Amicus Curiae Brief — Horien v. City of Rockford

Supreme Court. U.S.

FILED

AuG 1° 2003

_OFFICE OF THE CLERK |

No. 03-18

In the

Supreme Court of the Gnited States

October Term, 2003

Adrian D. Horien,

Petitioner

v.

City of Rockford, Illinois,

Respondent

On Petition for Certiorari

to the Appellate Court of Illinois, First District

Brief of Consistent Life, Catholic Peace Fellowship, Center for Law

and Human Rights, Citizens United for Alternatives to the Death

Penalty, Feminists for Life of America, Pax Christi USA, People for

the Ethical Treatment of Animals, Sojourners, Daniel Berrigan,

Wendell Berry, Abe Bonowitz, Will Davis Campbell, Jim and

Shelley Douglass, Thomas Gumbleton, Nat Hentoff, Kathy Kelly,

Andy Lipscomb, Martin Sheen, Howard Zinn, Stephen Zunes, et al.,

as Amici Curiae in Support of Petitioner

Edward McGlynn Gaffney, Jr.

Valparaiso University School of Law

Valparaiso, IN 46383

219-465-7860

Counsel of Record

Co-counsel listed on inside cover

Co-counsel:

William W. Bassett

Univ. of San Francisco

School of Law

2130 Fulton Street

San Francisco, CA 94117

415-422-6625

Joseph Matthias Cosgrove

_ 1460 Wyoming Ave.

Forty Fort, PA 18704

570-823-9078

Counsel for Martin Sheen

Robert A. Destro

Catholic Univ. of America

Columbus School of Law -

3600 McCormack Road, N.E.

Washington, DC 20064

202-319-5140

Mary Ann Glendon

Harvard Univ. Law School

Cambridge, MA 02138

617-495-4769

Jeffrey S. Kerr, Esq.

General Counsel,

People for the Ethical

Treatment of Animals

501 Front Street

Norfolk, VA 23510

757-622-7382

Victor Gregory Rosenblum

Northwestern University

School of Law

357 East Chicago Ave.

Chicago, IL 60611

312-503-8443

Gerald F. Uelmen

Santa Clara University School

of Law

500 El Camino Real

Santa Clara, CA 95053

408-554-5729

ones AERA te Sea LOL r Be tt Pda OE CGA Prn

Table of Contents

re i iitesttinsntevcitniitnenermmincniinien li

Statement of Interests of Amici Curiae .................:.ccccseeeeees ]

I Oe RE vite icitnieienririenntnn 2

Argument: Reasons for Granting the Petition ..................... 2

1.The Intermediate State Anpellate Court Ignored the

Controlling Precedents of this Court, Adding to the

Conflict among State Courts concerning the Facial

Invalidity of Ordinances that Criminalize Speech or

Conduct that is “Annoying” to Others ..................:cescceeseees 2

2. It is impossible to reconcile an Ordinance that Punishes

Speech or Conduct that is “Annoying” to Others

with the Long History of Protection of Social Protest

Activity on a Wide Range of Subjects and Viewpoints ..... 4

A. Protest against Slavery and Racial Segregation............... 6

B. Protest against Exclusion of Women from Full

Participation in Public Life and against Unequal

TS IE TI EI asinine tescscsicsecicsinvesietnacesees 10

C. Other Forms of Social Protest: Economic Justice,

Peace, Disability Rights, and Animal Rights..................... 12

3. It is impossible to reconcile an Ordinance that Punishes

Speech or Conduct that is “Annoying” to Others

with the Special Protection Afforded to Religiously

Motivated Speech in Public Fora...................cscccsssssesseeees 15

PEER SRR LLL ORY Se RED NAT Le ET 17

Appendix A: Particular Statements of Interest

FE iitiiinsnsinsieneeiiniptniaintuniaivnies App. la-10a

Table of Authorities

Page(s)

Cases cited: f

Abrams v. United States, 250 U.S. 616 (1919) ............06 12 i

Bd. of Airport Comm'rs v. Jews for Jesus, Inc.,

SEZ UID. Fay. Fe A svincearvcinnisaiiitntiaaiianemnnninid 4

Bd. of Educ. of Westside Community Schools

v. Mergens, 496 U.S. 226 (1990).......0.ccssccrssorsscersverscesses 17

Brandenburg v. Ohio, 395 U.S. 444 (1969) ......c.csessseeeee 13

Cantwell v. Connecticut, 310 U.S. 296 (1940) ..............0.. 16

Carey v. Brown, 447 U.S. 455 (1980) ........eeeeeeeeeeseeeeeeees 3

Coates v. Cincinnati, 402 U.S. 611 (1971) ......... 2,3,4,14,17

Cox v. Louisiana, 379 U.S. 536 (1965) .........sccseceeeeees 9,17

Edwards v. South Carolina, 372 U.S. 229 (1963) ...... 3,9,17

Grayned v. City of Rockford,

408 U.S. 108 19 GED) winincicessissensinmainenniasicnint 2,3,4,14,17

Marsh v. Alabama, 326 U.S. 501 (1946) .0...... cece eeeeeeee 17

Murdock v. Pennsylvania, 319 U.S. 105 (1943) ............... 16

New York Times v. Sullivan, 376 U.S. 264 (1964) ......... 1,18

Niemotko v. Maryland, 340 U.S. (1951) ...........:ccsssseeeeeeees 17

Perry Education Assn, v. Perry Local Educators’

Azan, GOO UG. 37 FGF) scsvvsimnnistiionanntinnveciinaiaaliitiatiinas 17

Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972) .....3

tae

Page(s)

Poulos v. New Hampshire, 345 U.S. 395 (1953) .............. 17

Stromberg v. California, 283 U.S. 359 (1931) ............006 3,9

United States v. Grace, 461 U.S. 171 (1983) ..............00 15

POOR G:C, SEE ALS.. F958 C1987) .cccescevsorcsscocsovsevesesessess 15

Widmar v. Vincent 454 U.S. 263 (1981) .........cccceeeeeesseees 17

Statutes and ordinances cited:

BE FO FA, Be ins BW cnnicsenssnsscinacdeisnsisestisnecsvces 12

National Labor Relations Act, 29 U.S.C. § 151 et seq. ....13

Norris-LaGuardia Act, 29 U.S.C § 101 oon. eeeeeees 13

Title VII of the Civil Rights Act of 1964,

A nee ae II sp sicincsceiniessinonianisiciwernnsasvesinneeceonees 12

Title [IX of the Education Amendments of 1972,

eae I I strc sernicnnnchtcevidensenintnenenvsninnsvecsasonss 12

City of Rockford, Code of Ordinances, Chap. 17,

ERED TS Ege Usted 2 Pe Xs 1a eS OR aE 3

Other authorities:

Akhil Reed Amar, The Bill of Rights:

Creation and Reconstruction (1998) ...........ccccsescessceeseeeeeees 8

Michael Les Benedict, ed., The Blessings of Liberty:

A Concise History of the Constitution of the United

Nee aliecls natiennuensianedoones 6

iv

Page(s)

Michael Les Benedict, ed., Sources in American

Constitutional History (1996) .............sccccccssssssssssesees 7,10,11

Taylor Branch, Parting the Waters (198 TD satsisciechbaantiiiineiles 9

S. Cobb, The Rise of Religious Liberty in America

CFP tncsorscaiceiecmmsciiansiierigiatlanibaba bial aibaniialindatainseaibndase 16

Thomas J. Curry, The First Freedoms (1986) ...............+++ 16

Declaration of Independence, 1 Stat. 1 (1776) ................. 10

H.J. Eckenrode, Separation of Church and State

in Virginia: A Study in the Development of the

FOOT CL bvsinvisnsneiisicstataiaernitiaibnsiisidlatliitliiasunibabiialeetin 15

Manny Fernandez and Justin Blum, “Thousands

Oppose A Rush To War; Chill Doesn't Cool Fury

Over U.S. Stand On Iraq,” Wash. Post, Jan. 19, 2003 ...... 14

Eric Foner, Reconstruction, America's

Unfinished Revolution 1863-1877 (1988) .........:sccssesesseeeees 8

Edward McGlynn Gaffney, “History and Legal

Interpretation: The Early Distortion of the

Fourteenth Amendment by the Gilded Age Court,”

