William H. Rehnquist: We'll hear argument 99-1702, the State of Texas, Petitioner, v. Raymond Levi Cobb. I have misplaced my... here we go. Mr. Coleman.
Gregory S. Coleman: Mr. Chief Justice, and may it please the Court: Before Raymond Cobb confessed to murdering Maggie and Korie Rae Owens, he was more than once meticulously informed of his right to counsel and the consequences of his choice to waive that right. His confession was properly admitted at trial and should not have been rejected under Jackson, because Cobb's Sixth Amendment right to counsel had never attached to the murders and therefore did not need to be waived, or, alternatively, because Cobb validly waived whatever Sixth Amendment right to counsel had attached. Applying McNeil's rule of offense specificity to exclude factually related but uncharged crimes from the scope of Sixth Amendment attachment is true to and, we think, required by both the text and the purposes of the Sixth Amendment. In evaluating attachment, the court is interpreting the Sixth Amendment terms, criminal prosecutions and the accused, and for decades this Court has consistently interpreted that text to limit attachment of the Sixth Amendment right to counsel to the formal initiation of judicial criminal proceedings. Indeed, setting aside Escobido--
Ruth Bader Ginsburg: Mr. Coleman, do I understand from what you just said that if everything had occurred in Walker County, if there had been no moving of Cobb to Odessa, no bail, everything happens in Walker County, and Ridley is appointed to represent Cobb, the Walker County law enforcement personnel never consult Ridley before interrogating Cobb repeatedly, it would still be, in your view, no violation of any Sixth Amendment right; is that correct?
Gregory S. Coleman: --The fact that the interrogation occurred in Odessa makes no difference, you're exactly right. If Ridley had been appointed on the burglary and had not yet been appointed on the murders because there had been no indictment, the police were free to interrogate Mr. Cobb.
Ruth Bader Ginsburg: So what the police did was something they didn't need to do. In other words, the police did twice call Ridley while he, while Cobb was still in Walker County.
Gregory S. Coleman: That is correct.
Ruth Bader Ginsburg: Twice called him and said, is it okay if we question your client, and Ridley said yes both times, but that was something extra the police did they were not required to do, in your view?
Gregory S. Coleman: That's correct. I don't think that they were obligated to do it. I don't think that they called. I think the record indicated that, in fact, he was in court with Ridley when they asked if they could talk, and so he was there.
Ruth Bader Ginsburg: But in any event, they did tell him, we're going to talk to your client, is it okay, and he said yes?
Gregory S. Coleman: Yes.
Anthony M. Kennedy: Taking Justice Ginsburg's question a little bit further, suppose you have this situation: the counsel is there, they begin questioning him on the break in. The police then say, counsel, we'd like to see you outside a minute, and they go outside of the interrogation room and they say, counsel, you know, we're not interested in the stereo, we're interested in the murder. Could a responsible attorney say, oh, well, I'm not representing him on that, go back in the room, ask him all the questions you want? I would be amazed if an attorney could do that.
Gregory S. Coleman: I don't know if it would be a responsible thing to do, but the Court made clear in Davis that until there's been an initiation of criminal proceedings the Sixth Amendment constitutional right to counsel doesn't attach, so it would be poor practice, perhaps malpractice, but not a Sixth Amendment violation.
Sandra Day O'Connor: Well, a number of courts have come to the conclusion that where the two crimes arise out of the same conduct and are closely related, that you're going to go ahead and apply the Sixth Amendment requirement to the related but yet uncharged crime. Is that the majority view of lower courts today?
Gregory S. Coleman: I don't think that courts have established any kind of consistent test, but yes, most of the courts that have addressed this issue have said there is this test, although most of them have found that there is, in fact, no violation. It's a relatively small number that have found a violation. But we would go back and say that they're erroneous in applying that test at all, and as I was saying, Escobido aside, this Court has never, ever held that the Sixth Amendment attached prior to the initiation of formal judicial proceedings, prior to indictment or arraignment.
Anthony M. Kennedy: Well, under the hypothetical we were just discussing and the answer you gave to Justice O'Connor, I suppose the police could say, and we're now going to question him about that murder so we want you out of the room. You can't go back in that room.
Gregory S. Coleman: Under Moran that might be constitutionally permissible, but remember, the important aspect of the analysis is what happens in the room, because the defendant does have a Fifth Amendment right to counsel that he needs to be informed about, and he has an opportunity to waive that, so that would only happen if the defendant or suspect has actually waived his Fifth Amendment right to counsel.
Anthony M. Kennedy: That's true. What I'm concerned about is the possibility for some manipulation, if the police hold and charge on the lesser offense merely to bide their time until they begin questioning about the more serious offense.
Gregory S. Coleman: I'm actually very anxious, Justice Kennedy, to debunk this idea of abuse or manipulation, because when the police are doing an investigation, and they might be investigating a number of related crimes, once they have enough evidence to convict, admissible evidence to convict on one of them, there's certainly no problem with them bringing that charge. They have a serious societal interest in continuing to investigate other crimes, but if you compare that defendant who has had one crime charged against the defendant where they haven't brought any of the charges, once you charge that defendant he has the right to counsel that has now attached not only to the Fifth Amendment but also the Sixth Amendment, and our system ensures that that person will not only have a right to counsel but will relatively quickly actually be represented by counsel, who will then, of course, advise the client as to the charged offense and almost certainly as to the uncharged offenses and will say, don't talk to the police about this charged offense or anything else and, in fact, Mr. Ridley had given that counsel to Mr. Cobb. He simply didn't follow it. But I don't think--
David H. Souter: Well, that... that isn't the--
Gregory S. Coleman: --there's a real serious risk of manipulation.
David H. Souter: --As I understand it, that isn't the advice that he gave him. He... there's no indication that I know of that he gave him any advice that he should not talk to the police about anything else. He in fact said to the police sure, go ahead and talk with him about the murder.
Gregory S. Coleman: In September 1995--
David H. Souter: Is... just as a matter of fact, isn't that correct?
Gregory S. Coleman: --Yes.
David H. Souter: Okay.
Gregory S. Coleman: On two occasions he told the police to go ahead and talk to them. In September 1995, when Cobb was returning to Odessa, Ridley said, here's my card and my number. If the police try to contact you, call me.
Stephen G. Breyer: Well, the obvious problem is the person is accused, or the police think he kidnapped, murdered and raped a person, or they think he distributed drugs, you know, and my first example could involve three separate crimes, my second example could involve possession, a telephone count, a distribution count, and if there was more than one person a conspiracy, all right? So the police indict the person for one of those four, or two of them, and he gets a lawyer, and the next minute they turn around and start asking him questions. They say, oh, we were asking him about the other two. It's all the same event. So I mean, what could a Constitution mean that creates that situation? That's why every court has decided that it doesn't mean that.
Gregory S. Coleman: Not every court, Justice Breyer.
Stephen G. Breyer: Well, I mean most.
Gregory S. Coleman: But that--
Stephen G. Breyer: What's the answer? I mean, that... I think my problem is what has led almost all the courts to adopt this fuzzier test, and what is the response to that rather direct problem?
Gregory S. Coleman: --I think if you can establish trickery then you create a Fifth Amendment issue, because it is the Fifth Amendment and not the Sixth Amendment that goes primarily to the issue of coercion.
Stephen G. Breyer: It won't be trickery. If the rule is you cannot... you know, the counsel relates only to the offense charged, there's no trick involved. The police, in total good faith, go and ask the same set of questions relating to the kidnapping without telling the counsel. There's no trick, and that seems not a trick, it seems absurd.
Gregory S. Coleman: I don't believe that it is. I believe that the police have a strong societal interest in continuing to investigate crimes that have not yet been solved, just as the police were trying to solve two murders in this case. They suspected Cobb but they had no evidence, and I don't think that the Constitution, particularly the Sixth Amendment, prevents the police from going back in and interrogating--
Stephen G. Breyer: And the lower courts have all agreed with you. They've all agreed with you, if it's actually a separate crime.
Gregory S. Coleman: --I don't believe that the fact that there is a factual connection between the crimes makes any constitutional difference, distinction.
William H. Rehnquist: Well, doesn't McNeil say that it's offense specific?
Gregory S. Coleman: McNeil specifically does say that it's offense specific and that should be interpreted, as I was arguing, to exclude factually related crimes, because factually related crimes are in no better position to receive those kinds of constitutional protections that the Sixth Amendment gives than are unrelated crimes. This Court has said that the purpose of the Sixth Amendment is to protect the unaided layman at critical confrontations with his expert adversary, the Government, after the adverse positions of the Government and the defendant have solidified with respect to a particular alleged crime. There are three parts of that statement that this Court has given in several cases that can't be satisfied by a factually related crime. Certainly the particular alleged crime doesn't meet it. We don't think that there's a solidification of the adverse positions with respect to factually related crimes. The police are still investigating a related crime. They don't know if the defendant did it or not. Generally speaking they won't have sufficient evidence to bring that charge, certainly there was not sufficient evidence in this case, and so there's no solidification, and there is not a critical confrontation, which has been defined to be a critical stage, which is a very well established part of this Court's Sixth Amendment jurisprudence. There's simply no critical stage because it is pre indictment.
Antonin Scalia: Mr. Coleman, would it make any difference to you if the other crime about which he's being interrogated is not only factually related but, under the Blockburger test, would be a greater offense of which the offense on which he's indicted is a lesser included offense? That is to say, he has an attorney on a burglary charge, and he's interrogated concerning the offense of murder in the course of burglary.
