Jurisdictional Statement — Nick M. Egleson v. Massachusetts

#o

Table of Contents.

Opinion below ° -_

Jurisdiction - 2

Question presented 3 |

‘Constitutional provisions involved 4

Statutes involved 4

Statement of the case . Hy)

The question presented is substantial ;

Conclusion - — ai 14

Appendix A. - "16

Table of Authorities Cited.

Cases.

Adderley v. Florida; 385 U.S. 39 18,14

Amalgamated- Food Employees Cie Local 590

v. Logan Valley Plaza, Inc., 391 U.S. 308 11,13, 13 - -

Berman v. United States, 302 U.S. 211 - 8

Bouie v. Columbia, 378 U.S. 347 , 11

Brown y. Louisiana, 383 U.S. 131 | 11, 13

_ Cox v. Louisiana, 379 U.S. 536 11

Dahnke-Walker Milling Co. v. Bondurant, 257 U.S.

. 282 | 3

Edwards v. South Carolina, 372 U.S. 229 “11

_ Farmer v. Moses, 232 F. Supp. 154 12

| Garner v. Louisiana, 368 U.S. 157 ae mm

_ Guaranty Trust Co. v. Blodgett,.287 U.S. 509 ! 3

- Henry v. Rock Hill, 376 U.S. 776 11

-

ATO EB LY 7 PIB BIAS

aN Abt cimtee ie

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, .

4 - ‘ ‘ \ niin .

wns na teint ngllltind sane Poaht Nai Si hehe ong boleh

G.L. ¢c. 278, § 31

i... TABLE OF AUTHORITIES CITED

Hoffman, In re, 434 P. 24 353, 64 Gal. Rptr. 97 10,12 --

Johnson v. Virginia, 373 U:S. 61 ba? he ae

Kingsley International Pictures Corp. v. Regents of

- the University of the State of New York, 360 U. 8.

684 3

_ Market Street Railway Co. v. Railroad Commission of

California, 324 U. S. 548 . 3

Parr v. United States, 351 U.S. 513 3

.. State v. MeNair, 178 Neb. 763 - 12

Taylor v. Louisiana, 370 U.S. 154 11

Terminiello v. Chicago, 337 U.S. 1 11

Wolin v. Port of New York Authority, 392 F. 2d 83,

cert. den. November, 1968 10°

Wright v. Georgia, 373 U.S. 284 u

Sratutes, Hire.

U.S. Constitution, First Amendment 2,4, 5, 11,14

‘U. S. Constitution, Fourteenth Amendment 2, 4; 5

Title 28, United States Code, Section 1257 (2) 3

GL. (‘Ter.*Ed.) c. 266,§120 ~ 41045

QL. ¢. 278, § 18 | 5

5

€

| ae Supreme: Court of the United Seats. :

te October ‘Term, 1968.

No. . 2 |

COMMONWEALTH OF MASSACHUSETTS,

Appellee,

foe " & ®

NICK M. EGLESON,

’ | Appellant. :

+ ON APPEAL, FROM TH PREME JUDICIAL COURT FOR THE

COMMONWEALTH OF MASSACHUSETTS.

JURISDICTIONAL STATEMENT.

Appellant Nick M. Egleson appeals from the judgment of

the Supreme Judicial Court for the Commonwealth of *

Massachusetts, entered on J anuary 30, 1969, overruling the

exceptions of the appellant to his conviction of the crime of

trespass which is defined in Massachusetts General Laws

(Tér. Ed.) ¢. 266,.§ 120. Appellant submits this Statement

to show that this Court has jurisdiction of the appeal and

that.a substantial federal question. is presented.

ea

Opinion ‘Below.

The opinion of the Supreme I adicial Court for the Com-

monwealth of Massachusetts is reported in Mass. Adv. Sh.

e ad .

- ° ‘

. 7 .

° e . ‘

| ;

.

aM ——

RE Ye ScD ACG. RSE RE Dg Set cd

2

(1969) 175. A‘certified copy of said opiition is included in_

the Record supplied by the Clerk of the Supreme Judicial —

Court for the Commonwealth of Massachusetts and has

been reprinted and appears as Appendix A to this State-

ment. — | at |

oon . \

J urisdiction.

:

This is a criminal prosecution brought originally in the

Roxbury District Court where the appellant was convicted

of the crime of trespass pursuant to Massachusetts G.L.

