# Opposition — Holder v. Illinois

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1363%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1984
- **Citation:** 467 U.S. 1241

## Text

oatice - Supreme Court, U.S

| “PILED
No. 83-1599 MAY 24 Y984

EXANDER L. STEVAS,
CLERK

In THE

Supreme Court of the United States

Octosper Term, 1983

CARL HOLDER,
Petitioner,

Vv.

PEOPLE OF THE STATE OF ILLINOIS,
Respondent.

On Petition For A Writ Of Certiorari To The Appellate
Court Of Illinois, Second Judicial District

RESPONDENT'S BRIEF IN OPPOSITION

Net F. Hartican
Attorney General, State of Illinois

Mark L. Rorerr *
Assistant Attorney General
188 West Randolph Street, Suite 2200
Chicago, Illinois 60601

(312) 7938-2570

Counsel for Respondent

Marcia L. Friepi

Assistant Attorney General

188 West Randolph Street, Suite 2200
Chieago, Tlinois 60601

(312) 793-2570

Of Counsel * Counsel of Reeord

Printed by Authority of the State of Illinois (P.O. 32353—50—5-17-84)

i

QUESTIONS PRESENTED

1. Whether petitioner has presented a substantial fed-
eral question where the lower court correctly upheld the
constitutionality of subsection (aX3) of the Illinois intimida-
tion statute based upon Broadrick’s overbreadth analysis
and where there exists no viable conflict among the courts
on the issue?

2. Whether petitioner may complain that the Illinois
intimidation statute fails to give fair warning to prospec-
tive actors where his own conduct fell squarely within its
prohibition?

3. Whether petitioner has failed to present a substan-
tial federal question where long-standing precedent of this
Court has established that the states may constitutional-
ly proscribe threats to damage property in the context
of labor disputes?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED .................
TABLE OF AUTHORITIES .................
PUR be eseccccevorescdsctsenseses
STATEMENT OF THE CASE ...............
REASONS FOR DENIAL OF THE WRIT:

I.

PETITIONER HAS FAILED TO PRESENT A
SUBSTANTIAL FEDERAL QUESTION WHERE
THE LOWER COURT CORRECTLY UPHELD
THE CONSTITUTIONALITY OF SUBSECTION
(AX3) OF ILLINOIS’ INTIMIDATION STATUTE
BASED UPON BROADRICK’S OVERBREADTH
ANALYSIS AND WHERE THERE EXISTS NO
VIABLE CONFLICT AMONG THE COURTS ON
THIS TRBUR 2c ccc cccccccccsccccccccscccces

II.

PETITIONER CANNOT COMPLAIN THAT THE
ILLINOIS INTIMIDATION STATUTE FAILS TO
GIVE FAIR WARNING TO PROSPECTIVE
ACTORS WHERE HIS OWN CONDUCT FELL
SQUARELY WITHIN ITS PROHIBITION ....

ITI.

PETITIONER HAS FAILED TO PRESENT A
SUBSTANTIAL FEDERAL QUESTION WHERE
LONG-STANDING PRECEDENT OF THIS COURT
HAS ESTABLISHED THAT THE STATES MAY
CONSTITUTIONALLY PROSCRIBE THREATS
TO DAMAGE PROPERTY IN THE CONTEXT OF
LABOR DISPUTES ..........eeeeeeeceeees

CEPORMS oc ccdccnrivcccccncccasvctveens

a i;
~ A

iii

TABLE OF AUTHORITIES
CASES:

Allen-Bradley Local No. 1111 v. Wisconsin Em-
ployment Relations Board, 315 U.S. 740 (1942) .
—” Workers v. Russell, 356 U.S. 634
RE did nein dS 6c5 senda cuaanersecpkeeiass
Broadrick v. Oklahoma, 413 U.S. 601 (1978) ..
Chaplinsky v. State of New Hampshire, 315 U.S.
EE Sed cdacehudba ted esetatedissceeas
Farmer v. United Brotherhood of Carpenters, 430
i Sei <ibciiveteensaseute had ences
Landry v. Daley, 280 F. Supp. 938 (N.D. Ill. 1968),
rev'd on other grounds sub nom. Boyle v.
Landry, 401 U.S. 77 (1971) ...........0008.
Lodge 76, International Association of Machinists
and Aerospace Workers v. Wisconsin Employ-
pene Relations Commission, 427 U.S. 136
SE cchiun ses nkeuasscbichveunsanedenies
an Claiborne Hardware Co., 458 U.S. 886
SE .déd6e6ee bevsdsdenbeneseneoenhshvn eee
New York v. Ferber, 458 U.S. 747 (1982) .....
Parker v. Levy, 417 U.S. 733 (1974) ..........
~~ v. Gallo, 54 Ill. 2d 343, 297 N.E.2d 569
MD 4 seGcvens cuusulsceh een teusdreneaces
P A Smith, 78 Ill. 2d 298, 399 N.E.2d 1289
DE vcevavke chansdiattnes bekedncnbséueus
Spence v. Washington, 414 U.S. 405 (1974) (per
SID cw ccnenceuevnsdcs Ukaevewaccncacacs
United Construction Workers v. Laburnum Con-
struction Corp., 347 U.S. 656 (1954) .......
Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489 (1982) ..........
Watts v. United States, 394 U.S. 705 (1965) ...
Wurtz v. Risley, 719 F.2d 1438 (9th Cir. 1983) .
Youngdahl v. Rainfair, Inc., 355 U.S. 131 (1957) .

