Warren E. Burger: We will hear arguments next in 76-99, Occidental Life against EEOC. Mr. Vaughn.
Dennis H. Vaughn: Mr. Chief Justice, may it please the court, the Court of Appeals for the Ninth Circuit held below, that the EEOC has infinity within which to sue on an individual charge of discrimination. In other words that there is no time limitation whatsoever upon that agency, a position advocated by the EEOC to that court, the Ninth Circuit so held in the context of a suit, alleging wide ranging practices and acts of sex discrimination against both females and males. A suit that was predicated upon a single charge of discrimination filed by one individual female protesting her discharge which she claimed to be discriminatory and that discharge occurred some three years and four months prior to the date upon which the EEOC got into the Federal District Court with its complaint. Now it is petitioner’s position that infinity is not and can not be the only parameter on the EEOC’s right to sue. First it is our position that inherent in the statute itself is a 180 day limitation on the right to sue granted to the EEOC by that statute and secondly, it is our position that if in fact there is no federal limitation, then the most analogous state statute of limitation governs the EEOC’s right to bring suit.
Potter Stewart: I notice in the briefs here, nobody seems to have identified the most analogous State Statute or argued about which one it might be.
Dennis H. Vaughn: Yes, Your Honor.
Potter Stewart: We are in California, so it will be a California Statute if your second argument is correct.
Dennis H. Vaughn: That is right Mr. Justice Stewart.
Potter Stewart: And might it be a different statute if it is one for money back pay from -- I thought it might be if it were only for an injunction.
Dennis H. Vaughn: I do not believe…
Potter Stewart: In other words only if in injunction there will be no statute at all, but the State Doctrine of Laches.
Dennis H. Vaughn: No, Your Honor, I do not believe there would be a distinction under California law, under the California Statute between a suit for injunctive relief and a suit for back pay.
Potter Stewart: But there is no identification any where in these briefs that I saw of what the most analogous State Statute might be.
Dennis H. Vaughn: Well, Mr. Justice Stewart, the Court of Appeals of course because of its view that there was no limitation whatsoever did not reach the issue, the District Court held that the one year statute of limitations in California was applicable and that was an alternative holding in the court’s granting of our motion for Summary Judgment. The District Court had held that there was a 180 day Federal Limitation in Title VII and alternatively that the one year Statute of Limitations under California law was applicable.
Potter Stewart: It is that, what is that statute for a penalty or for or is it a catch all statute or…
Dennis H. Vaughn: That is the statute for wrongful injury; it is Code of Civil Procedure Section 343, injury caused by the wrongful act of another. Now there is additionally a second statute, Code of Civil Procedure Section 3381 which is an action upon a liability created by statute other than for a penalty or a forfeiture. So, it has been our position, it was our position before the District Court, it was our position before the Court of Appeals, that one of the two statutes was applicable regardless of which applied, the suit was barred.
Potter Stewart: Each was one year statute?
Dennis H. Vaughn: No, I am sorry, the first for wrongful injury is one year, the second statute is three years. Now the…
William H. Rehnquist: How long he lapsed here? It would have been barred even by the three year statute?
Dennis H. Vaughn: Yes, that is right Mr. Justice Rehnquist, the complaint was filed over three years and four months from the date upon which the Discriminatory Act occurred being the discharge of the charging party Tamar Edelson on or about October 1, 1970. Suit was filed on February 22, 1974.
Potter Stewart: Then it was a pattern of practice suit, was not it?
Dennis H. Vaughn: Mr. Justice Stewart, when the suit was brought, yes, it was -- I do not know whether pattern in practices is quite the right word, it was not an Attorney General Suit under the old pattern in practice provisions of the 64 Act, but it did allege wide ranging, acts and practices of discrimination by the petitioner against both female employees and male employees, going all the way back to the effective date of the civil rights act in 1965.
Potter Stewart: But all the way up to the time the suit was filed is not it. All the way forward in time until the time the suit was filed, was not it an allegation of a continuing violation?
Dennis H. Vaughn: The allegations of the complaint, Mr. Justice Stewart, yes.
Potter Stewart: So, when the statute began to run, it is your claim that it ran from the discharge of the original complaining party.
Dennis H. Vaughn: That is correct.
Potter Stewart: But arguably, it might run from the -- according to that government’s allegation that it was going on at the time of the suit.
Dennis H. Vaughn: Mr. Justice Stewart, I think it should be recognized that nowhere in the pleadings before the District Court, did the EEOC at any time argue that there was a continuing violation. Furthermore, that argument came into this proceeding for the first time, in a reply brief it was filed to the Court of Appeals through the Ninth Circuit. It does not appear, I do not believe in the brief filed by the agency or by the Solicitor General with this court. But in any event, it was raised for the first time belatedly on appeal. Now, with respect to the 180 day Federal Limitation, that limitation is found in section 706 Act I of the act, when it is read in the context of the legislative history, certain portions of which I would like to highlight to the court. Senator Dominick who was the principal spokesman for the bill that ultimately has the senate referred to the 180 day provision as “The time period within which the commission may file a civil action” and Senator Javits referred to it as “The allowable time for the commission to move into a given situation.” Now, these were not the only two comments, throughout the legislative history there was the very strong expression by Congress that the 18 months, the two years that it was taking the EEOC then to act was unfair to charging parties was a denial to them of justice, justice delayed is justice denied. A phrase seen throughout the legislative history and there was a determination, a very strong conviction, that the same delay and in action by the agency was unfair to respondents and there was a clear Congressional determination in 1972, that this situation had to changed in order to prevent it from continuing. Now the EEOC has struggled to breath some meaning into this language, the 180 day language as an alternative to our interpretation and thus the EEOC has argued that because Congress was aware in 72 that it took a year or two for the EEOC to dispose those charges because there was a backlog that Congress couldn’t possibly have intended. The 180 day provision as a suit limitation and then according to the EEOC the 180 day provision is simply an expression of a private filing restriction on the individual victim of discrimination. But this position necessarily flounders, both on the expression of Congressional intention, but also on logic. For this position of the EEOC assumes, first of all that Congress intended to build a system in 1972 that would perpetuate, that would build into the system forever more the very delays that if abhorred and was attempting by the new mechanism to eliminate and secondly the EEOC’s position assumes that Congress made the deliberate choice to extend the period during which a victim of discrimination could not sue himself or herself even though Congress knew full well that the EEOC during that period would not or could not do anything for that victim of discrimination. In others words Congress in 1972 took the former 30 to 60 day restriction on an individual filing suit and extended it to 180 days. Now did Congress extended just to restrain the individual from being able to pursue his own rights, if it knew that the EEOC couldn’t or wouldn’t do anything, it simply doesn’t make sense. It is an anonymous and incongruous intention to attribute to Congress and clearly at odds with their manifest intention.
John Paul Stevens: Mr. Vaughn, may I ask you question just to get the whole thing that you told. No right to sue letter was issued to the employee in this case is that correct?
Dennis H. Vaughn: No formal notification, the record demonstrates that she was advised that she could bring suit and she requested that the case be sent to San Francisco, the EEOC’s regional litigation office for consideration as a vehicle for a litigation.
John Paul Stevens: What I was leading up to is, does she now have a right to sue if she got the right kind of letter from the EEOC? Would she be barred?
Dennis H. Vaughn: If a right to sue letter now was issued, well I would say certainly not Mr. Justice Stevens.
John Paul Stevens: She would not be barred?
Dennis H. Vaughn: She would be barred, that she would not have a right to sue at this juncture. The fact is that it is quite academic I would say to Ms. Edelson, the record will reflect that she was reinstated in her job six days after the charge was filed and thereafter she voluntarily terminated.
John Paul Stevens: Let me put the question little differently. If instead of suing itself, the EEOC had issued the appropriate letter to her, could she have been a part of suit, you know a couple of years had gone by?
Dennis H. Vaughn: Mr. Justice Stevens, the question you are asking me is what are the conditions to make some suit by a private individual and that of course is not a question before the court in this case. I think the statute if read logically in light of the legislative history would indicate that the agency had 180 days in which to act having not acted a notice of right to sue, should have been forwarded, a formal notice which it was not and then the charging party would have an additional 90 day period thereafter. I think therefore that Ms. Edelson would not now have the right to sue. It is now after all, almost seven years from the date of her discharge. I think that she would be barred.
John Paul Stevens: What I am really asking I suppose is because you do not rely on express limitation language, but rather an implied limitation and the statutory schemes seems to put together, as you argued it. But, does that also mean that there is a total -- it really is a statutory pose after this period of time is gone by and the employer can now be sure there is no litigation coming. Is there a correlation between the private right to sue and the government right to sue? All we have to decide is that we don’t have to decide?
Dennis H. Vaughn: Well, Mr. Justice Stevens I think I suggested at the outset, I do not think you have to decide, the question is not before you. I do think as I indicated logically that would track the 180 day provision and the 90 day provision but, frankly I can see that the court might take a different approach to an individual charging party, who had not received notice of his or her right to sue, who had been mislead by the EEOC. While your decision in Johnson Versus Railway Express Agency in which you indicated how little was at stake in that case in fact that the individual was not been able to sue because of there were continuing violations, new charges could be brought. That case I think could be argued, on the other side of what I have indicated, that is that the right to sue would be barred. I think it is a difficult, much more difficult question but I think….
John Paul Stevens: I think it may be relevant Mr. Vaughn is that if you are arguing an implicit limitation rather than express limitation, at least we must have a pretty clear picture, how the whole statutory scheme puts together, that is why it was troubling me and I think, I know that it could maybe necessary to at least take that through and I am not sure what the answer is.
