.
Thurgood Marshall: Usually, we don’t put stamps on letter.[Laughter]
Robert V. Johnson, II: But if your secretary, Mr. Justice Marshall placed such a stamp on a letter, I don’t think that if I were to receive the letter, I would necessarily believe that you believed in that particular motto merely because it was upon your letter. I think it’s important in this case also that the defendant mutilated the license plates. He cut out the words. And I think finally, it’s important that there was no particular message enunciated by the conduct of the appellees. The District Court found that by his conduct, he expressed a particular message, a message which indicated his objections. I would submit that if you were to examine the plaintiff’s exhibit number one which is before this Court, the particular license plate, in its condition and ask yourselves what message was conveyed by this act of whimsy that you would find no message conveyed. And for these reasons, the State would ask you to reverse the judgment of the District Court of the State of New Hampshire. Thank you.
Warren E. Burger: Thank you gentlemen. The case is submitted.


Warren E. Burger: Number 731, Jones against the State Board of Education of Tennessee. Mr. Boult you may precede whenever you're ready.
Reber F. Boult, Jr.: Mr. Chief Justice, Mr. Associate Justices. This case concerns a college student, not a school child, a college student, who was dismissed from State University for handing out one leaflet on the campus not in or about any classroom. The issues break down into four. The regulations involved prohibit disrespect for authority and any other conduct requiring severe discipline. We contend that these are void for vagueness and over over breadth, primarily our First Amendment contention, the Fourteenth Amendment due process notice is also subsumed in the question. Next, we contend simply that they are void as applied, you cannot outlaw the distribution of literature or more specific to this case put somebody out of school for it.
William O. Douglas: As I understand this record, there were six students who were dismissed or --
Reber F. Boult, Jr.: Three in this package Your Honor.
William O. Douglas: Yes. What happened to the other two?
Reber F. Boult, Jr.: Certiorari was denied as to the other two.
William O. Douglas: So, we only have this one student in this one case?
Reber F. Boult, Jr.: Yes Mr. Justice Douglas. The three -- the four issues, three of the four issues were identical to all three petitioners. The factual issue varied as to each of the three.
William J. Brennan, Jr.: If we agree with you, then this distribution of leaflets [Inaudible] we have to reach the others, they don't do it.
Reber F. Boult, Jr.: You do not have to Your Honor. In some cases, it's done for example Auburn v. Laurie (ph) held the Georgia statute both -- unconstitutional both on its face and as applied. There is no choice between the two issues -- between the two approaches on --
William J. Brennan, Jr.: Oh, I'm thinking particularly on the issue that you -- I say you point to the vagueness, regulations whether we have to reach that if we in any event a conduct conduct is [Inaudible].
Reber F. Boult, Jr.: That's right Your Honor. I would suggest that in the way the First Amendment litigation is going nowadays, so many Dombrowski type actions, it -- the first point of reference is more often the facial unconstitutionality rather than the applicatory.
Byron R. White: Is the link that you would turn with the distributing the representation for this --
Reber F. Boult, Jr.: Yes. It's plaintiff's exhibit six which appears at page 175 of the record. And the other two issues involved are due process issues, one having to do with the composition of panel and its conduct. In fact, the advisory committee that is the University disciplinary committee, its confusion of functions being essentially everything and therefore inherently biased, presumptively biased. And I think in this case also biased as a matter of proof. And fourth, procedural due process time and type of notice and in fact that a new contention was brought in at the hearing, they found without ever bringing it up at the hearing, the hearing of the -- in fact, the advisory committee's findings said that the student had not told the truth at the hearing, of course, he never had the chance to rebut this. The facts on the leafleting issue are very brief. He handed it. He was found to have handed out, that's plaintiff's exhibit six although there is considerable doubt whether he actually did hand it out or not, hand it to the president of the university. The president was the only solid witness on this point. One other witness testified that she saw him hand it out in the cafeteria. However, she testified that she saw him do this some two, three or four months before the leaflet was prepared. So, we assumed that there is only witness against him, the president of the university and the president incidentally only testified that he received one personally. He did not see it hand it to anyone else. Jones himself mentioned that he offered one to the president of the student body, who didn't want it.
Potter Stewart: This plaintiff's exhibit six it's supposed to be on page 175 of this appendix here, this pagination is a bit confusing to me at least.
Reber F. Boult, Jr.: The confusion of the pagination I believe Your Honor I suppose from the inclusion in the appendix of the student handbook --
Potter Stewart: Yes.