Gregory S. Coleman: We have argued, and it is our position, that if it is not simply a factually related crime, but the argument is that it is the same crime, then we think that there's a strong argument the Sixth Amendment would, in fact--
Antonin Scalia: Well, it's not quite the same crime, but if he got acquitted on the burglary he'd have to be acquitted on murder in the course of burglary. I mean, Blockburger would cover it and it would be double jeopardy. So in that case you'd say he could not be interrogated without consulting his lawyer concerning murder in the course of burglary?
Gregory S. Coleman: --We would say that this Court's rule would prohibit the introduction of evidence relating to that interrogation.
William H. Rehnquist: Why? Now, why is that, because it satisfies the, or doesn't satisfy the Blockburger test? That's quite a burden to put on a police officer. I mean, we have a hard enough time applying that test ourselves, and to say that the police officer would be responsible for a Blockburger analysis really is quite demanding.
Gregory S. Coleman: We think that the Court recognized in Moulton that when the police interrogate suspects they're frequently trying to get evidence about any number of crimes, and one of those might be a previously charged crime, and that is why the Court has very consistently said that the remedy we're going to impose is simply that if you get evidence as to a charged crime for which the Sixth Amendment has attached and been asserted, then we will not allow you admitted at trial but if you have evidence related to other, uncharged crimes, and we would say also factually related uncharged crimes, then you may admit it. So it's not the police that are really having to make a hard determination at the time that they do the interrogation. That is made later, when you try to introduce the evidence at trial.
Anthony M. Kennedy: Well, I think it's become even harder. I assume the police officer ought to know that if he has a constitutional right to interrogate or not, and you say well, maybe he does, maybe he doesn't, depending on what the defendant says. That... we've never given that insufficient guidance to the police.
Gregory S. Coleman: Well, Clanky is the only case we think in which there was actually the same offense, and we think that if the police are still investigating, or they believe--
William H. Rehnquist: What was the name of the case you said, Clanky?
Gregory S. Coleman: --Clanky v. Illinois. I'm sorry. It's an Illinois Supreme Court case applying the factual relation test. The police are still investigating other crimes for which no charge has been made. We think that they have at that point... and that's all they need to know. They can then interrogate the suspect, give them their Fifth Amendment rights, and do what they can to protect those, and then if they end up getting information about a charge that has been... a crime that has been charged and for which the Sixth Amendment has both attached and been asserted, then they can't use it at trial, but they can use it, under Moulton and under this Court's precedents, for any uncharged crime, a crime for which the Sixth Amendment had not yet attached at the time of the interrogation. But what respondent would have the court do is make the court, make the police apply a test that asks the police to know ahead of time if the crime for which they are going to interrogate the suspect relates to something that the suspect has previously been charged, or with respect to something that the suspect and his counsel may feel that there is an attorney client relationship, and we don't think that that can be the test.
Ruth Bader Ginsburg: Mr. Coleman, there are... there's quite a range. There's one, the McNeil case itself, where the uncharged offenses were wholly unrelated, different time, different place, and here you have one continuous episode. Don't most courts, if I understand them correctly, think that if there is a close relationship between the offenses, if they're all part of one series of events, that the Sixth Amendment right would attach?
Gregory S. Coleman: The fact that there is a close relationship cannot overcome the fact that that closely related crime cannot fit within the stated purposes of the Sixth Amendment, and the fact that it would improperly and unnaturally hamstring the police's legitimate efforts to investigate and solve a crime for which no one has been brought to justice.
David H. Souter: Mr. Coleman, as I understand your argument on why the permissibility of this kind of interrogation for related offenses is not likely to cut back, in effect, on the Sixth Amendment right which has attached, your best argument seems to be that you don't have to recognize a Sixth Amendment right here because there's going to be, as there was in this case, an adequate warning that one doesn't have to speak, and an adequate Fifth Amendment opportunity to get a lawyer, probably the same one, but in any case to get a lawyer prior to the commencement or continuation of any interrogation. Do you agree that's probably your strongest response to the concerns expressed by people like Justice Breyer?
Gregory S. Coleman: I believe so, and I believe that's exactly what the Court said in Patterson when it indicated--
David H. Souter: Right.
Gregory S. Coleman: --that the reason to have counsel at a custodial interrogation for Sixth Amendment purposes is not any stronger than it is for Fifth Amendment, and the Fifth Amendment--
David H. Souter: What about--
Gregory S. Coleman: --test protects them.
David H. Souter: --I'm sorry. What about, then, the concern for noncustodial interrogations? If the person who has been charged with the first offense is out on bail, and the police want to go and interrogate, simply see if they can strike up a conversation with a guy at his apartment, we're not going to get... I presume we're not going to get into any Miranda rights. Isn't the opportunity for abuse there, so that on your best argument, if the police are subtle about what they do, and they have a defendant who's not in custody, they will, in fact, raise the, I think the specter of cutting back on the Sixth Amendment right with respect to the crime that has already been charged.
Gregory S. Coleman: The Court in Patterson made it clear that, as to the charged offense for which the Sixth Amendment has attached, there must be an express waiver, so that is why--
David H. Souter: So that there would be an exclusion if anything were said about that offense?
Gregory S. Coleman: --If there was no valid waiver for the charged offense. I think that's the meaning of this Court's decision in Patterson and Moulton.
David H. Souter: And that would be enforceable by the exclusionary rule?
Gregory S. Coleman: Yes.
David H. Souter: Okay.
Gregory S. Coleman: If I may, I'd reserve the rest of my time for rebuttal.
William H. Rehnquist: Very well, Mr. Coleman. Ms. Blatt, we'll hear from you.
Lisa Schiavo Blatt: Mr. Chief Justice, and may it please the Court: Police have a compelling interest in investigating uncharged crimes and in obtaining voluntary confessions from suspects who have been advised of their right to counsel under Miranda and are willing to speak to the police about those uncharged crimes. That questioning does not violate the Sixth Amendment right to counsel because that right is offense specific. Under that rule, the statements may not be used to prove the charged offense, but the statements are admissible in a trial for the uncharged offenses. It does not matter, under this rule, whether the two crimes are factually related. The test is rather whether the two crimes constitute the same offense.
Stephen G. Breyer: Why? I mean, you see my problem from what I said before, don't you? I mean, crime is ambiguous as to whether you're describing a set of events in the world, or a legal concept. Look at the set of events in the world. It would have all been over in 15 seconds, and it could constitute any one of 15 crimes, and the police charge on the basis of that 15 seconds of real world behavior three crimes, and he gets a lawyer for those three. Why should the police be able, without a lawyer, to interrogate him about what happened in the real world because there are eight other things that weren't charged?
Lisa Schiavo Blatt: Because the Sixth Amendment, the text of the Sixth Amendment only applies to someone who has been accused in a pending prosecution, and the prosecution is limited by the actual offenses that are charged by the State, and it is only at that time that the right to counsel attaches under the Sixth Amendment.
Stephen G. Breyer: So it's purely formal. Your argument is purely formal.
Lisa Schiavo Blatt: No. This Court has repeatedly recognized that the requirement that there must be a shift from investigation to accusation is more than just a formalism, because the purpose and the essence of the Sixth Amendment is to make sure the defendant has an opportunity to consult with counsel and prepare for a defense against the pending charges. A suspect has no Sixth Amendment right to counsel, to have a lawyer appointed or assist him in connection with charges that have not been brought by the State, that may never be brought by the State. The suspect has never indicated any unwillingness to talk to the police about those uncharged offenses.
Ruth Bader Ginsburg: Ms. Blatt, you gave the example, or I think your brief indicates that you would support the example that if the crime for which the person is already charged is burglary, and they can't ask him about the homicide at the time of burglary because that would be a greater... that would be the same crime, yes, in that legal sense that we understand for double jeopardy purposes. But this has got to be administered by police officers, and a police officer will say gee, homicide is a lot different from burglary. I don't understand when it's okay and when it isn't.
Lisa Schiavo Blatt: The same elements test under Blockburger leads to consistent and predictable results, and can be ascertained ahead of time by the police officer, and if he needs to consult with the prosecutor, he can do that. By contrast, pegging the Sixth Amendment right to a transaction test leaves police officers in the untenable position of not knowing before they question the suspect what--
Ruth Bader Ginsburg: Well, I would think the lay person would understand, it all happened in the same episode, more readily than would understand Blockburger.
Lisa Schiavo Blatt: --He may not know that. It may be that they know that there's been a burglary and that there are missing bodies, but have no idea whether those victims were murdered by someone else 2 weeks from then, whether there had been a kidnapping, whether it was in a different location. I mean, he can't possibly know ahead of time, without talking to the suspect, nor can a court ask at the time of appointment of counsel, would you mind telling me everything you did as part of the same transaction so I can make sure you're appointed counsel with respect to all possible offenses that may be brought against you. They just... they don't know that. They're in a phase of investigation, and this case is a perfect illustration of that. There's no contention in this case the State manipulated the charges when they indicted him for burglary and 15 months later questioned him about the murder, nor is there any suggestion that they had enough proof at the time that they charged him with burglary to charge him with murder, and there's a hypothetical assertion that there might be incentives for selective manipulation, but we don't believe that those incentives necessarily exist. Once the State initiates a prosecution, the suspect will not only be afforded the right to counsel, but at the time that he's approached, if he's in custody, he will be given his Fifth Amendment Miranda warnings and, under this Court's decision in--
John Paul Stevens: May I ask this question? It seems to me it's not the question of when the lawyer was appointed, but what is the scope of the representation by the lawyer who has been appointed. Assume a lawyer is paid $20 an hour by the State for representing a defendant. He's appointed then to represent him in the robbery charge, then he talks to the client, the client says, there's a lot of other stuff I think you ought to know in order to represent me well, and then he goes and interviews him at great length about all these things that happened in the same transaction, but they've never been indicted. Would that lawyer be entitled to be paid for the time he spent on questioning about the related crimes?
