Earl Warren: Number 60, Dick Gregory et al., petitioners versus City of Chicago. Mr. Patner.
Marshall Patner: Mr. Chief Justice and may it please the Court. This is a case where the failure to arrest hecklers resulted in suppression of free speech where demonstrators were peaceful and where the hecklers threatened and attacked them for there mere presence on the streets. Now, the defendant in between 65 and 70 or 80 other people in August of 1965, conducted a protest march and did so by beginning in Chicago's Lakefront at Buckingham Fountain then went to the City Hall, paraded there and then marched to the area in which the Mayor of the City of Chicago lives called Bridgeport, some five or eight miles from the loop, the downtown area. When they arrived, there were approximately 35 people in the neighborhood on the street. They marched silently in the evening but when they first arrived, they sang some songs, they chanted, made several kinds of remarks. They were permitted from the time they started at Buckingham Fountain to City Hall, to the mayor's community to march and proceed with the same kinds of remarks, the same kinds of singing and chanting under the eyes of the local police and the accompaniment of a corporation counsel or a city attorney. After they had marched for sometime in the Bridgeport community, at a request of a police commander on the scene, Dick Gregory who took charge of this march and this group, agreed with the request of the commander that after 8:20 p.m., there would be no singing and no chanting. And after that time, there was no conversation whatsoever by the marchers directed toward the spectators. The only sound whatsoever made except for walking was communication by Gregory to the people, telling them that he was marching with them, telling them to stay in line to obey the police suggestion of where they should march and they did so. They stayed on the public sidewalks, except when interrupted by local people who put hoses in their way. Those were removed at police direction. They did so and stop when one heckler stood in their way and the policeman asked him to get out of the way and he did so and then they proceeded. When a countermarch started in order not to join it, they changed direction for a block or so and then resume the same direction. Now, while they're conduct continued to be peaceful, the crowd began to gather and a crescendo grew in that crowd. Now the hecklers as we call them that the local people who came out were not in anyway captives of these peaceful marchers. The marchers never made any noise as I said after 8:20. They never sang or chanted but the people chose from -- to grow and to come out. The group grew from 35 until ultimately there may have been 1200 or 1400. The subject to this demonstration involved criticism of the then Superintendent of Schools of the City of Chicago, Benjamin Willis who often have been criticize for his policies and racial problems in the city schools, an issue of public interest. Now what is missing from the opinion below which affirm the jury conviction of disorderly conduct on two counts are the following. There was no invective or invitation to violence by the peaceful marchers, sometimes called provocation. There was no effort by the police to arrest any heckler. All of the police in this case were awfully good in trying to protect the marchers. They were very good at that and what's interesting about this case I think a bit unusual in these demonstration of cases. We have very little dispute with the facts stated by the Illinois Supreme Court, very little at all but we have a better difference with the city who seems to move up some of the chanting that occurred earlier, and so it appeared after 8:20. It did not occur after 8:20. The only other factual if I can get rid of that dispute we have in the city. They say that there was a crack force there of task force that was special, that was specially trained to go out and deal with these kind of things. They say so in their brief but at page 33 of the appendix -- that's referring to the page of the appendix, it's 103 of the record. The policeman testified that they have no special training at all. Except for that, this is not a case that involves any dispute in the facts. And the police here did a splendid job in attempting to protect the marchers as they went around the mayor's house.
Thurgood Marshall: Mr. Patner, was the mayor at home?
Marshall Patner: Your Honor, it does not appear in the record if he was. He did not come out. It does not appear that the marchers knew whether he was or not or whether anyone knew --
Thurgood Marshall: Does it appear in the record, the purpose of picketing that block?
Marshall Patner: It does not sir. It may as well have been to get to the residence of Bridgeport which is basically or wasn't that time basically a White community. It does not so appear -- I think it's fair to infer that it was at least in part to bring this home to the mayor. If he were home but it certainly was through a march and to bring it home to the mayor and to the people of the City of Chicago.
Thurgood Marshall: Didn't you bring it home to the mayor down at the city hall?
Marshall Patner: It may have been brought home to the mayor of city hall also.
Thurgood Marshall: Well, he was in the city hall, wasn't he?
Marshall Patner: That does not appear in the record. That's usually where he is during business hours sir. This was later however, they did not get to Bridgeport until after the normal hours of city hall would have been closed.
Abe Fortas: Is there any city ordinance in Chicago that makes a distinction with respect to parades and demonstrations in residential areas as compared with business areas or other types of areas?
Marshall Patner: Subsequent to this case Your Honor, the Illinois Legislature saw fit to pass such a statute. At the time of this occurrence, it was neither an ordinance nor a statute.
Abe Fortas: What did the statute say?
Marshall Patner: The statute is referred to in our brief and it says under public policy that in respect to the peace and good order of communities that there shall be no demons -- I'm just paraphrasing, no demonstrations in what are known as residential neighborhoods.
William J. Brennan, Jr.: And what does -- is it printed?
Marshall Patner: Yes, sir. It's in our brief and I'll find the page in a moment if I may sir. But occurred after the conviction in this case and after the affirmance --
William J. Brennan, Jr.: So there was no law.
Marshall Patner: There was none at the time of this case sir.
William J. Brennan, Jr.: No state law attempting to bar parades of anytime, anywhere in the city of that county.
Marshall Patner: Sir, the -- there was no ordinance or statute prohibiting residential picketing which is what I was mentioning to Mr. Justice Fortas.
William J. Brennan, Jr.: Was there any bar in any picketing?
Marshall Patner: No, sir. There was an ordinance of the City of Chicago requiring a parade permit. That's the only kind --
William J. Brennan, Jr.: Was it granted?
Marshall Patner: There was no request for a permit. There was no permit in this case.
William J. Brennan, Jr.: But how was it to be granted, the permit?
Marshall Patner: Oh, that appears Your Honor in the -- Mr. Justice in the reply brief, its --
William J. Brennan, Jr.: In your reply brief?
Marshall Patner: Yes, sir. In this Court at page 6 and it's to be granted after some of the same language it appears in many of this after a 30-day notice that by an investigation of the police department on the application to see if what's said in it is true and to determine something about the organization requesting the right. However, no permit was requested and there were never -- the marchers in this case never would charge with marching without a parade permit.
William J. Brennan, Jr.: Now what were their charges?