Reber F. Boult, Jr.: -- which runs from a 177 to a 178, but takes some seventy odd pages to do it.
Potter Stewart: Yes, I see. I think I now have this. It's on page -- well, the 175 marked in the upper right hand corner?
Reber F. Boult, Jr.: Upper right hand corner yes sir --
Potter Stewart: Getting in the earlier to the civil rights movement.
Reber F. Boult, Jr.: Yes Your Honor.
Potter Stewart: Thank you.
Reber F. Boult, Jr.: Also at the disciplinary hearing, there was no evidence presented whatsoever of disruption of the campus, eminent disruption, proposed disruption, suspicion to disruption, possible disruption, none, it was just not coming for it. At the hearing in the District Court, there was no evidence of actual disruption. The only evidence of possible or prospective disruption was the president of the university is, you know to use the phrase vague and undifferentiated fear just been taken. He referred that as inflammatory, get students all stirred up, talking about other things. Oh, there was one other bit of testimony on that, the Dean of Students objected that the students received the leaflet as they're walking across the campus, they would stop and read it. And the case, the disciplinary action was not taken until at least one month after the leaflet was handed out, so that this is not a case where we really need to rely on forecasts. The idea of whether the -- on first issue, whether the void for vagueness doctrine should apply on the campus, I believe is aptly covered on the brief. I will only mention here that it just seemed inconceivable that it shouldn't. It seems much more reasonable to me to apply it there where you got the people thinking about things, erudite, literally, scholarly, talented, to write rules than in the small towns that are held so rigidly to First Amendment standards as specificity in drafting their ordinances. As to what the standard might be, I think the same approach as was taken in Dombrowski v. Pfister. Dombrowski referred to the loyalty oath cases as setting forth an appropriate standard for other contexts. This is really not much of a different context though because we're still on the campus, at least not that much of a different context.
Warren E. Burger: But aren't these regulations in a different category? They're provided for an institution of learning, at least don't have the stature or status of the law, statute or city ordinance?
Reber F. Boult, Jr.: They have considerably greater effect on those who must live by them than say it's on the conduct statute which --
Warren E. Burger: But on the other hand, the people who were doing the drafting at least at the time and in the context in which they were originally drafting were probably proceeding on the assumption that these students were coming to these institutions to study and to learn, and they didn't give them perhaps the kind of detailed attention they would give them if they were rewriting them today?
Reber F. Boult, Jr.: Your Honor, they -- I would hope they would give them more detailed attention if they're rewriting them today. This hope will be one result of this case. The regulations were revised every year though. There were quite current at the time in 1967 and some of the regulations involved on the procedures followed by the disciplinary committee had been rewritten that very year. The regulations were rewritten immediately after this case was brought. I do not know what the result is; perhaps the opposing counsel can help us on that. And whether we're talking about the facial or applicatory constitutionality of this situation, I think the case does have to be considered in light of what the university is first and it is considerably more than just a group of scholars and learners and second, in light of what is happening in universities today and as obviously, there is much unrest. Various authorities have attributed this to the failure to extend constitutional rights in the universities.
William O. Douglas: Is the leaflet that is in controversy on -- printed on page 175 of the appendix?
Reber F. Boult, Jr.: Yes, Your Honor. And I think we should also consider that this university, Tennessee State University as is true with so many of the smaller universities, state universities around the nation, trains a lot of teachers. And as this Court has recognized for many years, in the McLaurin v. Oklahoma, the training someone to be a leader and trainer of others. I rather say that they're educating someone to be a leader and educator of others, but I think it's more accurately stated the first way. And further that those who will come under his guidance and influence must be directly effected by the education he receives. Education that the students of Tennessee State University are receiving is not one calculated to make things sensitive to the demands of the Bill of Rights. I think this statement is accurate with regard to other state universities, like these another one before the Court right now in the record of Norton versus Disciplinary Committee of East Tennessee State University, petition for certiorari filed approximately a month ago. And it's our position that the full First Amendment canopy of rights should apply, in fact, must apply to students. It has, as many student case, in this case, a college student case on his rights in this Court for many years, I think it's appropriate in this case to state that henceforth when they come, the issue will be whether or not the First Amendment has been violated and will be treated in the same terms as if it were a non-student case. The tests under the First Amendment would be quite ample, either for vagueness overbreadth or for the actual activity, ample to deal with problems on the campus and no toe-test of preparing a group for violent or lawless or destructive or disruptive action and stimulant to that action is necessary before speech can be curtailed of the Brandenburg, Whitney, (Inaudible) test eminent lawless action must be there.
