Brief of the Petitioners mmm — Turner v. New York

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_ Supreme Court uf the United States

OcToBER Term, 1966

No. 399.

=

Witiam Turner, ALBERT Mauer, Levi Lave, RICHARD

Rxoaps, THEODORE Ostrow, Joyce CHapwick, ELLEN

Smauuit, Artaur Kunis, Bruno EckHarpt, VINCENT

CorELAND, JEREMIAH GELLES, ANN KYLLINGSTAD, PIERRE

Meisner, Frep Jerome, JEREMIAH TraHan, Key Martin,

Rosert APTER, :

0 a Petitioners,

—against—

Tue Prorre or THE Stats or New York, -

Respondent.

BRIEF FOR PETITIONERS

Osmond -K. FRAENKEL

Attorney for Petitioners —

c/o New York Civil Liberties Union

- 156 Fifth Avenue .

New York, N. Y. 10010

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INDEX __.. »

| PAGE

Opinions Below . | lameniane , Bi.

Jurisdiction aon bas : , 2

Constitution and Statutory Provisions Involved .......... . 2 |

” Questions Presented for Review

Statement of the Case

_ The Complaint

Summary of Facts ..., qnoecale :

Presentation of Medora Questions in State Courts .:... 10

Pot I

Petitioners were convicted for matters not charged

in the complaint in violation of their right to due

~ process of law as guaranteed by the Fourteenth

-Amendment 12

Port II

Petitioners’ fenelaons violated their freedom of

expression as guaranteed to them by the Four-

teenth Amendment sean 15

Pornt IIT =~ 2

* The statute [Penal Law $722, subds. 2, 3, and 4)

_ is so vague as applied here that ‘it violates the

’. guarantee of due process of law under the Four-

teenth Amendment ianenanesstionsnie 17

ConcLusIoN bade me | ae

WD AER ENTE NONE § TREE PIER ENTRAR EN MEINE OPH CT OOH sae N aoe <n!

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TaBLE OF AUTHORITIES

People ¥. Penn, 16 N. ¥. 2a 581, cert. den. 383 U. 8.969 17°

PAGE

Cases: _

a . Gl = ee

‘Adderley v. Florida, 385 U. S. 39 15, 18

Ashton v. Kentucky, 284 U. 8.195 14

Baggett v. Bullitt’ 377 U. S. 360 _ ease 17

Brown v. Louisiana, 383' U.. 8. 131. .... »14, 15

Burstyn v. Wilson, 343 U. S. 495 . 17

| DeJonge v. Oregon, 299 U.S. 353 ... “14

Cantwell .v. Connecticut, 310 U. 8. 296 . 18

Cole v. Arkansas, 333 U. S. 196 . 14

Cox v. Louisiana, 379 U. S. 536 14, 16,17,18 _

Edwards Vv. South, Carolina, 372 U. S. 229 .......... 7, 11, 14, 15,

——-: 16, 17,18

Feiner v. New York, ane U. S: 315 16

Genes v. Lodisiana, 368 U. 8. 157 | 14

; v ; : a

Henry v. City of Rock Hill, 376 U. S. 776 :. 17, 18

" Keyishian v. Board of Regents, 385 U. S. — ........... 18

Thompson v. Louisville 362 U. S. - ) 14

Shuttlesworth v. Birsiinghem, 382 v. 8. 86 17

Spevack v. Klein, decided January 16, 1967, slip opinion

ae So m “14

17

Winters v. New York, 333 U. 8. 507

: ~~ f <> e

A ‘ PAGE

United States Constitution: Wie. ) {

First Amendment ...... ? ' uuu 4, 18

- Fourteenth Amendment ¥ 2, 3, 10, 11, 12, 15

Statutes: : ; .

28 U. S, C., Section 1257(3) ... . ; 2 .

New York Penal Code, westien 722, subds. 2, 3 ond a

4 a . , 2, 3, 10,17 : : P

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- Supreme Court of the Bnited States

Ocroser TzRm, 1966

No. 399 .