Dennis H. Vaughn: Mr. Justice Stevens I am not sure what the answer is either, I can only say I do not think you need to decide it in this case and I can see arguments being made on both sides, I think it is logical that she would be barred, I believe that Johnson Versus REA would tend to support that conclusion. On the other hand I can see the court taking a different view perhaps with respect to an innocent party who has been mislead by the EEOC.
Thurgood Marshall: Mr. Vaughn you believe that nobody can sue Occidental after two years? Do you know that clause?
Dennis H. Vaughn: Mr. Justice Marshall, I do not go that far again, I do not think the court needs to reach the question, under what circumstances a charging party could bring suit. Our position goes so far as to say that the EEOC was prohibited in this case from bringing suit three years and four months after the discharge in question, whether it was prohibited by a 180 day Federal Statute or whether it was prohibited by a State Statute, the most applicable State Statute.
William H. Rehnquist: Is not that the reverse of what one would usually think the Statute of Limitations applies to the government usually has a longer period of limitations or governmental agencies has a longer period of limitation than a private individual.
Dennis H. Vaughn: Mr. Justice Rehnquist, I think this perhaps is a unique case because the foundation for what is usually the case I believe and normally would be an interpretation of congressional intention, here Congress was outraged, outraged by the delays and the inaction, that this agency was pursuing in the enforcement of the act and they intended -- I think it is clear to put a relatively short time limitation upon the right to sue after all in this same section, Section 706(f)(1) there is a provision that the charging party after receiving a notice of right to sue will have 90 days within which to sue, a lesser time in fact than the 180 days.
William H. Rehnquist: Well then why does not that govern Ms. Vaughn's  right here rather the charging party is right here, is that that she did not receive the notice?
Dennis H. Vaughn: Well we have no issue Mr. Justice Rehnquist before assessed Ms. Edelson‘s, the charging party’s right to do anything. She did not receive the formal notice of right to sue, the record will demonstrate that she was advised informally of her right to sue and she declined the pursue at requesting that the matter be considered as a possible litigation vehicle and that of course is in turn what ended up happening when the EEOC brought suit low some three years four months later.
Harry A. Blackmun: Mr. Vaughn I am little concerned about the practical results, if you prevail here, then I suppose assuming their sufficient manpower, the EEOC will bring a lot of suits near the end of the 180 day period. Is that something that would be beneficial to employers, is it something they really would want?
Dennis H. Vaughn: Mr. Justice Blackmun I think not only would employers want that I think that, that is what charging parties would want, I think that is what private counsel for plaintiffs want. Part of the great problem with the inaction of the EEOC is that quite frankly from an employer’s point of view he can take a charge, he can sweep it under the rug because nobody is asking him or requiring him to make any sort of decision whatsoever and under the rug it sits and it languishes and he is never required to make a judgment. Now did I make a mistake? Did I violate the law and what should I do about it? And these cases become much harder to settle quite frankly, five and six and seven years down the road, when there is a substantial back pay liability involved, then they are if you hit them right upfront. Now, obviously charging parties would be benefited, charging parties now have their charges languishing before the EEOC, action is not taken, the EEOC goes out, they have a charge filed by an individual alleged discriminee, let's say a racial charge at first the EEOC does not do anything about it and then it does go out to conduct an investigation, but then it starts investigating, whether there is religious discrimination or sex discrimination, whatever else in addition to the particular charge of racial discrimination or minority status discrimination. In the meantime the charging party sits and all the while the EEOC does not issue the 180 day notice, that that charging party has a right to sue. So he is not or she is not pursuing individual rights. It is a very unfair system to charging parties, it is a very unfair system to respondents to employers and it is a terrible system and so far as the courts are concerned because the courts are being clogged with stale, time consuming cases going back years and years and years.
Harry A. Blackmun: Well my suggestion was that they might be clogged even more, if you prevailed it.
Dennis H. Vaughn: I think that is a good question Mr. Justice Blackmun and I think it is not the case, I really do believe that a lawyer confronted with a deadline, we are going to settle this case in 30 days, or we the EEOC will file a suit. You have got no choices as a lawyer for your client, but to turn to look at that case and make a judgment. I think if the EEOC pursued it is responsibilities, that there would be more effective conciliation and there would be faster action, more cases would be settled and I do not believe the courts would be clogged. But even Assuming Arguendo, that they were, certainly it would be better that we would be clogging them with new cases than cases that are four and five and six years old.
Warren E. Burger: And is not that also attempts to mitigate the damages, the back pay award, so that the employer can make a judgment very quickly, whether he should or should not wash it out.
Dennis H. Vaughn: I think that that is one of most important practical points Mr. Chief Justice, that if you have made a mistake, that is something you are going to face up to earlier, much more readily than you are five and six and seven years down the road and this is the problem, you do not make those judgments now because nobody is holding your feet to the fire. Now, by analogy talking about the National Labor Relations Board for a moment, it of course has a different a cease-and-desist type authority and that authority was denied to the EEOC. But let's take an example of two employees, side by side working at machines in a factory, one employee, a white employee is discharged for union activity, the other employee a minority is discharged because of his race or ethnic origin. What happens? The union organizer goes to the National Labor Relations Board and he files a charge. Within a median time of 43 days the investigation is completed. The charge having been investigated the Board finding merit, a complaint is filed. A hearing is held before an Administrative Law Judge. The Administrative Law Judge’s decision goes to the NLRB in Washington, court enforcement proceedings are begun and eventually a Court of Appeals does enforce the order of the Board for reinstatement and back pay. That is two-and-a-half years according to the legislative history in connection with these amendments, two-and-a-half years from the date of the charge, with the NLRB to the final decision of the court. Now the proponents of the court enforcement system said, that was too long, we do not think that victims of discrimination should wait for two-and-a-half years to receive a remedy, we want a faster a system. That is why they rejected the cease-and-desist system. I would like to if I may reserve a few minutes for rebuttal.
Warren E. Burger: Just one of these call for a brief answer, does this create problems for large employers in terms of setting up reserves for contingent liabilities?
Dennis H. Vaughn: The present system?
Warren E. Burger: Yes, If the government’s position is correct, that it is okay…
Dennis H. Vaughn: Yes, the present system, the government’s position, yes Mr. Chief Justice the potential contingent liability is again be absolutely staggering and often one’s which you cannot measure, you do not know the duration or the extent of them. Thank you.
Warren E. Burger: Mr. Martin.
Thomas S. Martin: Mr. Chief Justice, may it please the court. 1972 Congress authorized the Equal Employment Opportunity Commission to enforce Title VII in court and abandoned dependence upon private enforcement that was universally deemed to be totally ineffective. Section 706 which is the focus of this litigation was designed to put the government’s enforcement muscle behind Title VII. Now, the issue in this case is, whether Congress intended that that enforcement muscle disappear after 180 days, after the filing of the claim or in the alternative terminate according to the very mandates of State Statutes of limitations? Before I go to the merits, I would like to briefly expand upon the factual context in which this delay claim arises.
Speaker: Mr. Martin is there one other alternative that Congress never even thought about the limitations question and government action. Is there any evidence in legislative history they thought about this problem?
Thomas S. Martin: I think there is evidence in the legislative history that they did not intent to have a short State Statute or a 180 day limitation. I think to put it very briefly and I will get back to it at further lane. Congress knew when it imposed upon the EEOC the requirement to investigate, to conciliate and to resolve as many of these problems by conciliation as it could. Congress knew that that process took 18 to 24 months and yet Congress required that as a pre-requisite before you bring a commission suit under….
Speaker: It is a pretty effective argument to the fact that Congress was not very happy about that.
Thomas S. Martin: Congress was unhappy with that.
Speaker: But then they did not quite continue.
Thomas S. Martin: That is correct, it has unhappy about it, but it did not cut it off. I could go just a bit farther, I think I can address your concern as I develop it.
Speaker: Mr. Martin do you have any knowledge of figures as to how many cases filed with the commission are settled by conciliation as contrast to those that are not?
Thomas S. Martin: I do and I would like to briefly indicate now what the commission has done in this area. First let me talk about this case, then what the commission does generally in response of your question. When this case was brought at the San Francisco office of the EEOC had fewer investigators than there are members of this court. It had a 1,000 discrimination claims before it. Nevertheless they got to this claim within six months, investigation was completed within a year. But, then four months later conciliation was begun with the petitioners in this case. Conciliation went on for another six months and then it was ended and then at petitioner’s request conciliation was begun again for an additional five months.
Speaker: What is conciliation?
Thomas S. Martin: Conciliation is after of the commission has found out what the facts of the problem are and the scope of the discrimination which just occurs in the particular or alleged to occur in the particular industry. They sit down with the individual respondent and tend to work out an agreement, either for back pay possibly or for an end to the particular discriminatory practice. The whole purpose of the 72 amendments and 64 Act really was to try to resolve as many as these claims through conciliation as possible so they do not end up in court.
Speaker: Conciliation typically could go on for six months?
Thomas S. Martin: Conciliation could, you can imagine a situation where you have the company like AT&T, a massive company, thousands of people involved, hundreds of job categories, wages, transfer rights, unions involved. It is a very difficult process it may involve difficult legal issues and everyone wants to go back and analyze those legal issues. So as long as conciliation is worthwhile, the commission has to follow it out, the statute says it can only bring suit when conciliation has failed. That is the Congressional pre-requisite to suit, the commission has no choice, it can't end the business on the 179 day and sue because Congress has required to resolve these matters through conciliation were possible, that is what is it is about.
Speaker: Anything other than Joe Bonning(ph)?
