Warren E. Burger: 70-87, Police Department of Chicago against Mosley and Grayned against Rockford. I understand that the order of appearance is now by requested counsel will be Mr. Barnett first, Miss. Hal, second and Mr. Curry and then Mr. Quinlan, is that correct?
Speaker: That’s correct.
Warren E. Burger: Very well, you may proceed Mr. Barnett.
Harvey J. Barnett: Mr. Chief Justice and may it please the Court. I am the attorney for the respondent Earl D. Mosley. This case is on certiorari to the United States Court of Appeals for the Seventh Circuit and it has been consolidated with the case of Grayned versus the City of Rockford, which is on appeal for the Supreme Court of Illinois. This case concerns a disorderly conduct ordinance of the City of Chicago which prohibits all picketing on a public way within 150 feet of a primary or secondary school. The ordinance exempts from this prohibition, the picketing of a school involved in a labor dispute. It became effective on April 5, 1968. Since September, 1967, respondent Earl D. Mosley had picketed Jones Commercial High School, located in the city of Chicago. He simply walked in the public sidewalk, adjoining Jones High School, carrying a sign which reflected his belief that Jones High School was discriminating against blacks in its admission policies and in the treatment that are afforded to him. It was admitted at trial by the city that at all times Mr. Mosley's activities were peaceful, orderly and quite. It was further admitted at the trial by petitioners that at no time did Mr. Mosley’s activities in picketing the school by himself or with a few other persons ever caused a disturbance at the school or interfered with traffic around the school. After being advised of the passage of this ordinance, Mr. Mosley contacted the Chicago Police Department and was told that he would be arrested, if he continued his activities in picketing Jones. The city admitted at trial that it intended to enforce this ordinance and in fact Mr. Mosley would be arrested if he continued to picket the school. He then filed this declaratory judgment action, seeking a declaratory judgment and an injunction against the enforcement of this ordinance. On the grounds that had violated his right to Freedom of Speech and there was a violation of Equal Protection Clause. The Lower Court after a trial, held that the ordinance was constitutional. On appeal, the Seventh Circuit Court of Appeals reversed, finding that the ordinance on its face violated Mr. Mosley’s rights to Freedom of Speech, because the ordinance was overly broad. This ordinance was a violation of the First Amendment right to Freedom of Speech because it is overly broad. The vice of this ordinance is that it sweeps within its prohibition, protected free speech, such as the quite, peaceful picketing of respondent Mr. Mosley. In fact Mr. Mosley engaged in almost the identical activity as that engaged in by Mr. Thornhill in the case of Thornhill versus Alabama, some 30 years ago. This Court has held that peaceful picketing is protected free speech and the state can regulate only the abuses of picketing which is articulated as the test of the regulation of the manner of picketing or the purpose of picketing when there is something in the manner or purpose which gives grounds for the dis-allowance of that picketing.
Thurgood Marshall: What about the place?
Harvey J. Barnett: If the court please the -- at no time have I been able to find any decision of the court which has stated that place and place alone is sufficient to permit the regulation of picketing. It must be coupled with something in the manner of picketing or the purpose of picketing which would give grounds for the disallowance of that picketing.
Thurgood Marshall: And do you think the statute that prohibits you from picketing where you are standing?
Harvey J. Barnett: Well I would say, Your Honor that that statute would be lawful, but Your Honor the difference between that case and this case is that we have picketing here on the public way which in no way -- which prohibits the respondent in this case from lawfully and legitimately exercising his right to Freedom of Speech. The ordinance which Your Honor or the statute which Your Honor would propose, I think would be attached to some legitimate state concern.
Thurgood Marshall: All I am trying to say is that I think you have put too much baggage on the train, that's all I want to say?
Warren E. Burger: Are you familiar with, I think it's Title 18, Section 1501, that forbids picketing on the sidewalk around this building?
Harvey J. Barnett: I am not familiar with that statute, Your Honor. I am familiar with the Court sanctioning of the statute in Cox versus Louisiana which prohibited the picketing of a courthouse with the intent to influence the administration of justice.
Warren E. Burger: That’s the same statute.
Harvey J. Barnett: That statute Your Honor, as the Court noted in the Cox case, was one which specifically dealt with a purpose of picketing and the Court found in that case, that the purpose was legitimate, could legitimately be regulated by the state because the state had a legitimate interest in protecting courts from the undue influence and the interference with the administration of justice. The problem with the city of Chicago ordinance is it is not a nearly drafted enactment, that aims specifically at some evil, some abusive picketing.
Byron R. White: Well in fact you had it in -- is it a statute or an ordinance?
Harvey J. Barnett: It’s an ordinance.
Byron R. White: An ordinance. This ordinance had in it that no one can picket within 150 feet of the school for the purposes of disrupting the school. You think that (Inaudible) in Cox case?
Harvey J. Barnett: I think that statute maybe constitutional, Your Honor. They would have to -- the city would then be put to prove at a trial in that case, that it was intent of the person to disrupt the school.
Byron R. White: Well, what of the words were for the purpose of it -- for the purpose of enforcing the administration of the school?
Harvey J. Barnett: I wouldn’t think that the city would have in that instance a legitimate right to be concerned with the influencing the administration in school.
Byron R. White: In the Cox case it was for the purposes of influencing the administration of justice.
Harvey J. Barnett: That’s correct, Your Honor. In that case the Court went on at great length to note that picketing around a courthouse may cause us an undue and an oppressive influence upon jurors, let us say, who are attending the trial in that particular courthouse. In the hypothetical which Your Honor posed, I would think that someone who picketed a school with the intent to influence the administration of that school to get them to, let’s say, meet more blacks or to afford blacks different treatment such as Mr. Mosley's intent, that would be a legitimate concern on his part and the state would not have an overriding interest in preventing that type of conduct and that type of free speech.