(Ter. Ed.) c. 266, § 120. Appellant was subsequently con-

‘victed again at a trial de‘novo held before the Superiér

Court for the Transaction of. Criminal Business, Suffolk

County, ‘sitting without a jury. The conviction by the

Superior Court was ‘sustained by the Supreme Judicial

Court for the Commonwealth, the court of last resort in

Massachusetts, and the judgment became final under Mas-

sachusetts law and for the purpose of invoking this Court’s

jurisdiction, on January 30, 1969. Appellant seasonably ~

filed notice of appeal on April 22, 1969. Appellant raised at —

all stages of the proceedings his claim that Massachusetts

G.L. (Ter. Ed.) ¢. 266, § 120, as applied against him in the

circumstances of this case, is repugnant to the First‘and |

_ Fourteenth Amendments to the Constitution of the United

States. (See page 4 of document numbered 1, the certified

copy of the Record before the: Supreme'J udicial Court.) *

Both the Superior Court and the Supreme Judicial Court

considered and rejected this contention.

The jurisdiction of this Court to review that-decision .

and judgment of the Supreme Judicial Court by direct ap-

*Hereinafter document] will be referred to as ‘‘R’’; other docu- ms

ments will be referred to by their numbers, e.g., ‘‘document 2.”’

“

ee ee Sree toes grees Qn Seta OV ereceet Bae ee eee

3

peal i is conferred by Title 28, United States Code, Section '

1257(2), and is supported by the following decisions:

Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282

(the state statute need not be declared valid im toto, but

need only be declared valid in the circumstances of the par-

ticular case at hand, in\order for the appellant attacking

~ the application of the sta "as repugnant to the Consti- :

tution to have a right of direct appeal). |

Guaranty Trust Co. v. Blodgett, 287 U.S. 509, 513, and

Kingsley International Pittures Corp. v. Regents of the

University of the State of New York, 360 U.S. 684, 688 |

(where the validity of the state statute has. been sustained =|

in the face of federal. objections, the Supreme Court on :

appeal must accept. the state -coyrt’s construction of the

statute and proceed to test the validity on that basis). i

‘The judgment of the Supreme Judicial Court*for the |

Commonwealth of Massachusetts in this case is a “final -

judgment,’’ is not subject to further review or te dercey

in any-other state tribunal and must be considered to be —

‘the final word of a final court.’? Market Street Railway _

Sn ee OT

.

Co. v..Railroad Commission of California, 324 U.S. 548,

551. Appellant has been sentenced, and the overruling of

exceptions to that sentence was the final judgment in this.

case. -Berman v. United States, 302 U.S. 211; Parr v. F

United States, 351 U.S. 513, 518. See documents 2 and3 fk

. which ate certified copies, respectively, of the order of the

Supreme Judicial Court.and of the entry of that order in the

ease docket. ae ; —

Question Presented. ee ;

Should a conviction for violation of a state criminal tres-

pass statute be upheld in the.face of attack under the Free

4

Speech guaranty of the First.and Fourteenth Amendments

- to the Constitution of the United States where the tres--

- passer, a draft counsellor, is convicted for remaining in a

_ municipal building for the purpose’ of speaking to a few

young men who, report to their local Selective Service

Board on the fourth floor of said building and wait inside

for one-half hour or longer until a bus arrives to transport

them to the pre-induction physical examination station? .

Constitutional Provisions Involved.

United States Constitution, Amendment I: ‘‘Congress

shall make no law. . : abridging the freedom of speech

”

‘United States Constitution, “Amendment i. {ie i

shall any State deprive any person of life, liberty, or pr oP.

_erty, without due process of law ...’”

Statutes Involved. |

Massachusetts G.L. (Ter. Ed.) c. 266, § 120: ‘‘Whoever,

without right, enters or remains in or upon the dwelling

house, buildings, boats or improved or enclosed land, wharf

or pier of another, after having been forbidden so to do by

the person who has the lawful control of. said premises,

either directly or by notice posted thereon, shall be punished

by a fine of not more than twenty dollars. A person who is

found committing such trespass may be arrested by a

sheriff, deputy sheriff, constable or police officer and kept

in custody in a convenient place, not more than twenty-four

hours, Sunday excepted, until a complaint can be made

against him for the offence, ’#nd he be taken upon a warrant

issued upon such complaint.”’ 7

>

ad

- Statement of the Case.

The appellant, Nick M. Egleson, appeals his conviction

for violating G.L. (Ter. Ed.) c. 266, § 120, which defines the

misdemeanor of trespass. The case was initially, tried

before the District Court for the Roxbury. District. Upon

his conviction in that court, the appellant demanded and. .