Thomas S. Martin: Well let us talk about results I think it is and get to Mr. Justice Blackmun’s question. 5,000 claims last year were resolved through conciliation. Now, there were over 40,000 discrimination claims resolved last year by EEOC and that is with 2,500 fulltime employees, 5,000 resolved through conciliation, the percentage of claims over three years old was reduced from 20% to 5%. So my point I guess is that when you have the delay, it is a shared responsibility, it is not just the EEOC, it arises out of the nature of the work that conciliation process, the magnitude of the discrimination problem in this country and the limitations on the EEEOC resources.
William H. Rehnquist: Well, now you do not see that with an ordinary Statute of Limitation, if the Statute of Limitation requires the owner to indict somebody and within four years or bring a civil action in four years, you do not say to the defendant has a shared responsibility, we both have to get this case to trial.
Thomas S. Martin: No, but I do say that if the situation is such the Congress has required a conciliation, and conciliation is a two party business in other words respondents can, can encourage you to continue and say it is still worthwhile and coalition has to continue it, Congress must have setup a system that reflects this reality. What I am saying is if you look at the scope of the problem and the resources available, you get some reflection of what Congress must have intended, sure Justice Rehnquist if there was clear Statute of Limitation, there would be no defense to say it is partly the respondent’s fault that we have not met it. But what we are suggesting is that there is no clear Statute of Interpretation in Statute of Limitations and one should not be implied. I like to turn to the merits of the case in particular to the language of section 706(f)(1) which reads, I think it is important what the language says, it says, if within 180 days from the filing of such charge the commission has not filed a civil action. The commission shall so notify the person aggrieved.
Speaker: May I stop you right there Mr. Martin and ask what the commission’s view is as, as to whether that imposes any time limitation within which the commission has a duty to notify the charging party.
Thomas S. Martin: The interpretation of that language from our point of view is that it imposes, it does two things, it sets out a time within which the commission can conciliate with the respondent without interference from private sue, private party can not sue before 180 days and then it sets its time after which the private party can demand and must receive from the commission a Right to Sue Letter.
Speaker: Well, it says the commission shall so notify, is that seems to impose a duty upon the commission with or without any request?
Thomas S. Martin: That is right the language does appear to do that, but the courts that have interpreted it, Courts of Appeal had unanimously come to the conclusion that it could not possibly meet that for this reason. The 72 act was meant to setup a process were you would have to resolve these claims through conciliation if possible, that is throughout and if there has to be a suit it ought to be a commission suit rather than a private suit. Now, if you interpret this as a mechanical limitation, then 180 days after you file the claim, before the commission has even probably gotten into this particular claim, the private party is going to have to sue or else his time will run and therefore he sues without either the thing being resolved through conciliation or without knowing that the commission might have brought suit, if he had waited. So, it twists around the whole statute and fundamentally upsets or frustrates the Congressional purpose.
Speaker: Well in other words as I understand your answer and this reflects to the earlier question by my brother Stevens, your position is first of all that there is no time limitation within which the notice to sue must be given and secondly that there is no duty upon the commission in the absence of a request to ever give a notice to sue, is that right?
Thomas S. Martin: That is not precisely correct, when the commission has decided that it will, it cannot conciliate and will not sue itself, in other words to fill the congressional pre-requisites, then the commission must notify the charging party.
Speaker: With or without request?
Thomas S. Martin: With or without request. Apart from that, it only notifies upon request.
Speaker: In that that decision is clearly up to the commission, if it decides that it is going to take, it is going to need seven years and it does not have to notify until the expiration of seven years. Well this is Justice Stewart’s question.
Thomas S. Martin: I am so much disturbed about the characterization, if it takes a long time to make that decision, it could go on three years, it could go on for four years.
Speaker: It could go on for seven.
Thomas S. Martin: That is correct it could go on. Now let us -- I think it worthwhile to talk about, how the courts can respond to that problem aside form the Statute of Limitations and I think there are two ways, first is in terms of the remedy. If it is a truly stale claim an injunctive remedy will not be appropriate. If it is a -- we talked about back pay which is under consideration here, in Albemarle this court said, prior to acquainting file, but in Albemarle this court said that if a cause of action was prosecuted in such a fashion as to cause prejudice to the opposing party, back pay could be denied altogether and in EEOC Versus General Electric which is at 532 F. 2d 359, the Fourth Circuit said that, in a situation where a commission suit has expanded the claims beyond what the charging party originally brought, back pay could be limited, not denied altogether but limited. So there are equitable ways in terms of Title VII’s remedy to deal with this problem.
Harry A. Blackmun: Those ways it is pretty tough on the employee, aren’t they?
Thomas S. Martin: I do not think they are Justice Blackmun, the point of the whole 72 amendments is that he does not have to bring the suit, the commission brings the suit and so…
Harry A. Blackmun: You seem to argue all the way through that it is so much better for the EEOC to bring suit rather than the employee, why?
Thomas S. Martin: I am not arguing that it is better from -- that this court should think it is better or that I think it is better I am arguing that Congress thought it is better and the reason is as they set out in the legislative history, that the cause of bringing suit from their point of view, was so great that a valid Title VII claims -- let me quote if the cost involved effectively preclude a very large percentage of valid Title VII claims from ever being litigated. That is a quote in our brief at 26 and what the Congress’ saying is that it is better for the commission to bring suit because private parties will not bring suite, they do not have the money. We do get counsel fees and you had counsel fees in 64 Act and yet Congress made a factual determination in 72 that was insufficient, that was Congress’ judgment and let me give you some reasons why they were probably right. Attorney’s fees first of all, only discretionary, only if you win, it is only at the end of a process which may take years, the clause to that Title VII suit are not just attorney’s fees, they are expert witnesses, computer time, experts on management testing, investigators, it is a difficult and complex process to bring a Title VII suit and Congress says “Let us take this burden off the private parties because it is not working and put that burden on the government” first giving them…
Speaker: Why did not they take it off, completely?
Thomas S. Martin: Excuse me.
Speaker: Why did not they take it off, completely?
Thomas S. Martin: They wanted to give as the report of the conference committee suggests rather clearly, Congress realize that the process may take 18 or 24 months and therefore they said, if a private party wants to get out, wants to escape the administrative quagmire as the house report says, it will have the option to do so. They gave that party the option after 180 days. Any charging party the fourth commission after 180 days can just come to the commission and say, I want to get out of this, I want to sue myself. But to a great bulk of them, that is too expensive for proposition or at least that is what Congress determined and it seems that the statute has to be interpreted, in view of what Congress intended, but what their view of the problem was. Well, we agree with those who are not at this point.
Speaker: Mr. Martin, do you give accompany any possibility of relief from a stale claim?
Thomas S. Martin: In two fashions, first in terms of the remedy, taking either no injunction, no back pay or limiting back pay. Another possibility which was done by the Fifth Circuit is the use of the APA, 5 U.S.C. 706.
Speaker: You forgot a word, I said stale claim, which the Statute of Limitations would just wipe out. All that but just wipe out….
Thomas S. Martin: A claim that is prejudicial, because it is so stale.
Speaker: Is there any way at all that a company could come in and have the case dismissed?
Thomas S. Martin: Yes, under 5 U.S.C. Section 706, the Courts of Appeals had held in Fifth Circuit and I site the court to exchange security bank, 529 F.2d 1214, these are cited in also in the briefs of one of the amicus here, the Texas brief. The charging party can come in show to the court, that there has been prejudice to him from the destructs of evidence as a result of delay and the delay is not -- is a result of EEOC in action lethargy or the desolating the suits sit around and the court can stop the suit. So, there is the result that similar to Laches that can be achieved under the APA.
Speaker: It is not like Laches?
Thomas S. Martin: It is very much like Laches except it is under the APA.
Speaker: But, since you have put that in terms of the broad scope of the equity powers of the District Judge, are not you opening a door to having 397 different approaches to that problem by 397 different District Judges. The Court of Appeals can not really lay down an affective set of guidelines.
Thomas S. Martin: Well, I think, again I reference the court to those opinions and the guidelines laid down are that you have to have it -- in the nature of Laches that you have got to show prejudice.
Speaker: Guideline that does not guide very much.
Thomas S. Martin: Well, it is a difficult case, we do not expect that there will be that many cases. Let me talk about the results of what would happen if we fouled the petitioner’s proposal. 180 days Statute of Limitations means that the 96,000 claims that are going to be filed before the EEOC this year. EEOC could get the very few of them if any, as upon a backlog situation, but thousands of pending claims first of all, there are over 100,000 pending claims, it would that all be out in the courts. The new claims 90,000 a year would be in the courts. Does that make any sense especially might have Congress’ determination of these things ought to be resolved through conciliation. It is what exactly what Congress was trying to avoid and if you have a 180 day limitation, there is no other result possible.
Speaker: What about the analogous Statute of Limitations?
Thomas S. Martin: A State Statute of Limitations?
Speaker: What if that has a fall back position?
Thomas S. Martin: Well, the State Statute of Limitations, first as a legal matter, the rule has always been that State Statutes do not apply to the Federal Government in the absence of some intent…
Speaker: Well, but we manage now for nearly, for over 20 years to function under the Federal Tort Claims Act, using much more illusive standards of law, state law than a Statute of Orientations.
Thomas S. Martin: Oh yes, but the Tort Claims Act claims act specifically requires the application state law.
Speaker: Oh, you are suggesting, I was merely responding, to your suggestion but it is not workable.