Byron R. White: You think the picket has (Inaudible)
Harvey J. Barnett: That’s true -- that’s correct, Your Honor. They both mean of his expressions are Freedom of Speech and that is the problem with this ordinance because what Mr. Mosley was doing, was exercising nothing more than protected free speech. The city admits that he never caused the disturbance or interference with the school and yet this ordinance arbitrarily creates a 150-foot limit within which he is prevented from exercising those rights of Freedom of Speech. Now, the city harps over and over in their brief about disturbances and disruptions around schools as a means for justifying this ordinance. But the simple answer to that is that this ordinance is not directed at disturbances, at disruptions or picketing in such a manner as to create disturbances or disruptions around schools.
Warren E. Burger: There is a Federal Statute that forbids demonstrations of any kind within either 500 feet or 1000 feet of an embassy of a foreign country. Would you think that falls under the same vein as the argument you're making?
Harvey J. Barnett: I think the Court in one of its decisions indicated that the rationale of the embassy ordinance was that for security purposes and that the government had a legitimate concern in that particular instance of protecting these types of embassies from potential violence and disruptions.
Warren E. Burger: Well, in this case isn’t the ordinance for the purpose and certainly does it not serve the purpose of avoiding distractions of the students from their studies?
Harvey J. Barnett: It may serve their purpose Your Honor, but on the other hand, it brings everything within its ambit. It prohibits all types of picketing, violent and disruptive picketing as well as purely --
Warren E. Burger: Aren't all types of picketing prohibited under the embassy (Voice Overlap)?
Harvey J. Barnett: They are, Your Honor and I would have my doubts as to the constitutionality there. As I stated, I am not sure if that ordinance is -- that statute has ever have been passed upon, but I think the rationale was that there was a certain legitimate concern about security around embassies. I would think however that if one person was peacefully picketing an embassy, and one of the picket within the 500-foot limit then he want to be entitled to do so under his First Amendment Rights to Freedom of Speech and that is exactly what we have here in this case for Mr. Mosley had no time to cause the disturbance around the school. He had at no time interfered with the administration of the school or disrupted any school activities.
Harry A. Blackmun: Mr. Barnett does the 150-foot limit carry any weight with you? Suppose there were no limitation at all, could he picket it on the school house steps?
Harvey J. Barnett: No I think that there would be -- the state would have the right to prevent people who coming on the school house property as such certainly in a protection of students. But this ordinance is specifically drafted to be 150 -- picketing within 150 feet out of public way, so --
Harry A. Blackmun: Suppose there were no school yards, some of the old buildings are (Inaudible)
Harvey J. Barnett: Yes, I would think that on a public sidewalk, a person should have the right to peacefully picket and express his views, and this Court has always sanctioned the use of the public sidewalks, the parks in the recent Food Employees case as areas where historical First Amendment Rights to the Freedom of Speech has been sanctioned, and have been --
Byron R. White: What about the (Inaudible)
Harvey J. Barnett: Does Your Honor mean that if there has been an ordinance prohibiting picketing there?
Byron R. White: No, let's assume that this ordinance was applied to someone picketing, walking up and down in the halls of the school with a same sign and no showing of any disturbance or anything else?
Harvey J. Barnett: No I would think that the state has a legitimate -- this ordinance itself I don't think could be applied in that fashion Your Honor.
Byron R. White: Why?
Harvey J. Barnett: Because the 150-foot limit is from the exterior of the school --
Byron R. White: Well, then assume the ordinance did say in any school there -- on public property, in the school building or within a 150 feet on the street?
Harvey J. Barnett: I think that the state would have a legitimate right to prevent picketing on its property in order that it may run into school system.
Byron R. White: Well, why?
Harvey J. Barnett: Because --
Byron R. White: Until there is a showing of some destruction?
Harvey J. Barnett: Well, I think an outsider, Your Honor, rather than a student that a distinction can be drawn because certainly there maybe some --
Byron R. White: It must be in terms of the tendency to disrupt?
Harvey J. Barnett: I don't think the --
Byron R. White: Or to distract?
Harvey J. Barnett: I don't think it's a tendency to disrupt or to distract, Your Honor. I think an outsider maybe prohibited from coming on school property because of a possible danger to students, a threat of some -- for the students.
Byron R. White: Oh! Yes, but that isn't what the the ordinance says. The ordinance says you can't come on here to picket?
Harvey J. Barnett: That's --
Byron R. White: And there's a lot of strangers committed on the school property, were all for certain purposes?
Harvey J. Barnett: Well, I think that those would probably be connected with the schools such as a delivery man or something like that Your Honor, but to come on school property as such inside a building to picket, I think might cause a disruption and I think the state would have a legitimate concern of picketing students.
Byron R. White: That might cause a disruption?
Harvey J. Barnett: Yes, but I don't think --
Byron R. White: Now how about the 150 feet? You are simply saying that they don't have any basis for saying that it might cause a disruption --
Byron R. White: No, I don't think that that might cause a disruption is enough. In fact in a recent Tinker case --
Byron R. White: Well, what if it is inside the school building?
Harvey J. Barnett: Well, my argument on it is two-point, Your Honor. One it may well cause a disruption of the school activities, and secondly I think the state has a legitimate concern in protecting the interest of students, in terms of bodily harm to them from outsiders, indiscriminately coming on inside school --
Byron R. White: So you are just saying that -- you are just repeating the argument in different words that in terms of its tendency to disrupt the school and impinge on the right of the students?