‘received a trial de novo before the Superior Court for the

Transaction of Criminal Business, a court ‘of record, to

which appellant’ was entitled as a matter of right under

. Massachusetts practice. G.L. c. 278, § 18. In the Superior

Court, the appellant seasonably filed a motion for verdict

of acquittal on two occasions—once at the conclusion of -

. the Commonwealth’s evidence (R. 1), and thereafter at the

conclusion of all of the evidence (R. 1). The motions each

raised the First and Fourteenth Amendments as grounds

for declaring the trespass statute involved ee

as applied to the facts of this particular case: “‘. . . as_

applied in the present case, G.L. (Ter. Ed.) C. 266, §120

deprives defendant of his right of free speech in.violation .

of the provisions of the First and Fourteenth Amendments

to the Constitution of the United States .. .’? (R/4). The

motions were denied both timesgby the Gaperior Court.

Thereafter, appellant fil ed timely notice of appeal to. the

Supreme Judicial Court for the Commonwealth of Massa-

chusett8, the Commonwealth’s court of last resort. The

federal question—i.e., whether or not the statute was un-

constitutional in the circumstances—was raised before ‘the

Supreme Judicial Court by a Dill of exceptions (G.L. ¢.

278, § 31). Because of the nature of a bill of exceptions -

under Massachusetts practice, the factual statement of the

ease contained in such bill presents to the Court the uncon-

tested facts and issues of the case. The evidence was un-

contradicted. (Opinion of the Supreme Judicial Court,

Appendix A, attached hereto.) The Supreme J udicial

ee 2 Rar aatereiee a aE NibpEN IER. . *

a Fe a eae his es ae ay vane r

.

. 6

Court, while clearly and squarely recognizing the presence.

of a substantial federal question, purported to weigh the

circumstances and uphold the statute and the conviction

against constitutional attack. -

‘The city had both a right and a-.duty to protect the -

- building and its functions against any self-proclaimed

need for an individual entry which could not, so far

as appears, benefit the public use in any respect. ‘The

State, no less than a private owner of property, has

power to preserve the property under its control for

the use to which it is lawfully dedicated.’ Adderley v.

Florida, 385 U.S. 39, 47. ‘The rights of free speech

and assembly, while fundamental in our democratic so-

ciety, still do not mean that everyone with opinions or —

beliefs to express may address a group at any public

place and at any time. The constitutional guarantee

of liberty implies the existence of an organized society

maintaining public order, without which liberty itself

would be lost in the excesses of anarchy.’ Co v.

. Louisiana, 379 U. S. 536, 554. See Cox v. Louisiana,

379 U. S. 559, 563; Cameron v. Johnson, 390 U.S. 611,

616-617;° Amalgamated Food Employees Union Local

590 v. Logan Valley Plaza, Inc. 391 U. S. 308, 320.’*

(Opinion of the ‘Supreme: Judicial Court, last para-

graph, Appendix A, sida

The question involved is a ‘‘ substantial federal question”’

not only in the sense that it involves a clear question gov-

erned by federal law, but also because the federal question

involved is one of major importance, involving as it does

~ an alleged infringement of ‘‘the preferred amendment”’ in in

circumstances where freedom of speech becomes far more

- than a formal exercise. The facts here involve a situation

7 .

where both the speaker rianouiiaais herein) and the would-be-

listeners have an immediate and direct interest in allow-

ing free speech to go unfettered. -

The uncontradicted facts indicate that Egleson, the ap-

pellant, a college graduate and instructor in humanities at.

the Massachusetts Institute of Technology, worked with the

so-called Boston Draft Resistance Group, a group dedi-

eated to the dissemination of information to persons affected

by the selective service laws who may not have a sufficient

knowledge of those laws.

On April 2, 1968, Egleson went to a municipal building

at 20 South Street, Jamaica Plain, Massachusetts, to talk

with pre-inductees who had been notified to report to the

Jamaica Plain ‘‘Draft Board,’’ Local Board No. 151, on.

- the fourth floor of- said Building (hereinafter referred to

as the ‘“‘Building’’) (R. 2-3). In addition to the fourth |

floor offices of the draft board, the Building contains a

gymnasium with’ four basketball courts on the third floor,

a dental clinic, a baby clinic, a civil defense office on the’.

fourth floor, a running track on the fourth floor, a locker

room with 96 lockers on‘the second floor, a swimming pool

in the basement, an office of the Visiting Nurse’s Associa-

tion and the custodian’s, office on the ground floor, two sepa-

rate staircases leading from the ground floor to the fourth

floor, and numerous bulletin boards setting forth informa-"

tion of public interest (R. 2).