Thomas S. Martin: Okay, on the policy point, it gives the commission somewhat more time, but we have to understand the State Statute of Limitations may run, maybe a year Statute of Limitation for example. The commission’s cause of action may not accrue for 300 days after the injury has occurred and what sense does it make to apply a state statute of limitation when the commission’s cause of action does not accrue because the commission can not sue, until the claim has been filed which in some cases maybe 300 days after the injury occurred. Usually it is 180, depends upon if there is a State FDP System. Secondly, the commission has to investigate and conciliate and go through all those steps and until it finishes that process, no cause of action accrues. So, you have a state time limitation running and yet the commission can not sue. There can hardly be a sensible result. It just does not work and moreover it is not necessary. If there is a prejudice, a real prejudice case and this is not, petitioner has never alleged he was prejudiced, he obviously shared responsibility for the delays here, but if there was one, then the courts could take care of that on Ad hoc basis through the APA or through the relief provisions. I would like to speak briefly to the two assumptions that petitioner made at the outset that somehow the Congress views the delayed problem is resulting from EEOC inaptitude and Congress decided, well let us put a stop to it by putting in this 180 day provision. There is two reasons why that is got to be wrong, first Congress views the delay problem is resulting from the scope of the commission’s task and not from EEOC foot dragging. I refer the court to page 12 of the House Report 92238 where Congress’ view that delay arises from “The burgeoning workload accompanied by insufficient funds and a shortage of staff” and the Senate Report, 19415 at page 4, describes the EEOC’s effort as heroic at that point. Does that sound like Congress wants to put a 180 day limitation on it, just does not make sense, secondly, the language that they are relying upon, the notification provision could not have been response to the delay problem because that language was in the 64 act.
Speaker: That is quite possible, is not that Congress could have dropped the process and this time it was taking too long without in anyway reflecting on the performance of the individuals who are doing. Maybe the government just did not have enough staff in the agencies.
Thomas S. Martin: And then Congress had the choice to eliminate the process altogether or greatly expand the staff and put some reasonable time limitations. But Congress did neither…
Speaker: Well, you suggest that Congress always carefully works these things out, they have enlarged a lot of causes of action the courts without creating a whole lot of new judgeships too.
Thomas S. Martin: Absolutely, but that the opposite assumption must be, that Congress had a process that took 18 to 24 months and said, well, from now on, it is going to take 180 days and that is it. It just can not work as long as Congress wants to have resolved these claims through conciliation and through commission suit and not private suit. If that is the intent and I think if you read the legislative reports that has to be the intent. Then there can not be such assured Stage Statute of Limitations.
Speaker: Out of every 100,000 claims that are filed with the EEOC, what percentage are A; conciliated successfully or two; litigation is filed?
Thomas S. Martin: Well, I do have the claims on the successful conciliation that the 5000 figure I gave you was a successful conciliation out of 40,000 claims filed.
Speaker: 5000 out of 40?
Thomas S. Martin: Successful and in terms of litigation, I do not have those figures, but once again…
Speaker: But you certainly did not file a suit in the other 35,000?
Thomas S. Martin: Oh, absolutely not…
Speaker: Even though there was no time limit...
Thomas S. Martin: Many of them were dismissed for lack of evidence…
Speaker: But even though there was no time limit whatsoever.
Thomas S. Martin: That is correct.
Speaker: So, when we are talking about all these cases being filed on the courts, you are only talking about the cases that you think you have a successful -- a pretty good chance for conciliating, but you do not have time to do it. So, you file a suit.
Thomas S. Martin: Well, what I am talking about is that the private party, if the commission is cut off after 180 days, the private party has no alternative but to go, file a suit.
Speaker: Well, he does, he certainly has an alternative, he can access his chances and say, I have got a lousy chance and then do not file a suit.
Speaker: You said that most private parties can not afford to sue anyway.
Thomas S. Martin: Well, what I am saying is that Congress determined that they were valid claims not been taken care off because of the cost were too great. So, you are either are going to have the valid claims being not taken care off in contravention of the 72 amendments or you are going to have these people filing suit. It is one or the other, some people may drop out altogether.
Speaker: You mentioned 100,000 cases a year, new case. Assuming just for the moment that there were that many meritorious claims which is a large, large assumption. How many hundreds of lawyers would it take to process those, any studies or any estimates on that at all?
Thomas S. Martin: To litigate them all, enormous number, I do not have any study to respond to your question…
Speaker: In percentages, how many cases are counted to be lacking in merit or frivolous?
Thomas S. Martin: I do not think, we simply do not have those figures…
Speaker: It is very large percentage is it not?
Thomas S. Martin: I think a large percentage are found to be lacking in evidence and are not enough for suit. But is not it better to have that found out through conciliation process or commissions than people at the court.
Speaker: In volume how many EEOC cases have been filed by EEOC?
Thomas S. Martin: Litigation?
Speaker: Yes.
Thomas S. Martin: No, we do not have that, we do not have that figure. If I can come up with that figure, I will submit it to the court and to counsel.
Speaker: If that is not surprising you, in terms of the number of claims filed, I should think you would know, the commission would know.
Thomas S. Martin: I think, -- certainly can be found out and we will find out and submit it to the court, but I guess what we are suggesting is, Congress….
Speaker: This is pertinent to the argument you were making, that 180 days is the limitation, it is going to be a flat more on EEOC case.
Thomas S. Martin: No, no, EEOC can not file …
Speaker: Oh, I see, you will turn them over to the…
Thomas S. Martin: We can not file them because we have not filled the statutory prerequisites. We have not affiliated …
Speaker: You take this alternative round, the analogous statement is statute of limitations. That would take enormous amount of this pressure, this 180 day pressure that you speak of, off of the commission, would it not and it would not be any great research undertaking to have someone makeup a table of all the analogous statutes of the fifty states of the District of Colombia, would it?
Thomas S. Martin: It would not take the pressure off because the statute would be -- it depends when a statute runs, if you are assuming the statute runs from the time of the injury, okay, then sometimes, it’s the discrimination, for 180 days and perhaps 300 days, it is not even filed with the commission and then the commission still has to investigate and conciliate before it can file suit. The pressure will be exactly the same Mr. Chief Justice, unless the statute runs from a different time. Let me know the Fifth circuit, in case is following Griffin Wheel, they tell that the state statute is told during the commission proceeding, the District Court is following Griffin Wheel, and in that situation, I refer to 416 (f) sub 1006, the only District Court case following Griffin Wheel. They told the state statute while the commission is proceeding.
Speaker: Griffin Wheel took the other position from the…
Thomas S. Martin: That is right, he said, state statute applies.
Warren E. Burger: Mr. Martin, do you agree with me that our profession is one that only operates on dead lines and we never do anything ahead of time.
Thomas S. Martin: There is sometimes delays in legal profession, I will agree with it.
Warren E. Burger: But have you ever seen it by and far, the brief, a day ahead of time, a lawyer.
Thomas S. Martin: Very seldom Mr. Chief Justice.
Warren E. Burger: Well, don’t think it would be good in this statute to put a time limit on?
Thomas S. Martin: The question of whether it would be good in this A – it might be good in the statute, but would have to be a time limit that is consistent with the workload of the commission. But difficulty of the problems it has …
Speaker: And the process…
Thomas S. Martin: And the process, it would have to take into consideration the days at the – the charge maybe differed to a state commission and they might never get it until 300 days. They have to take into effect that you have to conciliate it before you sue and you take into effect the resources they have. The scope of the discrimination problem in this country, put that altogether and then set a reasonable statute limitations, that might be good for Congress to do. All I am suggesting is Congress did not do it.
Speaker: Mr. Martin.
Thomas S. Martin: Yes, Justice.
Speaker: Is there Using in any of the federal commission or agency that is authorized to bring suits against private citizens without any statute of limitation forever infinity action.
Thomas S. Martin: The analogy that the court appeals to was to the analog deep process, in which the court said the No state statute limitation apply, I do not know whether there is a federal statute that applies there, I assume not in trust of the opinions. Congress, I think the way they were coached the problem is that Congress gave the commission, a special role, it said it was supposed to be the primary enforcer of Title VI. This court has numerous times said the Title VI is the greatest importance in terms of policy. So, Congress had determined thirdly that it is a factual matter, these suits would not be brought and rights would not be vindicated but for the commission’s suits and it set up a process of conciliation and then litigation where necessary and if litigation is necessary that the commission should bring it and then these limitations was frustrating.
Speaker: Do you really think that Congress would allow a suit 15, 20 years afterwards?
Thomas S. Martin: I think Congress would expect as everyone here would expect the courts would say that that suit is barred, that particular suit.
Speaker: By what?
Thomas S. Martin: By – as I suggest that the APA can be used in a laches type concept, the bar of that particular suit. What I am suggesting as a individual, if there is a prejudice claim, the courts can take care of that.
Speaker: Prejudiced in the sense that interest runs on claims for backpay and on the uncertainty as to whether positions can or can not be filled or about the individuals, there is always prejudice.
Thomas S. Martin: Well, if there is a shelling of prejudice, the District Court can respond by limiting backpay, denying backpay altogether, only granting injunction or not granting injunction and the court’s respond to the particular case, but if we propose a state statute limitations, thousands of cases which Congress determine ought to have been considered, conciliated and possibly suited upon by the commission will not be…
Speaker: Has there been prejudice in this case.
Thomas S. Martin: I think not, there is been no showing of any, there is been no claim of any. If petitioner sits down and asks the commission to, well, let us continue to conciliate a bit longer, I think we can get this result, then the commission says, yes, we will conciliate a bit longer and they spend another six months, I would not call that prejudice.
Speaker: What is left of this case?
Thomas S. Martin: This case does in response to the question raised earlier, raise the continuing claim, on page 10 of the Appendix, there is reference to the – there is a complaint which is a continuing claim of Title VI discriminations, now, this case would go on because…
Speaker: Mr. Martin, may I ask you a question about this statutory language shall so notify the person agreed and so forth, the mandatory language. Is it possible to read that section to say that if the condition is preceding that namely that 180 days are gone by and there is been no conciliation so about the lapsed, then the commission has a mandatory duty to notify by the private plaintiff who may then bring suit within 90 days, but that does not put any limit on the commissions right to being subsequent suit. That be a possible construction?