STATUTES:

3, 4,

8
7
4
6
5
3
3
8
6
7
2
8

Ill. Rev. Stat. 1979, ch. 38, § 12-G(aX3) ....... passim

BD UBL 8D oc cccvcccscccccsconccccosesces

In Tue

Supreme Court of the Anited States

Ocroser Term, 1983

CARL HOLDER,
Petitioner,
Vv.

PEOPLE OF THE STATE OF ILLINOIS,
Respondent.

On Petition For A Writ Of Certiorari To The Appellate
Court Of Illinois, Second Judicial District

RESPONDENT'S BRIEF IN OPPOSITION

JURISDICTION

The jurisdictional requisites are adequately set forth in
the petition. However, as treated more fully in the argu-
ment contained herein, respondent does not believe that
petitioner has shown any reason for this Court to exer-
cise its sound judicial discretion to grant the writ.

STATEMENT OF THE CASE

Respondent accepts the Statement of the Case pre-
sented by petitioner.

ain
REASONS FOR DENIAL OF THE WRIT

PETITIONER HAS FAILED TO PRESENT A SUBSTAN-
TIAL FEDERAL QUESTION WHERE THE LOWER
COURT CORRECTLY UPHELD THE CONSTITUTIONAL-
ITY OF SUBSECTION (AX3) OF ILLINOIS’ INTIMIDA-
TION STATUTE BASED UPON BROADRICK’S OVER-
BREADTH ANALYSIS AND WHERE THERE EXISTS
NO VIABLE CONFLICT AMONG THE COURTS ON THE
ISSUE.

Petitioner argues that certiorari should be granted
because the Illinois Supreme Court incorrectly applied the
first amendment analysis of Broadrick v. Oklahoma, 413
U.S. 601 (1973), in upholding the constitutionality of the
Illinois intimidation statute [Tll. Rev. Stat. 1979, ch. 38,
§ 12-6(aX3)] and because the decision is in conflict with
those of one federal district and one federal circuit court.
Broadrick, however, clearly supports the court’s require-
ment that petitioner establish section 12-6(aX3) to be
substantially overbroad and was decided after Landry v.
Daley, 280 F. Supp. 938 (N.D. Ill. 1968), rev’d on other
grounds sub nom. Boyle v. Landry, 401 U.S. 77 (1971),
the district court case upon which petitioner relies.
Neither is the court’s rejection of petitioner’s first amend-
ment challenge in conflict with the Ninth Circuit’s ruling
in Wurtz v. Risley, 719 F.2d 1438 (9th Cir. 1983). Peti-
tioner has, therefore, not presented a substantial federal
question for review by this Court.

Broadrick recognized that the potential application of
a statute to an area protected by the first amendment
does not necessarily serve to invalidate the statute in its
entirety:

=}.

Although such laws, of too broadly worded, may
deter protected speech to some unknown extent,
there comes a point where that effect—at best a
prediction—cannot, with confidence, —- invali-
dating a statute on its face and so prohibiting a State
from enforcing the statute against conduct that is ad-
mittedly within its power to proscribe.

42 U.S.C. at 615. Accordingly, this Court held:

. . . [PJarticularly where conduct and not merel
speech is involved, we believe that the por ltrmmnee ~ |
of a statute must not only be real, but substantial
as well, judged in relation to the statute’s plainly
legitimate sweep.

Id.