AP. UE Bie Be Se ediiicicnctcctratnitinivniel 8

William Lloyd Garrison, Editorial, The Liberator,

eee ee cieinasecbinbaaniisbasabulinecabdcaicanieiit 7,8,9

William Hutchinson and William Rachal eds,

1 Papers of James Madison 107 (1962) ...........:c.sse0eeeeeees 15

Rhys Isaac, “The Rage of Malice of the Old Serpent Devil,”

in Merrill Peterson and Robert Vaughan, eds., The

Virginia Statute for Religious Freedom (1988) ..............+: 15

Page(s)

Linda K. Kerner, No Constitutional Right to Be Ladies:

Women and the Obligations of Citizenship (1998) ........... 10

Alma Luz, "Susan Brownell Anthony,” in Edward James,

ed., 1 Notabie American Women, 1607-1950:

A Biographical Dictionary 53 (1971) ..........s:cssceeeeeeeeseees 11

Thurgood Marshall, “Reflections on the Bicentennial of

the United States Constitution,”

26 Valparaiso U. L. Rev. 21 (1991) ..........cesscssesesssssssvceeees 6

John T. Noonan, Jr., The Lustre of Our Country: The

American Experience of Religious Freedom (1998) ........ 16

John T. Noonan, Jr. and Edward McGlynn Gaffney,

Jr., Religious Freedom (2001) ...........:ccccssscsssesceeessseeeeees 7,16

Sandra Day O’Connor, Remarks at Opening of

National Constitution Center, July 4, 2003 .........0..0..... 18

Philip S. Paludan, A Covenant with Death:

The Constitution, Law and Equality (1975) ...........:cc.0s0000+ 7

Louis Ruchames, ed., The Abolitionists (1963) ............... 7,8

Kenneth M. Stampp, The Peculiar Institution:

Slavery in the Ante-Bellum South (2d ed. 1974) ...........:.0045 7

David Weber, ed., Civil Disobedience in America:

A Documentary History (19TS) ..............scccsssosesssseseoseees 12

C. Vann Woodward, The Strange Career of Jim Crow

CHE CB TPP scesthissitidiatnclitinviciintsiiinciesiinhnatieastniamnniiaiainabadia” 9

Howard Zinn, A People’s History of the United States

CROPS iii ciicistbnsstintibictindicestasaiataaaaanaiaanienaaniaias 12,13

l

Brief of Consistent Life, Catholic Peace Fellowship,

Center for Law and Human Rights, Citizens United for

Alternatives to the Death Penalty, Feminists for Life of

America, Pax Christi USA, People for the Ethical Treatment of

Animals, Sojourners, Daniel Berrigan, Wendell Berry, Abe

Bonowitz, Will Davis Campbell, Jim and Shelley Douglass,

Thomas Gumbleton, Nat Hentoff, Kathy Kelly,

Andy Lipscomb, Martin Sheen,

Howard Zinn, Stephen Zunes, et al.,

as Amici Curiae in Support of Petitioner

Interests of the Amici Curiae

This brief is filed with the consent of the parties. A copy of

the consent letters has been filed with the Clerk of the Court.

Amici’ are voluntary associations and individuals committed to

principles of nonviolent direct action on a wide range of social

issues. Participation in this brief does not necessarily mean that an

organization or individual agrees with the substantive views of the

petitioner about abortion. Some support and others oppose the

views of the petitioner on abortion; still others have no official

view on abortion. But all of the amici, whether individuals or

communities, join this brief because they agree that imposing

criminal penalties on persons who engage in “annoying” speech is

clearly at odds with the central meaning of the First Amendment:

the “profound national commitment to the principle that debate on

public issues should be uninhibited, robust, and wide open.” New

York Times v. Sullivan, 376 U.S. 264, 270 (1964). The particular

interests of the amici curiae are stated in Appendix A.

' Pursuant to Rule 37.6 of the Rules of this Court, amici state that no

counsel for a party has authored this brief in whole or in part and that no

person or entity, other than amicus curiae, its members, or its counsel,

has made a monetary contribution to the preparation or submission of this

brief.

2

Summary of Argument

I. Petitioner was arrested and convicted under a municipal

ordinance making it “unlawful to cause or create any unnecessary

or unusual noise at any time which annoys, injures, or endangers

the comfort, repose, health or safety of others...” Pet. App. 14a

(emphasis added). Affirming the conviction, Pet. App. 1a-9a, the

intermediate state appellate court completely ignored the

controlling precedents of this Court: Coates v. City of Cincinnati,

402 U.S. 611 (1971) and Grayned v. City of Rockford 408 U.S.

104 (1972). It relied instead on two fifty-year-old Illinois Supreme

Court decisions predating the relevant decisions of this Court. The

Court should grant the petition and summarily reverse.

II. In the alternative, if the Court wishes to treat the First

Amendment issue with greater attention by taking this opportunity

to reaffirm -the principles set forth in Coates and Grayned, then

amici suggest that it is impossible to reconcile the standard of

“annoyance” with this country’s long history of movements of

social protest that have enhanced the protection of life, liberty, and

equality in this nation.

III. An additional reason for granting the petition is that the

decision of the state court of appeals is at odds with the special

solicitude that this Court has shown to including rejigious speech

with the many forms of expression protected in classic public fora,

such as sidewalks and streets.

Argument: Reasons for Granting the Petition

1. Amici adopt by reference the statement of facts in the

petition. The crucial facts are these. Petitioner Adrian Horien

opposes abortion on moral and religious grounds. On the morning

of June 8, 2001, he and others stood on the public sidewalk in

Rockford, Illinois, near the entrance to a driveway leading to a

clinic that provides abortion services. In an effort to communicate

the message that abortion is wrong, Mr. Horien called out in a loud, .

falsetto voice to people entering or leaving the clinic from a

parking lot adjacent to the clinic entrance. Pet. 2; see also Pet. App.

la-4a.

3

The applicable legal standards are equally straightforward

and easy to apply to the facts. The very fact that these standards

were ignored below suggests an impermissible viewpoint

discrimination, which this Court has repeatedly rejected with

particular vigor. See, e.g., Carey v. Brown, 447 U.S. 455, 459-71

(1980); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 98-102

(1972).

The City of Cincinnati, Ohio, once had a municipal

ordinance that punished conduct that was “annoying” to others.

This standard is inherently subjective. Since no one faced with

such a law could possibly know whether or when he might be

breaking it, this Court ruled in Coates v. City of Cincinnati, 402

U.S. 611 (1971), that a prohibition on annoying others is

unconstitutionally vague in violation of the Due Process Clause

and unconstitutionally overbroad in violation of the First Amend-

ment. See also Edwards v. South Carolina, 372 U.S. 229, 237-38

(1963) (breach-of-the-peace crime was so generalized as to be

insusceptible of exact definition); Stromberg v. California, 283

U.S. 359, 369 (1931) (penal statute which “upon its face, and as

authoritatively construed, is so vague and indefinite as to permit

the punishment” of an individual’s use of “the opportunity for free

political discussion” is contrary to the First Amendment).

In 1972, a year after Coates, this Court distinguished

Coates, sustaining a much narrower Rockford anti-noise ordinance

prohibiting the willful making of a “noise or diversion” (a) on

property directly adjacent to a school, (b) during school hours, if

the noise (c) “disturbs or tends to disturb” the school session.

Grayned v. City of Rockford, 408 U.S. 104 (1972). Even with these

critical distinctions, the Court acknowledged that that the

constitutional question was a very close one. /d., at 109.

In 1974, three years after Coates, the City of Rockford,

Illinois, adopted a municipal ordinance that reads, in pertinent part:

“Sec. 17-10. Nuisance noises. (a) It shall be unlawful to cause or

create any unnecessary or unusual noise at any time which annoys,

injures, or endangers the comfort, repose, health or safety of others

unless such noise is necessary for the protection or preservation of

property or of the health, safety, or life of some person.” Pet. App.

14a (emphasis added); for the full text of the ordinance, see Pet.

App. 1 la-15a.