Thomas S. Martin: That would be a possible construction.
Speaker: That seems to be all it says…
Thomas S. Martin: And then the commission could sue…
Speaker: But the commission does not so interpret it that way, they do not think they have any amendatory duty at all.
Thomas S. Martin: Well, of course question is named the suit, but the commission does not want the private parties right to run before the commission has decided whether or not it will sue.
Speaker: Maybe that is what Congress ordered that to do.
Thomas S. Martin: Well, the legislative history as far as we can determine it the other way, let me refer you Justice Stevens to (Inaudible) McDonalds, 517(f)(2) 130, that a Eighth Circuit case, which analyses this particular section and the notice provisions and notice requirement, I think it will be helpful in that regard, but legislature history simply will not support that analysis.
Speaker: No further question.
Thomas S. Martin: Well, thank you.
Speaker: Do you have anything further Mr. Vaughn, in another few minutes.
Dennis H. Vaughn: Yes, Chief Justice, just really three or four points. On this point of claim of prejudice, the Assistant Solicitor General takes the position that there is no prejudice here to petitioner that we have never claimed prejudice. The nature of a statute of limitations defends of course that prejudice is assumed, need not to be proven, we did not raise the issue of laches in our motion for summary judgment for this simple reason, but latches is virtually impossible to prove by way of summary judgment because it is factually oriented and there will be substantial differences with respect to material fact, therefore latches has never been a part of this case at any time from the beginning but I think there is no obligation upon us to prove prejudice in order to prevail in this matter. I think that Mr. Justice Marshall in a very real sense put his finger right on it, when he referred to the propensity of lawyers to put off until tomorrow. What they could do and should do today, now I do not think we lawyers are the only ones guilty of that, Parkinson’s law, I believe was something to effect that work expands so as to fill the time available for its completion. If one is not given a deadline to comply with, one is going to put off that project until tomorrow and tomorrow and tomorrow. That is exactly what is happening here, the Solicitor General says that there are 90,000 new cases every year and we the EEOC, would not be able to do anything with them, so we will have that march them right in the court. Well, they are assuming the negative, they are assuming they will not or can not do anything, but the fact of the matter is they can do something, they can investigate those charges, they can conciliate those charges, they can make judgments about which ones to take to court and they can make judgments about which ones maybe taken to court justice well by the individual private parties. After all, the National Labor Relations Board with a influx of cases roughly half of that 90000 figure, about 45000 a year has a median time from charge to completion of investigation of 43 days.
Speaker: How big a staff, if you would know?
Dennis H. Vaughn: I think their staff is somewhat smaller than that of the EEOC, but I can not give any reliable figures, one reason Mr. Chief Justice, that they have a median time of 43 days is because they have a time limit internally imposed upon themselves of 45 days.
William H. Rehnquist: But they are not obligated conciliate, the way the EEOC is…
Dennis H. Vaughn: They are not -- they do not have a statutory mandated obligation, they do however come to a charge party Mr. Justice Rehnquist and they say, we are going to file a complaint. Two days from now, unless you reinstate these employees and give a back pay, well, that is a form of conciliation you decide right away what you are going to do, and you have two days in which to do it and if you dont reinstate with that day in terms the complaint. I see my time is up. Thank you.
Warren E. Burger: Thank you gentleman. The case is submitted.


Warren E. Burger: We will hear arguments next in Arcara against Cloud Books. Mr. DeFranks, I think you may proceed whenever you are ready.
John J. De Franks: Mr. Chief Justice, and may it please the Court, the present case on a writ of certiorari to the New York Court of Appeals stems from an action under New York's public health law to abate a nuisance allegedly occurring at respondent's book store premises. In the trial court, respondents moved for summary judgment, arguing that the closure provision of the public health laws constituted an impermissible prior restraint. The motion was denied. The denial was affirmed by the intermediate appellate court. The New York Court of Appeals, however, found the law, the closure provision, that is, to constitute an unlawful prior restraint upon respondents' First Amendment right. The issue as we see it before this Court is twofold: firstly, whether the closure provision amounts to any regulation of speech: and secondly, if it does, is it not a valid time, place, or manner restriction? We argue initially that closure does not restrict speech in any form, oral or written, pure or symbolic. Closure would be the result of criminal conduct which my opponent concedes has no expressive element. Neither the complaint nor the law generically is concerned with control of any content, and the Court of Appeals specifically so found. The exercise of First Amendment rights could never bring this law to bear against the respondents, and that is exactly what distinguishes this case from every other case cited by both sides in this controversy. In all of those other cases, it was the exercise or intended exercise of First Amendment rights that put the individual on a collision course with the law. In this case, no matter what he says, no matter what he sells, legal or illegal, it could never result in a proceeding for closure.
Sandra Day O'Connor: Mr. DeFranks, would you mind explaining how New York interprets this law? Would a single occurrence of an illegal act on the premises of a business without the knowledge or consent of the owner amount to a violation so that it could be declared a public nuisance?
John J. De Franks: No, it would not. The New York courts have interpreted this law to require proof of a continuing course of conduct. Both courts, the Appellate Division and the Court of Appeals, have agreed in that.
Sandra Day O'Connor: And does the prosecutor have an option to seek closure or an injunction?
John J. De Franks: No, under the law the closure is mandatory at the conclusion of a successful prosecution. The present case is really like that.
Lewis F. Powell, Jr.: Well, did the prosecutor in this case try to get an injunction?
John J. De Franks: The prosecutor in this case commenced the action, and the case was dismissed prior to the trial, but in our complaint we sought injunction and closure, hot the two come together as part of the law.
Byron R. White: But your injunction was to close.
John J. De Franks: Yes, that's correct. Correct.
Byron R. White: It wasn't just to stop the--
John J. De Franks: Correct.
Byron R. White: --the illegal conduct.
John J. De Franks: Correct. That's correct, Your Honor. The present case is like that of a publisher, say, who is incarcerated for conduct unrelated to his publishing activity. Surely his incarceration incidentally affects his freedom to publish, but would anyone suggest that he be entitled to an O'Brien analysis on the date of sentencing? I would think not, because the penalty is unrelated to his First Amendment activity. There is no causal connection.
John Paul Stevens: May I ask a question there? Supposing the publisher had this sort of activity going on in the men's room or the locker room or something, and didn't know it, it went on over and over again for the period of a month, and the investigators found it out. Could you close down the publisher?
John J. De Franks: Could we close down the premises?
John Paul Stevens: Yes.
John J. De Franks: Yes, Your Honor.
John Paul Stevens: Even if they are publishing a newspaper or magazine?
John J. De Franks: Yes, Your Honor. This law would apply whether it be a newspaper or a church or a car dealership.
Sandra Day O'Connor: And whether or not the owner knew of the activity?
John J. De Franks: Yes, the law does not indicate that there has to be knowledge by the owner, but only that the premises is being used for the conduct. It requires the owner... it puts a burden on the owner to know what is going on at his premises.
Warren E. Burger: Must this be open and notorious use, or--
John J. De Franks: Well, in this case--
Warren E. Burger: --standard there?
John J. De Franks: --In this case it was a premises open to the public, so in this case it was open and notorious, because the undercover officer was able to observe it from the position he was in which was in the area of the movie projectors, the booths. As I was suggesting earlier, there is no causal connection, and in this case the exercise of their right to disseminate sexually explicit materials could never bring the law, the closure provision down, against them, and this closure provision does not prohibit relocation. In and of itself, it is not concerned with where the respondents move to to continue in their operation. Respondents deny this. They say we are left with no option. We must remain there. They cite an ordinance that they never raised in the Court of Appeals below, the Kenmore adult use ordinance. However, that ordinance on its face indicates that he may move to an alternative location, and as the maps we have provided indicate, the alternative locations are ample and reasonable in light of the fact that the village of Kenmore is a ten-by-eighteen-block village, wholly consumed within the town of Tonawanda, which is 15 times its size, and which also allows alternative sites for adult uses. That the sites wight cost respondents sore than they are willing to spend is of no moment. As this Court stated in Renton, economic impact, which is the only real impact here, economic impact is simply irrelevant to a First Amendment inquiry, but if we would have assumed that economic impact somehow translates into a restriction on speech, we would argue that this is a legitimate time, place, or manner restriction, a legimitate place restriction. The law is content neutral. It is unconcerned with content. It is interesting that when the law went to the Court of Appeals, it was neutral in all respects. When it returned from the Court of Appeals, the bookstore had been accorded a privilege that we assume might not he accorded to a car dealership or a pharmacy.
William H. Rehnquist: Mr. DeFranks, let me go back to a point that was raised a couple moments ago. This case has not yet been to trial, has it?
John J. De Franks: Yes. That is true, Your Honor.
William H. Rehnquist: And what happened was that the appellate courts in New York upheld kind of a demur to the complaint or whatever you want to call it?
John J. De Franks: A motion for summary judgment.
William H. Rehnquist: A motion for... and the district attorney's allegations in this case were that the defendant was aware of what was going on in the store?
John J. De Franks: Correct.
William H. Rehnquist: So for purposes or the case before us, we assume that those were the facts.
John J. De Franks: Right, in this particular case, and it was very clear that the managers and higher ranking officials with the company were well aware of what was going on. They allowed it because they indicated that it gave them the opportunity to make money off the machines--
William H. Rehnquist: Those are the allegations.