Gi

*

WuuuMm Turner, AtpertT Maner,, Levi Lavs, RicHarp

Ruoaps, TuxroporE Ostrow, J oYcE Cuapwick, Eien

SHauuir, ArstHur Kunis, Bruno EckuHarnt,. VINCENT - .

CoPELAND, JEREMIAH GELLES, ANN Ky.iinestapD, Pierre

. Meisner, Frep Jerome, JEREMIAH TEaHAN, Key Martin,

Rosert ApTER, . ,

or sae

‘ . Petttioners,.

- —against—

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THE Prorur OF THE STaTE OF Ni ew YorRK,

Reopopiten.

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- BRIEF FOR PETITIONERS

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, Opinions Below

,

No opinion was ‘written in the Criminal Court of the

- Oity of New York (R. 283). The opinions of the Appel- -

late Term (R. 284-314) are reported in 48 Misc. 24-611, ~

26 N. Y. Supp. 2d 841. No opinion was written by the |

Court of Appeals, but its decision is reported i in 17 N. Y. 2d

_ 829, 271 N. Y. Supp. 2d° 274, ‘and its amendment of its -

” remittitur in 18 N. Y.'2d 683, 273 N. Y. Supp. 2d°431.

4

Jorisdition

‘The judgment of the New York Court of Appeals was :

entered on June 2, 1966. The jurisdiction of this Court

is invoked under 28 U. S. C., Section 1257(3)> aay

Constitution and Statutory Provisions Involved

of the: Fourteenth Amendment. ° ha

The statute is Section 722 subds. 2, 3 and 4 of the New

_ York Penal Law:

“Disorderly Conduct.

“Any person ‘who with intent to provoke a a of

the peace, or whereby a breach of the peace may b e

' , occasioned, commits any of the following acts shall be

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deemed to have committed the offense of disorderly

“conduct: * * * |

ees “2. Acts in such a manner as to annoy, disturb,

. interfere with, obstruct, or be offensive to others ; :

. 6

refuses to move on when ordered by the police;

“4. By his actions causes & crowd to collect, except ;

when lawfully addressing such a crowd; ** *”,

\

The Constitutional provision is the due process clause.

ee Congregates with others on a pablie street and ~

Questions Presented for Review

_ 1. Whether the petitioners were convicted without the

due proeess of law guaranteed by the Fourteenth Amend-

ment because they were convicted without notice of the

charges against them.

2. Whether petitioners’ convictions for holding a street

meeting to “peacefully express political dissent violate the

guarantees of freedom of speech and assembly embodied.

in the due process guarantee of the Fourteenth Amend-

ment.

3. Whether subdivisions 2, 3, and 4 of Section 722 of

the Penal Law, of New York State, under which petitioners

were convicted, are so vague and uncertain as applied to

street meetings that they violate the due process guarantee

of the Fourteenth Amendment. —

4

&

Statement of the Case .

The Complaint

‘The complaint against petitioners in the Criminal Court

of the City of New York charged that “at 4.25 p.m. on

August 8, 1964, vicinity Duffy Square—47 St: and B’way .. ..

the defendants did unlawfully congregate and assemble at

the above location obstructing the.area to the exclusion of

those wishing to use same, and did delay. vehicular traffic

while carrying placards and using loud and boisterous lan-

guage; by their- actions did cause a crowd: to collect; when

ordered to move on the defendants did fail to do so after

being informed that their actions were fiot lawful”; and °

that defendants thereby violated Section 722, subdivisions

2, 3 and 4 of the Penal Law of the State of New York (R. 1).