4

In 2001, thirty years after Coates, petitioner was arrested

and convicted not under the ordinance narrowly sustained in

Grayned, but under the 1974 Rockford ordinance that is

indistinguishable from the ordinance roundly rejected by the Court

not only in Coates, but also by clear implication in Grayned, which

distinguished ordinances that rely on a “completely subjective

standard of ‘annoyance,”” from a school disruption ordinance that

“prohibited disturbances” that were “easily measured by their

impact on the normal activities of the school..” 408 U.S., at 112.

In the appeal that followed, petitioner briefed the state court

of appeals on Coates, and respondent briefed the court on Grayned.

In 2002 the state intermediate appellate court never cited or

discussed Coates and Grayned in its opinion, Pet. App. 1a-9a.

Instead, it relied on two decisions of “our Supreme Court” [i.e., of

Illinois] predating the relevant decisions of this Court, Pet App. 5a,

and it affirmed the criminal conviction, Pet. App. 9a. This Court

should grant the petition and summarily reverse.

2. As the petition notes, this case comes before the Court in

the context of a clear and serious conflict among state courts over

the standards that should govern speech on public streets and

sidewalks. Pet. 14-21, 36-39. If for this reason the Court wishes to

grant the petition and place this case on its docket for argument, the

Court should consider the “realistic danger that the statute itself

will significantly compromise recognized First Amendment

protections of parties not before the Court.” Ba of Airport

Comm rs v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987). From

decades of experience in social protest on a wide range of issues,

amici know that a national rule harmonizing the First Amendment

with the “completely subjective standard of annoyance,” Grayned,

408 U.S., at 112, would have a severely chilling effect upon

protesters of all stripes.

It is impossible to avoid the deeply conflictual character of

American history. The struggle of the united colonies to become

the United States was just that, a struggle. After our independence

was won, there ensued an enormous divide between Federalists and

Anti-Federalists over the ratification of the Constitution. In the

same year that the Constitution was signed in Philadelphia, the first

abolitionist society was formed in the same city to begin the major

struggle over slavery that the Constitution left undone. In the same

aa ai Ei ila

5

era of the founding and the early republic (not, as some might

imagine, in the early twentieth century) women began agitating for

the abolition of slavery and for the enfranchisement of women.

American history is replete with conflicts in which some parties to

the contest said and did things that were mightily annoying to their

opponents. Major social change is nearly always annoying to those

who favor the status quo. Yet this very struggle has been the forge

on which our fundamental self-understanding as a community and

our most basic and characteristic freedoms have been hammered

out.

Americans have been engaged in conflict over basic values

in every generation from the founding moment to the present, from

the Boston Tea Party through peace protests (notably during the

Mexican-American War, the Civil War, World War I, World War

II, the Vietnam War, and the on-going War im iraq), to

demonstrations against the New Economic Forum and

demonstrations to uphold the rights of animals. Thus the current

controversy over abortion is by no means the first volatile issue in

the nation, nor will it be the last.

During the Cold War we frequently compared ourselves

favorably to totalitarian regimes of the Left and the Right that

swallowed up their opposition, sending them to the death camps

and the Gulags for extermination. We take some pride in the way

we have — by and large — respected the strong voice of protest

within our legal and political culture. But Americans have tended

to recognize the value of social protest decades after it occurred,

when the position the protesters espoused was more broadly

received by the people and incorporated into our laws. It is true that

harsh penalties were frequently meted out to dissidents, but it is

equally true that our dissidents have at many critical turning points

of American history helped to shape our destiny.

If the Court grants the petition for plenary review rather

than summary disposition, amici will brief this point more fully,

offering the Court several illustrations of why the limits on free

speech sustained by the state court of appeals are fundamentally at

odds with the history of our nation. At this stage of the

proceedings, we think it enough to focus the discussion on two

aspects of our constitutional history — racial equality and gender

equality — and to point to various other volatile issues in which

6

provocative speech has caused annoyance in the short term and

enormous benefit to the health and well-being of our society in the

long term.

A. If punishment of annoying ideas had been the law of the

land during the period of American slavery and Jim Crow, the

overcoming of those twin evils would have been postponed for

much longer than the time actually needed to do so.

As Justice Marshall reminded us during the Bicentennial of

our Constitution, not everything about this country’s past —

including slavery and Jim Crow segregation -—- is cause for

rejoicing. Thurgood Marshall, “Reflections on the Bicentennial of

the United States Consiitution,” 26 Valparaiso U. L. Rev. 21

(1991).

| The Rockford ordinance chaiienged in this case has some

nineteenth-century antecedents, but none that are glorious or

worthy of emulation. For example, slaveholders found the protest

speeches and expressive conduct of the radical Abolitionists

mightily “annoying.” For this reason the House of Representatives

entered an infamous gag order that disallowed the reading of any

petitions to the House from citizens seeking that the House abolish

slavery in the District of Columbia. As Representative John Quincy

Adams noted repeatediy, this gag order was in manifest violation

of the First Amendment’s protection of the right of the People to

petition Congress for a redress of grievance. See, e.g., Michael Les

Benedict, The Blessings of Liberty: A Concise History of the

Constitution of the United States 159-60 (1996).

If the slaveholders who demanded this rule in Congress

were annoyed at the suggestion of even such a mild and gradualist

an approach to the slavery question, their counterparts in southern

legislatures were much more annoyed at more radical proposals —

denouncing slavery as immoral and unjust and calling for its

immediate abolition — that were mailed from Massachusetts to the

Old South. For example, the Commonwealth of Virginia went a

step further than the gag rule adopted by the House of

Representatives, prohibiting federal officials — postmasters — from

delivering mail that opposed slavery. See Michael Les Benedict,

ed., Sources in American Constitutional History 96 (1996). No one

goes to such lengths of control who is not deeply annoyed by the

ideas he wishes to suppress.

7

Nearly everyone in America would now regard the

eradication of slavery as the just and rightful repudiation of a brutal

and inhuman labor system. Some might claim that slavery might

have been abolished earlier and with less bloodshed on the

battlefields of the Civil War if the Abolitionists had been more

accommodating to their adversaries, but this revisionist view

overlooks the rigid mindset of the slaveholders who would brook

no compromise on the matter of slavery as an “inalienable property

right” bound up in their minds with an intractable position on state

sovereignty.

The most famous of the Abolitionists, William Lloyd

Garrison, was uncompromising in his campaign for immediate and

complete abolition of slavery. In the first issue of The Liberator

(Jan. 1, 1831) Garrison renounced his previous position of gradual

abolition and publicly asked “pardon of my God, of my country,

and of my brethren, the poor slaves, for having uttered a

[gradualist] sentiment so full of timidity, injustice and absurdity.”

And he wrote: “urge me not to use moderation in a cause like the

present! I am in earnest. I will not equivocate — I will not excuse — I

will not retreat a single inch - AND I WILL BE HEARD”

(emphasis in original), as cited in Louis Ruchames, ed., The

Abolitionists 31 (1963). The extent to which the abolitionists

became more “in earnest” is the extent to which they became more

and more annoying to their opponents.

Garrison served as President of the American Anti-Slavery

Society from 1843 to 1865. The society radically challenged the

morality of owning a human being, and thus undermined the

validity of the slaveowners’ constitutional argument that they had a

“property” interest in their “chattels personal.” See, e.g., Kenneth

M. Stampp, The Peculiar Institution: Slavery in the Ante-Bellum

South (2d ed. 1974). As Garrison had promised in the first issue of

The Liberator, he became louder and clearer on the evil of slavery.

On July 4, 1854, he told a mass meeting of over 10,000

abolitionists in Framingham, Massachusetts: “We have

degenerated in our reverence for the higher law of God.” See Philip

S. Paludan, A Covenant with Death: The Constitution, Law and

Equality 2-3 (1975); John T. Noonan, jr. and Edward McGlynn

Gaffney, Jr., Religious Freedom 263-64 (2001). Garrison then

burned a copy of the Fugitive Slave Act of 1850. Echoing the

covenant renewal ceremonies in ancient Israel, Garrison stated:

“And let the people say Amen” (see, e.g., Deut. 27). The people

did. Garrison then set fire to a copy of the order of a federal court

in Boston that Anthony Burns — a black Baptist preacher who had

escaped from his master in Richmond — be returned to his “legal

owner.” Again Garrison cited Moses: “And let the people say

Amen.” They did. Garrison then held up a copy of the Constitution,

which he denounced as “the parent of all other atrocities.” Citing

the prophet Isaiah (Is. 28:15), he called the Constitution with its

compromise on slavery “a covenant with death, a compact with

hell.” As he burned the Constitution, he shouted out: “So perish all

compromises with tyranny! And let all the people say Amen.”