Harvey J. Barnett: Well, Your Honor I think it's a difference in -- a qualitative difference between someone standing outside a school or public sidewalk, walking in front of that school, and between a person coming in the school, whether there may well be a danger of physical harm to students, well certainly the state has an interest in protecting --
Byron R. White: The ordinance says, you can't come in and communicate with students with a sign in the hallway of the school, that's what the ordinance says?
Harvey J. Barnett: That's correct.
Byron R. White: Well, it hasn't anything to do with physical thing?
Harvey J. Barnett: Now, the ordinance, the ordinance --
Byron R. White: It has to do with the insulating students and the faculty members or anybody else in the building from communication like this?
Harvey J. Barnett: The ordinance prohibits, Your Honor, picketing on a public way within 150 feet of the school.
William J. Brennan, Jr.: Your time is up of course and you haven't said a word about anyone involved in the later dispute to do everything that the ordinance says, this men couldn't do?
Harvey J. Barnett: That is correct Your Honor.
William J. Brennan, Jr.: And that's your Equal Protection argument?
Harvey J. Barnett: Yes, it is Your Honor.
William J. Brennan, Jr.: Why should he come in and get involve in a later dispute be allowed to do this, and this man be -- hopefully be privileged to do it?
Harvey J. Barnett: Yes, that is our argument Your Honor. Thank you.
Warren E. Burger: Miss Hal?
Hal M. Brown: Mr. Chief justice and may it please the Court. My defendant is -- my client is Richard Grayned. He participated in a demonstration. He was arrested, convicted and fined for violating two ordinances of the City of Rockford. One of the ordinances is the same as one in the Mosley case. It involved not picketing or demonstrating within an 150 feet, and accepted the person picketing on the spot for labor dispute. The other ordinance, prohibited a person engaged in conduct wherein he willfully may or assisted in the making of a noise or a diversion which disturbed or tended to disturb, the peace and good order of the school session. We defend that and we have constantly throughout the litigation contended that these two ordinances are both unconstitutional, that they are violative of the Fourteenth Amendment, and that it represents an interference by the state with a person's right to picket or to speak or assemble. The facts in the Grayned case prior to proceeding in this Court, have not been disputed. The record went up to the Supreme Court on a short record. There was no transcript of proceeding of what occurred in the trial. I -- the motion which made before the Illinois Supreme Court. Without objection of Counsel, we submitted the case on the facts as represented in the briefs which we submitted. For the first time, the city of Rockford has disputed, the facts in this case. And I submit that they not only have disputed them, but they have also made misstatements of fact. I have with me, a report of proceeding that occurred in the Circuit Court of the Seventeenth Judicial Circuit in the case of the city of Rockford versus Richard Grayned. This report of proceedings was ordered by our office, and at our own expense, but not supplied by the city of Rockford. We ordered it back in November, and it was delivered to us this past month on January 17. I brought this report of proceedings with me because I thought the Court might be interested in seeing what the facts were in this case. Since they are now apparently in dispute.
Byron R. White: Ms. Hal, as I read the opinion of the Supreme Court of Illinois, it didn't treat any factual issue. I gathered it was just an appeal on the question whether a statute or an ordinance such as it was constitutional. Would you agree that that was a correct reading at least of the Supreme Court of Illinois' opinion?
Hal M. Brown: That is true, but the Supreme Court did mention the facts in the case that they thought were relevant and facts were set down in the brief. The Supreme Court stated in the beginning of their opinion, that a demonstration was held in front of the school, what type of --
William H. Rehnquist: Was any State point – a state law point made to the Supreme Court of Illinois that the evidence was insufficient to support the conviction?
Hal M. Brown: Not whatsoever.
William H. Rehnquist: And you are not making any such point --
Hal M. Brown: Not at all, but the only reason I bring this record to this Court's attention is that there are facts stated in the appellee's brief which are not true.
Thurgood Marshall: Ms. Hal, are you willing to leave that with the clerk?
Hal M. Brown: I certainly intend to do so, and I have mentioned this to Mr. Quinlan when I arrived at court. I mentioned to him before lunch, and he said, he will think about it, and after lunch he told me that he would join in the submission of this reported proceeding and I intend to leave it with the clerk before I leave.
Byron R. White: Is it your submission that this ordinance has said, all demonstrations of 40 or more people within a 150-feet of the school building are prohibited? If the ordinance said that in so many words, is it your submission that it would be unconstitutional?
Hal M. Brown: Yes, Your Honor it would be.
Byron R. White: You are not just arguing over breadth of --
Hal M. Brown: I am arguing over breadth.
Byron R. White: Is that your fundamental position?
Hal M. Brown: That's the fundamental position with respect to Section 18.1 (i) and also we argue that 18.1 (i) violates the Equal Protection Clause. In that particular case --
Byron R. White: But you are also saying, I take it that even if this ordinance were limited to just covering demonstrations of 40 or more people, that it would be unconstitutional?
Hal M. Brown: Are you saying that if the ordinance stated that 40 or more people could demonstrate on --
Byron R. White: May not -- may not demonstrate.
Hal M. Brown: May not demonstrate, I would say it was unconstitutional.
Byron R. White: So your argument is not just over breadth. It is just particular activity that was actually carried on, may not be prohibited?
Hal M. Brown: That's right.
Warren E. Burger: What about a thousand or more, same argument?
Hal M. Brown: Your Honor, I think that to try and use numbers as a 150-feet and the number of people avoids the whole problem involved here. We are concerned with the interest of the state which are involved. We are concerned with what the people who are picketing or concerned about picketing. We are concerned about the effect of their conduct.
Warren E. Burger: Would you not agree that a thousand people moving around the entrances of the school, the access streets, would be more of a problem than one person?