~

2

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4 74 * ’ &

“ Summary of Facts

According to the undisputed evidence, the street meeting

leading to petitioners’ convictions was ‘held to protest the

American policy in the Vietnam war, under the auspices

of a group called the “May 2nd Movement”, which had

been formed a few months previously at Yale University

(R. 125, 168, 284). Duffy Square, where the meeting was

held ona Saturday afternoon at about 4 o’clock, is a trian- |

gular area in midtown Manhattan, extending the length of

one block, from 46th to 47th Streets. ‘Towards both the

46th and 47th Street ends are statues, hedges, and railings;

the large paved center section is unused and unbroken save

for a subway grating (R. 138). Pedestrian traffic to and

from the Square is permitted only at crosswalks at the

46th and 47th Street extremities, well-separated from the

open center section by the statuary and fixtures.’

The speakers at the meeting stood on the steps leading

to a statue of Father Duffy towards the northern end of

the Square, with the audience in the center section (R. 148,

149). Petitioners offered to prove that meetings for vari-

ous causes such as bond rallies have been held in that sec-

tion (RB. 138, 189).

The People introduced a tape recording (R. 31, 32) ac-

cording to which one of the petitioners, acting as chair-

man, began the meeting, stating that “under the auspices

of the May 2nd Movement we are here to have a peaceful

meeting” (R. 35). After only a few minutes of speeches

about the war in Vietnam (i. 56), a police captain ap-

4

1A photograph of Duffy Square was introduced in evidence as

People’s Exhibit 1 (R. 6); ; & similar paowerepe 3 is reproduced i in

the record (R. 7). :

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proached the speakers and ordered them to disperse the

assembly (R. 37). The chairman declared that the meeting

should be allowed to proceed (R. 36, 37); the captain with-

drew while the speeches continued; he returned after a

few moments; he repeated his order and the chairman re-. .

peated his reply (R. 37, 38). The police captain apparently -

had arranged for the physical dispersion of the meeting:

suddenly, two policemen on horseback rode into the center

of the Square where the audience.was standing, to force

its dispersion, accompanied by approximately a dozen foot —

patrolmen (R. 38, 43, 44, 47). As a chief prosecution wit-

ness testified: “... then the horses came on behind the foot

patrolmen ... That’s when everybody started shouting

and yelling and running” (R. 38, 39). The petitioners tried

to avoid the horses and to continue the meeting for some

- Ininutes until the police stated they were under arrest.

There was evidence that the police had pre-determined

to break up the meeting (on the basis of a police policy

later abandoned, and never acknowledged in court, to pro-

hibit meetings for political dissent throughout a large area,

regardless of traffic conditions) (R. 144, 200). Never-

theless, the prosecution attempted to prove, in an effort to

justify the dispersal order, that the meeting was interfer-

ing with pedestrian and vehicular traffic.” .

The only entirely disinterested witness to the meeting —

was a reporter from The New York Times, who was unac-. >

quainted with petitioners and was present solely in a rep-

? One police officer testified that he heard the Captain give this

as a reason (R. 9). But neither the Captain nor the Inspector who

accompanied him (R. 8) testified (R. ii). ‘Nor were the Captain’s

remarks reproduced on the tape that was played (see R. 37). On

the other hand, the only disinterested witness testified that: the

Captain had not referred to traffiein his order (R. 151, 153, 159). -

~ 6

- ortorial capacity, called by the defense (R. 147, 148). Al-

though other newsmen also attended the meeting (R. 148),

the prosecution called only the participating policemen, its

chief witnesses being two officers. attached to the Police

- Department’s Bureau of Special Services, who had had the »

speakers and previous meetings under surveillance (R. ii,

4,5).

The New York Times reporter testified that the meeting

was peaceful, orderly, small relative to the size of the center

area of the Square where it was held, and not “attracting

very much attention at all” until the advent of the horses

(R. 148, 151, 161). Since the center section of the Square

concededly was large enough to accommodate many more

than: the audience at its maximum estimate,* the prosecu-

tion. contention was that the audience pressed forward

towards the Father Duffy statue to hear the speakers; that

consequently a few of the auditors stood in the gutter and

the audience filled the Square from curb to curb, at a point

near the speakers; that pedestrians walking north to south

or vice versa therefore had to walk in the gutter at this.

point; and because of the people in the street that the auto-

mobiles had to “veer” from one lane:to another in the ad-

jacent broad avenues (each having a number of traffic

lanes) (R. 11, 12, 16, 17, 92,93). .