Again the large crowd roared out their assent in the single biblical

word “Amen.” :

Were not Garrison’s speeches and communicative acts

profoundly annoying to Southern slaveholders, even to many

Northerners? Yet would anyone in today’s constitutional culture

now seriously argue that speech of this sort should be unprotected

on that ground alone it is annoying?

Garrison and the radical Abolitionists were ultimately

heard. As Garrison accurately predicted in the opening issue of The

Liberator, “POSTERITY WILL BEAR TESTIMONY THAT I

WAS RIGHT” (emphasis in original), as cited in Louis Ruchames,

ed., The Abolitionists, supra at 31. Although not all of the acts of

the Abolitionists would gain support even today, the basic thrust of

their movement has now clearly prevailed in the Thirteenth

Amendment and in the statutes enacted by Congress under its

enforcement provision.

After the Civil War, the nation experienced a powerful

movement to rebuild or reconstruct our constitutional order,

ridding it of the racial injustice that had marred it from the outset.

See, e.g., Akhil Reed Amar, The Bill of Rights: Creation and

Reconstruction (1998). For a variety of reasons, mainly ignoble,

this movement was aborted as part of the Compromise of 1877.

See, e.g., Eric Foner, Reconstruction, America’s Unfinished

Revolution 1863-1877 (1988); Edward McGlynn Gaffney, Jr.,

“History and Legal Interpretation: The Early Distortion of the

Fourteenth Amendment by the Gilded Age Court,” 25 Cath. U. L.

Rev. 207 (1976). We are now more committed than ever to the

9

enforcement of the Civil War Amendments that would have been

inconceivable without the firm resolve of the “Radical

Republicans” of the late 1860s and the early 1870s. But was not

their agenda annoying to most Southerners, including Andrew

Johnson of Kentucky, the President they sought to impeach?

The Jim Crow system was as iniquitous at its core as it was

violent in the pattern of enforcement by the government at the state

and local levels. See, e.g., C. Vann Woodward, The Strange Career

of Jim Crow (3d ed. 1974). In the face of such systemic violence

imbedded in the law, the Civil Rights Movement was remarkable

precisely for the commitment of its leaders, principally Dr. Martin

Luther King, Jr., to Gandhian nonviolence. But as Dr. King made

clear in his famous Letter from Birmingham Jail, nonviolence did

not mean obeying unjust laws. On the contrary, King and his

followers in the Southern Christian Leadership Conference

frequently challenged the brutality of the existing legal order in a

manner that was annoying to public officials as different as

Presidents Kennedy and Johnson, FBI Director J. Edgar Hoover,

and Governor George Corey Wallace. See, e.g., Taylor Branch,

Parting the Waters (1988).

In Edwards v. South Carolina, 372 U.S. 229 (1963), this

Court reversed the convictions of black protesters who marched

upon the State Capitol to protest segregation. Was not the entire

message of these protesters annoying to the state officials to whom

they wished to present their grievances? The obvious to this

question is found in the record in Edwards, where the government

labeled the demonstration as “boisterous” and “flamboyant”

conduct, and described a black preacher’s fervent admonition to

justice as a “religious harangue,” and where objection was even

taken to “loudly singing ... patriotic and religious songs, while

stamping their feet and clapping their hands.” Jd. at 233; see also

Cox v. Louisiana, 379 U.S. 536 (1965). This Court taught in

Edwards that any penal statute which “upon its face, and as

authoritatively construed, is so vague and indefinite as to permit

the punishment” of an individual’s use of “the opportunity for free

political discussion,” is contrary to the First Amendment. Jd. at 238

(quoting Stromberg v. California, 283 U.S. 359, 369 (1931).

Was not the refusal of Rosa Parks to sit at the back of the

bus annoying to the officials of Montgomery, Alabama? Were not

10

the sit-ins at lunch counters annoying to Woolworth’s and to city

officials all over the old South? Were not the freedom riders and

the marchers from Selma annoying to Governor Wallace? Was not

Dr. King’s march through the neighborhood of Richard J. Daley

annoying to the Mayor of Chicago? No one would seriously

maintain that Dr. King or his colleagues in the SCLC confined their

protests to ones that refrained from annoying others. On the

contrary, Dr. King repeatedly failed to meet the standard imposed

on free speech by the ordinance sustained by the state court of

appeals. The ruling in this case would have thrown an enormous —

obstacle in the path of the Civil Rights Movement.

The nation is now better off because of the movements to

abolish slavery and to end Jim Crow law. Both of these movements

faced steep opposition from those who wished to maintain the

status quo. The opponents of these movements could easily have

crushed the protesters if the feeble theory of free speech adopted by

the state court of appeals had been available to them during these

conflicted periods of American history.

B. If the view of the state court of appeals had been the law

of the land during the period of feminist insistence upon full

participation in the rights and obligations of citizenship, equal

justice under law for women and men would have taken much

longer than the two centuries it took to achieve.

Many scholars have noted strong parallels between the

slavery system and the abusive treatment of women as “chattels

personal” subject to the common law of coverture. See Michael Les

Benedict, ed., Sources in American Constitutional History 70-72

(1996).

As early as the 1770s, women voiced the desire to

participate in the franchise and to share in all of the obligations of

citizenship. They were excluded from doing so on the basis of the

theory of virtual representation, the theory that founders rejected

when they repudiated the imperial rule of Great Britain over the

American colonies. See, e.g., Declaration of Independence, 1 Stat.

1 (1776); Linda K. Kerner, No Constitutional Right to Be Ladies:

Women and the Obligations of Citizenship 3-33 (1998).

As with the struggle to abolish slavery and then to eradicate

the legal structure of apartheid, the effort to change the inequality

between men and women under the law of this land was a

11

prolonged and intense controversy. The feminists of the nineteenth

century may not be contained within rosy-tinted portraits. Susan B.

Anthony is rightly remembered as the principal advocate for the

enfranchisement of women. She was also an agent of the American

Anti-Slavery Society. In this capacity she urged an audience before

the Civil War to “overthrow this government, commit its blood-

stained Constitution to the flames, blot out every vestige of that

guilty bargain of the father.” As cited in Alma Luz, “Susan

Brownell Anthony,” in Edward James, ed., 1 Notable American

Women, 1607-1950: A Biographical Dictionary 53 (1971).

The Declaration of Sentiments drafted by Elizabeth Cady

Stanton and adopted at Seneca Falls in 1848 remains the classic

statement of the mistreatment of American women. In this

document nineteenth-century feminists bore powerful witness to

the injustice of rules of law imposed upon women without their

consent by all-male legislatures in which they had neither voice nor

vote. See Michael Les Benedict, ed., Sources in American

Constitutional History 72-74 (1996). Although a few men, notably

Frederick Douglass, attended the convention and supported the

Declaration, most men found the Declaration annoying or simply

ignored it.

Eight decades after the aduption of the Nineteenth

Amendment we now take for granted that women should be able to

vote. But advocacy of this view was never easy, and men who

opposed the “outlandish idea” of gender equality found deeply

annoying the demands of nineteenth-century feminists to be

included within the full meaning of the People who ordain and

establish the Constitution of the United States. U.S. Const.,

Preamble. How else can one explain the egregious judicial

misconduct of a member of this Court, Justice Ward Hunt, who

presided over the government’s trial of Susan B. Anthony on

charges of voting fraud? Hunt disallowed the introduction of any

exculpatory evidence, refused to allow Anthony’s counsel to make

closing argument, and directed the jury to enter a verdict of guilt

without any opportunity to reflect upon the evidence. When

Anthony rose to tell the jury her views on the constitutionality of

her action, the justice demanded seven times that Anthony sit down

and be silent, warning. her that “The Court can not allow the

prisoner to go on.” After she finally sat down, Hunt required her to

12

stand up to hear her sentence.. After he imposed a fine, Anthony

told Hunt: “May it please your honor, I shall never pay a dollar of

your unjust penalty.... I shall earnestly and persistently continue to

urge all women to the practical recognition of the old revolutionary

maxim, that ‘Resistance to tyranny is obedience to God.’” As cited

in David Weber, ed., Civil Disobedience in America: A

Documentary History 185-88 (1978).