Petitioner attempts to avoid the Broadrick ruling by
arguing that subsection 12-6(aX3) of the Illinois intimi-
dation statute regulates pure speech. The statute’s pro-
hibition, however, involves conduct as well as speech when
analyzed in light of first amendment concerns. One’s
physical conduct may be protected as a consequence of
its role in the communication of information or opinion.
See, e.g., Spence v. Washington, 418 U.S. 405 (1974) (per
curiam). Conversely, speech may not involve the communi-
cation of information or opinion and, as such, may be fairly
considered a “verbal act.” See, e.g., Chaplinsky v. State
of New Hampshire, 315 U.S. 568 (1942). The threats con-
templated by the intimidation statute are clearly not com-
munications of information or belief. The threat itself must
be one to engage in criminal conduct. Further, the com-
munication must be made with the specific intent to
coerce [People v. Smith, 78 Ill. 2d 298, 399 N.E.2d 1289
(1980)] and must, in its context, have a reasonable ten-
dency to create a fear in the victim that the speaker will
perform the threatened act. People v. Gallo, 54 Ill. 2d
343, 297 N.E.2d 569 (1973). An attempt to coerce another

—h-

through language, under circumstances reasonably caus-
ing apprehension that the threat will be carried out, is
no less “conduct” than an attempt to physically restrain
the individual. Because the statute is not directed at
speech, but rather the intended coercive effect of threats
to violate the law, it is like any other statute defining
a crime which may incidentally involve communication.

In any event, any need to arbitrarily categorize stat-
utes regulating speech and those regulating conduct has
been alleviated by New York v. Ferber, 458 U.S. 747
(1982), where this Court applied the substantial over-
breadth doctrine in the context of traditional forms of ex-
pression such as books and films. Although Ferber in-
volved the state’s regulation of child pornography, no-
where did this Court intimate that Broadrick’s rationale
should not control in all areas of so-called “pure speech.”
To the contrary, this Court reiterated that the over-
breadth doctrine should be employed by the courts only
as a last resort.

Petitioner argues that the lower court’s ruling is none-
theless inconsistent with the Ninth Circuit’s decision in
Wurtz, where the court examined Montana’s intimidation
statute, employing language similar to that found in Ili-
nois’, for substantial overbreadth. Wurtz recognized that
while threats have traditionally been punishable without
offending the first amendment, the threat must have a
reasonable tendency to produce a fear that the threat will
be carried out. Because the Montana statute had not been
so limited by state judicial construction, the court found
it to be substantially overbroad. In Illinois, on the other
hand, it has been clear since 1973 that a threat punish-
able by section 12-6 must have a reasonable tendency to
create apprehension that the threat will be carried out
and must be coercive. See People v. Gallo, 54 Ill. 2d 343,

——

297 N.E.2d 569 (1973). Not only is the victim likely to
suffer personal apprehension from the coercive threat, he
can fail to comply with the speaker’s demands only at the
risk that a criminal offense will be committed. If the of-
fense is actually committed, it will have been the direct
result of the victim’s non-compliance. Yet a criminal
offense, committed against all citizens of the State, is
deemed too serious to leave the law’s enforcement in the
hands of private citizens.

Because section 12-6 is limited to true threats which
have a reasonable tendency to force another to act against
his will, a majority of the hypothetical threats offered by
petitioner would not, under normal circumstances, con-
stitute intimidation. As in Broadrick, the extent that the
statute as construed may infringe upon specific protected
activity is insubstantial in relation to the broad range of
activity sought to be prohibited which is manifestly sub-
ject to state regulation. Further, as in Broadrick, the
statute is not censorial, directed at particular groups or
viewpoints; rather, it seeks to regulate activity in an even-
handed and neutral manner. Because the Illinois Supreme
Court’s decision in this case is mandated by Broadrick
and there exists no actual conflict among the courts on
the issue, exercise of this Court’s certiorari jurisdiction
is not warranted.

PETITIONER CANNOT COMPLAIN THAT THE ILLI-
NOIS INTIMIDATION STATUTE FAILS TO GIVE FAIR
WARNING TO PROSPECTIVE ACTORS WHERE HIS
OWN CONDUCT FELL SQUARELY WITHIN ITS PRO-
HIBITION.

Nor has petitioner presented a substantial federal ques-
tion concerning the alleged vagueness of section 12-6(aX3).

ah

Petitioner argues that the phrases “without lawful au-
thority” and “any criminal offense” render the statute
vague because he could not discern the proscribed con-
duct from within its four corners. Incorporation by refer-
ence to other laws, however, is perfectly permissible. See,
e.g., Village of Hoffman Estates v. Flipside, Hoffman Es-
tates, Inc., 455 U.S. 489 (1982). Moreover, as explained
in Argument III, infra, petitioner’s conduct fell squarely
within the statute’s prohibition and one to whom a statute
clearly applies may not successfully challenge it for vague-
ness. Parker v. Levy, 417 U.S. 733 (1974).