Lisa Schiavo Blatt: --I think to the extent that the... yes, and to the extent that the defense relates to the pending charge.
John Paul Stevens: It has no relation to the pending charge, except it was part of the same bunch of transactions.
Lisa Schiavo Blatt: If he said to his lawyer, I also murdered these two people, I think it would be perfectly clear that the... if the defendant went off and started researching capital sentencing procedures under Texas law he very well might not get paid for that. He was appointed to represent his client on the burglary charge. He certainly can take on a scope of representation that's greater than that, and can work out an arrangement with his client to get paid for that.
John Paul Stevens: So he's... the lawyer, the good, conscientious lawyer would say, well, don't talk to me about that because I'm not going to get paid for any advice I give to you on that, on those matters?
Lisa Schiavo Blatt: No, he certainly will want to talk to his client with respect to the conduct that constituted the offense for which he's been charged, and there might be other things he needs to know about.
John Paul Stevens: But if it doesn't survive the Blockburger test, the fact that it happened at the same time, that wouldn't justify the lawyer spending any time on it?
Lisa Schiavo Blatt: He will need to spend whatever time is necessary to defend him on the pending charge, but he's certainly free to tell his client, I'm not competent to represent you in a death penalty case and you ought to retain separate counsel for that offense, and moreover, you haven't even been charged with that offense. In all these cases where there is a pending charge, the court in McNeil and in Moulton represented... excuse me, recognized the compelling interest that the police have in investigating and solving uncharged offenses, and if the suspect never indicates any unwillingness to talk to the police about those offenses, there's no basis for excluding what is concededly a voluntary confession to those crimes that might otherwise go unsolved. The other thing I wanted to say, just about the Blockburger test, is that this Court, in the context of double jeopardy and the lesser included offenses context, has recognized that that test is workable, and is predictable, and can lead to consistent results.
Ruth Bader Ginsburg: Workable in court from double jeopardy determinations; workable when you're talking about the police officer, I'm less certain.
Lisa Schiavo Blatt: I think the police officer can certainly ascertain immediately what the pending charge was against the suspect, and if he has any questions about the elements test he can certainly ask a prosecutor, but generally the police can be advised, as this Court recognized in Moulton, that it's okay to approach a suspect that's under indictment about additional crimes, and so the question just simply becomes, what's a separate offense, and that's a lot easier question than, is it possible that the suspect may say something that's so... a court may or may not later deem inextricably intertwined, such that the statements can't be used. If there are no other questions--
William H. Rehnquist: Thank you, Ms. Blatt. Mr. Greenwood, we'll hear from you.
Roy E. Greenwood: Mr. Chief Justice, and may it please the Court: We are asking only that this Court follow its prior precedents in Brewer and Maine v. Moulton. We don't want to expand any constitutional application.
Sandra Day O'Connor: Well, but we've said in McNeil that it's offense specific--
Roy E. Greenwood: Yes, ma'am.
Sandra Day O'Connor: --this Sixth Amendment right, and here there was at the time of the burglary charge no evidence of the murder... the murders, or the defendant's connection with them, so why isn't that a separate offense?
Roy E. Greenwood: Your Honor, in looking at the Court's, initially the Fifth Amendment cases on the right of counsel and then the stair stepping and the filling in of the blanks of the various phases where counsel has come in, as we've all had to do in the research for these cases, and we get to McNeil... and we have no problem with McNeil. McNeil makes sense in the context in which it was written.
William H. Rehnquist: Well, how about its statement that Sixth Amendment right is offense specific?
Roy E. Greenwood: Your Honor, in--
William H. Rehnquist: You have to go beyond that, don't you?
Roy E. Greenwood: --Your Honor, I can... under... in the context of the way, the facts of McNeil, I can see that statement being legitimately and perfectly reasonable, but McNeil--
William H. Rehnquist: But it's a categorical statement.
Roy E. Greenwood: --Yes, Your Honor, it is.
William H. Rehnquist: So you are asking us to go beyond our cases. You're asking us to distinguish McNeil and very sharply limit it.
Roy E. Greenwood: No, Your Honor. That statement, taken in separation with the facts of McNeil and the issues presented I think are really different, and I recognize... we've reviewed you all's decisions, concurring and dissenting opinions here, and we understand you all's concerns about that, but in our view, in starting with McNeil, the Wisconsin Supreme Court, the question before them was unrelated offenses, and this Court granted cert on unrelated offenses, and during the argument of counsel the Government on at least three separate occasions in McNeil, and we've got their transcripts, said this is... the situation here is completely separate and distinct offenses, different counties, different victims, different facts.
William H. Rehnquist: Yes, but you can limit any one of our opinions in that respect to say, you know, this happened on a Tuesday and not on a Wednesday, but we employ statements as to what we think the law is and so on in deciding these cases, and it isn't always limited just to the particular facts.
Roy E. Greenwood: That's true, Your Honor, and... but it just, from our viewpoint, even though McNeil makes sense as to separate and distinct offenses, when you look at Brewer, and Moulton, and the interrelated, intertwined defenses, to us you just simply cannot say, well, the line of Brewer just stopped, because--
William H. Rehnquist: What is your definition of, quote, intertwined, close quote, or interrelated, close quote?
Roy E. Greenwood: --In looking at all of these things and trying to make a decision, the simplest and easiest definition we got to is just the related offenses, where those that occur in one single immediate transaction and incident.
William H. Rehnquist: Well, okay. What is a... you know, this doesn't make it any easier. What's a transaction? What's an incident?
Roy E. Greenwood: Okay. Well, transaction is defined... is not even defined under Texas joinder law, so you get a dictionary out, but at the same immediate temporal time and place.
William H. Rehnquist: And you think this case meets that definition--
Roy E. Greenwood: Yes, sir.
William H. Rehnquist: --of the same time?
Roy E. Greenwood: Absolutely.
David H. Souter: Mr. Greenwood, I think your, sort of your strongest argument is that, if you don't recognize the scope of the right as you argue for it, that the risk that the Sixth Amendment right in the... with respect to the first offense will be infringed is simply too great, and you cannot run that risk, and this is the way to avoid it. Mr. Coleman has essentially two responses to that, and I'd like you to comment on them. The first response is that if the subsequent interrogation is a custodial one, the Miranda warnings are going to be there, and they functionally will assuage your concern and that in any event, even in a noncustodial case and, a fortiori, in the custodial case, if, in fact, there is a violation of Sixth Amendment right with respect to the first offense, any evidence so given will be excluded with respect to the first offense. And he in effect says, these two avenues of warning or relief are sufficient to reduce the concern about the risk that you raise. How do you respond?
Roy E. Greenwood: Initially, Your Honor, one of the concerns that I have is, as the Chief Justice wrote in one of his dissenting opinions, I think in Moulton, correct me if I'm wrong, that there has not been in the past wholesale violation of Sixth Amendment problems by law enforcement. I think to allow... but over the years in this, these more than two decades of cases that dealt with this related offense concept have generally kept the police away from the defendant in these related contacts, so you haven't had wholesale--
David H. Souter: Right, but let's assume we no longer have that regime, but we have the regime that your brother argues for and he says the two safeguards are Miranda in custodial cases, exclusion in noncustodial cases if the interrogation strays into the evidence on the first offense.
Roy E. Greenwood: --The immediate, most immediate concern I have is that a statement by this Court that that is permissible will encourage police officers to make those contacts.
David H. Souter: Let's assume that it does. Let's assume that no, this relatedness test is not the proper test, there's going to be more interrogation.
Roy E. Greenwood: Absolutely.
David H. Souter: We're all assuming that. Now, why are his two safeguards going to be insufficient?
Roy E. Greenwood: Under the facts of this case, and because the... and I must preface this just briefly. This can be a complicated situation, with regard to Sixth Amendment and the related offenses, and that's why most of the courts of appeals, Fifth Circuit and Third Circuit, have devised a list of factors, totality of the circumstances, which we think are necessary. Having said that, in this case, for example, you have a long term, 17 months or more, attorney client relationship. Counsel has been dealing with the courts, actively filing motions. He has been dealing with the district attorney, theoretically, with law enforcement concerning this immediate burglary, but everybody knows there's these other potential crimes out there. They're still investigating them.
Stephen G. Breyer: What about the circumstance of, I didn't know that the word, offense specific, in McNeil, whether it referred to something on paper--
Roy E. Greenwood: Right.
Stephen G. Breyer: --namely, the definition of a crime, or something in the world, such as the robber entering the bank, hitting the teller and taking the money, which, of course, could be one of several crimes.
Roy E. Greenwood: Yes, sir. Thank you for filling in the--
Stephen G. Breyer: Well, I don't want you just to accept it because maybe what I've just said is wrong.
Antonin Scalia: Well, take it, Mr. Greenwood. Take it. [Laughter]
Roy E. Greenwood: --Your Honor, in dealing with all this, we have looked at the term transaction, because that's a series of acts of conduct which can have one offense or dozens. The term crimes means different things in this context. The term--
Antonin Scalia: Mr.--
Roy E. Greenwood: --offenses does, and I don't want to get into a semantic battle with you all. You all are the experts in that, and need to write this thing.
Antonin Scalia: --It's what we do.
Roy E. Greenwood: Right.