The views of Anthony and other like-minded women were

ultimately vindicated by the ratification of the Nineteenth

Amendment enfranchising women 133 years after the signing of

the Constitution. But in the long interval between these events, the

overwhelming majority of men turned a deaf ear to the

overwhelming majority of the annoying demands of women for

inclusion within the People who form in this republic “a more

perfect Union, establish Justice, [and] insure domestic Tranquility.”

U.S. Const., Preamble. ;

More recently, women engaged in demonstrations and sit-

ins reminiscent of those that occurred during the Civil Rights

Movement of the 1960s. If the crabbed view of free speech

espoused by the state court of appeals had been the law of the land

in any of these eras, it would probably have taken much longer to

achieve the prohibition of employment discrimination on the basis

of gender contained in Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq., and other important legislation promoting

the equality dignity of men and women in our republic; see, e.g.,

Equal Pay Act, 29 U.S.C. § 206, and Title IX of the Education

Amendments of 1972, 20 U.S.C. § 1681 et seq.

C. Many other movements of social protest have engaged in

speech and expressive conduct that was annoying to the powers

that be at the time of these protests. Harsh criticism of monopoly

capitalism was voiced in the late nineteenth and early twentieth

century not only by obscure pamphleteers, Abrams v. United

States, 250 U.S. 616, 628 (1919), but also by “the most famous of

American literary figures, whose books were read by millions:

Upton Sinclair, Jack London, Theodore Dreiser, Frank Norris.”

Howard Zinn, A People’s History of the United States 322 (1999).

But the works of the muckrakers were not punisliable on the

~ ground that they were “annoying.”

13

In the early twentieth century some labor leaders engaged

in radical criticism of the economic order that prevailed at the time.

For example, in i905 the founding conveiition of the Industrial

Workers of the World declared: “The working class and the

employing class have nothing in common. There can be no peace

as long as hunger and want are found among millions of working

people, and the few, who make up the employing class, have all the

good things of life.” As cited in Howard Zinn, A People’s History

of the United States 330 (1999).

The milder AFL deliberately eschewed any connection with

socialist ideas such as worker ownership of what they produce with

their labor. But Samuel Gompers’ famous reply to what workers

want — “More!” — does not fully describe the persistent protest of

organized labor over the terms and conditions of employment. A

fair reading of labor history discloses that unions have sought not

only to gain higher wages and benefits for workers, but also to

challenge deplorable exploitation of children by employers. For

example, Mother Mary Jones, a white-haired organizer for the

United Mine Workers of America, is best remembered for

organizing the children’s march on Washington in 1903 to demand

an end to child labor. See, e.g., Howard Zinn, A People’s History of

the United States 346 (1999); see also at 347 (arrest record of IWW

organizer Elizabeth Gurley Flynn for annoying speeches that would

now be fully protected under the First Amendment and applicable

labor laws).

Both before and after the Norris-LaGuardia Act, 29 U.S.C §

101, prohibited courts from entering “labor injunctions,” and both

before and after the National Labor Relations Act, 29 U.S.C. § 151

et seq., protected picketing as a legitimate tool of labor protest,

unions have engaged in speech that “ennoyed” corporate managers

such as Andrew Carnegie and Henry Ford. There may be reasons

why the First Amendment may not fully protect all forms of

“speech plus” that unions have engaged in, but this analysis surely

does not turn on whether a union has “annoyed” management.

Mass demonstrations against the Vietnam War were surely

annoying to Presidents Johnson and Nixon, but it was precisely in

this context of agitated protest that this Court refined First

Amendment law in Brandenburg v. Ohio, 395 U.S. 444 (1969) and

expressly rejected the power of municipal government to punish

EEE LL

14

speech that was “annoying.” Coates, supra, and Grayned, supra.

These precedents are all the more important now that the nation is

engaged in another war that has elicited mass protests in many

cities throughout the land. See, e.g., Manny Fernandez And Justin

Blum, “Thousands Oppose A Rush To War; Chill Doesn’t Cool

Fury Over U.S. Stand On Iraq,” Washington Post, Jan. 19, 2003.

Other examples of social protest include public

demonstrations by persons with disabilities. For example, when

this Court was hearing oral argument in Vacco y. Quill, 521 U.S.

793 (1997), many persons gathered ‘in front of this Court and

shouted repeatedly “We’re not dead yet!” Supporters for the

respondents or maybe even some members of this Court might

have found these words “annoying,” but no one on the Court or

among those gathered in front of the Court thought that a feeling of

“annoyance” sufficed to trigger an arrest to stop such speech. See

United States v. Grace, 461 U.S. 171 (1983) (speech on public

sidewalk around the Supreme Court is protected). And persons

with disabilities have lodged vigorous complaints against both

public officials and private parties for alleged failures to comply

with provisions of the Americans with Disabilities Act. See, e.g.,

“Demonstration for Disability Rights,” New York Times, May 15,

2001. From the perspective of those on the receiving end of these

criticisms, such speech may be “annoying,” but that surely cannot

be the basis for the arrest and criminal conviction of the speakers.

Animal rights activists have taken their messages to the

streets in vivid protests, speaking out against animals having their

throats cut while still fully conscious on slaughterhouse “kill lines,”

animals raised for their fur being anally and genitally electrocuted ¥

to avoid “damaging the product,” elephants being beaten with

whips and bull hooks to force them to perform degrading and

unnatural tricks in circuses, and animals being poisoned and

tortured in useless consumer product experiments. Undoubtedly,

this speech is “annoying” to those that profit from such animal

exploitation. Indeed, one of the purposes of the annoying speech is

to convince those industries to lessen or end the animal abuse. But

such annoyance has never been subject to criminal sanctions in this

nation, at least not “while this Court sits.”

It is profoundly out of kilter with this nation’s history to

Suggest, as the state court of appeals did here, that a city ordinance

15

that permits the punishment of “annoying” speech is constitutional

on its face.

3. Another reason for granting the petition is that the

decision of the state court of appeals is inconsistent with the

commitment to our “first freedom,” religious liberty. It is —

undisputed that the petitioner engaged in his speech and

communicative acts because he “opposes abortion on moral and

religious grounds.” Pet. 2. :

The protection of religious freedom, including religiously

motivated speech on matters of public concern, is at the very core

of the Bill of Rights. The English Act of Toleration of 1689

extended privileges to Protestant dissenters from the officially

established Church of England. Colonial Virginia accepted the

statute, but required dissenters to apply for permits to preach and to

build meeting houses. Some, such as the Presbyterians, did so.

Others, such as the Separate Baptists, who appealed to lower class

whites with evangelical enthusiasm, refused to seek permission

from the government to announce their version of the Gospel, and

from 1770 on, were subject to persecution. See H.J. Eckenrode,

Separation of Church and State in Virginia: A Study in the

Development of the Revolution 30-37 (1910). In 1771 a Baptist

preacher in Caroline County was hauled off in the middle of his

sermon and flogged by the sheriff. To protest the outrage, Baptists

organized the largest mass meeting in Virginia history to that date

in a church near the home of James Madison. See Rhys Isaac, “The

Rage of Malice of the Old Serpent Devil,” in Merrill Peterson and

Robert Vaughan, eds., The Virginia Statute for Religious Freedom

139-69 (1988).

The editors of Madison’s papers note that “religious issues,

more than tax and trade regulation disputes with England” loomed

large in Madison’s consciousness in the critical decade of the break

from England. William Hutchinson and William Rachal eds., 1

Papers of James Madison 107 (1962). On his way to the colonial

capital at Williamsburg, Madison later saw a half dozen itinerant

Baptist preachers incarcerated in Culpepper County, Virginia, for

the “crime” of preaching without a license.” Madison found this

2 In the struggle for religious freedom in the thirteen original states,

the licensing, restriction, and regulation of itinerant preachers was a

pressing issue that demanded constitutional reform. Itinerant preachers

16

experience a jarring one. It impelled him to protect the “full and

free exercise of religion” in Virginia’s Bill of Rights in 1776, and

to embark on a career of public service that led to his drafting of

the Constitution in Philadelphia in 1787, and to drafting and

securing the passage of the Bill of Rights in the First Congress in

1789. See John T. Noonan, Jr., The Lustre of Our Country: The

American Experience of Religious Freedom 68 (1998), and John T.