Marshall Patner: They were charged with to accounts of disorderly conduct. One of those accounts appears to be that they were -- that they caused the hecklers by their mere presence. They caused the hecklers to threaten them and to throw rocks, eggs, bottles and they hurl epithets -- to swear at them and to make demeaning comments. And the second count was that their purpose was unlawful and apparently to cause those people to congregate. Those were the two counts. The Illinois Supreme Court does not give us any wisdom, however, in which of the counts or both of them -- whether it's both of the counts that they are dealing with. They treat this as a single conviction in their opinion. Now, those two counts come out of separate provisions of the Illinois, I'm sorry -- of the Chicago Disorderly Conduct Ordinance 1931 which is printed in the brief. Now the Illinois Supreme Court found that when the police commander at the scene after the crowd had grown to about 1400, asked the marchers to leave and he asked them about five times and he asked them clearly and pleasantly, you know, responsibly and he said, “Your presence here will cause a riot.” And speaking through Mr. Gregory, they refused to leave except for three or four people who have decided to accept police protection and we're taking through the crowd and left. But at that time, the conduct of the marchers had remained identical to what have previously been permitted. The only change was that the crowd grew and became more violent. At no time, and this is not disputed I think. At no time did the marchers ever make any gesture, any remark, any statement, anything of incitement whatsoever to those hecklers. They marched peacefully --
Abe Fortas: How long the -- how long were they marching before they were arrested?
Marshall Patner: They're marching all together about five and a half hours but somewhere over an hour in the community.
Abe Fortas: Suppose they've wanted to do it all night, all night long. Would your view be any different as to what -- whether they might have been -- whether there would have been a First Amendment protection? I -- as I remember, they were disbanded around 10:00, 10:30 --
Marshall Patner: A little earlier sir.
Abe Fortas: -- at night.
Marshall Patner: Yes, sir.
Abe Fortas: And suppose they had continued in about 2:00 in the morning as the police said -- had said, “Well, this is it. You've had enough and there's danger here of riot and you're disturbing people asleep and if you don't leave, we're going to arrest you.” And they did in fact arrest some of them. They were convicted toward disorderly conduct.
Marshall Patner: What --
Abe Fortas: In short, the question that this case present -- may present, I don't know. It may present as to whether there is any limit to let us assume for the moment what is otherwise a constitutionally protected right to demonstrate.
Marshall Patner: Your Honor, Mr. Justice the -- in this case because the marchers remain silent, the only danger of the riot would have been at the election of the residence who have come out and attacked them.
Abe Fortas: Well, they did a certain amount of singing, didn't they?
Marshall Patner: Yes, sir. But I was assuming that their conduct would remain as it had from 8:20 as being absolutely silent. I think though that --
Earl Warren: They have some agreement did they not with the police as to their conduct in what they would do and would not do?
Marshall Patner: Yes, sir. They did, Mr. Chief Justice.
Earl Warren: Is that observed?
Marshall Patner: Yes, it was observed exactly except for when that the three instances I mentioned when hoses were put in their way, they waited until they were removed. When one neighbor or heckler stood in their way and the police asked them to leave and he did. And third, when a countermarch started and they changed their direction to avoid it and then resume exactly the original route set out by the police. So there was no invective or invitation to violence and that is found in the Illinois Supreme Court. There was no effort.
Abe Fortas: Did you answer my question?
Marshall Patner: Oh, I'm sorry sir.
Abe Fortas: I'm sorry, it's a tough one.
Marshall Patner: Well, no. I would say, I -- my answer would have been that they could keep going because they were silent. I think --
Abe Fortas: In other words, you don't think there's any limit at all provided that they don't make any noise except whatever noise may be necessarily incident to the sound of feet of marchers at 2:00 a.m. in residential area when women and children are asleep.
Marshall Patner: Yes, sir. I --
Abe Fortas: I see.
Marshall Patner: I think that's right but the Struthers case is not so different because there, the argument was made that ringing door bells in a community where people worked all night should be prohibited to Jehovah Witnesses and this Court said that that was not the reason to stop the kind of First Amendment activity that would be related to night or day or day or night depending on how people were in their activity. But my implication earlier or I thought I had said that they could go on. Now, there was no effort to disperse the crowd and the odd thing here is that the record shows in the Illinois Supreme Court finds that when the people broke through and the police grabbed them and it literally says in the Illinois Supreme Court, they grabbed them -- the police grabbed them and they threw them back into the crowd and did not arrest a single one of those man. Now, the Tailor case that we cite in our brief in the Illinois Supreme Court, uses to avoid our argument in this case, says that in a vast demonstration that when the police asked the hecklers, the opposition to disperse and they did so, there was no violence. Well, that's what would've happened here. The police never asserted their authority. All they did was to protect our people but they never arrested. They had bullhorns, they never asked the crowd to disperse.
Thurgood Marshall: Mr. Patner, how close is this to Fainer?
Marshall Patner: I'm sorry sir.
Thurgood Marshall: How close this case to Fainer?
Marshall Patner: Your Honor, the -- it's very close. It comes up to the edge with a dramatic difference and a dramatic -- and an essential difference. Mr. Fainer asked the people in the crowd as the facts were found, there were some dissents in that finding but as the facts were found, he invited some kind of violence. He asked the people, the Negro members of his audience and others to take up arms and fight for their rights. To take up arms was the difficulty so that Fainer was inviting physical acts against himself or against the other members of that crowd. This case doesn't make it under Fainer. Now, if it would be my position.
Thurgood Marshall: Well, couldn't it be argued that they -- their presence they had -- did it?
Marshall Patner: Their presence there Your Honor, if their presence invited violence, we may as well abolish the First Amendment. That would mean that any dissenter, any minority man either way invading as I'd like to call it here, a community would be provoking.
Thurgood Marshall: But it's your position. We don't have to overrule Fainer to rule with you.
Marshall Patner: I think you do not although I would prefer that you do. I could argue also that the Fainer case that we've learned now that the kind of language that he used was not sufficient to be provoking. However here, there is no language like that -- in this case -- just fall short of the Fainer problem. And in Fainer, there is that provocation and that's missing in the Illinois Supreme Court opinion and it is never argued by our position here except by their presence. No effort by the police to disperse where Mr. Justice Black in his dissent in term in the yellow, I think put it very aptly where it fits in this case that when -- I'm sorry in Fainer, I misspoke -- in Fainer. The man in Fainer says to the police officer, “If you don't get that SOP of the soapbox, I'm going to do it. And what did the policeman do? He got Fainer off instead of getting read of that man who made the threat and Mr. Justice Black pointed out --
Abe Fortas: What do you mean getting rid of the man who made the threat?
Marshall Patner: Well, he is the one who threatened him. He should have arrested him sir. He was the one who was causing --
Abe Fortas: I thought one doesn't violate his First Amendment rights or is that --
Marshall Patner: No, that's the --
Abe Fortas: -- that's sufficiently close -- that's sufficiently close to --
Marshall Patner: Yes, sir. It is in the words.
Abe Fortas: -- provide?
Marshall Patner: It's not the words. He was going to grab them and remove them from that platform.
Abe Fortas: Well, he didn't do it, he just said it so far as finding --
Marshall Patner: Yes, sir. I would say that that kind of activity --
Abe Fortas: That kind of (Inaudible), that kind of statement.