Warren E. Burger: Would you say that the standards which you're challenging are not adequate to give warning that language used in the exhibit six about puppet fools and racist dogs and so forth address toward the university authorities is not covered?
Reber F. Boult, Jr.: In other words that they would be -- that those words would be disrespectful.
Warren E. Burger: You say that that does not give notice that the university would regard that as disrespectful?
Reber F. Boult, Jr.: I think a direct insult would generally be considered disrespectful. Now, the First Amendment voidness doctrines do not look to the specific conduct involved where over breadth is involved.
Warren E. Burger: But if we were dealing a libel case under Times and Sullivan, I could understand your argument a little bit better that you -- under Times and Sullivan, you could call the president of the university or the Senator, almost anyone else a racist pig or what not with some considerable impunity, but this is not a libel case. This is a situation or regulations that were trying to govern conduct, so that civilized people could function in the university complex without friction, without conflict with each other.
Reber F. Boult, Jr.: I have never observed a university yet in which people functioned without friction, without conflict with each other, but --
Warren E. Burger: Oh, they had existed in the past.
Reber F. Boult, Jr.: Well, even when I went to and quite times 10 to 15 years ago was there, but more basically, the reason for Times v. Sullivan was the First Amendment and the reason a person under Times v. Sullivan can call one a racist pig or liar or whatever it was is the First Amendment. And that fact that it was a libel case, simply a fact of the case, as the fact that this is a student case is simply a fact of the case, we're relying on the First Amendment.
Warren E. Burger: Now in this Court, when a lawyer submitted, you've heard the oath many times and you took it yourself. It's an oath to conduct oneself uprightly and according to law. Now suppose in the course of an argument, one counsel addressed another as a racist pig, do you think that would be beyond the reach of that rule because that rule is too vague, it's over broad that oath of office, the rule of conduct within the chambers of this Court?
Reber F. Boult, Jr.: We do -- no and we don't contend and it is not contended generally.
Warren E. Burger: Well, the First Amendment prevails in this room --
Reber F. Boult, Jr.: Certainly and we do not --
Warren E. Burger: -- and it does.
Reber F. Boult, Jr.: -- but we're talking about outdoors on the campus. We're not talking about inside the classroom. We're not talking about inside the court room. The First Amendment in its prevalence, in its prevailing does take into account the circumstances. And if I should do that here, this is quite different from my writing it down and hanging out on the street.
Warren E. Burger: But you couldn't write in a brief without getting into very grave trouble could you in this Court?
Reber F. Boult, Jr.: I have such a difficult time conceiving myself writing it in the brief. [Attempt to Laughter] But if the standard rules against scandalous and impertinent matter in pleadings and briefs would apply, and I should think it should be stricken --
Warren E. Burger: But the university can't have a rule like that for the conduct of students on the campus and buildings.
Reber F. Boult, Jr.: Not any different from say the city could have it on the streets. We're not talking about inside the classrooms in the same sense that the city when it passes ordinances is not talking about in offices.
Warren E. Burger: But if we disbarred a lawyer for this kind of conduct, that would be a pretty severe penalty, wouldn't it?
Reber F. Boult, Jr.: Yes.
Warren E. Burger: And I take it you more or less concede that we might to take very severe action against a lawyer who engaged in this kind of utterance?
Reber F. Boult, Jr.: I really don't know Your Honor. I would -- my first assumption would be if it will be written, it would be immediately stricken with a rather harsh reprimand. If it happened orally, I don't know. And on the third of the issues involved, the composition of the disciplinary committee, the issue illustrates a point that runs throughout the case. The treatment of the issue in the Court of Appeals, the same court below including one of the same judges on the panel, says several years ago, the case for the American Sinemet case cited in our brief on confusion of functions and presumptive bias, not actual bias, which would seem to apply right down the line here. It was not even mentioned in opinion, although the issue was amply raised and case cited. Here, we have a situation where the panel was just these students. The sole witness for the panel was the reviewing authority with absolutely empower what the panel did, or the only essential witness. He appointed the panel. One of the other panel members has strong personal feelings about the person involved, not about the issue, that would not be a disqualifying matter, but about the person involved. The student personnel committee overlapped with the disciplinary committee, therefore, it had done much investigation. The Dean of Students, chairman of the committee had compiled a list and investigate it. In fact, the advisory committee conducted an in-depth investigation itself of the students. They drew the charges, they counseled the students, it called the witnesses and it presented documentary evidence and did not even follow its own rules as to how the matters should have been handled.