Noonan, Jr., and Edward McGlynn Gaffney, Jr., Religious

Freedom 160-63 (2001).

In several cases applying the Religion Clause of the First

Amendment to state interference with our first freedom, this Court

has protected religious speech on public streets, even though it was

manifestly annoying to passersby who invoked state power to stop

it. For example, three Jehovah’s Witnesses, Newton Cantwell and

his sons Jesse and Russell attempted to proselytize residents of a

New Haven neighborhood in which about 90% of the residents

were Roman Catholics. Two Catholics to whom Jesse Cantwell

played a phonograph record called “Enemies” were “incensed” at

this attack on the Catholic religion. But this Court reversed the

criminal conviction of Jesse Cantwell for inciting a breach of the

peace by those who heard the annoying message of the Witnesses.

Cantwell v. Connecticut, 310 U.S. 296, 301, 303 (1940). Members

of this Court have at times found the behavior of the Witnesses to

be “provocative, abusive, and ill-mannered,” not to mention

“unpopular, annoying, or distasteful.” Murdock v. Pennsylvania,

319 U.S. 105, 115-16 (1943), see id. at 166-82 (Jackson, J.,

were condemned for being arrogant, fanatical, intolerant, uneducated,

and mercenary. States passed laws restricting preaching to designated

pulpits, licensing and registering preachers, and regulating the

qualifications and decorum of preachers. See Thomas J. Curry, The First

Freedoms (1986), at 69-71) (New York), 99 (Virginia), 118

(Connecticut), 171 (Massachusetts); S. Cobb, The Rise of Religious

Liberty in America (1902), at 126 (North Carolina), 174, 202-03

(Massachusetts), 273 (Connecticut), 317-18, 334-35, 344, 349-53 (New

York), 390-94 (Maryland). With the end of establishment and the

adoption of free exercise provisions in the various state constitutions,

the right to proclaim the gospel in unconventional, unsettling, and

“annoying” ways became recognized as one of the most fundamental

elements of religious freedom.

17

dissenting). But this did not keep the Court from guarding their

liberties.

After Cantwell and Murdock, this Court has, for the most

part, declined to exclude religious speakers from equal access to a

public forum. See, e.g., Niemotko v. Maryland, 340 U.S. (1951)

(religious groups are entitled to use city streets and parks for

meetings and rallies); Poulos v. New Hampshire, 345 U.S. 395

(1953 (same); Widmar v. Vincent 454 U.S. 263 (1981) (religious

speakers have equal right of access to campus of state university);

and Bd. of Educ. of Westside Community Schools v. Mergens, 496

U.S. 226 (1990) (sustaining Equal Access Act). In particular, the

Court has acknowledged that sidewalks “by long tradition or by

government fiat have been devoted to assembly or debate.” Perry

Education Assn, v. Perry Local Educators’ Assn., 460 U.S. 37, 45

(1983), and has protected the access of religious speakers to

sidewalks even in a town that was wholly owned by a coal

company. Marsh v. Alabama, 326 U.S. 501 (1946) (overturning the

criminal conviction of a Jehovah’s Witness for trespass on private

property).

As noted above, the Court expressly applied this line of

authority to religiously inspired and religiously led civil rights

protesters against Jim Crow laws. Edwards v. South Carolina, 372

U.S. 229 (1963), and Cox v. Louisiana, 379 U.S. 536 (1965).

Tnis Court should grant the petition not only to instruct

lower courts that laws iike the Rockford ordinance might be

misused to squelch the free exercise rights of unpopular religious

minorities, but also to reaffirm clearly that the strong presumption

in favor of First Amendment-protected activities in public fora

cannot be the subject of criminal penalties under vague laws such

as this.

Conclusion

In 1974 the City Council of Rockford enacted the ordinance

at issue in this case with apparent disregard for the teaching of the

Court in Coates, supra, and Grayned, supra. In 2001 the Rockford

police relied on this flawed ordinance rather than on the teaching of

this Court. In 2002 the state court issued an opinion that completely

ignored this Court’s teaching in Coates and Grayned.

18

This case thus provides the Court with a vehicle to remind

public officials in all three branches of government that the oath of

office they take to support the Constitution, U.S. Const., Art. VI,

contains an implicit duty to conform their legislation and executive

actions to the teachings of this Court on the requirements of the

First Amendment. See, e.g., Justice Sandra Day O’Connor,

Remarks at Opening of National Constitution Center, Philadelphia,

July 4, 2003.

The decision below places unconstitutional limits on

protected nonviolent protest activity in which the amici have

engaged and plan to engage in the future. This Court should grant

the writ and either summarily reverse or put the case on its docket

to clarify once ag iin that ordinances punishing “annoying” speech

are utterly inconsistent with the “profound national commitment to

the principle that debate on public issues should be uninhibited,

robust, and wide open.” New York Times v. Sullivan, 376 U.S. 264,

270 (1964).

Respectfully submitted,

Edward McGlynn Gaffney, Jr. *

Valparaiso University School of Law

Wesemann Hall

Valparaiso, IN 46383

219-465-7860

* Counsel of Record

19

Co-counsel:

William W. Bassett

Univ. of San Francisco

Schoo! of Law

2130 Fulton Street

San Francisco, CA 94117

415-422-6625

Joseph Matthias Cosgrove

1460 Wyoming Ave.

Forty Fort, PA 18704

570-823-9078

Counsel for Martin Sheen

Robert A. Destro

Catholic Univ. of America

Columbus School of Law

3600 McCormack Rd., N.E.

Washington, DC 20064

202-319-5140 >

Mary Ann Glendon

Harvard Univ. Law School

Cambridge, MA 02138

617-495-4769

Jeffrey S. Kerr, Esq.

General Counsel

People for the Ethical

Treatment of Animals

501 Front Street

Norfolk, VA 23510

757-622-7382

Victor Gregory Rosenblum

Northwestern University

School of Law .

357 East Chicago Ave.

Chicago, IL 60611

312-503-8443

Gerald F. Uelmen

Santa Clara University School

of Law

500 El Camino Real

Santa Clara, CA 95053

408-554-5729

Appendix A, la

Appendix A

Particular Statements of Interest of Amici Curiae

Communities and Voluntary Associations

As noted in the text of the brief, amici are voluntary

associations and individuals who engage in protest on a wide

variety of issues. Because Consistent Life organized the

participation of these amici in this brief, it is listed first. All the rest

of the communities and individuals are listed alphabetically.

Consistent Life is a coalition of individuals and

organizations working to promote the consistent life ethic. Its

members are committed to the protection of life, which is

threatened in today's world by war, abortion, poverty, racism, the

arms race, the death penalty and euthanasia. They believe that these

issues are linked under a consistent ethic of life. They challenge

those working on all or some of these issues to maintain a

cooperative spirit of peace, reconciliation and respect in protecting

the unprotected. Carol Crossed (the former executive director),

Mary S. Rider (the current executive director), and Ruth Enero

(former president of the Board of Directors) have frequently

engaged in public demonstrations relating to the issues listed

above. All three are married women and mothers of many children.

Agape is a community of faith in Franklin, Louisiana, that

witnesses for peace and justice through nonviolence. It engages in

education of its members and the public, especially on the death

penalty, through publishing booklets, brochures, and treatises on

how to effect change through raising public awareness and

consciousness about issues of justice and peace.

Allies for Peace is a San Francisco-based organization

promoting peace and animal rights.

Catholic Peace Fellowship [CPF] is a _ nationwide

organization of Catholics committed to peacemaking in the name

of Christ. CPF engages in educational projects about peace and

nonviolence, and it supports those who stand for peace by virtue of

conscience. For example, some members of CPF have engaged in

nonviolent demonstrations protesting laws and policies inimical to

peace in today’s world.

Appendix A, 2a

The Center on Law and Human Rights in Cokedale,

Colorado, provides legal services for. persons and groups whose

human rights are threatened or have been infringed. For example,

its cases include immigration law issues and victimization under

the PATRIOT Act. The Center also publishes books on peaceful

resolution of the conflict in the Middle East.