Marshall Patner: That kind of statement -- yes, I mean the activity that he is talking about. That kind of statement is distinguished here and in that context, if the police have to do anything, he is the one to remove but our case is easier.
Abe Fortas: Well, Mr. Gregory or somebody had said to the police, “If you don't remove those people who are obstructing our way, we're going to remove them ourselves.”
Marshall Patner: And they took some -- I think then they'd have to take --
Abe Fortas: That's all -- that's all he got in Fainer --
Marshall Patner: That's all sir --
Abe Fortas: -- you've got in Fainer.
Marshall Patner: -- and no one has heard her. I think that would not be enough sir. I think the record in Fainer as I remember it, other people heard this.
Abe Fortas: No, I -- no, the police -- he said that and the policeman heard it and a lot of other people --
Marshall Patner: And a lot of other people.
Abe Fortas: In the case I have put you.
Marshall Patner: I think that -- I think then that the police will have to -- have to arrest them with the hostility that we now have surrounding the circumstance --
Abe Fortas: Will you remember the --
Marshall Patner: -- because there were many factors.
Abe Fortas: Will you remember what's that?
Marshall Patner: In the next case? If it comes up but I think sir, what I mean though is -- if -- in a number of variables that would happen. The hostility of the crowd, the reality of what he is saying whether it's clearly flipping to a hollow threat that the -- something like that because there are a number of variable factors. But if the police in this case, it's easier. Because here, they -- they didn't have anybody just saying something, they have people actually breaking police lines, being grabbed but being thrown back. Now, that's the difference here and if they had done that just as they did initially when this began, the first man who stepped in front of that line and blocked it was asked by the police to leave and when he was asked, he did so. It -- we could assume that the people of Bridgeport if asked by the police, by the bullhorn would have left or as the city did the next year, if they'd arrested those violent people, not -- they say they couldn't find the stone throwers. Okay, they couldn't find them but if the people who broke the lines were taken into custody as an example because they themselves had done something. The rest probably would have dispersed. So what we have here is no invective or invitation. No effort by the police to protect and the court below relies in this case, almost totally, and Mr. Justice Black's dissent in Fainer but out of context. It says, this -- the Illinois Supreme Court says, that there's an obligation to protect the speaker but the part they miss that comes both before and after that is where that dissent said. The obligation is to protect his right to speak and that is a dramatic difference, and the way to protect the right to speak is to arrest the hecklers. That's the part of this case, I think that's important and this has become an issue that's grown up as we've come to this Court of great national significance because the Secretary of State has been shouted down, the Senator from Massachusetts with the vice president has been shouted down, the Secretary of Agriculture has been shouted down. We have the problem in Columbia --
Hugo L. Black: Well, are you really saying -- I'd like to pursue this for a moment. Are you really saying that people who have shout down public officials despicable as that conduct may be are subject to arrest without any -- without the protection from First Amendment? Is that what you're telling us?
Marshall Patner: No, sir. I was saying that the context of the shouting down means that the heckler decides. But the problem -- the difference I would make is as in this case where those people not only are shouting but they are taking some physical act to interfere. The next question is really the hardest one I'm sure but I don't think we reached it yet in this case. If the speaker is shouted at in bad taste and without allowing him to have his First Amendment right to speak, we don't have that here because what we have here is a physical threat. But it's ominous in those other cases that I've just mentioned. And what happened is, the police decide that because the speech by its nature which is provoking, using provoking now in the other sense that is annoying causing dissent. As soon as that happens and people don't like it and they get violent, the more violent they get, the more right they have to suppress and terminate the speech and that's why we use the term that we think was aptly coined by Professor Kalven at the University of Chicago in his book, The Heckler's Veto. And we think that the Heckler's Veto is what happened here. Now, we think therefore that there's the -- what's lacking is the invective. What's lacking is the effort to arrest and disperse and what's lacking is the obligation to protect the right to speak. Now, we're not here simply to tear down something and to say again that this is a case in which an arrest in not adequate, the conviction is not adequate. I think that perhaps there are some obligations to suggest something positive and I think that in drawing a narrow ordinance as the court has asked for many times, it's possible to do so. Now, the city argues that the construction below is such a narrow construction and they say that you're bound as the Illinois Supreme Court read the ordinance to take it as though that's how it was written. But in writing it that way and that's the last page of our certiorari petition where the appendix sets out the opinion at page 16 (a), 15 and 16 (a). What's missing there is anything, anything at all by the speakers. It's all imputed to them by the violence of other people. Now, for an ordinance were written and I don't tend to be addressed with this. I just put down some thoughts that said something like this. A disorderly conduct is that doing of and act where the use of speech or other conduct which includes invective fighting words -- I'm trying to use some of the kinds of things that we've taken for some judicial meaning for, which includes invective or fighting words or gestures that are menacing or otherwise invite violence with the intent to cause public disorder then he can be guilty. But none of those elements are here. What we have only are instead, -- not our, what we only have singly is when the policeman who has attempted to protect goes up and -- came quietly and politely and responsibly says leave because there's going to be violence. If you don't listen to him under the Illinois Supreme Court's reading of the ordinance then you suddenly become guilty. He becomes the arbiter, and charge in the whole thing, even if he is acting a good faith. But he has made a mistake here in not trying to stop the violence against the demonstrators. So I think that an ordinance can be drafted, I'm not suggesting that we're looking for some system that's chaos at all. An ordinance can be drafted to accomplish this purpose.
Hugo L. Black: Which purpose?
Marshall Patner: To control Your Honor the speaker who would invite violence directly by his own action not by his use of free speech, not by his own unpopularity but if he would threaten in some way. If he would invite someone to take up arms, taking Fainer as the majority took it. That is what should be prohibited and that can be done by a narrow ordinance.
Hugo L. Black: May I ask you whether your objection to this conviction here is based on the fact that there was no law in the City of Chicago which they charged him with violence or that there was a law but it somehow is unconstitutional?
Marshall Patner: Your Honor it's on the latter, it's that the disorderly conducts -- I mean as applied, it's the disorderly conduct ordinance which is unconstitutional.
Hugo L. Black: Why?
Marshall Patner: Because it's vague. It doesn't tell the person in advance whether or not he can march as construed by the Illinois Supreme Court on the spot. It gives the power to the policeman to determine whether or not he may march when all the time his conduct is peaceful. His speech is protected and he has never used invective or invite -- an invitation to violence.
Hugo L. Black: Well than what does that have to do with the constitutional point that you were saying? The speech was not -- was what you call peaceful, that is he wouldn't -- shaking his fist to anybody or hitting them?
Marshall Patner: That's right, so that it was protected, and as such, he should not have been -- he -- neither he nor his followers should have been convicted.
