# Amicus Curiae Brief — Horien v. City of Rockford

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1770%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 873

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1770%3A4. Public record. Not legal advice.