Citizens United for Alternatives to the Death Penalty

[CUADP] is a national organization that works to end the death

penalty in the United States through aggressive campaigns of

public education and the promotion of tactical grassroots activism.

CUADP takes no position on the abortion issue. It does not endorse

or support the stand of the defendant on that issue, nor does it

necessarily approve of his tactics or actions. It supports the

defendant’s appeal to the U.S. Supreme Court strictly as a legal

matter, urging the Justices that no one should be punished for

conduct that is merely “annoying” to others.

The Conference of Major Superiors of Men serves the

leadership of Catholic orders of over 25,000 vowed religious

priests and brothers in the United States. The Justice and Peace

Division provides a voice for these communities throughout society

in witnessing against capital punishment, war, poverty, and any

issue that threatens life. The civil rights of free speech and

assembly are crucial to effective action against oppression. These

civil rights are threatened by the criminalization of speech or

conduct that is “annoying” to others.

Dorothy Day Catholic Worker House [DDCW] in

Washington, D.C. is a community founded by Dorothy Day and

Peter Maurin to bear witness to the Gospel that identifies service to

the hungry, the thirsty, the homeless, and the imprisoned as a way

of recognizing the presence of God in categories of human need.

The community provides hospitality to homeless families while

working to address the root causes of homelessness. Committed to

following the teachings of Christ on nonviolence, the community

sponsors a weekly vigil for peace at the Pentagon as well as

numerous other demonstrations against war and militarism, poverty

and abortion. Other communities in the Catholic Worker network

signing this brief include: the Casa Juan Diego (Houston, Texas);

Fr. Charlie Mulholland Catholic Worker House (Garner, North

Carolina); Ithaca, New York Catholic Worker; the Los Angeles

Appendix A, 3a

Catholic Worker; Mary's House (Birmingham, Alabama); Peter

Maurin Farm (Marlboro, NY); St. Francis Catholic Worker

Community (Columbia, Missouri); St Francis and Therese

Catholic Worker House (Worcester, Massachusetts); the St. Joseph

House of Hospitality (Rochester, New York); and the Silk Hope

Catholic Worker (Silk Hope, North Carolina).

Embrace a Consistent Ethic participates in ongoing peaceful

public witness against all forms of taking human life, including

opposition to war, capital punishment, euthanasia, abortion, racism

and poverty. The members of this community believe that the

imposition of criminal penalties on a protester solely because he or

she “annoys” someone else is an unconstitutional abridgment of

freedoms secured by the First Amendment.

Feminists for Life of America [FFLA] is a ‘national

organization with headquarters in Washington, DC. It is a pro-

woman, pro-life organization that advocates for change for women

and their children. Feminists for Life of New York, an affiliate of

FFLA, advocates protection for women and their children on issues

such as domestic violence, child abuse, and child welfare rights.

Each month they participate in a vigil to protest the death penalty.

The Peter Maurin Center in Washington, D.C. was

established in 1997. The center seeks to contribute to creating a

“society where it is easier to be good” (1) by evangelization in the

Catholic Worker tradition, (2) by carrying out the works of mercy

through operating a furniture and household goods exchange, (3)

by organizing for peace and justice through solidarity with the

people of Puerto Rico in their effort to de-colonize, and (4) by

work for the abolition of the death penalty. If the government may

punish conduct it deems “annoying,” it will be able to single out

and criminalize movements for social change virtually at will. To

concede such power to the government renders democratic

practices timid and superficial and essentially disempowers the

People in the political process. To protect popular, and especially

unpopular, political expression, these effects of the Rockford

ordinance must be nullified.

Pax Christi USA is a national Catholic peace movement of

14,000 members committed to the gospel imperative of seeking

peace through nonviolence. The members of this association

promote peace through personal and social transformation. They

Appendix A, 4a

frequently engage in nonviolent protest of policies that undermine

peace and justice. The members of the Pax Christi affiliate chapter

in Birmingham, Alabama also join this brief.

People for the Ethical Treatment of Animals [PETA] is a

charitable organization exempt from taxation pursuant to Internal

Revenue Code Section 501(c)(3). As the world’s largest animal

rights organization, PETA is dedicated to exposing and ending

animal exploitation and suffering wherever it occurs consistent

with its belief that animals are not ours to eat, wear, experiment on,

or use for entertainment. An integral part of PETA’s ability to

educate the public about the plight of animals is the vigorous use of

fundamental free speech activities, including peaceful protests,

street-theatre style demonstrations, leafleting, and aggressive social

debate. Ordinances, such as the one at issue in this case, that seek

to punish “annoying” speech directly threaten PETA’s charitable

activities.

Plowshares is a coalition of religious believers who seek to

enflesh the words of the prophet Isaiah 2:4, “They shall beat their

swords into plowshares, and their spears into pruning hooks.

Nation shall not take up sword against nation and neither shall they

study war anymore.” The movement was founded by Daniel

Berrigan, S.J., a leader in the opposition to the Vietnam War. Fr.

Berrigan joins this brief in his individual capacity, as do the

following Plowshares Activists: Peter DeMott, Bruce Friedrich,

Ellen Grady, Paul Magno, Patrick O'Neill, and Kathy Boylan

Shields. All of these activists have spent many years imprisoned for

their nonviolent protest against war, but none of them thinks it is

permissible for the government to punish speech it deems

“annoying” to others.

Sojourners is a Christian ministry whose mission is to

proclaim and practice the biblical call to integrate spiritual renewal

and social justice. In response to this call, we offer a vision for

faith in public life, including publishing Sojourners magazine,

preaching, teaching, organizing, and public witness. Members of

Sojourners seek to be guided in their lives and work by the biblical

principles of justice, mercy, and humility. Sojourners has at times

organized and participated in public protest activities, and thus has

a vital interest in this case.

Appendix A, 5a

Vieques Support Committee is an organization that has

helped to organize protests against repeated bombing of Vieques

Island in Puerto Rico by the United States Navy.

Voices in the Wilderness is a group that seeks to end the

economic sanctions against the people of Iraq. The group sends

delegations to Iraq to break the siege and bring desperately needed

medical supplies to children and families. It has also sponsored

demonstrations against the ongoing sanctions, including week-long

fasting outside the headquarters of the United Nations in New

York.

Witnesses for Reconciliation was formerly the Committee

of Southern Churchmen that was founded in the 1960 to promote

the work and vision of Dr. Martin Luther King, Jr., and to advance

his cause of nonviolence. The Committee promoted, participated

in, and led marches, sit-ins, boycotts, and the freedom rides. Today

it is small but continues to advance the cause of civil and political

rights for minorities.

Individuals

David Atwood is the director of the Texas Coalition to

Abolish the Death Penalty Pax Christi of Texas. This group

regularly organizes demonstrations against the death penalty in

Texas.

Donald Bauer is a Catholic priest who served as a member

of the New York State Labor and Religion Coalition since its

inception, and who worked tirelessly for farmworker wage equity

and other issues on behalf of the poor. He also was appointed to the

Congress on Racial Equality and in both of these capacities used

public witness to educate and challenge the public.

Michael Baxter, C.S.C. is a theology professor at the

University of Notre Dame, and the national president of the

Catholic Peace Fellowship.

Wendell Berry is an author, farmer, English professor, and

poet. As a long-time conservationist and small farm advocate, he

has written many books deploring the loss of family farms and

rural jobs to farm factories. He is the recipient of many awards,

including the Lyndhurst Foundation Prize and the Jean Stein

Award from the American Academy of Arts and Letters.

Appendix A, 6a

Abe Bonowitz is the director of Citizens United for

Alternatives to the Death Penalty [CUADP], a national

organization that works to end the death penalty in the United

States through aggressive campaigns of public education and the

promotion of tactical grassroots activism. While CUADP takes no

position on the abortion issue, Bonowitz is pro-choice and,

therefore, he is in profound disagreement with the petitioner on that

issue and deplores the violent tactics that some abortion opponents

have been known to employ. He supports this appeal only because,

as a legal matter, the First Amendment should shield protesters

who are merely “annoying” from arrest and criminal prosecution.