Antonin Scalia: Can I get back to your description of what was going on here? The man had a lawyer, the police had dealt with him over many cases. What I can't understand about your case, or about the rule that you're urging upon us, is why it makes a difference that the other offense was factually related, was simultaneous. I mean, I can understand the position that, look, once a man has a lawyer... I have a lawyer for embezzlement.
Speaker: I'm a stockbroker, and I'm charged with having embezzled on May 13th.
Antonin Scalia: I'm charged with an entirely separate embezzlement... or, I'm interrogated about an entirely separate embezzlement on May 14th. I would feel just as strongly as you do about, well, it's only fair they know the man has a lawyer, they shouldn't go to him without going to his lawyer. They know the man has a lawyer to represent him vis a vis the police. What difference does it make whether it's factually related or not, if you're going to appeal to that, I don't know, that feeling once you know a guy has a lawyer, you ought to deal with his lawyer? I don't see that the factual relationship makes me feel any worse about it.
Roy E. Greenwood: Your Honor, I agree with that, but since--
Antonin Scalia: Okay, well--
Roy E. Greenwood: --Since McNeil, it does make a difference, and--
Antonin Scalia: --Well, I think unless we're going to go all the way down to the bottom of that slippery slope it makes sense to say what you have a lawyer for is for the charge, and that the choice is between saying you have a lawyer for that charge, and the police can deal with you separately on any matter that is apart from that charge, and if you're not going to adopt that rule you really ought to jump all the way over to the rule that once you're represented by a lawyer with regard to this police department, with regard to matters that... concerning this defendant, they ought to contact that lawyer for everything they have to do with that defendant.
Roy E. Greenwood: --Well, and that's part--
Antonin Scalia: And that's a big extension of what we've said up to now.
Roy E. Greenwood: --In the decisions of the courts of appeals on this issue dealing with the totality of the circumstances, one of the important things in making sure that the concerns of the court with regard to really hamstringing law enforcement are not overdone, is limiting it to a single criminal investigation in a jurisdiction by the same type of law enforcement, and we'll go along with that, because we can think of hypotheticals--
William H. Rehnquist: What do you mean, you'll go along with it if we do that? You don't have much choice.
Roy E. Greenwood: --No, I understand. [Laughter] We will take that, Your Honor, as to a limitation. There are limitations on this. McNeil, obviously, Koolman v. Wilson. We concede in our brief that ongoing and future crimes should be exempted from this related offense rule.
Stephen G. Breyer: It's not just an exemption. You've said that, I think, the law enforcement would be seriously hamstrung--
Roy E. Greenwood: Absolutely.
Stephen G. Breyer: --if the simple fact that a person had a lawyer stopped policemen from asking him questions.
Roy E. Greenwood: Right.
Stephen G. Breyer: All right. But that isn't true where you're talking about a single offense defined in terms of what happens in the world, I take it.
Roy E. Greenwood: That's correct. That's correct, and we are afraid that if the Court follows the petitioner's argument that, because of the ability of law enforcement and prosecutors to charge in a matter of discretion at their will, they can, in fact pick different crimes and then make dozens of confrontations with the defendant. For example, in this case--
Stephen G. Breyer: But to stop to ask a less friendly question, I think what's worrying the department and others is that once you depart from the definition of offense in terms of some words on paper, i.e., once you start looking to what happened in the world, there's no good way to define what is the same offense, and therefore they get into a mess, and therefore we have six different circuits trying to do different things.
Roy E. Greenwood: --Right.
Stephen G. Breyer: And you say in response to that, no, there is a good way, and what is it?
Roy E. Greenwood: I... in the brief before the Court of Criminal Appeals we followed the Third and Fifth Circuits' totality of circumstances test, and followed it right down the line with regard to that. Any one of those factors could have totally thrown off the analysis of this case.
Antonin Scalia: Of course, the problem that the law enforcement has is not only that they don't know how to define what is a related offense, but that they also don't know whether the offense that they're inquiring about meets that definition or not. That is a totally separate second problem which existed here. They did not know whether the kidnapping was done at the same time as the murder, whether the two were related or not. It's a real problem, not just figuring out a definition, but also figuring out whether what they're asking about falls within that definition or not. They won't know that until the facts are fully known.
Roy E. Greenwood: That is true, and in our attempt at definition to limit expansion of this concept any longer, is the transaction or incident in a temporal time and place seems to be the least expansive you can get, and most police officers--
Antonin Scalia: What if the police here thought that the kidnapping had occurred on a different day from the burglary, that he had done the kidnapping and the murder and then he'd gone back the next day and burglarized the place?
Roy E. Greenwood: --I don't think under the facts you could have gotten there, but assuming that--
Antonin Scalia: Is it enough that they thought that and it turns out not to be the case, they're nonetheless not violating the Sixth Amendment rights?
Roy E. Greenwood: --You would have... if you had something like that, you would have two separate crimes--
Antonin Scalia: I understand that.
Roy E. Greenwood: --really, as opposed to the same transaction.
Antonin Scalia: No, but it didn't turn out that way. It turned out that they were both done on the same day. Now, but you're going to let the police off because they thought it was on separate days, right?
Roy E. Greenwood: Oh, well, thought, but you see, if the facts show otherwise, then you have a set of facts that can be analyzed.
Antonin Scalia: So they can't talk at all then, because even though they think it happened on a separate day and therefore, believing they're in full compliance with the Sixth Amendment they interrogate the person without his lawyer, it turns out that they happened on the same day, and all this evidence has to be thrown out.
Roy E. Greenwood: I may have missed some of that, Your Honor, but law enforcement officers deal with transactions and incidents daily--
Antonin Scalia: I understand.
Roy E. Greenwood: --and that, it seems to me, would be the easiest definition.
Antonin Scalia: Are you suggesting that what matters is the reality, or what matters is what the interrogator believes when he conducts the interrogation?
Roy E. Greenwood: I will concede that at the time what he legitimately believes.
Antonin Scalia: Okay.
Roy E. Greenwood: Yes. That makes sense, under... in considering all this, because you could have a bizarre circumstance when no one would know when certain crimes occurred.
Speaker: --just not sure.
Antonin Scalia: I mean, does he have to know that it was at the same time, or suppose he's in a state of complete agnosticism. He doesn't know when it occurred.
Roy E. Greenwood: In--
Antonin Scalia: Is he violating the Sixth Amendment?
Roy E. Greenwood: --A police officer in a... I cannot answer the question. That... I do not think of that concept--
Antonin Scalia: I can't, either.
Roy E. Greenwood: --But... but, if I knew a police officer who had no knowledge or intent, really... I'm trying to separate it from this case. That's my difficulty... had really no knowledge that an investigation was going on and that we want to interrogate him about this serious crime, then I could see a judge under the totality of the circumstances test saying, there's no either bad faith or negligence or intentional or even accidental violation of the Sixth Amendment. I haven't been able to work out your factual question far enough down the line, sorry. But I do believe... in this case, for example, in the Texas statutory scheme, this defendant could have been charged, well, with nine different capital crimes, and three of them, at least three of them are under statutorily different offenses which would have allowed prosecution under Blockburger, even though it's the same offenses, same exact conduct, and where... we are concerned that under a circumstance where an attorney has been representing a defendant for a substantial length of time, and he consults and investigates on this limited, immediate transaction about various crimes, and he tells, and he consults the attorney about what we're going to do... for example, in the example it was asked if he was arrested on one offense, he said, by the way, I killed two other people. Well, I know what I would do if I was his counsel, and take all possible avenues to try to protect him under my responsibility. I give a lot of credence in this whole issue here with the responsibility of the scope of counsel. In the McNeil argument one of the attorney--
Anthony M. Kennedy: Well, I know what you'd do, too. You'd say, take the Miranda advice seriously, refuse to answer any questions now, later, a week from now, a month from now, and then you're protected. That's it.
Roy E. Greenwood: --That, of course, is what their position is, Your Honor, and--
David H. Souter: Isn't that implied by what you were just saying? I mean, any prudent lawyer is going to say to his client, don't talk to them about anything, no matter what, unless I'm there, and why isn't that one of the answers to the concerns that you're raising?
Roy E. Greenwood: --We believe that if the Court allows this continuous conduct where law enforcement can come in on a regular basis, in this case, literally dozens of times could have come back at Mr. Cobb to interrogate him about all the potential offenses, that it gives certain rise to complete abuse.
Ruth Bader Ginsburg: But Mr. Greenwood--
William H. Rehnquist: --He can say no any time. He can refuse to talk to them. His lawyer has advised him.
Roy E. Greenwood: And we say they... once he has counsel, in these facts they know he has counsel, they ought to stay away from him.
Ruth Bader Ginsburg: They... first, the Odessa people didn't know that he had counsel.
Roy E. Greenwood: They didn't know.
Ruth Bader Ginsburg: But there's another aspect to this that I hope you will address. In this... it seems to me that this case may not be a strong case for your position, even if we were to take a related offense view of it. As I understand Jackson, the purpose was to keep the police from badgering a defendant, keep coming back at him and back at him, and even though he's been given Miranda warnings, to wear down his will. In this case there was a considerable interval of time. Defendant was out of custody, he was living with his father, and in that interval he could have talked to his lawyer many times. When he has that interval why, in that case, isn't Miranda enough, when he's not in custody where he's--
Roy E. Greenwood: I still maintain that as long as that formal charge was pending, and the counsel relationship continued, that when you throw law enforcement into talking to the defendant without his counsel, that you're still subjecting the defendant to abuses because, primarily, of the Moran v. Burbine decision that allows police officers to lie to the defendants, and you're getting a conflict, more than likely, which will encourage a conflict of statements between what the lawyer's telling him and what the police officers are telling him.