Even if the truth of this testimony is assumed—despite

its overall contradiction by the Times reporter and numer-

ous indications that it was contrived to .fit the claim that

the dispersal order was based on traffic conditions rather

than poet og aceite — captain | admittedly gave

_ 8 Estimates of the seeker in the audience varied ra 60 by The

a bo, 11 oe reporter, to.200 by the chief prosecution witness *

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no suggestion or order that the audience narrow itself in

the Square as an alternative to dispersal. Further, the

maximum inconvenience possible for pedestrians from the

alleged curb-to-curb audience, was that they would have

been forced to use the.cross-walk at one end of the Square

instead of proceeding to that at the other.

As to the conduct of the audience during the speeches,

before the dispersal order, there was occasional handclap-

ping (R. 36, 37) and according to the Times reporter

“ordinary cheering . . . not particularly restrained, but i

would not say it was a ruckus, or shrill, or anything like |

that” (R. 150, 151),*

The prosecution testimony that thousands of pedestrians

on the sidewalks facing the Square stopped to look at the

meeting (R. 108, 109) is wholly incredible, considering the

Times reporter’s testimony that the meeting attracted little.

attention and ‘considering that it was uneventful prior to

the advent of the horses. The Appellate Term opinion

seems to assume that this prosecution testimony ‘referred

to the -period after the order to disperse (R. 286).

In any event, even if such an occurrence could be relevant

to petitionérs’ convictions,’ there is.no indication that the |

alleged. viewing of the meeting caused or threatened any

obstruction or disturbance.

‘Most of the prosecution ‘evidence related to the pate of

individual petitioners in the period of the police effort to

*One of the Bureau of Special Services policemen testified that

_before the meeting began a group of. unspecified size chanted —

“Down with American imperialism’ and ‘Stop the war in Vietnam’

and things of that nature” (R. 108). However, there was no indi-

cation that the alleged chant could be considered 4 disturbance of

_ the peace.

° - Edwards v. South: Carolina,.372 U. S. 229, 237.

8

physically disperse them, between the advent of the horses’

into the Square and petitioners’ arrests. Nine of the prose-

“eution’s eleven witnesses were policemen who had come to

the Square only at the time of the dispersal order, each

_ testifying as to additional individual acts.* There was. no

evidence of acts of violence, profanity or obscenity by peti-

tioners, their most opprobrious term being “fascist police”

or “fascist cop” as the policemen tried to drive them off the

. . Square. While the policemen described petitioners as run-

ning around in the Square and “screaming”, their “scream- _

ing” consisted mainly of declarations and calls to each

other, as they scattered to avoid the horses, as to their

right to continue the meeting (e.g., BR. 45-48, 52, 53). They

‘submitted to arrest as soon as the police sought to arrest

them. For example, the officer who arrested petitioner —

Rhoads testified : i sgh

“There was a melee in Duffy Square itself and every-

body was running around yelling ‘fascist cops’ and

this and that and I observed Rhoads running towards —

the steps of the Square itself and I followed him up

and told him he would have to leave the Square. If.

he didn’t, he would have to be placed under arrest

because he was part of the general disturbance there

and he said he didn’t want to leave and I told him if

he didn’t leave the second time I was going to place

him under arrest and I placed him under arrest and

I took him down from the center of Duffy Square by

the monument there” sah 60).