Hal M. Brown: If an ordinance was passed which said that there could not be so many people picketing who obstructed the ingress and egress with respect to the school, who stopped traffic, who prevented people from using the public way, if that's what the ordinance says, if that's what the ordinance said then it would be constitutional, but there is not evidence of that here. There were 200 people in our particular instance who walked up and down the sidewalk in front of West high school carrying signs which said that “Black cheerleaders may cheer too,” “Black teachers, we want black teachers for black history courses.” They walked up and down in a peaceful and orderly fashion and then the police came, they turned on their loudspeakers, read their ordinances over the loudspeakers and started to arrest people. And the facts in this case show that that's when it appears that people thought what was going on.
William H. Rehnquist: But under 19.2, your clients would have to have been found guilty of willfully making or assisting in making any noise or diversion which disturbs or tends to disturb the peace or good order, would they not?
Hal M. Brown: That's correct. Your Honor and I submit that, that language is vague and it does not comport with the standards of due process of law and giving due notice. The persons which to -- to comply with the law and who at the same time wish to exercise their First Amendment freedom, does not give them an opportunity to exercise them, but they don't know what they are going to be arrested for.
William H. Rehnquist: So your attack on that section of the ordinance is not based on the First Amendment but on grounds of vagueness?
Hal M. Brown: Your Honor, it's also based on the First Amendment because via why its vagueness, which violates due process, it is subject to an over broad application to perfectly protected constitutional freedom.
Warren E. Burger: You would -- what would be your view of the statute prohibiting picketing on the sidewalks adjacent to this building, unconstitutional?
Hal M. Brown: I will have to -- the people who drafted the statute, what would be their purpose in drafting it? What state interest would they want to protect? Do they want to protect this Court from being disturbed? The statute in Cox versus Louisiana concerned one that was narrowly drawn which said we will prohibit picketing of persons who seek to disturb, I don't have exact language of it, disturb the processes of administration of justice. In that particular incident, whereas the court is concerned, and where the statute is so narrowly drawn as this Court held it was, I would say that it was --
Warren E. Burger: Do you think it's unreasonable then for a legislature and law making body, to conclude that as many people as you have here, 200, has the tendency to disturb the educational process?
Hal M. Brown: I think, Justice Stewart made the appropriate statement when he wrote this Court's opinion in Tinker versus Des Moines. He said, there must be a substantial showing that there would be an interference with the orderly process of the school administration. There has been no such showing in this particular case, Your Honor. As a matter of fact, I think, it is important and I am in accord with this decision, it is important that the students in our school be allowed to see and to participate in exercising their First Amendment freedom, so that in the school they are not only taught for three hours, but they are also taught how to be citizens in this country and how to exercise their rights guaranteed by the First Amendment.
William J. Brennan, Jr.: May I ask, what was the penalty imposed?
Hal M. Brown: Mr Grayned was fined $25 for violating 18.1(i) and $25 for violating 19.2 (a), a torts court fine.
Byron R. White: That's different from the other case?
Hal M. Brown: The what case?
Byron R. White: The other cases involved here?
Hal M. Brown: In the most of the cases there was no arrest, there was no conviction, there was no fine. This was a declaratory judgment action. My client has been --
Byron R. White: But there at least the other action concerns only one ordinance?
Hal M. Brown: The other action, that's right, mine concerns two.
Byron R. White: Two ordinances?
Hal M. Brown: 19.2 (a), second ordinance.
William H. Rehnquist: And 19.2 (a) has no exemption for labor union?
Hal M. Brown: No, it does not, it applies to any person.
Warren E. Burger: Do you think it's a denial of Equal Protection, if the law making body thought a labor dispute is entitled to a higher order of picketing rights than just any other people?
Hal M. Brown: Yes, I do and I also would say that it is significant in my particular case that the City of Rockford has eliminated the labor picketing distinction. Now, Section 18.1 (i) is just at all labor picketing, all picketing completely is prohibited within 150-feet which shows that at the time this ordinance was applied to my client, it not only, it is a remission by the city that it is not only violated the constitution but or it showed that obviously that they were picketing exemption had no compelling state interest to warrant it being there. So, at the time this ordinance was applied to my client, the city had mis-stated, it violated the constitution.
Warren E. Burger: I don't suppose the city would agree with you, the change in the arguments has that meaning and only that meaning now would -- I would presume that they would bring forth some other reasons but I submit that this change at this time shows that it has no compelling state interest. I wanted to make a point about 19.2 (a). I already have mentioned that I think it violates due notice, because the person cannot know what conduct is prohibited. So, even if he is trying to comply with the laws, at the same time exercises his constitutional right, he does not have an opportunity, so consequently he cannot act at all without fear of going to jail. The other point is that, with respect to 19.2 (a) as this ordinance is drafted, it says that a person who willfully makes the noise or diversion would violate that section and then it seems to modify that which disturbs or tends to disturb the peace and good order of the school session. I submit that what is happening is that the person is being convicted when he makes a noise or diversion and his intent is just to make the noise or diversion not to disturb or disturb the peace of good order of the school.
William J. Brennan, Jr.: May I ask Ms. Hall, the record that you are going to leave with us, is there evidence in that that there was noise?
Hal M. Brown: Yes there is evidence, Your Honor. But the evidence shows the noise came from the use of the police loudspeakers.
William J. Brennan, Jr.: What I am really asking is, Is there any evidence that there was any noise by the group who you represent? How many were there, 40 of them?
Hal M. Brown: There were 200 demonstrators who were in front of the school. 40 males were arrested and I represented the --
William J. Brennan, Jr.: Well, is there any evidence that those 40 --
Hal M. Brown: My client, Richard Grayned. No, there is no evidence with respect to Richard Grayned because as you can see from the commonwealth's record, Richard Grayned was not charged and convicted of making a noise, he was charged and convicted of making a diversion, so with respect to him --
William J. Brennan, Jr.: What's the evidence that he made a diversion?