Hugo L. Black: Are you taking the position that the law is unconstitutional --
Marshall Patner: Yes, sir.
Hugo L. Black: -- because the state has no power to stop people from marching by thousands or hundreds in any section of the city it wants to on its streets. Are you taking the position that the law is unconstitutional because it's too vague and uncertain?
Marshall Patner: The latter Your Honor.
Hugo L. Black: There's a big difference to me.
Marshall Patner: Yes, sir. The latter. Now, in the former -- I think that we've seen that that marches of any size can be orderly. Washington has a march of the greatest magnitude that was orderly. I don't think it's the size. Now we've asked the court to look at an article which we filed that appears in a speech journal by Professor Heyman which talks about that specifically, it's an indictment -- an excellent rendition of the conflicting interest there and he says that the mere size of the crowd and I think he documents it well, the mere size of the crowd doesn't change in anyway their rights.
Hugo L. Black: Got no relevance here?
Marshall Patner: Yes, sir. If they are silent, if they are under police surveillance and if they are orderly.
Hugo L. Black: So you mean that size of the crowd which is marching around in the city, well, you have said at night has nothing to do with it?
Marshall Patner: If they are --
Hugo L. Black: Or where they're marching?
Marshall Patner: Each of those things would be relevant. If why they're marching is under the free speech and if their conduct is the kind that is protected and if that is -- I'm sorry, is not invective, is not invitation to violence if -- it may not be popular but if it's not invective or invitation.
Hugo L. Black: Suppose they're just marching around and around the mayor's home and silent, perfectly silent but they're marching around and around his home all night. What would you say about that? Does a state have power to stop that?
Marshall Patner: I think not sir.
Hugo L. Black: You think not?
Marshall Patner: I do sir.
Hugo L. Black: Suppose they were to march around the home of a justice of this Court because of -- in his decision?
Marshall Patner: Well, there are --
Hugo L. Black: -- round and around all night, 500 of them.
Marshall Patner: Well there, are they --
Hugo L. Black: Is there a constitution, permits the state from stopping that?
Marshall Patner: There I think Your Honor the -- there's a good case from New York that works that out, the Levener case which we've cited, L-E-V-E-N-E-R.
Hugo L. Black: I should work it out. Do you think it -- what I want to know is, are you taking your position here that the state is without power to stop that if it wishes?
Marshall Patner: No. I think the state could stop it if it wishes as they did in Cox where they said that you couldn't march at the courthouse door.
Hugo L. Black: Well then I understand it if you're saying if it was a narrow statute -- a statute narrowing the drum precisely hitting it, you do not claim that the state is without power to stop this marches of hundreds of people.
Marshall Patner: Yes, sir. Under those narrow circumstances and in certain areas within public policy.
Hugo L. Black: Well, why would it have to be certain areas? That's getting down to the question of policy.
Marshall Patner: There --
Hugo L. Black: Why does it have to be certain areas?
Marshall Patner: I think Your Honor that the -- if the legislation that you've outlined were to include for example the area along the park, that -- it would clearly be banned.
Hugo L. Black: Why would it clearly be banned?
Marshall Patner: Because --
Hugo L. Black: Who owns the park?
Marshall Patner: The public.
Hugo L. Black: Well, who owns it? Who is the public?
Marshall Patner: The Government.
Hugo L. Black: That's their -- the Government represents them.
Marshall Patner: That's right sir.
Hugo L. Black: So you take the position that the state is without power to dedicate that park to the purposes it wishes to dedicate it to?
Marshall Patner: As long as they don't conflict with the First Amendment rights.
Hugo L. Black: Well, but you would -- would you say the First Amendment permits them, utilizing the park for purposes other than speaking and marching around if they wish to?
Marshall Patner: I'm sorry. I think if I understood you correctly. The park is basically for use of general park area but it also has become a forum for -- for speaking and a forum for demonstrating but it must be -- it must to not invite violence.
Hugo L. Black: Can become a forum but do you mean, the state creates the park and do you claim that the state is without power to say what it should be used for?
Marshall Patner: It's -- it's without power that could be is -- used in excess or arbitrarily. That's where the Cox case --
Hugo L. Black: -- it is beyond my comprehension. Arbitrary means nothing to me except but the people who are passing on the law wanted to mean. So I'd rather you discuss it without using the word arbitrary.
Marshall Patner: Alright sir, in this way if we begin for example with Cox where the prohibition was to march under the court while the court had its business. Now that -- the state certainly has the right to do because there's an interference with that kind of business. But we work away from that and when we get to the point where the only reason for regulating is to stop the demonstrating then sir, I would use the term arbitrary or I would say that it was an excess of the power of the Government to make such a prohibition.
Hugo L. Black: You mean if it was aimed to a certain demonstrator and not aimed at all?
Marshall Patner: No. It wouldn't be a problem of equal protection --
Hugo L. Black: It is not a problem of equal protection.
Marshall Patner: Not in that light sir.
Hugo L. Black: What you're saying then is that the state is without power to regulate its briefs so as to permit them to be used only for the purpose of legitimate troubling.
Marshall Patner: Yes, sir. I think so as in the case of Selma March where as long as there can be legitimate --
Hugo L. Black: With it (Inaudible) against it, did they?
Marshall Patner: Well it was --
Hugo L. Black: They didn't have it -- the state hadn't attempted to pass a law against them.
Marshall Patner: No, sir. But -- but if there -- the law was passed and prohibited in all circumstances, I think it would be bad because it has been approved in the Selma March but the police can limit the way it's done.
Hugo L. Black: Do you mean that the state is without power to take a public highway which is necessary for the public good, an interstate highway that the state without power to prevent that from being marched up and down for a hundred miles by the people?
Marshall Patner: Well, if they stock -- if they marched in the road with high speed traffic, I think under then -- under the police power, that would be perfectly fair for the Government to prohibit it. But we have learned --
Hugo L. Black: You have to get a whole army to protect them, wouldn't you?
Marshall Patner: Yes, sir. That's in excess. But we have -- we've learned that you can do less than that and have such a march for long distance by marching in the shoulder or in one lane according to reasonable limits.
Hugo L. Black: Well, I'm not talking about what the state should do or what the Government should do. I'm talking about what it is powerless to do. Would you say that on the circumferential highway here that this Government is without power to keep people from marching and demonstrating on that highway by the thousands?
Marshall Patner: Oh, no. Not in that kind of highway because there you even have the prohibition of bicycles, individuals walking and the marching does not exceed that kind of thing which is a safety kind of regulation.
Hugo L. Black: But here as I understand it, you are complaining that the state has no law against it, which can cover it unless you are far vague in uncertain statute which cannot be narrowly limited to the thing they want to protect.
Marshall Patner: As now written and as construed, that's exactly my position sir. Thank you very much.