John J. De Franks: --Those are the allegations in the complaint. As I mentioned, the closure provision does not block alternative channels. The government's interest is strong here, and the Court of Appeals so found. The government sought to control criminal activity and the spread of transmissible sexual diseases. The law is found under the public health law. The closure provision is narrowly tailored. It controls the premises in this case. However, it does not bring under its ambit the prostitution-free premises of others, nor does it infringe upon the constitutional Eights of the respondents nor any other individual. In reality--
Sandra Day O'Connor: You take the position that it isn't a First Amendment case at all, so we wouldn't be concerned with narrowly tailored or substantial interests?
John J. De Franks: --Exactly. Under our first analysis, we would contend this is not a First Amendment case at all, and this would only be our secondary position. In fact, the closure here would have no more effect on respondents than the termination of their lease, the taking of the property though eminent domain, or a tax foreclosure. The place restriction has a rational basis. It works to controvert the price use pattern of the premises and rehabilitate the situs. It doesn't take the property for all time, and it allows for a discretionary release of the property for good cause. Now, if that release is denied in New York, that denial would be reviewed by an appellate court, if the respondents so desired. As this Court has stated in Albertini, if a time, place, and Banner restriction meets the prerequisites I spoke of, it will be determined to be legitimate if the government's interest is accomplished in a better manner with it than without it. I think in this case it is clear that the government's interest would be served better with closure than without it, because closure prevents the recurrence of the conduct, whereas injunction would admit the possibility of recurrence and punish after the fact. My opponent's suggestion that there exists a state constitutional basis for this decision is simply not proven by the opinion. The Court of Appeals decided this case on the basis of your decision in O'Brien. They did not cite the New York State constitution at all as authority. They mentioned it once in reference, but that related to a restatement of respondent's arguments in the court of first instance. This is contracts that by the 19 references to the First Amendment to the United States Constitution and Footnote 3 where the Court of Appeals specifically stated, we are adjudicating the First Amendment question, and as this Court is aware, there is no First Amendment in the state of New York, speech is accorded protection under Article I, Section 8. In conclusion, I point out to this Court that the law does not seek to control or censor the content of any of the materials the respondents are disseminating. It does not deny him access. There are alternative channels. It is simply not a prior restraint. The Court of Appeals was wrong, and we urge that their judgment be reversed.
Warren E. Burger: Very well. Mr. Cambria.
Paul J. Cambria, Jr.: Mr. Chief Justice, and may it please the Court, initially I think that it is important to again emphasize the record that we come up here on. We have a complaint only, and for purposes of a motion for summary judgment, of course, the allegations are admitted to be true. That is the law in New York State and most other jurisdictions. We do not have in that complaint, however, an allegation by the people that closure of the store is necessary to abate the nuisance. They allege in the complaint that the activities themselves of which they complain, the prostitution activities, et cetera, should be restrained. They do, of course, ask in their wherefore clause that the closure provisions and so on he applied, hut they never allege that closure is necessary in order to abate this nuisance. In addition to that, they do not allege and there is no proof on this record that there are indeed ample other locations available. In each case by this Court where ample locations has come up as an issue, most recently Renton, through Justice Rehnquist--
Lewis F. Powell, Jr.: May I ask this question?
Paul J. Cambria, Jr.: --Yes, Your Honor.
Lewis F. Powell, Jr.: Am I mistaken? I was under the impression that under the statute, if the nuisance was found to exist, the Court had no alternative. It must order closure.
Paul J. Cambria, Jr.: That is the way the statute is written.
Lewis F. Powell, Jr.: Yes.
Paul J. Cambria, Jr.: And the way it has teen applied by the Court of Appeals is to make this a permissive rather than a mandatory closure, and the reason that that was done was to say that based on this record, this would not be justified. It would not be the least drastic means or the narrowest means, and the way the Court of Appeals arrived at that, and I think that it makes sense, because historically if you look at nuisance cases, we always see a broad area of discretion given to the trial court to fashion a remedy, whether it be First Amendment or just a factory, to fashion a remedy that supposedly fits the nuisance as it is found and as it is defined by the record.
William H. Rehnquist: But your opponent here says that the New York statutory scheme does not give trial courts that sort of discretion here, that upon a showing of this kind, closure is mandatory. Is he wrong, in your view?
Paul J. Cambria, Jr.: That is what the statute says literally, and the way that the Court of Appeals interpreted that to be permissive versus mandatory was to analyze the record, analyze the law from this Court and from the state court and make the determination that--
Sandra Day O'Connor: The court below, as I understand it, said the First Amendment in effect forced it to make that decision, because it thought there were First Amendment values at stake here. Isn't that right?
Paul J. Cambria, Jr.: --I think that is partly right. There's two things the court did. The first thing the court did was say that it wasn't necessary in order to effectuate, if you will, the legislation here, to close the store based on this record, and I think that what happens by that statement is that the court interprets, first of all, what the intent of its legislation is, which I submit is legitimate for the highest court of the state to do, and I might add, this is the first time this has ever arisen in the state of New York with regard to application of this statute. This statute by all history is a house of prostitution statute. Now it is being applied in this case for the first time in an area where there is undeniably and admittedly on the part of the prosecution lawful speech conduct occurring on the premises, so what the Court of Appeals did was say first of all in viewing our piece of legislation we say that it is not necessary in order to carry out the force of the legislation on this record, and they emphasize under these circumstances, on this record it is not necessary to have closure, that to do so would, because of the First Amendment implications here, constitute a restraint, and I--
Sandra Day O'Connor: Do you think the sane analysis would be required if a bookstore were closed because of violation of some safety--
Paul J. Cambria, Jr.: --No, and I think there is an obvious distinction there, and that is this. If I failed to pay taxes, and I had a publishing concern, a newspaper, if I failed to pay taxes, or if I had some zoning problem, the narrowest remedy available would be for me to pay the taxes or to correct the zoning problem. That is the narrowest remedy, and the moment that I do that, there is no cessation beyond my satisfying that narrowest remedy to my publishing, but in this case--
Sandra Day O'Connor: --Well, but hoe wait a minute. Suppose it was fire safety regulations, and the city said, you will have to close because you don't have the required fire safety code equipment?
Paul J. Cambria, Jr.: --I think the point there is what the city would say is that the least you can do to comply with our noncontent legislation here is to correct X, Y, and Z fire code. That is what you have to do. That is the least drastic remedy. There is no other. And so therefore once you do that you are able to open. In this case the Court of Appeals, and I believe rightfully so, and I think it is reasonable, said, the least drastic remedy on this record is to at least in the first instance have an injunction or attempted injunction.
Sandra Day O'Connor: But you are assuming it is a First Amendment case.
Paul J. Cambria, Jr.: And I think for good reason, and I might say this is the reason. If we look at the history of the decisions of this Court, whether it be Healy v. James or Procunier or Schaumberg or Schad or American Mini, and a lot of other cases that have come down from this Court, the Court has said that even in a situation where motivation is not considered, or where content is not considered, the Court must consider the effect of legislation on expressive conduct on expressive conduct by an individual, the effect of the legislation. Otherwise, I submit, Justice O'Connor, we would be in a situation where if a community could simply pass a law and it could tremendously affect a newspaper, motion picture studio, what have you, but if they simply said, it is content neutral, completely, they would have total immunity from any scrutiny by this Court or any other court on the position that we are not saying anything at all about your theater or about your newspaper, whatever. We have a fire code, for example. I think that since it would affect, and any time it does affect, and I believe this Court's decisions say that, that when legislation affects speech, it is subject to some kind of scrutiny by the court, whether it be O'Brien or whether it be the time, place, and manner, and I might say that in some cases it looks as if, for example, in the Creative Nonviolence situation, we start off with an O'Brien observation, and it goes into a time, place, and manner, and sometimes these seem to overlap one another.
William H. Rehnquist: This would be true in your view even if it were the application of a city fire ordinance to all buildings of a certain kind, and one building fulled out to be a bookstore?
Paul J. Cambria, Jr.: I think that if we had a situation where--
William H. Rehnquist: Answer my question.
Paul J. Cambria, Jr.: --I am attempting to answer your question. I think that if we take any piece of legislation that can affect speech directly... now, example here.
William H. Rehnquist: Is my example a kind of speech, legislation that could affect speech directly, in your words?
Paul J. Cambria, Jr.: It could affect speech directly, yes. I think it could. For example, if we had an American Mini type statute that said--
William H. Rehnquist: But the hypothetical I gave you was an ordinance which applied fire regulations to all buildings of a certain kind--
Paul J. Cambria, Jr.: --Yes.
William H. Rehnquist: --including a book store.
Paul J. Cambria, Jr.: Yes, I think fire would be analogous to zoning, and we could make the same argument. There would be some scrutiny if we started to affect that particular area of speech, if we had to--
William H. Rehnquist: And does the application of a fire ordinance to a building in which there is a book store affect that area of speech, as you put it?
Paul J. Cambria, Jr.: --I think it would depend on what the ordinance said.
William H. Rehnquist: The ordinance says you have to have a certain fire resistant break on the outside, you have to have smoke detectors on the inside, that sort of thing?
Paul J. Cambria, Jr.: No, I don't think that would be true. I think that if it said, however, that even if you corrected the fire, the brick, the smoke detectors, you would be closed for a period of time, no matter what. Then I think that would affect First Amendment rights, and that is the facts we have here. We are not dealing simply with something like fire, where we are saying, once you cure the problem, you can open. We are dealing with something that goes beyond what is necessary to cure the problem, so in your fire analogy, if we had one that said nevertheless, even after you correct the fire problem, you still have to be closed for a period of one year, I submit that that kind of legislation then would be subjected to scrutiny by the Court, and we would say, is that a legitimate time, place, or manner, or is that a legitimate, whatever the--
Byron R. White: Suppose there is no bookstore involved, and you just have a house of prostitution. What is the purpose of shutting down a place like that for a year?