Hal M. Brown: I have submitted the record to this Court to find it.
William J. Brennan, Jr.: You mean there is not any, is that your suggestion?
Hal M. Brown: As far as I concede, there is no --
William J. Brennan, Jr.: There's Thompson and Louisville (Inaudible) you suggest.
Hal M. Brown: We had not raised that argument in our brief, Your Honor. I would suggest that there was noise at the scene and the noise came when the loudspeakers were used by the police officers.
William J. Brennan, Jr.: Whatever that may be, but is there any affirmative evidence that your -- I guess, the only one we have here is Mr. Grayned?
Hal M. Brown: Mr. Grayned, that's right.
William J. Brennan, Jr.: Any evidence that all in this record that he was noisy, he was making the diversion?
Hal M. Brown: There is no evidence that he was noisy and I am just -- I would say there was no evidence that he personally, personally himself was making a diversion. Now, whether they were considered assisting in the entire demonstration that they made a diversion, I would say, there's no evidence for that because I say that the record will show that at the time there was evidence that a large number of people standing in the windows at the school, it was after the loudspeakers were used by the police in reading the ordinances to them.
William H. Rehnquist: Ms. Hal, you didn't raise them in Thompson versus Louisville point in the Supreme Court of Illinois.
Hal M. Brown: No, I did not Your Honor.
Thurgood Marshall: You said 40 were arrested?
Hal M. Brown: There were 40 demonstrators who were arrested.
Thurgood Marshall: Well, were they all convicted?
Hal M. Brown: The --
Thurgood Marshall: I mean, is this a symbolic case or what because it's --
Hal M. Brown: Because the 40 cases.
Thurgood Marshall: It's just that, when this case is brought in, the one that has no record as to what man did?
Hal M. Brown: And that's the record I am bringing with now.
Thurgood Marshall: Which – there is nothing in that to show that he did anything?
Hal M. Brown: That he -- there is evidence in there, that he participated in the demonstration. But there is nothing in my judgment to show that the diversion -- the diversions were committed by the demonstrator.
Thurgood Marshall: Or is anything in the record that shows that Mr. Grayned opened his mouth, said anything?
Hal M. Brown: I wouldn't be surprised if he said something Your Honor and I don't know what the record shows exactly, to his making comments with people around him.
Thurgood Marshall: Well, how many --
Hal M. Brown: I submit that I am here for Richard Grayned and I am asking this Court to sustain the faith of the citizens Rockford that this Court would protect their rights to exercise their freedom, which are protected from state interference through the Fourteenth Amendment. Thank you.
Warren E. Burger: Thank you, Ms. Hal. Mr. Curry.
Richard L. Curry: Mr. Chief Justice and may it please the Court. The issues of this case as viewed by the city of Chicago are three. Does the claim of a free man to use the streets as a public forum exclude even modest regulations as to the time and place within which his rights maybe exercised. Two, if modest regulations are permissible in protecting substantial governmental interest, is Chicago in error in ascribing such importance to its schools and three, is the Chicago ordinance void by reason of being over broad. The city of Chicago believes that the rule of this case ought to answer each question in the negative. The ordinance before the Court is at partial restriction as to picketing and demonstrating around elementary and secondary schools. Reasonable as to time, that is during classes and a half hour before and after, and reasonable I submit as to place, that is within 150 feet of the school building. When local government is attempting to harmonize and accommodate, conflicting demands for the use of streets, the standards as to time and place or every bit as relevant as the controls upon manner and purpose. This ordinance ought not to be viewed as a ban on First Amendment rights. It is clearly and properly, a phrasing or timing of the activities in recognition, that at a certain time and within a certain limited area, there does exist competing interest which the city may rightly acknowledge and regulate. The purpose of the ordinances and the reason for its passage and the reason for the phasing and timing contained in it, is that the city sought to impose a very simple ordinance on school picketing. The city council sought to assure that school kids have a setting for education where tranquility, order, calm and quite might prevail or at least not be minimized by introducing picketing or demonstrating in a customary counterparts. Adderley versus Florida tells us, that there maybe some public places which are so clearly committed to other purposes, that their use for airing grievances is anomalous. In Adderley, it was the private drive way to the jail. In Cox versus Louisiana, it was near a courthouse and in Cameron versus Johnson, it was access to public buildings. Chicago believes that the school house ought to receive similar insulation from what has been traditionally described as speech plus activities, while classes are in session. The ordinance in Chicago was passed in response to widespread and ugly demonstrations, which were taking place on the daily basis at elementary schools, where black students were being bused for the first time. The respondent Mosley would have this Court believe that an ordinance with such a derivation was nearly ploy for stifling his cry for a larger black enrollment at Jones Commercial High School.
Thurgood Marshall: Mr. Curry, you say that you try and do the same thing that you've done in Cox?
Richard L. Curry: Yes sir.
Thurgood Marshall: And it appears from the decisions of the Court of Appeals that (Inaudible) decisions, you say that's just a point, you said what Cox said, it would be valid and nobody said?
Richard L. Curry: The court's found the ordinance of the City of Chicago to be overbroad and answered no further questions in issue, Justice Marshall, my recollection --
Thurgood Marshall: He says that it was because it was narrowly drawn to protect the valid state interest, that's what he says in Cox.
Richard L. Curry: You're reading from Cox, sir.
Thurgood Marshall: No, sir, I'm reading from Judge Hastings.