Earl Warren: Mr. Simon.
Raymond F. Simon: Mr. Chief Justice and members of the Court. 300 years ago in Cox versus Bernard, sir John Paul said, “Let us consider the reason of the case for nothing is law. That is not a reason. If there's a single threat that's woven into every decision of this Court, it's that there's a norm of reasonableness that causes the weight of opinion to shift from side to side as this Court attempts to balance individual rights in societies need for peace.” In the instant case, there are 12 very cogent reasons to support the city's position. The expression of speech is in the form of a march. The march is in a residential community, the picketing by the marchers is at the home of a public official. The public official in this case, the Mayor of Chicago has an office which is well-known and easily accessible. The petitioners demand the mayor, fire the superintendent of schools, an action clearly beyond the jurisdiction of the mayor. The petitioners in speech and placard called the mayor a snake and petitioner Gregory threatened to march in the mayors' home everyday until he fire the Superintendent of Schools. A hundred police protected 60 to 85 marchers. The march covered between five and five and a half hours through the evening rush hour and after darkness had fallen. A seasoned commander of police in the face of a sudden increase and the number of threatening hostile spectators, fearing that a riot would occur because the spectators had gathered at 35th in union -- 35th in Lowe and 36th in Union. Each group numbering well over a thousand, angry during threatening spectators throwing rocks and eggs, shouting, “Get out of here and let's get at them.” In the face of a situation which a seasoned commander of police said, he was afraid that it would lead to a riot. He apprised petitioners of his apprehensions and asked for their cooperation by terminating the march and he was refused the way he asked them several times after warning that if the march --
Hugo L. Black: -- depending on the policeman's order, I guess.
Raymond F. Simon: I beg your pardon Mr. Justice Black.
Hugo L. Black: That's depending only on the policeman's order?
Raymond F. Simon: No. Certainly not only in part of it, Mr. Justice Black.
Hugo L. Black: One of them has raised -- would be a law.
Raymond F. Simon: Yes, there is a law Mr. Justice Black and we depend on it and we depend principally in this case upon the fact that the police commander acted in the face of an incipient riot to preserve order.
Earl Warren: Was there any -- was there any violation of law before the police gave that order?
Raymond F. Simon: In our opinion Your Honor, these facts have to be considered in their totality to understand the reason --
Earl Warren: Oh, I didn't ask for that sir. I asked you if there was any violation of law before the police gave that order you have just told us about.
Raymond F. Simon: We have to contend Your Honor that the answer is no that the violation of the law occurred when the commander of police requested the marchers to desist in the face of an incipient riot situation and they refused.
Earl Warren: Yes, that's what thought.
Byron R. White: At least that's what -- at least that's what they were convicted for.
Raymond F. Simon: That's correct Mr. Justice White.
Byron R. White: And in fact the -- there might have been -- you don't contend then on this case that the city or the state is relying on any flat ban of marches in residential districts?
Raymond F. Simon: No. We -- we don't --
Byron R. White: And some marches in residential districts are alright.
Raymond F. Simon: We do not depend on it but we seriously question the wisdom of residential.
Byron R. White: Well, if that's -- there is no ordinance, I gather in Chicago.
Raymond F. Simon: Today there is a state statute in Illinois existing Mr. Justice White. It was not in existence at the time of these convictions.
Byron R. White: And nor was any other statute or ordinance which ban much as at residential districts.
Raymond F. Simon: That's correct Mr. Justice White.
Byron R. White: So you must rely on --
Raymond F. Simon: The disorderly conduct ordinance.
Thurgood Marshall: Can you point to me in the record, any action at any time that the police officials took against these thousands of people?
Raymond F. Simon: Yes, Mr. Justice Black. The record is replete with instances of that nature.
Thurgood Marshall: Like what?
Raymond F. Simon: The police closed all the taverns in the immediate vicinity. The police made the spectators stand on the opposite side of the street. The police would not permit young children with signs supporting the mayor from joining the march. The police took a neighborhood person who stood in front of the march to stop it and remove that person. The record shows that persons were standing --
Thurgood Marshall: They removed -- wait a minute. They removed one, is that all?
Raymond F. Simon: That's all what was in front of the march at that point Mr. Justice Black.
Thurgood Marshall: Did they remove any others?
Raymond F. Simon: Mr. Justice Marshall, I apologize.
Thurgood Marshall: Did they remove any others?
Raymond F. Simon: Mr. Justice Black, the record shows that persons were standing in their doorway and the police --
Thurgood Marshall: Did they remove any others or the people that were chanting and yelling and committing acts of disorderly conduct?
Raymond F. Simon: They didn't arrest any person --
Thurgood Marshall: Who were --
Raymond F. Simon: -- Mr. Justice Marshall.
Thurgood Marshall: Who were disorderly and violating the ordinance against this only conduct --
Raymond F. Simon: Well, there is --
Thurgood Marshall: -- where any -- was one single man arrested for disorderly conduct on the other side?
Raymond F. Simon: No, Mr. Justice Marshall. No person was arrested nor was there any showing that there was the violation of disorderly conduct.
Thurgood Marshall: Well, is throwing of rocks disorderly conduct in Illinois?
Raymond F. Simon: Certainly -- certainly the record shows that the police did everything they could to identify the person.
Thurgood Marshall: Did they arrest anybody?
Raymond F. Simon: No, but the record points out --
Thurgood Marshall: They didn't even --
Raymond F. Simon: -- they made every effort to identify them and the commander of police ordered that they be arrested --
Thurgood Marshall: But they did they arrest --
Raymond F. Simon: -- if they could be identified.
Thurgood Marshall: -- the one man that deliberately violated the rule by marching across --
Raymond F. Simon: Mr. Justice Marshall --
Thurgood Marshall: -- in front of everybody else.
Raymond F. Simon: When he was asked to remove himself, he cooperated with the police.
Thurgood Marshall: Well, I thought you said you pushed him back.
Raymond F. Simon: No, not in the instance where he was standing in front of the marchers.
Thurgood Marshall: Well, wasn't --
Raymond F. Simon: Mr. Justice Marshall, you're --
Thurgood Marshall: -- one pushed back.
Raymond F. Simon: You're alluding to --
Thurgood Marshall: Was the one pushed back?
Raymond F. Simon: Several were thrown back when they would come through the police line.
Thurgood Marshall: Have they violated the disorderly conduct law by coming through the police lines?
Raymond F. Simon: Well, that's not an issue in this case --
Thurgood Marshall: Were they?
Raymond F. Simon: -- Mr. Justice Marshall.
Thurgood Marshall: -- well, if they were, weren't they for they were not arrested?