Roy Bourgeois, M.M., is a Maryknoll priest who, after years

as a foreign missionary in Central America, founded the School of

the Americas Watch [SOAW], a loose coalition of citizens

concerned about the widespread abuse of human rights — including

torture and murder of religious leaders and labor leaders throughout

Central and South America — by foreign military officers who

study at the U.S. Army School of the Americas at Ft. Benning,

Georgia. Each November — on the anniversary of the assassination

of seven Jesuit priests and their domestic workers in San Salvador

by graduates of the School of the Americas - SOAW organizes a

major demonstration at Ft. Benning against the negative effects of

this program upon peace and justice in our hemisphere.

Bernard Broussard is founder of Starthrowers, a human

rights organization based in Louisiana. He has played a leading role

in community organization on behalf of the civil rights of African

Americans in Louisiana since the mid 1960s. From that time to the

present, he continues to challenge through marches,

demonstrations, holding prayer meetings on behalf of the oppressed

in the South.

Wili Davis Campbell is a writer, lecturer, and long time

supporter of the Civil Rights Movement who helped escort

African-American children when they tried to integrate a Little

Rock, Arkansas high school back in 1957. A founding member of

Dr. King's Southern Christian Leadership Conference, he became

the Executive Director of the Committee for Southern Churchmen,

which is now known as Witnesses for Reconciliation.

Thomas Cornell is the founder of the Catholic Peace

Fellowship and an ordained deacon in the Catholic Church. He is

Appendix A, 7a

the editor of The Catholic Worker, a newspaper of national

circulation founded by Dorothy Day, and he lives at the Peter

Maurin Farm in Marlboro, New York.

Stephen Dear is the executive director of People of Faith

Against the Death Penalty, a state-wide organization with

headquarters in Carrboro, North Carolina.

Richard Deats is the editor of Fello-vship magazine,

published by the Fellowship of Reconciliation [FOR], the largest,

oldest interfaith peace organization in the United States. Since

1915 FOR has carried on programs and educational projects

concerned w domestic and in peace and justice, nonviolent

alternatives to conflict, and the rights of conscience. It is the

American affiliate of the International FOR, which has affiliates in

more than 40 countries.

Heather DeMian is a disability and homeless rights

activist. Born with Ehlers-Danlos Syndrome, which requires her to

use wheelchairs and service dogs, she manages the Interfaith Day

Center for the homeless of Columbia, Missouri; and she assists

with the Loaves & Fishes Soupkitchen operated by the St. Francis

House Catholic Worker Community. She is a member of the

disability rights organizations, Not Dead Yet! and Americans

Disabled For Accessible Public Transit [ADAPT].

Jeff Dietrich is a founding member of the Los Angeles

Catholic Worker, and the editor of Catholic Agitator. He has

participated in scores of peace demonstrations and actions in

support of justice.

Jim and Shelley Douglass are peace activists who co-

founded Mary House, a Catholic Worker community in

Birmingham, Alabama. They are also the co-founders of Ground

Zero Center for Nonviolent Action. They believe that to bolster any

one party's mental security in a controversy by destroying an

opponent's right to dissent can undermine the most basic human

freedoms secured by the Constitution.

William and Eugenia Durland are the co-founders of the

Center on Law and Human Rights. They believe there is a danger

that, in the wake of September 11, our constitutional protections

will be eradicated in the name of a security state. In this context it

is especially important to reaffirm that the First Amendment

prohibits punishment of speech that is merely “annoying.”

Appendix A, 8a

Mary Anne Flores, Clare Grady, and Jessica Stewart are

members of the /thaca Peace Community, a group that expresses

concern about social justice issues and facilitates the representation

of those who would otherwise remain voiceless and unheard in our

society. These three women have engaged in nonviolent direct

action that has led to their arrest for trespass upon government

property. For example, they have served sentences for trespass at

the Hancock Airfield in Syracuse, NY, in order to protest the

ongoing bombing of the people of Iraq.

Thomas Gumbleton is a Catholic bishop in the Archdiocese

of Detroit, Michigan, and a founder of Pax Christi, USA. He was a

leading voice urging the United States Conference of Catholic

Bishops to issue its statement in 1971 collectively opposing the

Vietnam War on the ground that the war could no longer be

justified under the principles of the just war tradition. Bishop

Gumbleton has worked and visited in poor and war-torn countries

in Latin America and the Caribbean and is deeply concerned with

human rights violations around the world. He holds a deep belief in

the power of nonviolence to effect social change.

Nat Hentoff is a renowned civil libertarian who has served

on the national board of directors of the American Civil Liberties

Union. He is a nationally syndicated columnist and author.

Kathy Kelly, a three-time Nobel Peace prize nominee, is co-

founder and co-coordinator of voices in the wilderness, a national

organization of peace activists which has organized delegations to

visit the people of Iraq with small amounts of medical supplies to

children and families in need. kathy and voices organized iraq

peace team delegations who have lived alongside ordinary Iraqis

before, during, and after the “shock and awe” bombardments, and

they continue efforts of outrzach and education to teach peace and

to foster non-violent resistance to war.

Lana Jacobs received the Martin Luther King Award from

Companions of Shalom for her work with the inner-city in

Columbia, MO, where she lives in community with the poor. Ms.

Jacobs has been arrested numerous times for nonviolent direct

actions defending the homeless and hungry. Each month she

engages in some form of public protest against military build-up,

which in her view robs the poor of what they rightfully deserve.

Appendix A, 9a

Andy Lipscomb is a member of Witnesses for

Reconciliation, a board member of Consistent Life, and a long-time

activist for civil rights.

Deborah McEvoy, is a member of Feminists for Life of

America and of the Detroit Peace Community. In her role as a

health professional, she supports the needs of women and their

children through petitions, public advocacy and demonstrations.

Rachel MacNair, a Quaker, is the founder and director of

the Feminism and Nonviolence Studies Association. She is the

author of The Psychology of Peace: An Introduction.

Barry Nakell is an attorney in North Carolina actively

engaged in the defense of civil liberties for decades as a member of

the American Civil Liberties Union, and as a former professor of

law at the University of North Carolina at Chapel Hill. Mr. Nakell

is of the view that the use of a municipal ordinance banning

“annoying” speech and conduct is a severe infringement on the

rights secured in the United States Constitution.

John W. Oliver was the coordinator of the Orthodox Peace

Fellowship in North America from 1999 to 2003. He is professor

emeritus of History at Malone College.

Michele Pflaum is the President of The Center for

Reflection on the Second Law, and a longtime environmental

activist, working with groups such as Earth First!

Scott and Claire Schaeffer-Duffy are co-founders of the

Saints Francis and Therese Catholic Worker in Worcester, MA, a

lay Catholic pacifist community which offers hospitality to

homeless men and women. They also publish the Catholic Radical,

a bi-monthly journal of opinion. Scott has lectured extensively at

colleges and universities throughout New England on the value of

nonviolent direct action.

Martin Sheen is an actor who has participated for nearly

two decades in protests against weapons of mass destruction and in

demonstrations pertaining to homelessness and other issues of

social justice.

John Stoner is a member of Mennonite Central Committee,

a traditional peace church. He is the founder of Every Church a

Peace Church, a movement to share the convictions of the

Anabaptist community with all other Christian churches.

Appendix A, 10a

Andrew L. Sullivan served as the Chair of the Libertarian

Party of Nebraska from 1999 to 2001. Without nonviolent action,

people will passively accept government oppression no matter how

severe, or be propelled directly into violent action, for the penalty

for actions of nonviolence would become essentially the same as

violent actions.

Lenore Yarger is a long-time advocate for the poor. She

has traveled to Iraq with the organization September 11 Families

for a Peaceful Tomorrow.

Harry E. Yeide, Jr. is a Professor of Religion at George

Washington University, with a special interest in Ethics and Peace

Studies.

Howard Zinn is a Professor of History at Boston University.

He has written over a dozen books that deal in some way with

protest movements in American history. Two of these books most

closely related to the theme of this brief are Disobedience and

Democracy (1968), and A People’s History of the United States (3d

ed. 1999).

Stephen Zunes is a Professor of Political Science at the

University of San Francisco. He is the principal editor of

Nonviolent Social Movements (1999). His research interests have

included the impact of grassroots political movements on policy

and government.

Mark and Louise Zwick are the founders of Casa Juan

Diego. They engage in a ministry of service to refugees from Latin

America, providing them with hospitality, medical services, and

other works of mercy. In addition, they engage in advocacy for

human rights of refugees.