Richard L. Curry: It's my recollection, I certainly don't quarrel with you reading of the order sir. The court's order in my interpretation was, it was strictly and solely out on overbreadth that it did classify --
Thurgood Marshall: You've addressed the one like Cox, what about others, that's what I gather from this?
Richard L. Curry: We submit, Justice Marshall, that this is very narrow. This ordinance is narrow and is not vague. The ordinance is precisely drawn and patently designed to accomplish its objectives. It thus fits the court's off, repeated description of the kind of law that should be drawn in the state's exercise of generally unquestioned constitutional power to regulate picketing and street activity. The ordinance does as Thornhill directs us, aims specifically at evils, within the allowable area of state control and does not leave one to guess at where fanciful possibilities end and intended coverage begins.
William J. Brennan, Jr.: Well, why the exception then for labor picketing?
Richard L. Curry: Justice Brennan, the exemption for labor picketing has a derogation in these facts. The primary goal of this legislation was public issue picketing. That was the question that the City of Chicago was confronted with on its streets at the time this ordinance came up. There was then no, none -- nor had there been in the memory of those in the City Council, any public school labor picketing at all.
William J. Brennan, Jr.: You mean, they'll suggest the labor picketing particularly when it involves school (Inaudible) it's not a matter of public issue picket?
Richard L. Curry: Yes, but public picketing, when in Illinois, when it involves school teachers or school employees, public employees generally, is determined by the rule of law in Illinois that, that picketing is contrary to public policy and can be enjoined by a state action.
William J. Brennan, Jr.: Well, what kind of picketing you are going to have around the schools?
Richard L. Curry: You would have the kind that could be enjoined by appropriate state action, a remedy being available to meet this possibility, the city of Chicago felt in drawing a very narrow ordinance, we would only relate our ordinance to the experiences that were then prevalent in the streets. That was labor, not labor picketing, but public issue picketing.
Thurgood Marshall: Suppose more people carrying the sign saying that the city of Chicago is unfair to organized labor?
Richard L. Curry: Within 150 feet of the school --
Thurgood Marshall: Within one foot.
Richard L. Curry: Within one foot, the city of Chicago -- well, that would be picketing -- that would not be labor picketing at a school. He would be in the same posture I submit as he was by carrying a sign that said (Voice Overlap) rationally.
Thurgood Marshall: Mosley's sign said I support, the labor dispute between union ABC and the city of Chicago. I use the word labor dispute because that was your ordinance --
Richard L. Curry: Right. Rather than quarrel on the terms of what Mosley sign says, that Mosley's sign is clearly or appropriately considered a labor picketing sign, Justice Marshall, then clearly, he would fall within the exception here and the state action against him would be in the nature of an injunction because --
Thurgood Marshall: But couldn't the state also prosecute him under this ordinance?
Richard L. Curry: The city of Chicago would prosecute him under this ordinance only --
Thurgood Marshall: It couldn't.
Richard L. Curry: I'm sorry.
Thurgood Marshall: It couldn't, could it --
Richard L. Curry: If you're engaged in labor picketing, it could not prosecute him under this ordinance clearly.
Thurgood Marshall: This exact same man, with exact same stick with a different sign on it?
Richard L. Curry: A different sign, because there are an array, a plethora of remedies available to the law enforcement agencies under the NLRB Act, because he's a public employee, his activities can be enjoined under the public policy of the State of Illinois. This Court has found that classifications would only be stricken if they are invidious, I submit that this is not an invidious classification.
Thurgood Marshall: Was that argument made in Court of Appeals?
Richard L. Curry: I didn't make the argument there, sir. I am not certain sir.
Thurgood Marshall: Well, was it mentioned in the opinion of Court of Appeals, this argument?
Richard L. Curry: The argument on invidious discrimination, to my recollection it was not.
William H. Rehnquist: Mr. Curry, would the National Labor Relations Act cover a public employer such as the school?
Richard L. Curry: The National Labor Relations Act exempts the public employee, you're right, but that public employee then, if he is picketing would find that the state would be enacting the thrust of public policy and enjoining his conduct.
William H. Rehnquist: So a state preemption as against the city of (voice Overlap)
Richard L. Curry: The state preemption for the public employees and it would be National Labor Relations Board, National Federal Preemption for those employees who were neither civil -- public issue oriented, public employee related, that would be a third category and we feel, we felt that the time this ordinance was drafted that there was adequate remedies for the other two eventualities around our schools. That was not adequate protection for the school children against the kinds of distractions and disturbances that generally and usually follow the picketing and demonstrating in the street.
Harry A. Blackmun: I suppose there is no specific legislative history at stack which could show that?
Richard L. Curry: There is not. A bias posture in this case, if the court please, Mosley would arrogate to himself unimpeded use of the sidewalk actually abutting the school. There is choice of the public forum to remain unencumbered by restrictions as to time and place so long as he is peaceful. And enough gain is staged, he addresses his protest to what is clearly a captive audience. The students themselves forced to attend by state regulations requiring daily attendance. Having rejected the alternative of being across the street or the alternative of coming back when school is out, it is clear that the Mosley's protest is intended primarily for student consumption and here the analogy between Mosley and the hate-oriented group that meets the bus at the other school and which this ordinance is related directly to becomes clear for the first time. The analogy is absolutely precise because there too the activity is intended for student consumption. While respondent cleverly tests this ordinance without arrest and jokingly characterizes his presence at Jones as “sort of a nuisance value especially when I was in private school,” the real object of this ordinance that harassing, bullying, snarling, threatening and intimating entrance way mob waits in the Illinois Appellate Court for this decision to resolve their case. The liberty guaranteed by the constitution is liberty regulated by law and social compact and in order that all men may enjoy liberty, it is but the tritest truism to say that every man ought, if not must, renounce unbridled license. Liberty can only be exercised, this Court reminded us in the Cox's case, liberty can only be exercised in a system of law which safeguards ordinance. For these reasons and for those elaborated in our principal reply brief and in recognition of the substantial governmental interest in education and the relevancy of the time and place criteria established by the Chicago ordinance in protecting that substantial governmental interest from disturbance and distraction, I would hope that this Court would reverse the decision of the Court of Appeals for the Seventh Circuit and uphold the validity of the Section 193 of the Municipal Code of the City of Chicago. Thank you very much.