Speaker: --I suppose, Mr. Greenwood, that your response to the contention that it ought to be enough that his lawyer tells him at the very beginning, look it, I'm only representing you on this crime, but you shouldn't talk to them about any other crime, you got that?
Antonin Scalia: Yes. Don't talk to them at all. Yes, yes, I understand. The argument that that suffices, what's wrong with that is that if it suffices here it would have sufficed or ought to have sufficed in Michigan v. Jackson as well. I mean, doesn't Michigan v. Jackson assume that that's not enough? The lawyer's going to tell him, look it, I'm your lawyer now, don't talk to the police without me, and yet Michigan v. Jackson still says, even though the lawyer's told him that, if the police try to talk to him without him, it's a constitutional violation.
Roy E. Greenwood: Right.
Antonin Scalia: So maybe Michigan v. Jackson is wrong. I mean, if--
Roy E. Greenwood: No, Your Honor. We still maintain that Jackson is a proper continuation of Sixth Amendment jurisprudence.
David H. Souter: --And I suppose the same answer that Justice Scalia just outlined for you is your answer to the question that I raised earlier about your brother's argument. If Miranda is good enough to protect him here, why wasn't Miranda good enough to protect him then?
Roy E. Greenwood: We just believe that if you rely on this, the invocation of the Fifth Amendment on these related offenses, you're going to have officers, encourage them to make more and more contact with the defendant and invade that attorney client relationship with false information, which I think will lead to more abuses. That's all the questions?
Speaker: Maybe... well, this is just to clarify something that I had trouble understanding.
Roy E. Greenwood: Yes.
Stephen G. Breyer: Suppose that a person is... what's the law in the following situation? The person, a defendant is put into custody, a suspect, he's interrogated. He's told about his Miranda rights. He gets a lawyer, and then he's not charged, all right? He's not charged. The next day, although the police know he got a lawyer, he has a lawyer, they call him back to question him again without telling the lawyer. Can they do that?
Roy E. Greenwood: I think they could, Your Honor.
William H. Rehnquist: Thank you, Mr. Greenwood.
Roy E. Greenwood: Thank you, Your Honor.
William H. Rehnquist: Mr. Coleman, you have 1 minute remaining.
Gregory S. Coleman: I'd like to very quickly address Justice Stevens' question about the scope of representation and real world fact scenarios that are uncharged, and I think in both of those instances I can go back beyond the cases of this Court and say, those are not criminal prosecutions, and that person has not been accused of those factually related crimes, and the Sixth Amendment by its own text simply does not apply in those types of circumstances. When... and also, in both of those circumstances, if the defendant or the suspect is questioned he can say, at the advice of his counsel, I don't want to talk to you, in other words cuts him off.
William H. Rehnquist: Thank you, Mr. Coleman. The case is submitted.


Warren E. Burger: We'll hear arguments next in United Brotherhood of Carpenters against Scott and others. Mr. Gold, you may proceed whenever you are ready.
Laurence Stephen Gold: Thank you, Mr. Chief Justice. This case concerns the scope of 42 U.S.C. Section 1985(3), the lineal descendent provision of Section 2 of the 1871 Civil Rights Act. As the Court of Appeals majority stated, this case grows out of an episode of mob violence at the Alligator Bayou Pumping Station construction site near Port Arthur, Texas that caused both serious injuries and substantial property damage. That wrongdoing led to this federal court suit brought by two individuals and by the general contractor at that job site and to avert it in favor of the plaintiffs and against three local unions which are the petitioners here. The basic legal questions on which the Fifth Circuit sitting en banc split 14 to nine concern the meaning of the phrases "equal protection of the laws" and "equal privileges and immunities under the laws. " as used in Section 1985(3).
Sandra Day O'Connor: Mr. Gold, why would a plaintiff or group of plaintiffs file a suit under Section 1985(3) instead of a state tort action? Is it because of the recovery potentially of attorney's fees or what?
Laurence Stephen Gold: I am hard pressed to understand that myself, Justice O'Connor. I take it that the hope here was that this would be a more effective law suit from the plaintiffs' standpoint despite the--
Sandra Day O'Connor: You think that would center around the recovery of attorney's fees question?
Laurence Stephen Gold: --That is, certainly in light of the Civil Rights Act attorney's fees statute, that could well be a motive, and the countervailing... why the plaintiffs were not impressed by the countervailing consideration that there are very, very difficult legal questions here and a straightforward tort case in the state court system, I am really not privy to--
William H. Rehnquist: Well, I suppose in Beaumont, Port Arthur you have got elected judges and there might be some feeling that you do not get quite the same neutrality from elected judges as you do from lifetime federal judges.
Laurence Stephen Gold: --There are also appellate judges in Texas up and down the system, and I can only say that there isn't a whisper in this record that the state justice system was not open to and fully protective of the rights and interests of plaintiff companies and non-union employees in the State of Texas. Indeed, there were 13 indictments growing out of this episode, three convictions, two people in jail for substantial terms indeed. So in all those respects this is not your garden variety case for choosing a federal court as opposed to a state court. The en banc majority below analyzed Section 1985(3) as requiring a showing aside from the conspiracy and acts pursuant to the conspiracy and injury are the violation of some protected right and moreover class-based invidiously discriminatory animus motivating the invasion of that right and motivating the conspiracy. The court found that the right of economic association is such a protected right and, indeed, analyzed the matter as comprising a protected right under the First and Fourteenth Amendments. That court rejected our contention that for 1985(3), as is generally true, to show the invasion of a First and Fourteenth Amendment right as opposed to the invasion of the rights guaranteed by the Thirteenth Amendment or the rights guaranteed by the right of travel. There has to be a showing of state action. That court took the view that the contention I have just outlined had been rejected in Griffin v. Breckenridge, this Court's leading modern case on the scope of Section 1985(3). We cannot improve upon, and we have quoted at page 39 of our opening brief, the blue brief, the analysis of this issue by Justice Stevens in Novotny. We rest on that analysis and in terms of an analysis of the statute, neither the court below nor the respondents challenge the accuracy of the insights stated there. Rather both contend that that view of the statute is precluded by Griffin. It is our view that Griffin simply did not address this problem. Griffin was a case involving a conspiracy aimed at black Americans attempting to assert their civil rights and those who would assist them. The court analyzed the matter as resting on the Thirteenth Amendment base and the right and power of Congress to do away with the badges and incidence of slavery. It is perfectly well settled that Congress in no way, shape, or form is limited by a state action requirement in those regards and that those constitutional rights, both the rights vouchsafed by the Thirteenth Amendment and the rights stated by the right of travel are protected against private interferences.
William H. Rehnquist: Can you think of any more rights, Mr. Gold, that would fall on that side of the line that Justice Stevens drew?
Laurence Stephen Gold: From our view of the cases, Justice Rehnquist, we know of no other constitutional rights which are, of those stated in the Thirteenth, Fourteenth, and Fifteenth Amendment, which do no have a state action component to them. And it is hardly surprising that Congress would be particularly concerned about Thirteenth Amendment rights in terms of the 1871 Act because the voluminous legislative history is instinct on every page with a desire to protect the rights of the newly enfranchised freedmen and to ensure that the wrongdoing that was taking place in the South against them would have a federal remedy. At the same time, Section 2, which was the point of controversy in the 1871 Act, was shaped by the moderate Republicans in the House who were not only mindful of that major interest and concern, the one I have just outlined, but also saw an important value in maintaining a system of federalism at the time as they understood that system. The debate in the House and the strong controversy that Section 2, as originally introduced, created, which has been noted by this Court in numerous decisions, concerned how to advance both these values. If there had only been one value, the need to end what was seen by every segment of the majority party at that time, the Republicans, as outrages in the South, there would have been no division, no compromise, no internal controversy in the House. But there was this understanding of the fact that there were two values and a desire to put down Klan violence without doing violence to the Thirteenth, Fourteenth, and Fifteenth Amendments as the moderate Republicans understood those amendments. The moderates prevailed. The Section 2 was rewritten in response to Representative Garfield's speech, which we have laid out at perhaps overly great length in our brief. There is no doubt when you read the debate that Section 2 of the 1871 Act was redrafted to meet that speech and had probably been redrafted before the speech was given because it concludes with Representative Garfield saying I'm confident that language can be drafted which will meet these concerns, concerns about the federal government intruding into the proper state domain and becoming the primary guarantor of property and individual rights. Low and behold the next day Representative Shellabarger, who was managing the bill, comes in and says here is an amendment presented by friends of this legislation to assure that we can go forward, and the amendment, by adding the terms "equal protection of the laws" and "equal privileges and immunities of the laws. " met precisely the lines and the concerns stated by Representative Garfield. If we are right in that point, since there is not a hint of state action in this case, the decision below must be reversed. But even if it is viewed, even if the statute is viewed as protecting basic constitutional rights against private conspiracy where there is no state action, we think the same result follows, because the court below was of the view that working for a non-union employer is a First Amendment right. It is our understanding based on this Court's cases that the particular economic relations between employers and employees is not governed by the First Amendment but is governed by state law and Congress' power to enact legislation pursuant to the commerce clause.
William H. Rehnquist: You do not think the right to work for a union employer stands on any different footing than the right to work for a non-union employer?
Laurence Stephen Gold: No. If Smith v. Arkansas does not take away our dreams on that point, I do not know what will.
Lewis F. Powell, Jr.: Mr. Gold, I want to understand you. Are you saying that, though a constitutional right for an individual to decide whether he wishes to work for a non-union or prefers to work for a union employer... in other words, a man is looking for employment. He may choose a union shop, a closed shop, or an employer with no union connections whatever. You are saying he does not have that right to make that choice?