*None of these acts were included in the charges, and the evi-

dence thereof should have been excluded in response to petitioners’

due process objection (see infra). --

; OT PON ENNIO NTN ITS RNS AT TOON ERE LN a

9°

Similarly the officer who arrested petitioner Gelles testi-

fied: . . ~~

-“T said, ‘Please move along. You are not ‘accomplish- .

ing anything by standing here.” Again he ranted, ‘You

can’t tell me what to do. I have my rights.’ I said,

‘Mister, I am going to arrest you if you don’t move on’,

and he said, ‘Go ahead and arrest me.’... Q. All right,

‘what happened then? A. I informed him I placed him

under arrest and walked across in front of the Square,

which would be the south of the Square, and ccanage him

in a cab” (R. 83).

The policemen emphasized that petitioner Maher hit one

of the police horses with a rolled-up cardboard placard

(R. 99). Mr. Maher testified without contradiction that

he was attempting to keep the horse from trampling on

another young man who had stumbled and was lying near

the horse’s feet (R. 168, 169). None of-the petitioners had

- or used any type of implement-other than Mr. Maher’s use

of the rolled placard (see R. 156)."

-™ Several policemen. claimed that petitioners Kunis and Eck-

- .hardt, who worked together as puppeteers and brought with them

a puppet symbolizing anti-militarism, ran into the street after the

order to disperse and lay down in the middle of Broadway (R. 56,

57, 74, 75). The petitioners testified that Kunis lay on the side-

walk and entirely denied the allegation as to Eckhardt (R. 186,

187, 207, 215, 216, 223-25). The Times reporter testified that he

* was “not sure if it was on the street or a that he saw a

person, lying (R. 161).

nh sae r . . 8 8 A nD ORY

10

Presentation of Federal Questions in State Courts

The amended remittitur- of the New York Court of Ap-

peals, the State court of last resort, states: “Upon the ap-

peal herein there were presented and necessarily passed ©

upon questions under the Constitution of the United States,

as follows: Appellants contended that (1) their convictions

violated the due process guarantee of the Fourteenth

Amendment because they were based in whole or part on

“acts which were not charged in the complaint; (2) their

convictions violated their Constitutional rights of -free

speech and free assembly, and (3) their convictions under

subdivisions 2, 3 and 4 of section 722 of the Penal Law

violated the due process _ guarantee of the Fourteenth

Amendment because of vagueness. The Court of Appeals

held that appellants’ Constitutional rights were in no way

- violated” (R. 320). The points listed by the Court were

presented to it in petitioners’ briefs and oral argument.

As to the lower State courts, the first point presented

to this Court for review—that petitioners were convicted

for acts that -had not been. charged against them—was

raised ‘repeatedly in objections to the introduction of evi-

den¢e in the trial court (R. 19, 28). Specifically coopera 7

attorney objected

“to any testimony a as to the occurrences elie. Captain

McAllister attempted to disperse this meeting, on the

grounds that they are not within the allegations of the

- complaint. It would be a violation of due process to

_ try people on charges which have not been alleged and

which they have not had notice and are not included in

the sworn complaints ...” (R. 60, 61).

ll

And in argument to the trial court at the conclusion of

the trial, counsel stated:

“Again, at the risk of repetition,-I want to say that

the complaint is obviously based on the conduct of

the whole group. There is no implication in these —

charges whatsoever, that there would be any attempt

to prove ... or that there would be any evidence

about individual physical acts, as to which testimony

has been admitted; . therefore there can be no

conviction based on ‘Qaie acts consistent with due

process of law” (R. 265).

In the lower appellate court, the Appellate Term of the

Supreme Court of the State of. New York (hereinafter

called Appellate Term), petitioners’ briefs presented the

point as a matter of State and Federal due process. One -

_ Judge rejected it (R. 294) ; one judge may or may not have

‘*, considered it (R. 308); and the dissenting judge accepted

this Constitutional argument, relying on eo of

this Court as to Federal due process (R. 312).