Warren E. Burger: Thank you Mr. Curry. Mr. Quinlan.
William R. Quinlan: If the Court please, as we now know this Rockford appeal is identical to the Chicago one in that the anti-picketing ordinances of both cities were identical. It differs in some respects as counsel pointed out the city of Rockford recently amended the anti-picketing ordinance by eliminating, deleting the provisions provided that this subsection does not prohibit the peaceful picketing of any school involved in a labor dispute. Counsel comes to the conclusion that this represents the mission implied to the city that the anti-picketing ordinance as originally passed was obviously unconstitutional. We recognize of course that the amendment that the city of Rockford made has no bearing whatsoever on appellant's personal situation. However when we're talking about motivation, the counsel provides us, the fact is that there could be a question under Fourteenth Amendment and the discriminatory provisions of the labor dispute exemption, there could be and the city of Rockford, the city counsel felt as incidentally to other city counsels and other school boards throughout the length of this country that if that is the problem, we will delete and we did delete the labor dispute exception. It is by no means an admission that the Fourteenth Amendment has been violated.
Warren E. Burger: How would a particular school in Chicago has distinguished from Department of Education, have a labor dispute with someone, what would be the --
William R. Quinlan: In Rockford we could. We have a school board that not too long ago was co-terminus with city. Our School Board now is completely a part elected in different elections. I don't know how the school board is in Chicago.
Warren E. Burger: Well, I mean Rockford, I'm really speaking myself to. How could your, a protected school in Rockford have a labor dispute, is it --
William R. Quinlan: The only way I know -- yes I suppose the building traits during the construction of the school may have some dispute and possibly --
Warren E. Burger: Was it for a particular school or with the contracting--?
William R. Quinlan: Well if I were – I were running the labor union, my pickets would be done at the Board of Education offices, but I think it's possible that there could be some labor dispute. It's never happened in our town, it could happen. And I suppose it's possible and that's what counsel was talking about possibilities that there could be some pickets that use a non-union labor to build Eisenhower School, for instance. Ordinarily, it wouldn't have any application to this ordinance, because it's confined while the school is in session and ordinarily you don't have the school in session until the school is built. Anything is possible. I have the same question, that's about all I can say. It is improbable and the reason, one of the reasons that our legislative body exempted disputes is frankly we had no trouble in that connection and legislators being what they are generally legislate towards some specific situation.
William J. Brennan, Jr.: Which ordinance came first, Chicago or Rockford?
William R. Quinlan: We copy the Chicago ordinance and that very often --
William J. Brennan, Jr.: (Voice Overlap)
William R. Quinlan: Identical, identical. There were three --
William J. Brennan, Jr.: (Inaudible) didn't pass that much attention.
William R. Quinlan: And I know that the time that this was going to happen, I brought up my own ordinance.
William H. Rehnquist: You are referring now to 18.1, right?
William R. Quinlan: Yes, 18.1. Now, there is another difference in that in the Rockford situation we have a set of facts which apparently as far as the appellant is concerned, did not become important until a couple of days ago. I might add that neither side of wrote a transcript of the testimony until two days ago and this occurred on April 25th 1969. There was no demand made by counsel upon me at any time for a transcript and there was no efforts made as can be done in Illinois if we're talking about facts to get an agreed statement of facts.
Byron R. White: Well, you don't suggest that you should have judgment here because this case may have involved a lot of people or that --
William R. Quinlan: No, no. The only way we know it involved any people is counsel in its brief, appellant's brief, mentions there were 200 people and now we have the transcript of testimony and I hope this case is not going to be --
Byron R. White: Would you suggest that you should lose this case if the ordinance is unconstitutional if applied to one person picketing?
William R. Quinlan: I'm not sure and, of course, the opinion in Coates versus Cincinnati is what gives me pause on that whether this may develop and the ordinance is unconstitutional in its application.
Byron R. White: The ordinance on its face would apply to one person picketing the school?
William R. Quinlan: Yes, it would. There is no question about that.
Byron R. White: And if it were unconstitutional, if it did that, would you say the the ordinance is invalid on its face?
William R. Quinlan: I frankly don't know. In Coates versus Cincinnati apparently, I think you yourself had some questions about whether --
Byron R. White: But I said that wasn't the speech case, I approached it as a non-speech case?
William R. Quinlan: That is right, and picketing, of course, is not strictly a speech case.
Byron R. White: Well not strictly, but it does have no relevance?
William R. Quinlan: I personally be willing to stand on the ordinance as right and although we had 200 people, we had four (Inaudible) disturbance and Mosley was just walking up and down all by himself. I suppose that one has to trust somewhat into the discretion of the school administration.
Byron R. White: So you are saying that that it would be fair to your side to consider this case though we had a one person picket and the ordinance would apply to that?
William R. Quinlan: I don't know if it would be fair, but I can see where this Court might take that attitude. We did have 200 people and we had disruption and when counsel speaks from this transcript, apparently she and I may not have the same transcript, but the one I have indicates that there was disruption of things came to halt inside the school about three, four hours.
Thurgood Marshall: What does this man (Inaudible) do?
William R. Quinlan: Grayned?