Laurence Stephen Gold: He may have a right in some abstract sense of that term--
Lewis F. Powell, Jr.: You think the state could forbid it?
Laurence Stephen Gold: --Could the... I apologize--
Lewis F. Powell, Jr.: Could the state enact a statute that said everyone who seeks employment in this state must seek non-union employment?
Laurence Stephen Gold: --I do not think that the First Amendment--
Lewis F. Powell, Jr.: Would any provision in the Constitution forbid that?
Laurence Stephen Gold: --Whether substantive due process would return--
Lewis F. Powell, Jr.: You would not like it, would you?
Laurence Stephen Gold: --No. I think we had as much substantive due process is we could stand through the first third of this century, but it is our understanding and our view that insofar as the state regulates whether there will be a collective bargaining system or there will be a system of managerial prerogative and insofar as the state regulates whether individuals will work in a system where terms and conditions are set one way or another and insofar as the state regulates even a matter such as, or the Congress in each instance, regulates whether there will be a union that represents all the people on a particular job, those are not First Amendment questions. There is no right of economic freedom of association of the kind the Court of Appeals was talking about any more than there is a right of free association to set up certain kinds of corporations or certain kinds of partnerships of the kind entrepreneurs may find beneficial to their interest free and clear of state regulation of the field. We do not believe that the Sherman Act is either required by or is to be tested against the First Amendment.
Lewis F. Powell, Jr.: But I was wondering about the right of an individual to make a choice as to where he wishes to work and with and for whom.
Laurence Stephen Gold: I do not believe that an individual has such a constitutional right under the First Amendment. Let me--
Lewis F. Powell, Jr.: Under any provision of the Constitution--
Laurence Stephen Gold: --I know of no provision.
Lewis F. Powell, Jr.: --This sounds like the Soviet Union to me where they tell you where you can work and where you cannot. How about the Thirteenth Amendment?
Laurence Stephen Gold: I was wondering about that. I do not think that if, for example... let me try to grapple with the question in this way. If in a particular area there are no places of employment where unions have succeeded in becoming majority representatives as provided for in the National Labor Relations Act, I do not think an individual could sue anybody on the view that he was being deprived of his right to work under union conditions. On the other hand, if unions succeeded in organizing the places of employment in the locality, I do not believe that the opposite law suit would lie, either. Obviously the individual has a freedom. Perhaps this is the clearest I can be in answering this. I believe that the individual has a freedom to move from place to place and to look for employment that suits him. I do not believe that he has a constitutional right to demand that certain conditions obtain. The second element that the Court of Appeals understood to be encompassed in Section 1985(3) or at least in the aspect we are discussing here, the equal protection of the laws and equal privileges and immunities of the laws aspect of the statute, is a requirement that there be a showing of class-based invidiously discriminatory animus and that court segmented that requirement as follows: First the court stated that such animus is shown if there is animus against a class of those with common characteristics of an inherent nature and secondly, a particular application here, recognizing that there was no such class, the Court of Appeals said that the statute also encompasses conspiracies motivated by an animus of the kind Congress was trying to protect against in enacting the 1871 Act. The Court of Appeals read the legislative history of the 1871 Act to show an intent to act against conspiracies motivated by an animus against exercises of the right of economic association, which exercises of that right ignite regional hostility. It is our view that that dramatically overreads the statute and Congress' intent therein. We know what the core of what Congress sought to do was. It was to protect the freedmen and those who were seeking to assure that the freedmen secured the rights provided by the Thirteenth, Fourteenth, and Fifteenth Amendment. Every page of the legislative history is instinct with that intention except for scattered passages and in the very considerable legislative history debated, I might say, at a very high and intense level given the gravity of the moment, there are no other references to a congressional intent. In Griffin the Court left open the question of whether any intent under other than racial animus or bias supports a 1985(3) cause of action. It is our position that given the fact that this is a statute stated in general terms, one can generalize from the particular concerns of Congress. We would formulate the animus test as class-based animus against those who have common characteristics of an inherent nature who are offered special protection under the Equal Protection Clauses and in that sense that is the first part of what the Court of Appeals understood class-based animus to be and those who are aiding the former to secure that protection. The area, I think, of legitimate dispute is what is one to make of the repeated references in the legislative history to the interest in protecting not only the freedmen but Republicans and Northerners and others who were also the object of the Klan. In the legislative materials we set out, both in our opening brief and at pages 11 to 18 of our reply brief, it seems to us apparent that the understanding at the time was that those in addition to the freedmen who were to be protected were the individuals who were seeking to assure the protections to that group of Americans guaranteed by the Thirteenth, Fourteenth, and Fifteenth Amendments. It was not Republicans as such. It was not the Northerners as such. It was to those who were embarked in the enterprise of making those amendments real.
William H. Rehnquist: Mr. Gold, what if say up in Vermont the natives of Vermont have the same attitude toward Democrats that many Southerners at that time had towards the Republicans. Do you think that if a Democrat went up to Vermont and was set upon that he would have an action under this section?
Laurence Stephen Gold: The--
William H. Rehnquist: Nothing to do with freedmen, obviously.
Laurence Stephen Gold: --No. We would think that the comparable situations that one can envisage that the statute would extend to would be those such as actions against Japanese-Americans at the beginning of the Second World War is a possibility, but we do not believe that Congress had any intent in going beyond classes that are defined by more than the fact that people are doing certain things which other people do not like and therefore are set upon. Indeed, the broadest statement, that of Senator Edmunds, which is relied on, and it is wholly unique in this entire legislative history, proposes an antithesis between feuds which are generated by particular activities that individuals do not like and class-based animus. So my answer to your question would be that the weight of the legislative evidence is that the protection extends to classes of inherent characteristics who are the objects of discrimination and depravation--
William J. Brennan, Jr.: Would illegitimates be such a class?
Laurence Stephen Gold: --Under this Court's cases in the development of Fourteenth Amendment law, that might be. Again, while I do not think it was a subject of interest, immediate interest to the 1871 Congress, women could be such a class. The question is is it a class marked by an inherent characteristic--
William J. Brennan, Jr.: Discrete, insular--
Laurence Stephen Gold: --Right, and is the animus against either the people of that class or those who were assisting members of that class to enjoy the full panoply of rights stated in the Thirteenth, Fourteenth, and Fifteenth Amendments.
Thurgood Marshall: --Mr. Gold, the Slaughterhouse case set a law there, did it not?
Laurence Stephen Gold: If it--
Thurgood Marshall: Nobody pays any attention to it any more, but that is an awful clear language in that.
Laurence Stephen Gold: --We have pondered whether that case throws light on it, and in a sense--
Thurgood Marshall: Do you think it is just dead?
Laurence Stephen Gold: --We are not sure.
Thurgood Marshall: I might breathe some life in it.
Warren E. Burger: Mr. Keith.
Robert Q. Keith: Mr. Chief Justice, and may it please the Court. At the outset of my presentation, may I revert to the facts momentarily, and we might start with the dissent of the Fifth Circuit who called this an unprovoked and brutal attack on law-abiding citizens. The trial court in his opinion which is in the Joint Appendix stated that this arose out of a demonstration or citizen protest where people were voicing concern over outside, non-union workers in a union area much like the Vermonter, the Northerner, who was traveling to the South in Reconstruction times. These two statements were based on fact, and they were best capsulated by the attorney for defendant in the opening statement to the trial court when he said, and it becomes important to the legislative history, what happened here... and this is the attorney for the defendant... what happened here arises from the fact that the labor organizations are strong in this area when outside contractors come into the area employing people from outside the state. Just as Senator Edmund in 1871 was concerned with the Northerner, the Vermonter, the Republican, the Democrat, the Methodist, the Catholic and the recently freed man, this case comes as close factually to any case that has ever been before any of the courts under 1985(3). In Griffin the Court set out four elements, and if I may respectfully refer to them as the Court did and gave them a separate number. One, that the defendants conspired, and there was a conspiracy. Secondly, that such was for the purpose of depriving any person or class of persons of equal protection of the laws, or equal--
Thurgood Marshall: Counsel, isn't Texas a right-to-work state?
Robert Q. Keith: --Yes, sir. It is.
Thurgood Marshall: I have trouble with your argument about it, so well organized by labor unions.
Robert Q. Keith: The record shows, Your Honor, that in this particular geographic locality, and all of the evidence is that the labor movement and particularly in the construction trades, is very, very pervasive. This is on the Texas Gulf coast. The oil and chemical industries are the dominant employers, and there is very heavy union organization. It has been since the 1930s. This dispute arose and this attack arose out of the outsider coming in and choosing to associate with other non-union workers. In Griffin, the Court spoke of this equal protection concept, meaning that there must be some class-based invidiously discriminatory animus. The Circuit found, and I think there is clear evidence, that there was pervasive animus both in extent and intensity. Men were beaten with two-by-fours, with iron bars. Equipment was turned over, drag lines, bulldozers, big saws, offices. Men were beaten over the head. They were hospitalized. Buildings were pillaged and burned. This was the act done in furtherance of that conspiracy, and then we come respectfully to Section 4(a) as analyzed by Griffin and that is, whereby another was injured in his person or property. Very clearly my clients as plaintiffs were injured in their personal property. This injury arose out of this invidiously discriminatory animus.
Byron R. White: What did it deprive them of? What right?
Robert Q. Keith: Best said, it deprived us, if I may code myself as a plaintiff for the moment... it deprived us of the equal enjoyment of personal security which all of us enjoy under the law.
Byron R. White: Do you think 1985(3) covers that?