* The second question presented for review oy oe the |

convictions violate the guarantees of freedom of apeech

and assembly—was argued to the trial court. Petitioners’

attorney asserted that “conviction on the evidence that has _

_ been presented would violate the State and’ Federal con-

stitutional guarantees of free speech and free assembly”

- (R. 258) and quoted at length from this Court’s decisions

under the Fourteenth Amendment, in particular Edwards

v. South Carolina, 372 U. S. 229 (R. 263). The Federal

Constitutional point was presented in brief’ and oral argu-

ment to the serena Term; the: Court’s opinion =

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"iota? it. (R. 300, 301). and’ the deerasen: opinion ex-

Batis accepted, it (R. 310-12).

. The third Constitutional question, as tiie vagueness of

‘tlie statute; was presented by brief’ i in the Appellate term, :

OW rich Peinians it - oo.

POINT 1

Petitioners. were convicted for matters not chemi te in.

the complaint i in violation of their: right to due process

ais of Jaw as ‘guaranteed by the Fourteenth Amendment.

'' move on after being informed that their actions, were “not -e

with “intent, t6 ‘provoke. a breach of the peace” by unlaw- .

Me

ri

“he complaint; as ‘already noted, charged petitioners

filly assembling, obstructing traffic, using loud and boister-

ous conduet and causing a crowd to collect and refusing to

- lawful” (R. 1). j

There i is no basis for the statement by the majority in

‘the Appellate Term (R. 294) that the complaint (B. ‘1)

justified charges based. on conduct after the’ order other

than. the mere failure to: -obey it. Iti is.clear that the grava-

men of the complaint is that petitioners were conducting

an unlawful meeting—unlawful hecause they obstructed

: * trafic, caused a- crowd to. collect and ‘used boisterous lan-

' guage; and that they were therefore told to move on. Cer-

= tainly that was no indication that any of them was being

. charged with any” of these -matters occurring after the -

order. The only conduct after ms order referred to in the:

“Complaint i is the failure to move on.

In fact there was no evidence to support the charge that

anything occurred which’ justified a declaration that the

13

meeting was unlawful. Prior to the police interference

there had beer n0 substantial interference with traffic, no

: loud or boisterous. conduct whatever, no undue crowd.

7 : The only testimony about obstruction during the conduct

in of the meeting was.as follows: Officer Behr testified (R. 12)

that some people had to walk on the street around the

Duffy Square area, that some cars -véered to avoid

these people, and that some of the demonstrators ‘were also

in the street. He made no attempt to be specific other than

to say (R. 17) that cars had to switch from one lane. to

another. He did not claim that the flow of traffic was in-

terfered with. Officer Fahyexpressly testified that before

the order to disperse -was given traffic had not “backed up”

(R. 78). The testimony of Officer Walsh that traffic was

stalled (R. 92, 98) related to the time after the order to

.\ disperse had been given, because ‘he evidently was one of

' ‘the policemen who arrived for the dispersal (R. 87, 88).

No one testified to “boisterous” conduct during the earlier

period. And, of. course, the charge that a crowd collected

is meaningless unless there was other evidence of improper

conduct. Certainly there was no basis for a charge that

the assembly was unlawful. The order to disperse was,

therefore, unlawful—not the meeting.

‘Tt is evident, however, from the testimony adduced aud :

the arguments of the District Attornéy at the trial that

the’ People based the prosecution on the conduct of peti- —

tionersafter the order to disperse (R. 27). The convictions

_were affirmed by the Appellate Term on this theory (R. 296,

297). Whatever justification there may have been for pro-

ceeding against any individual whose conduct may have

been improper, the complaint in this case did not proceed

“on that’ basis at all. Had that been done petitioners could

have sought separate trials to avoid confusion and preju-

i Ohne) Ae ce and nN ala At atc a RN Teo tee rt ne ee ee eee

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aS y i 7 14

dice. But no distinction was made at this trial between ~

- the various individuals. They were unaware of what they

were charged with.