Warren E. Burger: You still have more time left counsel.
Reber F. Boult, Jr.: I'll save the remaining time for the rebuttal if I may?
Warren E. Burger: Alright.
Robert H. Roberts: Mr. Chief Justice --
Warren E. Burger: Mr. Roberts.
Robert H. Roberts: -- associate Justices. I want to first take care a little matter of the reply brief. It was made in my brief in which it alleged that I had made some erroneous statements. Only two points that I want to raise in connection to that. One is to the effect that I have left the impression at least that the leafleting activity that this petitioner has been charged with and found guilty of was connected in some way with the arrival on the campus, Mr. Carmichael when ensuing riot that occurred. I am wrong about that and I apologize to the Court and to opposing counsel. There had been a number of leaflets passed out at about this time and some of them before and that some after the riot occurred down the campus in the summer of 1967. There was one of them for instance that demanded that the administration invite Mr. Carmichael there. They later did and the riot did result. However, this particular leaflet which advocated and urged the student body to boycott registration at the school was passed out after the riot had occurred. Now, the second point that I would make in the reply brief is in regard to the charge against this petitioner of being in violation of city county or state laws. It is urged here that by the words of Dr. Payne who was the Dean of Students and who presided over these hearings that he agreed that this was not used against the student and the hearings,. The record will not bear Mr. Boult out on that. I think he has failed to read the entire record in regard to it. What actually took place, Mr. Hedgepeth on page 12 of the transcript of the proceedings of the FAC hearing made it clear that we were, or the school was relying upon any disorderly conduct or conduct unfitting a student or any that violated the rule of the handbook there at the institution. Further on and about 70 to 78, there were about eight-full pages where it was developed as to just what Mr. Jones had been convicted of and paid the fine in the Metropolitan Court IV. So, those are the two points I want to raise on that. The -- we have made two issues out of the four that the petitioner had. We feel that there only two things involved, one is the entire matter of the procedure including the due process rights of these petitioners. As stated earlier, there were five original petitioners, two of them were dismissed at the time of the hearing, I mean charges against them were dismissed. The other three were found guilty of acts that warranted their suspension. Now, that's another thing that I want to make clear to the Court and that is the fact that these students were not expelled, they were suspended. They have not -- this petitioner has not gone back to school and sought readmission since the suspension. I don't know whether the school would allow him readmittance or not. His was an out of state student and he came down there and he did things that they felt to be and found to be disruptive. This one piece of literature tried to impress his will upon the other students, for example and calls them not to register for school and thereby disrupt the entire procedure.
Thurgood Marshall: Is there anything the petitioner did other than to pass out that leaflet which is in there?
Robert H. Roberts: Yes sir. One thing else that he did there in connection with the leaflet, he lied about it. He said that he did not do it despite of the fact that the president of the university says he handed it me one himself right in front of the administration building and he had about 50 of them in his hands when he did it. Later down in the cafeteria testified that if there was some discrepancy about the date that she claimed that it was passed out, but she said there wasn't any question in her mind but that was the piece of literature was. She went over and picked it up and read it.
Thurgood Marshall: With the exception of passing out the leaflet and lying about it, that's all?
Robert H. Roberts: No sir, then the third thing is that he violated the rules of the student handbook and that he was convicted and fined in Metropolitan Court for two charges of disorderly conduct.
Thurgood Marshall: Involving the same thing?
Robert H. Roberts: Sir, no sir and this didn't have anything to do with --
Thurgood Marshall: For the passing out leaflets?
Robert H. Roberts: No sir.
Byron R. White: Well, they didn't find that, did they? The board --
Robert H. Roberts: Yes sir, they found that he was guilty of conviction or the committee found that Mr. Jones has seized upon opportunity on different occasions to promote unrest on the campus with such actions as distributing literature designed for the purpose -- and then at the hearing, he demonstrate his matter -- over the truth --
Byron R. White: Did you find anything about his conviction? That was just in the charge?
Robert H. Roberts: Considering all that matters before this committee, we feel that Mr. Kenneth Jones has violated the rules of conduct, governing students at this end and in the university such an extent that he should be suspended.
Byron R. White: There haven't of been any express finding on anything but the leaflet matter on any specific conduct?
Robert H. Roberts: No sir, no more than one of the things, specifically in there and was that if he was found to be in violation of any state, county or city or federal law that that is one of the things that has listed as being requiring sever discipline.