Raymond F. Simon: I think it is a -- judgment of the police whether that was disorderly conduct, whether they were trying to cross the street because they lived in the community. These were residence of a community whether they wanted to get closer to shout their opinions at the marchers. The police thought that it was the best way of maintaining order to take the neighborhood people and make them stand back up in the sidewalk and they did that consistently.
Thurgood Marshall: So, it's up to the police?
Raymond F. Simon: No, I'm not saying it's up --
Thurgood Marshall: When two people --
Raymond F. Simon: -- to the police, it's up to --
Thurgood Marshall: When two people are guilty of what you called disorderly conduct, it's up to the police to which side he shall arrest?
Raymond F. Simon: In an effort to maintain order Mr. Justice Marshall, the police have to make these determinations.
Thurgood Marshall: Well, I would assume --
Raymond F. Simon: This was in the face --
Thurgood Marshall: -- that would be much easier to arrest the smaller group than the larger group, wouldn't it?
Raymond F. Simon: Mr. Justice Marshall, the record shows that this was no ordinary situation. This was an incipient riot. The dangerous condition was acknowledged by counsel for the petitioners. We don't contend that the police could not have arrested some or all of the spectators and have made legitimate arrest. What we contend is that in the face of an incipient riot situation, the decision of a commander of police where everything in the record points to as high professional qualifications where there is that one shred of evidence indicating antagonism toward the marchers that this decision has to be given great weight.
Thurgood Marshall: But does the court have to convict? Assuming that the police made a judgment that it's better to arrest these people who are not shouting or throwing rocks or anything rather than to arrest those who are shouting and throwing rocks and you say the police have a right to decide which one is to arrest. Well, even on that assumption, the court doesn't have to convict them.
Raymond F. Simon: Only if they believe that the reasonable or only if they believe the order of the commander of police should have been obeyed by them, the way it was obeyed --
Thurgood Marshall: So they arrest them now for disobeying the order of the police?
Raymond F. Simon: No, Mr. Justice Marshall. That's not what I'm contending at all. I'm contending that under the circumstances when a riot was imminent after the march had gone on for five and a half hours when the marchers were calling the mayor as snake and screaming that he should fire the Superintendent of Schools. We're contending that in the essence, the petitioners were the hecklers and that the police did everything they could possibly do to protect them and in order to avoid a riot, they have a right --
Thurgood Marshall: But they say --
Raymond F. Simon: -- to maintain the order.
Thurgood Marshall: -- anything went -- were they yelling snake when they were arrested --
Raymond F. Simon: No.
Thurgood Marshall: -- or anything like that?
Raymond F. Simon: No, they were yelling snake for approximately 45 minutes earlier.
Thurgood Marshall: And they weren't arrested.
Raymond F. Simon: That's correct.
Thurgood Marshall: And the police were there and the system corroboration council was there. All the law and order was there and they said nothing about it at that stage.
Raymond F. Simon: That's correct Mr. Justice Marshall and the reasonableness of that lies precisely in this, between 9:00 and 9:30 the records shows a sudden increase in the number of hostile threatening spectators. The police sergeant said, they seem to be coming from everywhere. The number at 35th in Lowe was well over a thousand. At 36th in Lowe, it was well over a thousand. The commander of police was apprehensive that a riot would occur if there were not these circumstances, he would never have asked the petitioners to desist their march. The city was determined to resolve all doubts in favor of freedom of expression. In the Fainer case as you alluded to Your Honor, on fireless compelling facts and the instant case where we have an incipient riot, this Court said, the police do not have to proceed against the crowd no matter what at size of temper in order to satisfy constitutional demands.
Abe Fortas: Mr. Simon, apart from a -- what maybe a very reasonable response in the circumstances on a human basis, a problem that we have of course is a problem of law and is it Municipal Code of Chicago, Section 193-1, is that the one that's -- under which these petitioners were convicted?
Raymond F. Simon: Yes, Mr. Justice Fortas. That's correct.
Abe Fortas: And would you turn to that and tell us the specific clause that is applicable here.
Raymond F. Simon: I appoint to the first two sections. All persons who shall make aid, countenance or assist in making any improper noise, riot, disturbance, breach of the peace or diversion tending to breach the peace --
Abe Fortas: Alright, now, let me ask you. Is it the city's contention that the convictions here are based upon any provision in that part of the code?
Raymond F. Simon: Yes.
Abe Fortas: Which one?
Raymond F. Simon: Yes. The first -- the entire first and second sections.
Abe Fortas: Well, they made -- you don't say that they made improper noise?
Raymond F. Simon: Well, Mr. Justice Fortas, I have to answer the question in this manner. The Supreme Court of Illinois, the highest reviewing court of the state said that, “Disorderly conduct occurs when there are five conditions present.” When there is an imminent threat of violence when the police have done everything they can reasonably do to protect the demonstrators. When they request the demonstrators to stop and for when they explained the reason for making the request, and when the demonstrators refuse -- now, we contend --
Abe Fortas: And that's the way they construe this section?
Raymond F. Simon: Yes, and we contend --
Abe Fortas: And we don't know if its up --
Raymond F. Simon: -- that what we we're reviewing in this Court is not this section but it's the decision of the Supreme Court of Illinois which interprets this section to mean those five things.
Abe Fortas: Well I -- when I look at this through -- as I must through the window of the First Amendment, I have a little problem because of the -- I could understand that that might -- the Supreme Court of Illinois might conceivably, I don't know whether it would be proper or not by conceivably advance that as a common law definition of breach of the peace if there is such thing. By looking at this statute, it seems to me that the base of this record, it's arguable that the applicable provision is the following and the only applicable provision that it is a misdemeanor that those -- all persons commit a misdemeanor who shall collect in bodies or crowds, for any purpose to the annoyance or disturbance of other persons. That's arguable if that is the applicable provision here, isn't it?
Raymond F. Simon: It is indeed the gist of the petitioner's argument.
Abe Fortas: Now, can you look at -- looking -- forget it, for the moment about the -- what you say is the construction of the Supreme Court of Illinois. Is there -- did these people make an improper noises, riots, disturbances, breach of the peace or diversion tending through a breach of the peace. Did they?
Raymond F. Simon: Well, Your Honor --
Abe Fortas: Because you said he is so charged.
Raymond F. Simon: Your Honor, we did. Yes, indeed we charge both of these sections.
Abe Fortas: Well, would you tell me what there is in the record that supports any of those specific provisions in the code?
Raymond F. Simon: Well, let's repeat the recitation of calling the mayor snake in front of this home, in front of his neighbors.
Abe Fortas: I see. Now, what is that, an improper noise?
Raymond F. Simon: I think all of these would be action tending toward -- to a diversion, constituted diversion tending to a breach of the peace.
Abe Fortas: Well, I see your approach to this and --
Raymond F. Simon: No.
Abe Fortas: You can understand the problem that I'm raising, I'm sure.