Each month, a group of pre-inductees, like the group of

April 2, are notified to report to the draft board by 7:00

a.m., and after reporting they are directed to board a bus

whieh takes them to the Boston Army Base for their pre-

induction physical examinations (R. 3).

Egleson entered the Building at about 6:25 a.m., on

April 2,"and by 6:45 a.m. approximately 20 pre-inductees

had arrived. These pre-inductees were standing about,

+ et aR

ATRL

8

. mostly on the fourth floor with some on ‘the third floor

and some on the’ landing between the two floorswhere

Egleson was arrested (R. 3-4).

Egleson entered the Building to talk with pre-inductees |

about their statutory and constitutional.rights and he was

so-engaged at the time he was arrested-{R. 3). In talking

with pre-inductees, Egleson identified himself and his asso-

ciation with the Boston Draft Resistance Group, stated

his opposition to the Vietnam conflict and offered to inform

_pre-inductees of their rights. Egleson did not force con-

versation upon anyoné who did not wish to talk with him

(R. 3). Egleson did not and would not counsel anyone to

perform an illegal act (R: 3-4). As an example of the pre-

inductees’ need for information, Egleson related that one

of the pre-inductees with whom he spoke erroneously be-

lieved himself exempt from compulsory military service by

reason of his being Puerto Rican (R. 4).

“It would not have been possible for Egleson to speak

with the pre-inductées. outside the Building (R. 4): Egle-

son’s prior experience in draft counselling at a local draft

board had taught him that pre-inductees when approaching

the Building are in a hurry to report before the 7:00 a.m.

deadline and they do not stop outside the Building to talk.

Yet once they report to the Board on the fourth floor, they

wait idle there for a period of one-half hour or more, that

is, until approximately 7:30 a.m., before they depart by bus

for the medical examination station, and it was during

this period of time that seneen sought to speak with the

pr¢-inductees (R. 4).

The custodian of the Building, Mr. Slowe, knew that

Egteson wanted only to talk with pre-inductees about their |

rights. While he told Egleson to leave the Building be-

cause he had to clean the Building and because only cleaning

’ ' personnel and persons having business with the draft

9

board were normally admitted at that hour, the custodian

did not ask Egleson to go to the fourth floor and remain

with the ‘pre-inductees (R. 3), Had he done so, Egleson

- would have acquiesced (R. 4). Egléson thought he was.

not interfering with the cleaning of the Building—he did - |

not see the custodian trying to clean the area of the third

and fourth floors or the stairway or landing between

them, where he was arrested, and he was. more than will- |

ing to move away from any area being cleaned (R. 4).

Indeed, Egleson left the Building when the custodian origi-.

nally asked him.to do*so (R. 3-4). Egleson re-entered the

Building, accompanying a pre- -inductee, whereupon the cus-

todian called the police who found Egleson talking with

some pre-induetees on the landing between the third and

fourth floors and arrested him (R. 3).

Furthermore, there was no evidence that Egleson in any

way interfered with. the processing of the pre-inductees.

Egleson did not intend to create a disturbance or otherwise

interfere with the use or maintenance of the Building and

‘had such interference been created by his prenenen, he

would have left the Building (R. 4).

The Commonwealth did not dispute any of the above

facts, which were found by the trier of tiie the Superior

- Court judge.*

*Indeed, in the brief filed by the Commonwealth 1 in the ‘Supreme

Judicial Court, the Commonwealth conceded that there ‘‘. . . was

no evidence that the defendant was conducting his conversations

other than in a-peaceful manner (R. 4).’’ (Page 3 of that Brief. )

The Commonwealth also admitted that there ‘!... . was nothing

in the content of-his words which could render it unprivileged

under First Amendment guaranties.’’ (Page 9 of that Brief.)