Paul J. Cambria, Jr.: --I don't know basically what the purpose would be unless we had the facts before us to see. In other words--
Byron R. White: Well, here is a nuisance, here is a public nuisance ordinance that allows the city to close down the use of that property for a year for anything.
Paul J. Cambria, Jr.: --Yes.
Byron R. White: Isn't that right?
Paul J. Cambria, Jr.: That's exactly what the legislation said.
Byron R. White: I would suppose it is some sort of deterrence--
Paul J. Cambria, Jr.: But isn't--
Byron R. White: --to prevent... to convince people that they shouldn't run houses of prostitution.
Paul J. Cambria, Jr.: --But, Justice White, isn't the point here in this case--
Byron R. White: I am just talking... just answer... how about my question? Wouldn't you suppose that's right, that they want to--
Paul J. Cambria, Jr.: --I think depending upon the record, I would agree.
Byron R. White: --they want to make it expensive to run houses of prostitution?
Paul J. Cambria, Jr.: Depending upon the facts in the record, yes.
Byron R. White: And you say that the operator of a house of prostitution can avoid that deterrent effect by selling books, too.
Paul J. Cambria, Jr.: Oh, no, I never--
Byron R. White: Well, that is your argument.
Paul J. Cambria, Jr.: --Not at any time, because, you see--
Byron R. White: Well, here is a house of prostitution, and he also runs a bookstore. According to your analysis, you could not close down that house of prostitution--
Paul J. Cambria, Jr.: --No.
Byron R. White: --you couldn't... you would have to let the bookstore run.
Paul J. Cambria, Jr.: What I am saying is that you could definitely close the house of prostitution or the prostitution... and the Court of Appeals has said the same thing.
Byron R. White: Yes, but housing the... closing the... without the bookstore you could close down the property and it couldn't be used for anything for a year.
Paul J. Cambria, Jr.: What I am saying--
Byron R. White: With the bookstore you say the property cannot be closed down for a year.
Paul J. Cambria, Jr.: --What I am saying is, again, depending upon the facts, the remedy has to fit the problem. If under the facts of this case, which is what the Court of Appeals has been dealing with, they felt that the lesser means or the narrowest means was to first attempt the injunction. They never said abatement wasn't a proper remedy, that it could never be a proper remedy. If they would have said that, then I think the district attorney would be here with that sort of issue before this Court.
Warren E. Burger: Then are you arguing this is a violation of the Eighth Amendment? It is to excessive a penalty? Because it is clearly a penalty, isn't it?
Paul J. Cambria, Jr.: I think that it clearly is too excessive under the First Amendment, because what it amounts to is, it is an overkill. One time this Court--
Warren E. Burger: What in the First Amendment talks about penalties?
Paul J. Cambria, Jr.: --Nothing.
Warren E. Burger: Then--
Paul J. Cambria, Jr.: As far as penalty, Your Honor, it simply--
Warren E. Burger: --This is a penalty, isn't it?
Paul J. Cambria, Jr.: --indicates that it can't be abridged, that it can't be suppressed, and that is what this is. This is a situation where... this is a situation where there is a total closure here of a lawful, legitimate aspect of a business before the reasonable step under this record is being taken, which is to attempt an injunction or to have an injunction, and I submit that all the Court of Appeals said was this. It never said that closure wasn't a valid remedy. It said that on this record it was overly broad. This Court has said on a number of occasions and talked about overly broad remedies in First Amendment areas, in areas where you found that narrower means could be used in order to vindicate the purpose of a piece of legislation, and I submit that it is only reasonable for the Court of Appeals to say in this case, why is it unfair, why is it unreasonable when we have a legitimate aspect of a business, not simply sex books, but all kinds of books and magazines, why is it unfair to say to the court below that the narrowest means, which are already in the statute, they don't have to be made up by anybody, they are in the statute, that the narrowest means here is an injunction.
Byron R. White: You say there is a provision for an injunction in the statute?
Paul J. Cambria, Jr.: Yes, there is in the statute a provision. However, the problem with the statute is that when it was amended, and it was amended over the years, an additional provision was added sating that there shall be an abatement. Now, what the Court of Appeals has done here is basically what the state of California has done through its Supreme Court, and it is to make it a permissive closure versus a mandatory one, and they simply took the position that where we have this effect, you should follow the narrowest means, and not the most drastic means, but the narrowest means.
William H. Rehnquist: And they did that because they thought the First Amendment to the United States Constitution required it, didn't they?
Paul J. Cambria, Jr.: I think that that... and the way they interpreted their legislation that it did not require closure regardless of the facts.
William H. Rehnquist: Let me read this statement to you from the New York Court of Appeals opinion on Page A-19 of the petition, where just before they reached the end and Judge Jason starts dissenting, the Court of Appeals says, "Under these circumstances, we conclude that closure of defendant's bookstore is not essential to the furtherance of the purposes underlying Title 2, and is thus an unconstitutional restraint on defendant's First Amendment rights. "
Paul J. Cambria, Jr.: Yes, and I think the key phrase begins off with "Under these circumstances".
William H. Rehnquist: Yes, and under these circumstances they felt the legislation could not be constitutionally applied.
Paul J. Cambria, Jr.: Under these circumstances, because it wasn't the narrowest means available. If we look at all the other cases coming out of this Court, for example, the recent one, Creative Nonviolence, Albertini, and the other cases, if we look at those cases, we find that there are and there is on the record, a finding on the record of ample other outlets for the distribution of the material or the speech that is involved. Creative Nonviolence on the mall, all types of things were able to he done there to make the speech. With regard to this case, however, we do not have that. There is nothing in this record to demonstrate that. In fact, because the District Attorney had made a statement in the brief, they could simply move across the street, that is what compelled us to have to file an appendix in this case showing that they were there under a prior nonconforming use in this particular area, and it is extremely restrictive, but I think the point is that if we look at Renton, and we look at Schad, and we look at American Mini Theaters, in each case there was a specific finding there relied upon by this Court to say that there were ample other outlets. The Court said, we find that. In Renton they found the District Court had ruled that way. In American Mini, in Footnote 35, the Court there said that we find myriad other locations, and so on, and as a matter of fact when we look at these other cases, we can see that each one of those individuals could still have an outlet for speech. In American Mini, for example, they could have shorn other types of movies, or in Schad, they could have had other kinds of books, magazines, or what have you.
Lewis F. Powell, Jr.: May I interrupt to ask this question? In any of the cases you have cited, was conduct alone involved, conduct unrelated to speech? You rely on O'Brien, but I don't recall any decision of this Court that ever applied O'Brien where only conduct unrelated to speech was involved.
Paul J. Cambria, Jr.: If I might say, I think if we look at the Committee for Creative Nonviolence case, there the question was whether sleeping was prohibited.
Lewis F. Powell, Jr.: That was conduct, wasn't it?
Paul J. Cambria, Jr.: And that was simply conduct, and in that case I think the Chief Justice indicated conduct is not talking or not speech.
Lewis F. Powell, Jr.: Conduct in Lafayette Park.
Paul J. Cambria, Jr.: Yes, and in this particular case we have pure speech, admittedly pure speech being detrimentally affected when it doesn't have to be, and the purpose of the statute can still be furthered simply by the injunction, and if it is not, if it is not, then the cases cited by the Court of Appeals in their decision, Croaton and Allouwill and so on, in those cases, the record there demonstrated there should be a closure.
Lewis F. Powell, Jr.: May I ask this question? The statute on its face is completely neutral, isn't it?
Paul J. Cambria, Jr.: The statute on its face doesn't--
Lewis F. Powell, Jr.: Had nothing whatever to do with--
Paul J. Cambria, Jr.: --say anything one way or the other.
Lewis F. Powell, Jr.: --Yes.
Paul J. Cambria, Jr.: And there are a number of statutes that have been neutral, but nevertheless this Court has applied the balancing test.
Lewis F. Powell, Jr.: Never where there is conduct unrelated to speech. At least I can't recall a case.
Paul J. Cambria, Jr.: Never where conduct unrelated to speech.
Lewis F. Powell, Jr.: Where the only issue was conducted unrelated to speech.
Paul J. Cambria, Jr.: If we had... no, I agree. I think that what we have is, we see two kinds of cases. We have on where there is conduct, mixed conduct and speech, which would be like O'Brien, for example. In O'Brien, the position taken by the individual was that burning the draft card was symbolic speech, The Court disagreed with that, and found, of course, that it could be regulated under this test. In Healy v. James, we had a status thing, where they would recognize or not the SDS on a campus. And in that particular case they certainly argued that this was an infringement on their speech not to be recognized, and the Court rock the position, we have to now go through this measuring test, and in a whole raft of cases the Court has always taken the position that where speech is involved and affected, and the words used by the Court repeatedly have been affected, that then this measuring test takes place--
Sandra Day O'Connor: Well, Mr. Cambria, suppose we had a policeman who arrested a television anchorperson for speeding or drunk driving just before the evening broadcast. Now, does the policeman have to take into account the fact that by arresting the person speech will be suppressed?
Paul J. Cambria, Jr.: --No, and if, however, there was a law that said that if you are convicted of speeding or arrested for speeding, then you cannot act as an anchorperson for a year after that time, then I would submit we are involved in an overly broad regulation, because in the case you pose, the thing that needs to be addressed is the actual conduct that is against the law, and I think that is what the Court of Appeals has said here. The conduct against the law is the activity of the patrons or some patrons over the short period of time on the premises. And that should be addressed.
Sandra Day O'Connor: Well, but the policeman would have an option to issue a citation at the moment and release the anchorperson to go make the broadcast, or to keep the person under arrest and prevent it.