Thurgood Marshall: Grayned
William R. Quinlan: Well --
Thurgood Marshall: That's in the record?
William R. Quinlan: That's in the record before you is the transcript that we are submitting to you, sir.
Thurgood Marshall: Either or both?
William R. Quinlan: Well, what's in the record before you, nothing, absolutely nothing. What's in the transcript? Again, there seems to be some questions as to what's in the transcript. I read it last night carefully, Grayned without any question was a member of the 200 people that were going up and down sidewalk.
Thurgood Marshall: Did you make any notes?
William R. Quinlan: There to my knowledge is no direct -- the testimony was everybody was chatting. There was no direct testimony to my knowledge that Grayned was chanting. This was a group of 200 people. There is testimony that he was, I think, demonstrating or raising his hand.
Thurgood Marshall: How was he convicted?
William R. Quinlan: Because the anti-noise, anti-picketing, not anti-demonstration ordinance says whosoever shall willfully make noise or demonstrate as to disrupt the classroom. It leads, who shall willfully may or assist in the making of any noise or diversion which tends, which disturbs or tends to disturb the peace and good order of such school session or class there off.
Thurgood Marshall: What did he do?
William R. Quinlan: There was testimony that Grayned, this one particular defendant was walking up and down. I believe some people said he had sign, some didn't. There was testimony that everybody was chanting and of course, there is testimony by various school teachers that things sort of stopped inside for a long period once they started.
Thurgood Marshall: Well, what -- I assume that if testimony was that everybody was chanting, and a man who was in that group who was deaf and dumb could get convicted under this statue, ordinance I mean?
William R. Quinlan: Deaf and dumb, I doubt that he would be convicted if he showed that he --
Thurgood Marshall: But he would be --
William R. Quinlan: He couldn't because he was dumb.
Thurgood Marshall: It's in the fact that the way this statute was administrated in this particular occasion was that anybody in that group was subject to arrest?
William R. Quinlan: I think not. We read the record and now we talk about the transcript, not the record before this Court, Grayned --
Thurgood Marshall: We have one man before us --
William R. Quinlan: You have one man and you have a ordinance.
Thurgood Marshall: (Inaudible) myself I don't see what he has been proved to have done to violate the ordinance even if it's constitutional, you see my problem?
William R. Quinlan: Yes sir, I understand. If we get into finding of the facts of this case, which incidentally took two whole days to trial, there is controverted testimony first. Mr. Grayned said, I just happen to be there and the police came along and put me and then this -- and all of the testimony is controverted, I am speaking about the city's testimony and the two (Inaudible) the jury. The jury found one, that Grayned was guilty to anti-picketing; two, they found him guilty of making a diversion, not a noise.
Hugo L. Black: How does Illinois define diversion?
William R. Quinlan: The Supreme Court of Illinois -- this was brought up there. Now this isn't just a diversion if the Court please, but it is a diversion willfully make or assist in the making of any diversion which tends, disturbs, or tends to disturb the peace and good order of such school while it's in session, that's how the ordinance reads. As to the definition of diversion, I believe the Illinois Supreme Court took that up, specifically the word itself and I hope I can find it immediately or in -- it said, we do observe while the defendant charges that the terms appearing in the ordinance such as noise and diversion -- I am reading from the Illinois Supreme Court opinion, lack of constitutional precision and are two indefinite common terms such as alarmed, disturbed, interfered with and hindered, have been determined to comply with the constitutional requirements of Mississippi. The terms here are not constitutionally objectionable.
Hugo L. Black: I suppose the jury was instructed?
William R. Quinlan: The jury was instructed and the words of the ordinance. I don't think they were instructed on a dictionary definition of diversion. It occurs to me though, however, a diversion to divert to take from the normal course where you have testimony that a good part of the students spend most of the day looking out the windows instead of studying, I think diversion in the context to this ordinance is they are diverted from the usual procedure that goes on in school, namely learning and teaching I assume.
William H. Rehnquist: Did the defendant make any request for charge in the trial court on the meaning of diversion?
William R. Quinlan: The colloquy concerning instructions are in this transcript --
William H. Rehnquist: No point whatsoever --
William R. Quinlan: -- and there is no point that I know of --
William H. Rehnquist: I didn't want to (Inaudible) the Supreme Court of Illinois.
William R. Quinlan: Nor in the magistrate's court, however, I didn't try the case but it does not appear here and it does appear in this transcript the discussion concerning instructions to be submitted to the jury. So probably it didn't occur, at least it wasn't recorded. Now I see my time has almost expired. It seems to me basically that the Rockford ordinances do not differ greatly from the ordinance of the second Cox case, both the ordinances. They are specific as to place, a 150 feet is quite definite and incidentally reasonable. 15 feet wouldn't help much and 1,500 feet probably would be too far. The specific as to time, and incidentally the anti-noise, anti-diversion ordinance says around adjacent to the school, the school property not the building, the picketing ordinance, the measurement starts at the building, not the property. Spatially these are specific, I think these ordinances can be. The standpoint at time they are both restricted as to a little different however, the picketing ordinance, a half hour before and after schools in session, the anti-noise and diversion ordinance while school is in session or if they have a meeting anytime during the day and night, when a meeting is being held in the school house.
Byron R. White: What is beyond noise and diversion? What is just beyond protection against the noise and diversion does the anti-picketing ordinance protect against?
William R. Quinlan: None. I think that the -- and in the preamble of the anti-noise ordinance is for the protection of schools. So that the educational process will continue uninterruptedly, that's the rationale of both ordinances and they were passed just for that purpose and for no other purpose. I believe my time is up.
Warren E. Burger: Thank you.
William R. Quinlan: I thank you very much.
Warren E. Burger: Thank you, the case is submitted.