Robert Q. Keith: Yes, sir, and I believe the Court's decision in Griffin and the legislative history will support that. Furthermore--
Byron R. White: How does Griffin have gotten to the Thirteenth Amendment case?
Robert Q. Keith: --Griffin was at least a Thirteenth Amendment case and a right to travel case, and Griffin spoke in this instance of a class-based invidiously discriminatory animus.
Byron R. White: You always have to have that.
Robert Q. Keith: Yes, sir, but that is the right that is violated. Bear in mind this, that the federal statute was aimed at the conspiracy.
Byron R. White: Tell me again, what right is it? What is it in this case?
Robert Q. Keith: In this case I have, we have the right to enjoy equally the security from unprovoked attack. We also have under the privileges--
Byron R. White: So 1985(3) covers any assault that is performed by two people?
Robert Q. Keith: --No, sir, not at all. There must be a class-based--
Byron R. White: If they just attacked red-headed people?
Robert Q. Keith: --If there is a class-based invidiously discriminatory animus that is both pervasive as in... to extent and intensity, yes.
Warren E. Burger: Class basis on both sides?
Robert Q. Keith: Not necessarily, Your Honor, but there must be a conspiracy. I could not... in abstract one person cannot commit an act and thus violate 1985(3). There must be those acting in concert under conspiracy.
Byron R. White: So you do not think there is any necessity for the conspiracy to interfere with the efforts of the state to protect people?
Robert Q. Keith: That is correct. Nowhere in 1985(3) is that necessary. You see, at the time they adopted this there were four other provisions that were adopted also, and state action and interference with state action are dealt with separately. So we do not need to look to those as you consider 1985(3).
Thurgood Marshall: Eighty-five three says equal protection.
Robert Q. Keith: Yes, sir, or enjoyment of equal privileges and immunities.
Thurgood Marshall: Well, so you will claim under immunities?
Robert Q. Keith: We claim in this instance, sir, under--
Thurgood Marshall: You cannot claim equal protection.
Robert Q. Keith: --Yes, sir.
Thurgood Marshall: Well, where is the state? The state says equal protection.
Robert Q. Keith: We do not claim--
Thurgood Marshall: Well, where did you get equal protection from if you did not get it from the Fourteenth Amendment?
Robert Q. Keith: --The Congress, Your Honor, did not say equal protection under the Fourteenth Amendment. They say--
Thurgood Marshall: But you say equal protection of the law--
Robert Q. Keith: --That is correct, yes, sir.
Thurgood Marshall: --and the only place you find that in the Constitution is in the Fourteenth Amendment.
Robert Q. Keith: Yes, sir.
Thurgood Marshall: Isn't that correct?
Robert Q. Keith: That is my understanding.
Thurgood Marshall: So they took it from the Fourteenth Amendment.
Robert Q. Keith: They took the concept of equal--
Thurgood Marshall: But they left the state in the Fourteenth Amendment.
Robert Q. Keith: --They left the state in the Fourteenth Amendment.
Thurgood Marshall: They just took the equal protection and left the state.
Robert Q. Keith: Now, there is a view supported by the legislative history that at the time Congress enacted this that they thought they were enacting a statute under the Fourteenth Amendment, Section Five, but we do not need to reach that in this case. Bear in mind this, if I may pursue it a moment more, when we speak of the equal protection, we are speaking about the animus. We are not speaking about some violation of a constitutional right. We are speaking about the animus, and in this instance that animus was to deprive us of equal enjoyment of the law in peace and security to our person. The animus also extended to equal privileges and immunities in that we had the right to choose with whom we associated. In the exercise of that right under the First Amendment if you bring the state in, but in the exercise of our right of association we then became brutally and violently assaulted. The animus, Your Honor, was affected in this case both by equal protection and equal privileges and immunities.
William H. Rehnquist: Well, Mr. Keith, how do you get... I have the same basic question Mr. Justice Marshall had. How do you get deprived of equal protection of the law by private individuals? These people were not deprived of any protection of the law that I can see.
Robert Q. Keith: Sir, it is not that you were deprived, thus injured, thus you have a cause of action. There was no depravation which in a causal proximate cause sense led to this cause of action. The denial, if you will, relates to the animus.
William H. Rehnquist: But I want to get back to the Fourteenth. To what extent are you relying on the Fourteenth Amendment as a basis for Congress' enactment of this statute that you say gives you a claim?
Robert Q. Keith: None.
William H. Rehnquist: Well, then what is the authority for Congress to act?
Robert Q. Keith: In this instance the commerce clause.
William H. Rehnquist: You say Congress relied on the commerce clause in passing 1985?
Robert Q. Keith: At this time--
William H. Rehnquist: You mean then 1983, the present--
Robert Q. Keith: --Today, yes, sir. Congress clearly has a constitutional authority--
William H. Rehnquist: --I am talking about 1871.
Robert Q. Keith: --At the time Congress adopted 1985, their perception was that this was a wrong that needed correcting and that they had the authority to do so under Section 5 of the Fourteenth Amendment. This Court does not need to address that question in this case. That may be another day and another time. The Congress has the authority under the commerce clause, clearly under the facts of this case, to adopt 1985(3). This was a federal project. It involved--
William H. Rehnquist: But there is not the slightest indication from the legislative debates that I have seen in 1871 that Congress gave any thought to the commerce clause.
Robert Q. Keith: --That is correct.
Byron R. White: And if they had given some thought to it, they could not possibly have imagined that the commerce clause would authorize this kind of an interference with it.
Robert Q. Keith: As I understand the test today, sir--
Byron R. White: No, but as of that time.
Robert Q. Keith: --The commerce clause was given a more restrictive application 100 years ago, yes, but the question today is the constitutionality of the Act and the authority of Congress to enact it.
Byron R. White: No, the question is construing the statute they read.
Robert Q. Keith: Yes, sir.
Byron R. White: And if they purported to act under the Fourteenth Amendment, I am sure they thought they were complying with, they were staying within its limits. If you say the limits were so and so, those are the limits of the statute, if you say that is what Congress intended.
Robert Q. Keith: No, sir. The Fourteenth Amendment did not limit Congress' action. Congress was federalizing a particular offense.
Byron R. White: Under what authority?
Robert Q. Keith: Under the authority of the Fourteenth Amendment, Congress says--
Byron R. White: All right. Do you think Congress, purporting to act under the Fourteenth Amendment, could just have passed a murder statute of general applicability all over the country on the theory that they were... do you think that would be--
Robert Q. Keith: --That was the type of question that was subject to the debate, exactly. When Congress enacted what this Court has called Section 2, that is, the discriminatory animus, instead of adopting this general murder statute, Congress adopted the limiting amendment which requires the animus that we have spoken of. The animus is to deprive one under these circumstances of equal protection, that is the equal enjoyment of the laws or equal privilege under the laws. Now--
Sandra Day O'Connor: --Mr. Keith, would just any group that shared common political or social beliefs qualify for the class of plaintiffs that you would see covered by the statute?
Robert Q. Keith: --No, Justice O'Connor. Bear in mind that class is really defined in the mind of the defendants. It is the defendant's perception that these people, whomever they may be, in this case those who were associating on this job, are morally inferior. For some reason they lack the same standing under the law as the rest of us. They are not entitled to the same protection under the law. In this instance--
Sandra Day O'Connor: So to define the class we look in the minds of the defendants to see--
Robert Q. Keith: --As represented by their res gestae statements at the time and as represented by their conspiratorial actions before and in the acts done in furtherance of the conspiracy, yes. In this instance the res gestae statements are, man, get out of here. You are crazy. This is union country. Get out of Jefferson County and don't set your feet back in here. Much like the Jewish people at the synagogue, or the Catholics at mass, these people were assaulted at a place where they congregate, where they associate, as they have under state law as well as federal law a right to do. Hypothetically there may be some other circumstance that would be more arguable as to whether it is or is not a class, but clearly it is not a Rule 23 class such as numerocity, commonality, and definiteness.
William J. Brennan, Jr.: --Mr. Keith, under your view would a private men's club be subject to a 1985(3) suit by women?
Robert Q. Keith: No.
Sandra Day O'Connor: If the women thought they were inferior?
Robert Q. Keith: No. I could limit it in a number of different ways, but there would not be class... it would not necessarily be a conspiracy, although you might say the men by their charter agree to something. There would not be any animus of the type, and the Fifth Circuit spoke of this, of the type the framers of the amendment were intending.
William J. Brennan, Jr.: Well, instead of women suppose it is blacks.
Robert Q. Keith: If they are beaten and assaulted because of that status--
William J. Brennan, Jr.: No they are just denied--
Robert Q. Keith: --Excluded--
William J. Brennan, Jr.: --excluded from the white male club.
Robert Q. Keith: --I do not perceive that as the animus conceived by the--
William J. Brennan, Jr.: The original purpose I gather... animus initially was in part at least the freedmen, was it not?
Robert Q. Keith: --Yes, sir, in part the freedmen, but it was basically economic in that the Northerner, the Vermonter, the freedman was now taking over the place or taking a place in this new economic order. The Act was basically derived at those who were exercising economic activity.
Thurgood Marshall: You keep talking about economic and all. I thought the basis of these statutes were the Black Codes of the south, the Black Codes.
Robert Q. Keith: Yes, sir, they were.
Thurgood Marshall: Don't tell me you never heard of them.
Robert Q. Keith: Yes, sir. I did not understand the question. The--
Thurgood Marshall: Is that not the reason for this statute?
Robert Q. Keith: --Yes, sir, but what was happening was--
Thurgood Marshall: Your people do not qualify under that, do they?