And as for any interference with the activities taking place or

about to take place in the Building, the Commonwealth conceded,

““There‘is little doubt that such interference was, in all respects,

less than significant, and certainly it will not be argued in this

brief that such interference was sufficient to render any —

<r os {Page 13 of that Brief. )

e

10°

The Supreme Judicial Conrt, while it did not and could .

not make factual findings contrary to those of the Superior

Court, ‘nevertheless chose to ignore or de-emphasize some

of the facts. For example, there was no evidence, and cer-

tainly no finding, of any disruption caused in the Building

by virtue of the presence of the appellant, but the Supreme

Judicial Court hypothesized that if appellant were allowed

to enter the Building, then ‘‘an indefinite number of others

could... enter .°. .”? (Opinion, Appendix A, infra, at

page 20). ‘The court further theorized that ‘‘The defend-

_ant’s purpose . . . probably would be a deterrent, to the

efficient work of the Draft Board’? (Opinion, Appendix A,

infra, at page 20), despite the absence of any. evidence or

any finding of fact to this effect. The fact is, and the

circumstances of this case are such, that no disruption oc-

curred, an ‘‘indefinite’’ or even large number of non-

pre-inductees did not enter the Building, the operations of

the superintendent and of the Local Board were not ham-

pered to any perceptible or significant extent, Egleson was

anxious to avoid ahy unnecessary interferénce, and he con-

ducted himself at all times in such a manner as to minimize

whatever friction inevitably resulted from the custodian’s

adamant and arbitrary posture.

The Question Presented is Substantial.

This case presents a substantial federal question. It is

related to the cases of Wolin v. Port of New York Autkor-

ity, 392 F. 2d 83 (1968), cert. den. November, 1968; and In re

Hoffman, 434 P. 2d 353, 64 Cal. Rptr. 97 (1967), where the .

Court of Appeals for the Second Circuit ‘and the Supreme

Court of California reversed criminal trespass convictions

against individuals who had distributed anti-war literature

in a bus terminal and ina railroad station, respectively.

ie. , —7

11

Time and again, this Court has rejected blanket prohibi-

tions against the exercise of First Amendment rights, set-

ting-aside convictions for trespass, for ‘reach of the peace,

for loitering, for contempt of court, and upholding the exer-

cise of such rights in all kinds of places: in a shopping

‘ centér—Amalgamated Food Employees Union Local 590 v.

Logan Valley Plaza, Inc., 391 U.S. 308 (1968) ; in a one-room

branch library—Brown v. Louisiana, 383 U.S. 131 (1966) ;

in a drug store—Bouie v@Columbia, 378 U.S. 347 (1964) ;

0 PIES Lat OER EES LIL OY TOE LO

_ in front ofa city hall—Henry v. Rock Hill, 376 U.S. 776

(1964); in a public park—Wright v. Georgia, 373 U.S. 284 ;

(1963); on state house grounds—Edwards v. South Caro- = \.

‘ling, 972 U.S. 229 (1963) ; in a bus depot—Taylor v. Loutst-

ana, 370 U.S. 154 (1962); ina department store—Garner v.

‘Louisiana, 368 U.S. 157 (1961) ; in an auditorium in a pri-

vate building—Terminiello v. Chicago, 337 U.S. 1 (1949);

in the vicinity of a court house—Coz v. Louisiana, 379 U.S.

536 (1965) ; and even ina courtroom—J ohnsonv. Virginia,

373 U.S. 61 (1963). | Piet

In these and other decisions, this Court has clearly ar-

ticulated the preferred status of the free speech guaranty,

occasionally by applying the so-called ‘‘clear and present

danger’’ test, and on other occasions by balancing the in-

dividual’s weighty right to speak against the need. to limit

the exercise of that,right in order to protect the rights of

others—in the latter cases, only a demonstrably compelling

state interest can be allowed to..tip the balance against

protection of the individual’s right to speak. The critical

circumstance here, which entitles appellant to prevail on

either standard, is that the degree of interference was

minimal. As this Court took pains to emphasize in Brown

v. Louisiana, supra, at page 142, “*. . . no claim can be

made that use of the library by others was disturbed by the

demonstration:”’ '

‘

fall LITO CA NLL PRIN GOL NEN AEN 0 SEE Im I HEH

ee ee

ae

Appellant does not claim an absolute right to speak in

any manner and in all-circumstances. He agrees, for in-

’ stance, that a singing demonstration intended to disrupt a_

city council meeting is not protected: State v. McNair,

178 Neb. 763 (1965). On the other hand, some element of

interference may be inevitable apd tolerable: in Amalga- .

mated Food Employees v. Logan Valley Plaza, supra,

picketing i in the pick-up and delivery area of a supermarket

was held to be protected. (Had the case involved picketing

inside the supermarket, it seems probable that this Court

would have reached the opposite conclusion, but some other

mode of speech might have been sanctioned, e.g., leafletting,

- despite the crowded ‘conditions prevailing inside super-

markets.) Thus, one mode of speech may be protected while

another. mode of speech may pass the boundaries of protec-

‘tion because of the extent of interference with other legiti-.

mate activities: in Farmer v. Moses, 232 F. Supp. 154

(1964), leafletting at the New York World’s Fair was per-

mitted but picketing prohibited. The principle on which

appellant relies was well expressed in In re Hoffman,

supra: ) |

‘““The primary uses of municipal property .can be

amply protected by ordinances that prohibit activities

that interfere with those uses. Similarly, the primary .

uses of railway stations ean be amply protected by ordi-

nances prohibiting activities that interfere with those

~ uses. In neither case can First Amendment activities

be prohibited solely because the property involved is

not maintained primarily as a forum for such activi-

ties.’ 434 P. 2d at 356.