The failure of the trial court to limit the evidence : to

the acts specifically charged in the complaint and its fail-

‘ure to indicate on what basis its judgment rested made

it impossible for any appellate court to determine whethet

the convictions rested on the trial court’s belief that the

meeting was unlawful or on acts occurring after the order

to disperse} impossible to determine which defendant was

found guilty for what cause. -This alone violated due

_ process. See Spevack v. Klein, decided January 16, 1967,

slip opinion p. 6. ,

As this Court said in DeJonge v. Oregon, 299 U. S. 353,

at 362, “Conviction upon a charge not made would be a-

sheer denial of due process.” And convictions were set

aside for lack of adequate notice of charge in that case

and in Cole v. Arkansas, 333 U. S. 196, Thompson v. Louis-

ville, 362 U. S. 199, and Garner v. Louisigna, 368 U. S. 157.

These considerations are further enhanced in view of

the fact that First Amendment rights are also involved

and that it appears that here, as in deJonge, aiid to

v the purposes of the meeting was a factor. |

This Court has been astute to prevent the use of omnibus

breach of the peace statutes in aid of deprivation of First

Amendment rights: Edwards v. South Carola, 372 U. S.

229; Cox v. Louisiana, 379 U. S. 536; Ashton v. Kentucky,

284 U.S. 195. Cf. Brown v. Louisiana, 383 U.S. 181.

. ®The continued introduction of evidence of what occurred. after

the order to disperse, the nature of which had not previously been

intimated, made it impossible for trial counsel to do more than

continue to object. There was not even any disclosure in advance

by the prosecutor of what acts were charged against which of the

cmenete, The confusion \ was complete.

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15

The views expressed by Mr. Justice Hofstadter in his ,

dissent (R. 312, 313) reflect a correct understanding of this

Court’s views and should receive this Court’s nian by

a reversal here.

POINT II

Petitioners’ convictions violated their freedom of ex-

pression as guaranteed to them by the Fourteenth

Amendment. ;

One cannot read the record herein without reaching the

conclusion that the police order to disperse, the arrests, and

the prosecution were. all motivated by hostility to the tun-

popular views’ expressed at the meeting. But this Court

has been careful to prevent the use of disorderly conduct

or breach of the peace charges in such situations.

_It-is one thing to uphold a conviction under a law punish-

‘ing trespass with “malicious and mischievous intent” as

was done, by a sharply divided Court, in Adderley v.

Florida, 385 U. S. 39; quite another.so to treat a conviction

under a breach of the peace statute: see Brown v. Louisiana

and Edwards v. South Carolia, swpra. Here there can be

little doubt that the statute was used to restrict freedom of

expression. a

We start with the fact that the first statement made by

a police captain (who, significantly, did not testify) indi-

cated a belief that no meeting could be held at that place

without permission (R. 9, 126, 151). This is confirmed by

the chairman’s response, as recorded on the tape (which

also, significantly, did not record the captain’ s order to dis-

perse) that permission was not needed and that those.

present would “exercise our constitutional rights” (R. 36). -

16

In this connection an offer of proof was made at the trial —

to show that meetings had been held in Duffy Square for.

popular causes, such as. bond rallies (R. 138, 139).

Any attempt to sustain these convictions on the basis

of interference with traffic must founder for lack of opin-

ion by the trial court. For the convictions might well have

rested on that court’s belief that what occurred after the

- order to disperse justified them. Moreover, as we have

already shown, there was no testimony of substantial

interference until the police injected themselves. “It

q should be borne in mind that Duffy Square, as the pic-

| ture shows (R. 7) is a triangular area largely unused be-

tween Seventh Avenue and Broadway. The meeting took ©

place in front of the statue (which appears on the left, or -

north side, of the picture) (R. 8). The reference by the

_ Appellate Term (R.-301) to this Court’s comment in Cox

v. Louisiana, supra, about a meeting “in: the middle of

Times Square at the rush hour” has no application here.