Robert Q. Keith: --What was happening was that the Northerner was going to the South, was being elected to the legislature, was operating stores. He was being beaten and pillaged and violated just as was the freedman.
Thurgood Marshall: In '71?
Robert Q. Keith: Yes, sir, and that is exactly what the legislative history spoke to was the conduct toward the black man and toward these new persons in the community.
Thurgood Marshall: How come none of the early cases mentioned it? I mean, the earlier decisions of this Court.
Robert Q. Keith: Well, respectfully, there are just two.
Thurgood Marshall: Just two? There are four of them in Volume 100.
Robert Q. Keith: Well--
Thurgood Marshall: In one volume.
Robert Q. Keith: --Speaking of the--
Thurgood Marshall: I think either three or four.
Robert Q. Keith: --Griffin since 1962 is the only time that this Court has really written on this 1985(3), and those men--
Thurgood Marshall: The whole point is you have got a clear almost undefendable action in the state court. Right?
Robert Q. Keith: --There is an action in the state court, yes, sir.
Thurgood Marshall: You are going to have a dual recovery here?
Robert Q. Keith: No, sir.
Thurgood Marshall: Sir?
Robert Q. Keith: No, sir, not in any way.
Thurgood Marshall: Are you going to drop your state one?
Robert Q. Keith: I have never brought a state court suit.
Thurgood Marshall: Sir?
Robert Q. Keith: I never brought this as a state court suit.
Thurgood Marshall: I thought you said there were two involved in this same one. I am talking about your plaintiffs.
Robert Q. Keith: My plaintiffs in this case brought one law suit and that was in this Court.
Thurgood Marshall: Yes, but you could have brought it in the state court.
Robert Q. Keith: We could have brought a law suit in the state court. There is no question about that.
Thurgood Marshall: Now, to get back to Justice O'Connor's question before, why the federal instead of the state court?
Robert Q. Keith: Am I free to answer that question as the lawyer who brought the case? The reason why it was, at the very time I brought this suit, there were two state court proceedings going on involving identical issues where the parties plaintiff were getting their brains beaten out, unable to get an injunction, and I was first seeking an injunction for my clients to protect them as they returned to work. I was confident that with the difficulties these other plaintiffs were having at the exact same time, I could not get an injunction. So I sought a remedy under the federal law where I could obtain an injunction. That is why I brought the suit in the federal court. It is the only law suit that we have ever brought--
Thurgood Marshall: And it was easier.
Robert Q. Keith: --Well, it has not been easy. [Laughter]
Speaker: It is no easier today, is it?
Robert Q. Keith: No, sir, it is no easier today. But very clearly, and if I may respectfully distinguish my case from Dombrowski or Novotny. In this case, my clients suffered injury to person and property as described by Section 4(a) very clearly. In Dombrowski out of the Sixth Circuit, the Seventh Circuit, or Novotny, neither of those plaintiffs suffered injury to person or property. And in Griffin the Court said that there was a recovery for those who suffer injury to personal property or to those who are denied equal privileges and immunities as citizens of the national government. So I would respectfully say to you that this case is legally and factually different from each of those for that very reason. Those two cases were what we have called, in our brief, Section 4(b) cases which, Mr. Justice White, would or do call for a "violation of a constitutional right" which in this instance would call for either a racial violation, a travel violation or a state action involved. If I may answer the question of Mr. Justice Rehnquist, are there other constitutional rights that may be involved. We can conceive of none except as a person may be enjoying security or freedom or peace from assault.
William H. Rehnquist: Do you think that is basically a right protected by the federal constitution, the right to security or respite or freedom from assault?
Robert Q. Keith: Equal protection under the laws--
William H. Rehnquist: Supposing everybody is getting beaten up?
Robert Q. Keith: --Then there would be no inequality of protection. Certainly that is true, but in this instance and in no circumstances have been presented the case that you posit.
Byron R. White: Where is the right... where do you get that right of physical security under the federal constitution from assault?
Robert Q. Keith: I have--
Byron R. White: A private person.
Robert Q. Keith: --I have the right under the state law to this freedom, and then I have the right as a federal citizen, a national citizen, to equal application of that law. When the marauder takes it in his own hands and treats me differently, irrationally, for no legitimate reason, then--
Byron R. White: So you do suggest, I suppose, that the federal government could have a general tort law, general criminal law to pick up all the crimes around if they involve some injury to person and property?
Robert Q. Keith: --No, sir, indeed not--
Byron R. White: If they were conspiracies.
Robert Q. Keith: --And if they were class-based--
Byron R. White: Yes.
Robert Q. Keith: --animus--
Byron R. White: Then yes.
Robert Q. Keith: --and with this invidious discrimination, yes--
Byron R. White: Then yes.
Robert Q. Keith: --but only if there is that conspiracy with that class-based discriminatory animus.
William H. Rehnquist: You say that the gist of the thing is denying your clients the equal protection of the law even though the State of Texas apparently is perfectly willing to enforce the law against everybody evenhandedly.
Robert Q. Keith: That is correct, but that is the animus, Your Honor. That is not necessarily the cause of action. That is just an element of it, and this so-called violation does not need to lead to injury in a proximate cause sense. All this does was show that the animus arose in this violation of my equal protection.
William H. Rehnquist: So there is really no state action involved in all.
Robert Q. Keith: That is correct. There is no state action here, nor is there any required if you have injury to person or property as described under Section 4.
Thurgood Marshall: In this case if they had not said this is union country or if they had not said anything and they just beat him up, would you be here?
Robert Q. Keith: It would be a much more difficult case.
Thurgood Marshall: Would you be here? I mean, do you think so? Do you think you would have gotten a judgment below?
Robert Q. Keith: Not without showing that there was, in fact, this animus. I may have been able to do so circumstantially. But--
Byron R. White: Do you think this is the theory of the Court of Appeals that you are pushing?
Robert Q. Keith: --No, sir. I do not. The Court--
Byron R. White: Are you defending the judgment of the Court of Appeals?
Robert Q. Keith: --We do not have to go that far.
Byron R. White: So your answer is no?
Robert Q. Keith: That is basically correct. If this Court should hold that Section 5 of the Fourteenth Amendment grants this power to Congress, then the Court of Appeals judgment is correct on that basis.
Byron R. White: You do not say they are wrong. You just do not want to defend it.
Robert Q. Keith: We do not have to go that far. That is a heavier load to carry than we need to carry to prevail in this particular case.
Byron R. White: Did you present this narrower ground to the Court of Appeals?
Robert Q. Keith: No, sir. We did not. We submitted the larger view to the Court of Appeals.
Thurgood Marshall: If you do not want to defend the court below, do you want us to? Well who is here defending them?
Robert Q. Keith: Well, I am here defending them, Your Honor, but I say that--
Thurgood Marshall: I thought you were.
Robert Q. Keith: --We can affirm my case without going as far as we ask--
Thurgood Marshall: I was trying to keep you from pulling the rug out from under yourself.
Robert Q. Keith: --Thank you, sir.
Harry A. Blackmun: Well, you certainly are defending the judgment below.
Robert Q. Keith: That is correct, yes.
Harry A. Blackmun: A little while ago you said you were not, but certainly the judgment below--
Robert Q. Keith: Indeed, and that is the only difference that we have with the Court of Appeals is this--
William J. Brennan, Jr.: --Why are you afraid of the Section 5 argument?
Robert Q. Keith: --We did not think it was necessary--
William J. Brennan, Jr.: There have been opinions of the Court that have addressed it, as you know.
Robert Q. Keith: --We did not think it was necessary to make, Your Honor.
Byron R. White: Well, it is not necessary to make it except that... where else did Congress get the authority to pass this law?
Robert Q. Keith: That is probably the answer to my question, yes.
William J. Brennan, Jr.: I still do not understand your concern. There have been opinions that have addressed that question and have concluded that, indeed, Section 5 was the basis upon which the 1871 Act was adopted in United States v. Guest.
Robert Q. Keith: Yes, sir.
William J. Brennan, Jr.: There were six of us in that case that thought so.
Robert Q. Keith: Yes, sir.
John Paul Stevens: May I ask you once more. I know you have covered it but I keep turning it over in my mind. Define for me again the class at which the conspiratorial activity was directed.
Robert Q. Keith: In the minds of the defendants and those whom they struck out against were a group of men associated at a particular work site who had chosen to--
John Paul Stevens: Is it all of the employees of this particular employer?
Robert Q. Keith: --Yes, sir.
John Paul Stevens: That is the class.
Robert Q. Keith: As it turned out there was also a subcontractor on the job who had been notified--
John Paul Stevens: But you think that the employees of a particular employer satisfies the class concept in the class-based animus language?
Robert Q. Keith: --Yes, sir, because they were associated as non-union workers exercising that right, not the right to work non-union but the right to associate. They were at this place just as the Jewish people might be at the synagogue.
John Paul Stevens: Do you think they were there because they wanted to be with other non-union people or because they wanted a job?
Robert Q. Keith: Either way, they had the right to be there and to express themselves in that manner and they chose to do so.
Byron R. White: I thought you said this group of people at this site had the right not just to associate, and maybe you are saying that, too, but they had the right to have personal security.
Robert Q. Keith: They do. Yes, sir. One is equal protection. One is privileges and immunities, yes. They have both rights as federal citizens. Have I answered your question? Thank you, sir.
Warren E. Burger: Do you have anything further, Mr. Gold? Mr. Gold, you have two minutes.
Laurence Stephen Gold: I have nothing further unless there are questions.
Warren E. Burger: Thank you, gentlemen. The case is submitted.