\ ; a

‘itiate diligently pressed all of these contentions be-

low, suggesting particularly that the present case is not

a 83

Feasonably distinguishable from the decisions of this Court |

in Brown v. Louisiana, supra, and Amalgamated Food Em-

' plog@es v. Logan Valley Plaza, supra, among others.

The Supreme Judicial Court apparently considered these

' decisions ‘as representing ephemeral views, ‘‘. . . often

expressed by a divided court’? (Opinion, Appendix A,

infra, at page 19), and chose instead to rely on dicta in

three Gases where convictions were in fact set aside, as well

as to rely on one non-criminal case, and on Adderley v.

, Florida, 385 U.S. 39 (1966). The latter case is clearly dis-

‘ tinguishable because the decision rests on a finding of fact ;

that there was interference in circumstances (since it was

a jail) where any degree of. interference raises delicate.

and difficult questions of safety and security. Fev the rest,

the Supreme Judicial Court resorted to bootstrap reason-

ing by hypothesizing potential interference which, in this

‘ease, simply has no basis in fact—interference which did

not occur here and which was not likely to occur.

Appellant did not interfere with the use of the Building.

So far as appears from the Record and from the opinion

of the court lelow, appellant was deprived of his right to

speak on the ground that the City of Boston, as owner of

the Building, may arbitrarily choose to admit twenty young

men into the Building while excluding persons who, like

appellant, wish to speak to that audience about vital matters

of great public and private concern. Indeed, it is at: times

like these, when views held and expressed by the appellant

may not be popular among certain citizens and govern-

mental officials, that this Court must be especially vigilant

_ in preventing repressive enforcement, and perhaps selective

enforcement, of criminal trespass ‘and other such statutes

in circumstances where there is little or no evil to be reme-

died by resort to such laws.

v/

FOOT I OGL POLL LIAL SY EOI AY, .

ge

ee walt Bad

iain dada 020 SM Se LRN Rm Ie CMR OR EO Hi. :

14

The suggestion that vials would be free to énter the

Building at 9:00 a.m. is specious since appellant’s only

‘interest in entering the Building was to speak with pre-

inductees. Manifestly, whatever considerations militate in

favor of excluding appellant from the Building at 7: 00

- -am, apply with equal force ‘to the more numerous pre-

inductees. As appellant has consistently maintained, he does

not insist on the right to enter the Building at 7 :00 a.m., but

will be happy to come at whatever time the pre- -inductees

are instruated to report, whether 7:00 a.m. or 11:00°a.m. qr

‘any other time. Indeed, if, after reporting, the pre-in-

ductees were ordered to wait for the bus outside the Build-

ing, appellant would have his opportunity to speak to them.

But the City’s naked ‘‘right’’ to permit the’ pre- -inductees

to wait inside the Building while excluding appellant does

not remotely resemble the sort of compelling state interest

which would justify infringing appellant’s right to speak.

This case involves a significant and substantial federal

question, for if it is allowed to stand, the thrust and sub-

stance of Adderley v. Florida, supra, will become distorted,

and that decision will be ever more frequently abused to

silence persons who hold unpopular views. These funda-

mental First Amendment rights will surely atrophy if at

‘every opportunity the State is free to prevent their exercise

. by devising some flimsy theory that exercise of such First

Aniendment rights might theoretically inconvenience the .

public or some governmental agency, or function.

Conclusion.

It is cubnitied that the decision of the Supreme Judicial

Court for the Commonwealth of Massachusetts is in error

and that the statute here involved, as applied i in these cir-|

15

cumstances, is repugnant to the Constitution of the United -

States. Appellant respectfully urges this Honorable Court

to note probable jurisdiction and set this case down for a

plenary hearing on the merits.

Respectfully submitted,

JOHN G. S. FLYM,

148 State Street,

Boston, Massachusetts 02109,

a Attorney, for Appellant.