Raymond F. Simon: I certainly can Mr. Justice Fortas.
Abe Fortas: Because on this record, it certainly at least arguable.
Raymond F. Simon: It is but --
Abe Fortas: And if you look at the specific provision of the language, the only provision that's applicable is the one that makes the crime for persons to collect in a body or crowd to the annoyance or disturbance of other persons and perhaps that -- if that would -- if that were the case here, I suppose you had agreed that that would present a very substantial constitutional --
Raymond F. Simon: Only if the court --
Abe Fortas: -- problem under the decisions of this Court.
Raymond F. Simon: Only if the Court were not to adhere to Winters versus New York where this Court said that the construction given to statute or ordinance by the highest reviewing court of its state is as much apart as if it were specifically written in and where the court said that a defendant is as chargeable with a subsequent judicial decision as he is by knowledge of the --
Abe Fortas: I'm lost, I am entirely -- I'm entirely familiar with that. I'm sure you're aware --
Raymond F. Simon: Yes.
Abe Fortas: -- but there is a problem here because of the way the statute is --
Raymond F. Simon: Well, that's the issue. That's the issue Mr. Justice Fortas.
Potter Stewart: Mr. Simon, the -- these five elements that you've catalog in answering my Brother Fortas' question, are those that appear on page 33 of your brief I guess, are they not? And are taken from the opinion of the Supreme Court of Illinois this very case as appears on page -- they excerpt on page 28 and 29 of your brief --
Raymond F. Simon: Yes, Mr. Justice Stewart.
Potter Stewart: -- is that right?
Raymond F. Simon: That's correct.
Potter Stewart: Was there any foreshadowing of this construction of the ordinance in any previous Supreme Court of Illinois cases?
Raymond F. Simon: Not in the narrow construction which is applied here, no, nor in the specific language. However, the Illinois Supreme Court has pointed out as is noted underneath that the courts leave to the pleader the specific facts which would bring the ordinance within operation and it should be construed in the light of the facts which are charged as a violation of disorderly conduct and not by speculation of facts which might be utilized in the prosecution.
Potter Stewart: How about this case of Chicago against Joyce back in 1967. There is no foreshadowing of this judicial construction of the ordinance in that case, was there?
Raymond F. Simon: By foreshadowing Mr. Justice Stewart, no. The specific language in this Gregory versus City of the Illinois Supreme Court is not foreshadowed in any of the preceding cases. It's an excellently written narrow compact determination of what disorderly conduct constitutes in this context but it's not a decision based upon a number of previous precedents. Mr. Justice Stewart is correct in that observation.
Byron R. White: Well, do you --
Potter Stewart: You're of course on sound ground so far as the decisions of this Court go in such cases as Winters and in Cox against New Hampshire that a construction in a very case in which the conviction is affirmed by the Supreme Court of Illinois is efficient to remove the vagueness from the statute but those decisions are always underneath somewhat and I wondered if there was any foreshadowing and you'd tell us that there was none.
Raymond F. Simon: Yes. In a very scholarly article that's written by Professor Cayman. This Court has furnished the background of the events which led to this march. Professor Cayman points out that for almost everyday for four months, there were marches from Buckingham Fountain in Grant Park to City Hall where the Mayor's office is. He points out further that on several days proceeding August 2nd and 10 days subsequent to August 2nd, the day in which the petitioners were arrested for disorderly conduct. Mr. Gregory led similar marches around the mayor's home without significant event. The decisions of this Court also recognize that the existence of an organized society, maintaining the public order is a necessary condition for the exercise of constitutional freedoms. Without that organized society maintaining public order, no freedom can be exercised. If the police commander had made a miscalculation in these circumstances, the results could have been disastrous. We've seen --
Byron R. White: Well, absent to narrow construction -- narrowing construction by the Supreme Court of Illinois, would you still urge affirmance here?
Raymond F. Simon: Well, I'm fully aware of the previous decisions of this Court, construing disorderly conduct ordinances and I would be hard pressed to argue the naked language of the city ordinance without those decisions.
Byron R. White: Would you argue that no matter how big your broad statute might be, the disorderly conduct statute might be, the conduct that Mr. Gregory engaged in was clearly within the statute that anybody would have recognized that this kind of conduct would have been covered by the statute even though there might be some other conduct that might be on the fringe and unrecognizable as --
Raymond F. Simon: Well, Mr. Justice White, certainly we wouldn't contend you could convict him in for an unconstitutional ordinance.
Byron R. White: No, but I am asking, do you say that this conduct was so clearly violative of this general language as to be in the core of the statute.
Raymond F. Simon: Yes, I'm sorry Mr. --
Byron R. White: You would have urged I suppose --
Raymond F. Simon: To avoid a riot Mr. Justice White. And the danger of the situation is really agreed to by both parties to avoid a riot, the decision of the commander of police must be given great weigh and specially where there is no hostility shown in the record nor of course there's any exist as far as the commander's attitude toward the demonstrators where all of the evidence shows, this man was on the Police Department for 33 years. He was of a rank of both captain when he was apprehensive, when he was afraid a riot would occur, the petitioners ought to have cooperated with his reasonable request.
Thurgood Marshall: Mr. Simon, what protection does a small minority group have in the community where the majority are opposed to and insofar as that minority is right of freedom of speech is concern under the rule you have just mentioned?
Raymond F. Simon: Their protection Mr. Justice Marshall is that, the police must make every reasonable effort to restrain the spectators.
Thurgood Marshall: Like what?
Raymond F. Simon: Well, as I recite it. Making them stand on the opposite side of the street, keeping them up on the sidewalk, not permitting them to join the march, getting them into their house, removing a sprinkle from the sidewalk.
Thurgood Marshall: As of today, the same people that were convicted here will never be able to march in that area?
Raymond F. Simon: No, certainly not Mr. Justice Marshall. It's absolutely not true and that it's not the contention here and on several days preceding and on 10 days subsequent. Mr. Gregory did lead the march around the same area without incident.
Thurgood Marshall: Well, if tomorrow they march out there and the same size group shows up, they'll have to stop marching.
Raymond F. Simon: Absolutely no. Only if there's an incipient riot and that means --
Thurgood Marshall: Well, if the same size --
Raymond F. Simon: -- that the police have no advance notice, --
Thurgood Marshall: -- same size--
Raymond F. Simon: -- the police have not had an opportunity to marshal adequate police there.
Thurgood Marshall: If the same size group with the same rocks and eggs show up, the march is over. Freedom of speech is gone.
Raymond F. Simon: That's not so Mr. Justice Marshall. Only if --
Thurgood Marshall: Only if we uphold this decision.