; The meeting was several blocks north of Times Square,

was not in the middle of the street, and was not in the rush

hour. _ ——_ a . , of ey

Even if some demonstrators did overflow the Duffy

Square area itself the order to disperse was nevertheless —

unjustifiable. For if the police had really been concerned,

with. such inconsequential interference with traffic that

could have been. averted by ordering a slight narrowing

_of the gathering—and that was not done (R. 14, 15, 112),

ef. Edwards, supra at p. 232, n. 5. are

The relisnce (R. 304) in the majority opinion of the Ap-

'. ‘pellate Term, on Feiner Vv. New York, 340 U. S. 315, is we

submit misplaced. There was here no inflammatory lan-

naa att A acho On Cn Fags Kp ns need

‘17 )

se ae

guage, no open hostility expressed by bystanders, no rea-

son to suppose that a fight might ensue. Nor is People v.

Penn, 16 N. Y. 2d 581, cert. den. 383 U. S. 969 (cited R.

308), relevant. For there defendants had obstructed trucks

by lying down in front of them to prevent delivery of the

cement they were transporting to a building site.

We submit that the convictions cannot stand consistent

with First Amendment principles. Since the order to dis-

perse a peaceful meeting was improper, there: can be no

punishment for failure to obey it: H lenry v. City of Rock

Hill, 376 U. S. 776; Shuttlesworth v. Birmingham, 382 U.S.

86, and Cox and Edwards, supra.

| POINT II |

The statute [Penal Law §722, subds. 2, 3, and 4] is

so vague as applied here that it violates the guarantee

of due process of law under the Fourteenth Amend-

ment. ; j

The three subdivisions deal with separate matters: 1.

annoyance of others; 2. refusal to move when ordered to

do so by the police; 3. causing a crowd to collect except

when lawfully addressing it.

1. The statute lays down no guide ihanwens for deter-

-mining what constitutes the forbidden annoyance. No at-

tempt was made by the majority of the Appellate Term to.

deal with this issue, although Mr. Justice Hecht did note

the difficulty of defining how serious the annoyance must

be (R. 296). We submit that under the decisions of this

Court in Winters v. New York, 333 U. S. 507, Burstyn v.

Wuson, 343 U. S. 495, Baggett v. Bullitt, 377 U. 8. 360,

18

Keyishian v. Board of Regents, 385 U. S. ——, no convic-.

tion under this subdivision can stand. :

2. Certainly not every. refusal to move when ordered to

-do so by a policaman can be punished criminally. Since

the statute fails to specify the circumstances under which

such failure should be punishable and leaves the freedom

of the pedestrian entirely at the mercy of any police of-

ficer, it is so broad as to fall within the condemnation of

this Court’s decisions already cited.

3. Finally, this. subdivision begs the tede question :

when is a meeting lawful. For nowhere ‘in the law of New

York are standards laid down which would determine the

legality of street meetings.

In short, not one of these provisions gives adequate

‘notice of what is and what is not criminal conduct. Cer-

tainly as applied here to an exercise of the constitutionally

protected right to freedom of expression, they cannot be

upheld. Not one of these constitutes that “narrowly de-

. fined” statute which this Court has held: required in First

Amendment areas: see Cantwell v. Connecticut, 310. U: 8.

296, at 307; Cox v. Louisiana, supra, at 562, Edwards v.

South Carolina, supra, City of Rock Hill, swpra. See also

Mr. Justice Douglas dissenting in Adderley v. Florida,

385 U. S. 39, at 55.

19

CONCLUSION

The judgment under review should be reversed and

the complaint dismissed.

Respectfully submitted, |

Osmonp K. FRAENKEL

Attorney for Petitioners

c/o New York Civil Liberties Union

. - 156 Fifth Avenue

3 New York, N. Y. 10010

N ANETTE DEMBITz,

Of Cotinsel.

ne