Byron R. White: Was the charge about lying about the leaflet?
Robert H. Roberts: No sir, he hadn't been charged with that of course we insist that he --
William J. Brennan, Jr.: You don't rest the --
Robert H. Roberts: Yes sir we do.
Hugo L. Black: How can you if he wasn't charged?
Robert H. Roberts: For this reason, he -- of course, we think that the notice required for most things wouldn't apply to personal conduct of that kind which he did knowingly. He had the first notice of anybody that he was going to be made the resolve within himself to tell lie in that committee.
William J. Brennan, Jr.: My difficultly is I would have supposed that the discipline would have -- a committee would have to rest the discipline on a charge that he had lied about it before you could support the discipline on the basis of his lying about it, wouldn't you?
Robert H. Roberts: If the Court please, I think it would be somewhat comparable to this. This morning, you graciously permitted me to practice for this Court. Part of what you based that on was on the application that I filed. Suppose that I lied in that application and you brought me in here for a hearing and to determine whether I should have that privilege you gave me revoked and while in here, I openly and blatantly lied --
William J. Brennan, Jr.: I don't think we do that without making a charge to that effect?
Robert H. Roberts: Well of course --
William J. Brennan, Jr.: And then if you came here in defense of that charge and lied again, I expect you have that --
Robert H. Roberts: Yes sir. Well of course, I think that it really becomes moot anyway if you'll recall that after this hearing and he certainly had notice at that time about it and was accused of lying to them, we had a full rest court hearing in the US District Court in Middle Tennessee and imagine and Judge Miller agreed of course with the university officials in connection with all of these things that they found against him.
Byron R. White: But do you contend that -- I take it, it is that soliciting or hand billing students not to register, soliciting and hand billing them not to boycott registration is enough of a disruption of university affairs to warrant exclusion from the university?
Robert H. Roberts: Yes sir, I certainly do. Now, Mr. Jones claimed that he only passed up some other leaflets, one of them I think was called the black thesis which was more or less philosophical piece of writing. Now, that wasn't so far as I can see anything in there that would have been disruptive. But suppose had been able to persuade even a substantial number of these students to refuse to register when the term started, certainly that would disrupt the school --
Thurgood Marshall: Was it -- how many days was it before he distributed these and then he brought up on charges?
Robert H. Roberts: It was approximately a month-and-a-half.
Thurgood Marshall: And has there been any disruption as a result of it --
Robert H. Roberts: No. But they stopped in course.
Thurgood Marshall: That you --
Robert H. Roberts: -- they didn't permit him to go that summer. This happened during the summer and they'd already sent him notice that he had not been cleared for attendance here on the summer term of school.
Thurgood Marshall: But he didn't disrupt anything, did he?
Robert H. Roberts: Those were it didn't turn out that way, but I don't think that you have to wait till the horse is out of the barn before you are allowed to close the door.
Thurgood Marshall: Will you show me on the record where those two convictions are you were talking about, if you don't mind?
Robert H. Roberts: Yes sir. The charge itself charged in with him and they readily admitted it and they are on page 70 to 78.
Hugo L. Black: Here's the charge above this --
Robert H. Roberts: Sir.
Hugo L. Black: And your record where is the charge against him printed in the record?
Robert H. Roberts: Well, it's in my brief on page 5, but --
Hugo L. Black: But where is it in the record, do you know?
Byron R. White: It's in the lower court's opinion in the record 186 as the charge against Jones.
Robert H. Roberts: Yes sir. And the entire discussion about the criminal activity that he was charged with takes place on between pages and 70 and 78 of the transcript of the FAC here as also of course in the transcript of the court hearing before the Judge Miller.
Potter Stewart: Well, now it's between 70 and 78, and you don't mean apparently 70 to 78 of this printed appendix? I've looked there and found nothing.
Robert H. Roberts: No sir. We had the part of the record, though here is the FAC transcript of the hearing.
Potter Stewart: But the excerpts in that transcript containing the evidence we're now discussing, that is these convictions is not anywhere in this appendix, am I correct?
Robert H. Roberts: -- No sir ti should be, it's on page 48 of here.
Potter Stewart: Thank you, thank you.
Robert H. Roberts: Of course we feel that the most serious thing that took place was the matter of this leaflet which he attempted to disrupt orderly activities of the school and even in Tinker it was stated clear that the orderly activities of the school is not subject to First Amendment rights. We think that registration certainly is an orderly and part of the record functions on school. My time is expired.