Raymond F. Simon: Only if there is a riot. Only if there is a riot which is so incipient that the commander of police feels that the public order has to be maintained. Mr. Justice Marshall, if the commander of police made an error and a riot occurred more rights than freedom of speech would have been involved in this case, the lives of demonstrators, marchers and police would have been in jeopardy. It's because of a riot situation. Not because the ease of ushering out 65 rather taking on what is estimated in the record by one party to be approximately 4,000 people. Clearly, groups of 1200 at two separate locations --
Thurgood Marshall: Well, it depends on who is the more disorderly and the more violent. When two groups confronting each other, it depends on which one is the more disorderly, the more lawless and the more violent.
Raymond F. Simon: Well, I don't --
Thurgood Marshall: They win.
Raymond F. Simon: I don't think that that is a fair --
Hugo L. Black: But if one, if one --
Raymond F. Simon: -- fair characterization of the city's position Mr. Justice Marshall. We have seen how ill-advice arrest in a tavern in Detroit or for a traffic offense in Watts has had disastrous consequences for Detroit and for Los Angeles. The commander of police --
Hugo L. Black: But the constitution Mr. Simon permits one group to march down the street, advocating its view, thus the constitution permit another group advocating the opposite view to march down the same street?
Raymond F. Simon: In an effort to preserve order --
Hugo L. Black: I'm not talking -- I'd say there's a constitution to permit one to march to advocate his views and not permit the other one.
Raymond F. Simon: Yes. No, I beg your pardon. I was answering your first question. The constitution permits --
Hugo L. Black: But isn't the Act --
Raymond F. Simon: -- both sides to march and express their views.
Hugo L. Black: Given the answer to that, that when you permit large groups to march down the street, others who are emotionally concerned on the other side are likely to march down the street --
Raymond F. Simon: I think its --
Hugo L. Black: -- and don't you create situations at all the time that are likely to cause riots?
Raymond F. Simon: Well, Mr. Justice Black, I don't know that they're likely to cause riots but they are certainly are dangerous situations.
Hugo L. Black: Well, what -- why are they not if there are -- two are -- opposite one another injuring and stating opposite emotions (Voice Overlap) --
Raymond F. Simon: We've always taken the position in Chicago that we have a right to make one group march in one street and another group march in another so they don't clench --
Hugo L. Black: Oh, and like -- how can you regulate them like that if you can't regulate them? You're going to let one have a better place that the other?
Raymond F. Simon: No, we usually let the one that's there first march on that street.
Hugo L. Black: Has Chicago yet passed any -- has Chicago or the state yet passed any law?
Raymond F. Simon: Yes.
Hugo L. Black: I mean the kind of law that this Court has been admonishing must be passed in this field for years in narrowly drawn, nondiscriminatory statute acting on the assumption in the state does have a right to control marchers on its streets and demonstration. Has it drawn one like that yet?
Raymond F. Simon: The State Legislature has adopted a statute prohibiting residential marching. The City --
Hugo L. Black: -- is that to all --
Raymond F. Simon: Yes.
Hugo L. Black: -- nondiscriminatory?
Raymond F. Simon: Yes.
Hugo L. Black: It has done that.
Raymond F. Simon: Yes.
Hugo L. Black: Well that -- to that extent, meets it seems that they are taking note of the fact that this Court in case after case have said, statutes must be narrowly drawn in this field to meet a particular situation hanging.
Raymond F. Simon: And Mr. Justice Black, we --
Hugo L. Black: I'm glad to hear that.
Raymond F. Simon: We have amended our disorderly conduct ordinance to reflect this narrow construction of the State Supreme Court also. Abraham Lincoln said 150 years ago that the world is -- has never had a good definition of the word liberty and that the American people just now are very much in want of one. He said, “We all declare for liberty but when we use the same word, we do not all mean the same thing by it.” And Professor Paul for in writing specifically on the topic of civil liberties said, “Not only to civil liberties vary in their quality but in many cases that is far from clear with which side the entrance of civil liberties are to be identified.” Your Honors, for five and a half hours on a hot August day, petitioners exercised their right of free speech. They call the mayor a snake. They demanded that he fire the Superintendent of Schools. They came across loud and clear as the record indicates they could be heard over a block away. They had been in the immediate residential area for an hour and a half. Many of the angry, threatening spectators were life long friends of the Daley family and residents of the community. It had the police commander ordered them to disperse they could have at least deserved an equal right to be at 35th in Lowe. When the commander explained his apprehensions of other riots in Mr. Gregory and asked for his cooperation in terminating the march, he refused. He said he would march for an indefinite period of time. He seemed determined that he would march until he was removed by the police or by the crowd.
Earl Warren: Were they saying these things at the time they were arrested?
Raymond F. Simon: No, Mr. -- no, Mr. Chief Justice.
Earl Warren: How long before that did they quit?
Raymond F. Simon: They quit at 8:30 and they were arrested at 9:30.
Earl Warren: I understood you just say a little while ago then that there was no violation of law prior to the order of the commander to disperse.
Raymond F. Simon: That's our contention in this case Mr. Justice --
Earl Warren: Alright. Well, now what was the disorderly conduct if they were engaged in at the time this thing happened, not an hour before but on or about the time this thing happened? What were they doing that was --
Raymond F. Simon: Precisely in the language of the Illinois Supreme Court, a breach of the peace was imminent. The police had protected them for as long as they could. They asked them to desist. They explain why they wanted them to desist and they refused. Therein lays the city's contention of the disorderly conduct.
Earl Warren: Did these marchers have in mind what the Supreme Court might say in this case?
Raymond F. Simon: In -- in the Winters' case, this Court pointed out that they are as chargeable --
Earl Warren: No, I'm asking about the interpretation of your statute.
Raymond F. Simon: In -- indeed Your Honor. The legal answer is yes that they are as charged with subsequent judicial determinations as they are with knowledge of the law itself.
Earl Warren: I -- I thought you said to Mr. Justice Stewart that there was no pre-warning that this would be the interpretation of the statute by the Supreme Court.
Raymond F. Simon: Oh, no. No, I was answering Mr. Justice Stewart that no previous decisions --
Earl Warren: That's what I --
Raymond F. Simon: -- before the Supreme Court decision in the Gregory case had held that but we --
Earl Warren: That's right. That's all I was asking.
Raymond F. Simon: Yes.
Earl Warren: That's all.
Raymond F. Simon: That's correct.
Earl Warren: Yes.
Raymond F. Simon: Mr. Justice Warren, the record shows that after legal consultation, the commander of police reluctantly placed them under arrest after all the facts and circumstances which have been pointed out in the argument. We contend the action of the police was professional and competent and reasonable and lawful. And we urge this Court to affirm the unanimous decision of the Illinois Supreme Court.
Earl Warren: I see that you have -- yes, you go to the next case. I think you'd finished -- you'd used your time up Mr. Patner.
Marshall Patner: Thank you very much, sir.