16

Appendix A.

Massachusetts Advance Sheets (1969), Pages 175-179.

a ¥

CoMMONWEALTH vs. Nick M. EcLEson.

Suffolk. January 6, 1969.— January 30, 1969.

Present: WiLK1ns, C.J., SPALDING, WHITTEMORE, SPIEGEL,

& REARDON, JJ.

Trespass. Public’ (Building. Municipal Corpogations, Property.

Constitutional Law, Freedom of speech. Words, ‘‘ Another.’’

Case heard in the Superior Court without jury by Canavan, J., a

Municipal Court judge sitting under statutory authority.

_ Wnuxrns, C.J. The defendant was convicted of the crime

of trespass and fined $20. General Laws (Ter. Ed.) c. 266,

§ 120, in part. provides, ‘¢Whoever, without right, enters or

remains in or upon the dwelling house, buildings, boats or

improved or enclosed land, wharf or pier of another, after

having been forbidden so to do by the person who has the

lawful control of said premises, either directly or by notice

posted thereon, shall be punished by a fine of not more than

twenty dollars.’ ia |

‘The evidence was uncontradicted. The trespass occurred

at a building owned by the city of Bosten at 20 South Street

in the Jamaica Plain district. The building consists of four.

brick stories, and contains several facilities: an office -of

Selective Service System Local Board No. 151, a “Civil De-

fense office, and an entrance toa running track-on the fourth

floor; a gymnasium with four basketball courts, a dental

clinic, and a baby clinic on the third floor; a locker room

on the second floor; offices of the Visiting Nurse Associa-

tion.and of the custodian on the first floor; and a swimming

‘ pool in the basement. Two staircases lead from the ground

floor to the fourth floor. There are numerous bulletins set-

MA ».

es

17

ting forth information of public interest, such as employ-

ment opportunities.

One Slowe was the custodian in charge of the building.

On the morning of April 2, 1968, at 6:15 a.m. he arrived at

the building, and unlocked the doors. Thereafter the front

_ doors were left open. During the next forty-five minutes

two women in charge of the Local Board office and about

-twenty young men reporting to that office entered the

building. Pre-inductees normally arrive before 7 a.m. and ©

stand in the lobby of the fourth floor in a space about fif-

teen by twenty feet until 7:30 a.m. when they go down-

stairs and leave by bus. The practice was for pre-inductees

to check in with the Board, obtain their files, and take them

to the —o where they undergo physical examina- .

tion.

That morning between 6:20 ‘and 6:25 the defendant, an

instructor at Massachusetts Institute of Technology a

worked with the ‘‘Boston Draft Resistance Group,’’

companied by three girls, entered the building. Sines in-

quired whether the defendant had busingss in the building,

to which the latter replied that he wished to’ speak to pre-

inductees as to their rights in relation to the draft. Slowe

requested the.defendant to leave the building. The de-.

fendant asked whether pre-inductees were allowed to. enter.

Slowe said that they were allowed to go to the fourth floor.

Slowe also said that the defendant was interfering with his

cleaning the building and that only cleaning personnel and

persons having business with the Draft Board were nor-

mally admitted at that hour. The defendant and his com-

panions then went outside the first set o doors and re-

mained in the entrance ‘patio. ibe, Ps

About 6:35 the defendant, accompanying a pre-inductee,

reéntered. Pursuant to a telephone call. by Slowe, police™

officers arrived about, 6:45. The officers and Slowe found -

AESOP ONION, tebevt est 7

CaN EP ETO, EAT er ome seeps arth yo cee,

18

the defendant speaking with a group of pre-inductees on

the Janding between. the third and fourth floors. At that

time about twenty pre-inductees were present, most of them

on the fourth floor, but some were on the staircase between

the third and fourth floors. The officers said if the defend-

ant would leave, they would not arrest him. The defendant °

stated that he felt that he had the right to stay, and the .

defendant was arrested. | ;

In talking to pre-inductees, the defendant identified him-

self and his association with the ‘‘Boston Draft Resistance

Group,”’ stated his dislike of the Vietnam War, and in-

formed them of their rights. He did not force conversa-

tion upon anyone. He did not counsel anyone to commit

an illegal act, and did not intend to create a disturbance or

interfere with the cleaning. He insisted on entering and re-

maining in the building because it would have been very

difficult, if not impossible, to speak ‘‘meaningfully”’ with

pre-inductees outside the building.

1. The defendant asserts, without citation of authority,

that G. L. ec. 266, § 120, covers only private property and

‘does not apply to buildings: owned by a municipality.”’