Paul J. Cambria, Jr.: But, Your Honor, if I might, I don't see how that is analogous to this situation, where the problem is, it is the closure order that we are dealing with and not the restraint. The restraint everyone agrees, I believe, can and should be imposed under the right record. It is the closure, the total closure where this Court of Appeals has said it is overly broad.
Warren E. Burger: Does this penalty run against a person or a building?
Paul J. Cambria, Jr.: It runs against the premises, and the people punished are the people who have control and ownership of the premises, including corporate officers and so on. So it is there. As a matter of fact, in the trial court in this case--
Warren E. Burger: He could go and rent another place and engage in these alleged First Amendment activities.
Paul J. Cambria, Jr.: --I submit, Your Honor, that there has been no proof of that and no allegation of that in this case.
Warren E. Burger: Is it a fact?
Paul J. Cambria, Jr.: It is not a fact. It is in fact the contrary fact.
Warren E. Burger: You say it is not a fact that they aren't free to rent another building?
Paul J. Cambria, Jr.: Not in this community, they are not. That is why we have had a lodging here with the Court, because there was a statement made by the state that they could simply move across the street or next door, and we demonstrated that we had litigation over that. They are in this location as a prior nonconforming use. There is a little strip that has been provided for in part of the city which they say is the area where adult uses can go, and that particular strip at this point is not applicable because of the grandfather rights. There was litigation in this case, but there was no... there is not even an allegation in the complaint, which is our record here, that other avenues are available, and the Court has always required that if somebody is imposing a time, place, and manner restraint, that it is their burden to demonstrate that all the requirements are there, including ample other avenues, and in each one of these cases where the Court has upheld effect legislation on speech, they have found specifically proof of other ample avenues, and we just don't have that here. I submit it is not unfair in a nuisance case and unreasonable for the Court to simply say, it is like if you have a rash on your hand, the most efficient remedy would be to put the person to death. That is certainly the most efficient remedy, but is it reasonable? The reasonable thing would be to at least in the first analysis... and I submit, expression is entitled to this. This is a clearly, admittedly lawful expressive area. Isn't it entitled to first have the part of the statute that provides for the injunction to be applied first before the door is slammed shut? It is not like being attested for... there was a statement made in the opening remarks, it is similar to being arrested. It is not similar to being arrested for a crime or even for the crime of obscenity if that were to be applied, because with the arrest you certainly could punish that individual. If that person owned a newspaper, when you arrested him and convicted him of that particular crime, you wouldn't simultaneously go to their newspaper and put a padlock around the front door, and that is exactly what happens here, and that is the difference, and that is why arrest, penal law provisions, tax abatement, and so on, are not the same, because in those cases, once you take care of that ill, that problem, it does not have a spillover effect on the First Amendment expression part, and that is the problem here.
John Paul Stevens: Mr. Cambria, may I ask you a question? Supposing... as I understand, the case comes up on the motion. We don't have a trial yet.
Paul J. Cambria, Jr.: Yes.
John Paul Stevens: Supposing when you go back, the city, even though it hasn't alleged it yet, does put in proof that establishes beyond a reasonable doubt, A, that you could move across the street, and you deny you could, and B, that there is no other remedy that would effectively prevent the nuisance from reoccuring. Could they then order a closure?
Paul J. Cambria, Jr.: I think if they allege that, if we had another lawsuit, yes.
John Paul Stevens: Well, as part of this, I assume they are not old common law pleading. They could put in extra evidence, I suppose, in support of this complaint, and if they convinced the trier of fact of both of those propositions--
Paul J. Cambria, Jr.: Yes.
John Paul Stevens: --So what I am really suggesting is, do we know on the record before us what the issue is going to be at the time the remedy is imposed?
Paul J. Cambria, Jr.: I think yes and no. When we come up before the Court of Appeals, they are dealing with a record that shows that in three Fears between the fine this suit is filed until the time it gets to them, there hasn't been one arrest, there has been no injunction successfully gotten because when they were there the courts found there were adequate legal remedies which were using the penal law provision for nuisance and so on, and I eight say that in reading the decisions of this Court, Village of Schaumberg and some others, this Court has taken the position that in evaluating whether the narrowest remedy is being used you can look to whether there are more direct penal remedies involved, which one of the trial courts did in this case. So the Court of Appeals gets this case with nothing having occurred in three years, no arrest of a single patron at any time for any conduct, and no injunction gotten by the District Attorney, no trial had, and there has been no stay in this case. Up until the time we had the decision by the Court of Appeals, nothing preventing them from having a trial in this case.
Byron R. White: I thought the law that the District Attorney was faced with, though, wouldn't permit him just to get an injunction.
Paul J. Cambria, Jr.: They... no, I don't believe that is true at all. The final relief provides for the abatement. Interim relief is unrestricted, and interim relief here, there was never a sufficient showing, and they made two--
Byron R. White: Did they try to get an injunction?
Paul J. Cambria, Jr.: --Yes, and what the trial court found was that they didn't demonstrate that there were not adequate legal remedies, that in addition they didn't--
Byron R. White: Well, on that basis you would never get an injunction.
Paul J. Cambria, Jr.: --No, I submit no, Your Honor. for example--
Byron R. White: Well, why, if there are adequate legal remedies like indicting somebody. That is the end of the injunction--
Paul J. Cambria, Jr.: --Your Honor, in the Village of Schaumberg case, which you wrote the decision in--
Byron R. White: --That was a Court opinion.
Paul J. Cambria, Jr.: --you looked to the fact of using penal laws in an area for lesser or more direct means than using equitable remedies, or using other remedies that weren't as narrow, and I submit they legitimately did that here, and further, I submit this, that if they demonstrated below--
Byron R. White: The District Attorney tried to get an injunction, and the court wouldn't give it to him.
Paul J. Cambria, Jr.: --Because they didn't have a sufficient showing, not that it wouldn't be proper with a sufficient showing, but they didn't have a sufficient legal showing, and the decision is here from the lower court about the fact of the hearsay nature of it and the fact that they tried never to have an arrest... I mean, in these other cases we look at Croaton and Allouwill and so on. They had arrests in those cases. They attempted to have a direct legal remedy be imposed, and it failed, and then they had a proper record to show they could get a closure, and I submit in this case that the area of expression is important enough that it is not unreasonable to say that under the right case, under the right circumstances pled and proved, they can get a closure order, but under this case the record does act substantiate that. We have no attempt whatsoever to try legitimate, viable interim remedies here in a substantial or sufficient way, and if they had all of the pervasiveness and so on, I have to assume they would have moved under those grounds and said that, in fact, even had alleged in their complaint that they needed closure in order to stop the activity on the store, which they never even allege in their complaint. So I submit--
John Paul Stevens: But I guess it is their legal position that they don't have to show that it is necessary or that there is some other place you can move if the statute means what it says, and closure follows automatically from proof of this kind of activity.
Paul J. Cambria, Jr.: --Well, but I don't think that's--
John Paul Stevens: That's their legal position.
Paul J. Cambria, Jr.: --I don't think that's... they have not said that, because they would have to allege it so that we could at least deny it, so that then there would be an issue of fact foe someone to--
John Paul Stevens: No, they can just say the statute means what it says.
Paul J. Cambria, Jr.: --The statute simply says--
John Paul Stevens: And the Court of Appeals said it did. They said, we have to construe the fact because of the First Amendment.
Paul J. Cambria, Jr.: --Right, the statute says there is one and only one remedy basically no matter what the facts are, and I submit that is the problem here. One and only one remedy without regard to what the facts are is the problem in this case, and it is not unreasonable, I submit again, to say in this case where we have a fetal cessation of this outlet without any demonstration of other adequate outlets available, to say that it is worth it and it is worth it to our system of free expression to say attempt the injunction or get the injunction, because they could certainly, from what they allege here, take the position they could get a permanent injunction at the end of a trial. If it doesn't work like it didn't in Croaton and it didn't in... it did in the other case, but not in Croaton, then they would be entitled to closure, and I think that is why this statute isn't emasculated at all. It is just simply a reasonable response, saying let's just tailor it like we do any other nuisance. If we had a factory that was emitting pollutants, it seems to me if we had a law that said any pollutants emitted would require bulldozing down the factory, that this Court would take a hard look at that and say, well, wait a minute. Isn't there a lesser means, a filter on the stack system or what have you? Do we have to bulldoze it down? And I submit, that is what is happening here. We have an all or nothing blunderbust kind of remedy, a machete versus the scalpel that ought to be used in the First Amendment area, and I just submit that that response below is a reasonable one, and it is one that deserves to be employed, and it may be that when they have the trial in this case they can demonstrate that it is not effective to simply have an injunction, that there must be a closure, and if that is so, then I submit that would be proper. If not, I ask the decision below be affirmed.
Warren E. Burger: Do you have anything further, Mr. DeFranks?
John J. De Franks: Just one thing, Your Honor. I just would like to refer the Court to cur appendix in our reply brief where the lmaps demonstrate that there absolutely is an area set aside in both the village and the town for adult uses. Thank you.
John Paul Stevens: Wait. Mr. DeFranks, I really don't understand your Baking this argument, because am I not correct that your position is, you don't have to prove anything like that, that you are simply entitled to closure?
John J. De Franks: On a first analysis, correct.
John Paul Stevens: So it seems to me that you should he saying to us, don't bother looking at alternatives. We have a right to closure. It is an effective remedy, and so forth. So I just don't understand you--
John J. De Franks: Right. It is only on our secondary analysis, time, place, and manner. I agree that our first position, our initial position is a much stronger position.
Warren E. Burger: Thank you, gentlemen. The case is submitted.