PETITIONER HAS FAILED TO PRESENT A SUBSTAN-
TIAL FEDERAL QUESTION WHERE LONG-STANDING
PRECEDENT OF THIS COURT HAS ESTABLISHED
THAT THE STATES MAY CONSTITUTIONALLY PRO-
SCRIBE THREATS TO DAMAGE PROPERTY IN THE
CONTEXT OF LABOR DISPUTES.

Petitioner argues that the threat underlying his in-
timidation conviction was merely a threat to strike pro-
tected by the first amendment and Section 13 of the Na-
tional Labor Relations Act (29 U.S.C. § 163), and that
state control over his conduct has been preempted. Peti-
tioner’s threat, however, was not merely a threat to strike
but a coercive, express threat to imminently and intention-
ally damage his employer’s property. Such threats have
consistently been found by this Court to be constitutional-
ly prohibited by the states in an exercise of their police
powers.

Contrary to petitioner’s suggestion, the appellate court
did not find his threat, “the trucks that . . . just left are
sitting down the road and the drums aren ¢ turning till

{[Countryman] signed a contract” (R. 488), to be a mere

=

threat to strike. Rather, both the jury and the appellate
court found petitioner’s statement to be an unequivocal,
coercive threat to criminally damage his employer’s prop-
erty. People v. Holder, 119 Ill. App. 3d 366, 372, 456
N.E.2d 628, 632, 633 (2nd Dist. 1983).* Further, the fac-
tual finding is clearly supported by the record. Both peti-
tioner and his victim were aware that the concrete in the
trucks, which petitioner had assured were under the em-
ployees’ sole control, would harden and damage the trucks
should the drums be immobilized. (R. 483, 825) The threat
was repeated in precisely the same language to one per-
son (R. 557) and it was again stated to another “that
Countryman should come out and sign a contract, that
the trucks weren’t moving, that the drums would get
hard.” (R. 548) Petitioner specifically admitted that his
intent was to force his employer to sign the lengthy, com-
plex document presented “blind.” (R. 811)

Petitioner’s threat did not, as that in Watts v. United
States, 394 U.S. 705 (1965), constitute hyperbole. Further,
although the mere fact that speech may be coercive does
not remove it from the reach of the first amendment,
coercive threats of violence to persons or property have
never been protected. See NAACP v. Claiborne Hard-
ware Co., 458 U.S. 886 (1983). Nor was petitioner’s con-
duct, occurring in the context of a labor dispute, author-
ized by federal labor law or its state regulation pre-
empted. Since this Court’s decision in Allen-Bradley Local
No. 1111 v. Wisconsin Employment Relations Board, 315
U.S. 740 (1942), this Court has repeatedly observed that

* In a ee, s co-defendants of intimidation on an
accountability , the jury without question that

petitioner had exceeded any authorit en him to convey a mere
threat to strike. 7 bs

=(

“policing of actual or threatened violence to persons or
destruction of property has been held most clearly a
matter for the States.” Lodge 76, International Associa-
tion of Machinists and Aerospace Workers v. Wisconsin
Employment Relations Commission, 427 U.S. 132, 136
(1976). See also Automobile Workers v. Russell, 356 U.S.
634 (1958); Farmer v. United Brotherhood of Carpenters,
430 U.S. 290, 299 (1977); United Construction Workers
v. Laburnum Construction Corp., 347 U.S. 656 (1954);
Youngdahl v. Rainfair, Inc., 355 U.S. 131 (1957). Because
this Court’s precedent establishes petitioner’s intentionally
coercive threat to lie within the ambit of conduct properly
regulated by the State of Illinois, he has failed to pre-
sent a substantial federal question for review.

CONCLUSION

For the foregoing reasons, respondent submits that
there exists no reason for this Court to exercise its juris-
diction over this case and requests that the Petition for
a Writ of Certiorari be denied.

Respectfully submitted,

NEIL F. HARTIGAN
Attorney General, State of Illinois

Mark L. Rorert*
Assistant Attorney General

Counsel for Respondent

Marcia L. FRIEDL
Assistant Attorney General

Of Counsel * Counsel of Record

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1363%3A2. Public record. Not legal advice.