But in 1895 there was a decision by this court in which the

contrary was assumed without discussion. Fitzgerald v.

Lewis, 164 Mass. 495. That case arose under lineal statu-

tory. predecessors of § 120, namely Pub. Sts. ¢. 203, §§ 99,

100, and St. 1890, c. 410, and upheld police arrests for tres-

passes upon real estate owned by the city of Springfield.

The land was part of the poor farm upon which the alms-

house was located. The statute contains no exceptions,

and we see no reason to believe that there was any inad-

vertent oversight in the opinion. We are unimpressed with |

the defendant’s analysis of Pub. Sts. c. 203, § 99, and his

failure to give adequate weight to the amendment by St.

19

1890, c. 410, which expressly covered ‘‘buildings.’’? The

present statute, so far as material, is in substantially the _

same language as St. 1890, c. 410, and R. L. ¢. 208, § 109.

We hold that ‘‘another’”’ in ¢. 266, § 120, includes the

State and municipalities. To similar effect are majority

opinion in Adderley vy. Florida, 385 U. S. 39; State v. Kirk,

84 N.. J. Super. 151, 156. -

2. The defendant challenges the conviction on the ground :

that he was not in the building ‘‘ without right,’’ as required

in § 120. He bases his case largely upon a claim to ‘exercise

a so called First Amendment right. The resolving of such

rights depends upon the particular facts of each case. In

final analysis, determination depends upon the view which

currently prevails in the Supreme Court of the United"

States, and which is often expressed by a divided court.

"In the circumstances, we content ourselves by stating

what appear to us should be the determinative factors. The

defendant first entered the building in the early morning

before it was open to the general public. It was approxi-

mately the hour usual for the appearance of pre-inductees

to check in with their Local Draft Board. There was a~ ©

period of one-half hour in which about twenty of them were

to-receive their files from the Board and depagt together

in a bus to the Army Base. This was not a propitious time

nor place for a self-appointed layman who was a member of

a draft resistance group to offer his ideas on constitutional

or other ‘‘rights’’ or to volunteer expositions of grounds

of opposition to the Vietnam War. If the defendant could

1‘*An Act relating to trespass upon real estate. Section ninety-

nine of chapter two hundred and three of the Public Statutes is ~

-hereby amended so as to ‘read as f@ilows: Whoever without right

enters upon or remains on or- in the dwellinghouse, bujldings or

‘improved or enclosed land of another, after being forbidden so to

do by the person having the lawful control of said premises, either

directly or by notice posted thereon, shall be punished by a fine

not exceeding twenty dollars.’’ ia

ee ee ee ed

. ELON ek POM YI ETT

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i?

20

properly enter with three girls of undisclosed purpose, then:

an indefinite number of ‘people, accompanied by individual

<groups of additional persons, could also enter. If the »

defendant with: similar “intent could enter with one pre-

inductee, an indefinite number of others could, equally

unsolicited, enter with one or more other pre-inductees.

The defendant’s purpose could, at best, be of no help, and.

probably would be a deterrent, to the efficient work of the

Draft Board. Interviews attempted, while standing on the

stairway and in the rug-sized lobby of the fourth floor,

could hardly be more ‘ ‘meaningful’? than similar discussions

outdoors in the April mosning air which the defendant

' refused. —

The city had both a right and a duty to protect -the

building and its functions against any self-proclaimed need

for an individual entry which could not, so far as appears,

benefit the public use in any respect. ‘‘The State, no less

than a private owner of property, has power to preserve

the property\under its control for the use to which it is

lawfully dedi¢ated.’’ Adderley v. Florida, 385 U. 8S. 39, 47.

‘The rights of free speech and assembly, while fundamental

+n our democratic society, still do not mean that everyone

with opinions or beliefs to express may address a group at

any public place ‘and at any time. The constitutional

guarantee of liberty implies the existence of an organized

society maintaining public order, without which’ liberty :

itself would be lost.in the excesses of anarchy.’’ Cox v.

Louisiana, 379 U. 8. 536, 554. See Cox v. ‘Louisiana, 379

U. §. 559, 563; Cameron v. Johnson, 390 U.S. 611, 616-617;

‘Amalgamated Food Employees Union Local 590 v. Logan

Valley Plaza, Inc. 391 U.S. 308, 320. 4

| o Exceptions overruled.

John G. S. Flym for the defendant.

James M. Kickham, Assistant District Attorney, for the

Commonwealth. : :