Jeannette Rankin Brigade v. Chief of the Capitol Police

al., RANKIN et JEANNETTE BRIGADE Appellants, CAPITOL POLICE

CHIEF OF THE al., Appellees. et

No. 21566. Appeals Court of

United States Circuit. District of Columbia

Argued Dec. 20, 1969. June

Decided Tassel, Newark, N.

Miss Harriet Van Joseph J., Forer Messrs. with whom Kunstler, City, York and to M. New there assemble across East William brief, appellants. to on the for Front Plaza. This demonstration was were protest country’s in- be in Rosenthal, Attorney, De- Mr. Alan S. January volvement in Vietnam. On Justice, partment with whom Asst. Police, Capitol the Chief Weisl, Jr., Atty. at Edwin L. Gen. appellee, representa- had advised their filed, Messrs. David time record was to tive that march was manner Bress, Atty. the time the at G. U. S. prohibited by 193g (9 40 U.S.C. D.C. § Fine, filed, Ralph A. record was and 124), margin.1 Code set forth in § Justice, Attorney, Department were advised, The ladies also as herein- were brief, appellees. on the Messrs. fully, they after forth more how set Atty. Q. Nebeker, Frank Asst. U. S. proceed without interference. filed, Joseph M. time the record was unacceptable. They This was accord- Zimmerman, Hannon and Asst. U. Gil S. ingly to filed suit District Court Hollander, Attys., Attorney, and Morton enjoin appellees, including the Chief Department Justice, ap- entered also Capitol Police, enforcing from Sec- pearances appellees. 193g against tion them and members Messrs. Richard and Law- Shlakman class, They their he to threatened do. C., Speiser, Washington, rence D. filed alleged repugnant that Section a brief behalf of American Civil “right to the First Amendment Capital Liberties and Union National people peaceably assemble, pe- to to and Area Civil Liberties Defense and Educа- for a redress of tition the Government Fund, curiae, urging re- as amici grievances.” They moved the con- versal. vening three-judge pursuant of a Judge, Before Chief Fahy, Bazelon, 2284, and 2282 and also re- U.S.C. §§ Judge, Cir Senior Circuit Burger,* declaring quested judgment 40 U.S.C. Judge. cuit (9 seq. seq. et 118 et 193a D.C.Code § § 1, swprct.) note unconstitution- See Judge: FAHY, Judge, deeming Circuit Senior al. The District insubstantial, question to stitutional Brigade appellant ad hoe was an denied the motion for a together group who, of some 5000 ladies In the court. same order he also denied individuals, gath- plaintiffs with 58 injunctive all relief dismissed Washington January ered in complaint. present appeal is from opening day Congress, to march body Capitol, from his Union Station to the order. tions, streets, roadways, walks, Concurrence in this decision was received Judge Burger May prior map other areas as defined on a en- “Map showing comprising —the date on which his nomination for titled areas Capitol Grounds”, Chief Justice of the United States was States United dated 25, 1946, approved by announced. June the Archi- Capitol tect of the and recorded in the 193g. Oapitol Grounds;) §1. [United States Surveyor Office of the of the District parades assemblages; display flags or 127, page 8, in- of Columbia in book parade, stand, It is forbidden to or cluding all additions added thereto processions assemblages move in or subsequent law to June Capitol Grounds, said United States or display any flag, banner, therein designed adapted bring (9 118). device into § U.S.C. 193a D.C.Code § any party, organization, map section, notice From the referred in the movement, except pro Capitol as hereinafter the main area of the Grounds 193j Station, vided in sections and 193k of this on the north bounded Union tide. some three blocks south of the extends beyond 193g (9 124). Capitol § U.S.C. D.C.Code to include fountains Capitol Building, Grounds are described as the House Office a similar three Capitol follows: Hill blocks west to the base of the rear of the United States Grounds and three blocks east comprise squares, Library shall all annex. reserva- (1) is not to be permitted the case march to We hold Appellants were (2) moot; court as the foot of the dismissed the rear question Rankin, leader, their Miss hill there. insubstantial; a three- delegation, presented and a 15-woman judge Speaker District should have petitions convened and should now be convened Majority Leader and to House dispose of the of the several facets Senate.2 outlined, they case as hereinafter presenta- and the demonstration After appear hearing the on the remand. at Brigade permitted the as tions were made disbanded, the in- announcement Firstly with to mootness. their return to January ladies to tention of the the events While on all women here, “to mobilize Brigade communities hаve assembled when power political their long appellants to exercise levels have ended since society.” challenged reshape American denied, by stat- reason of ute, assembly petition in a rights of and appeal argument counsel on At oral they Constitution claim the manner request appellants for abandoned protected. con- statute as enforced relief, represented present injunctive for those to assertion of tinues to be bar parade particular to the court that no alleges complaint rights, will which the urged planned, de- this court to was and reasserted, argument counsel be and clare Section unconstitutional injunctive re- appellants for stated that stated, position thus face. Due to sought again lief if neces- then be would three-judge District counsel contends sary. appellants to resume Should seek need stated not be convened. She rights of the claimed exercise avail- be, however, position al- her that ability timely judicial action to avoid legation complaint appellants that predicted. interference cannot be pur- return for intend to demonstration rights asserted, imbedded the Con- poses organization individually and as an stitution, character, continuing are of a true, that it is to be taken as and should problem and the Vietnam As remains. neсessary injunction be on this based Pacific Terminal Co. v. Southern sought. then court’s declaration would I.C.C., U.S. Brigade Appellees contend that since the questions involved 55 L.Ed. any dispersed neither it nor indi- has and continuing are and “their consideration appellant any present has inten- vidual ought might be, be, they de- taking any step tion of the statute would orders, feated, by capable of short term inhibit, They has moot. become repetition, yet evading review urge if the also that case is not moot then rights assembly pe- peaceable single complaint dismissal of the government tition at seat Judge District should be affirmed since ordinary significance. more than question the constitutional is insubstan- history chal- tial, therefore, enforcement motion lenged statute, properly court was with reason to view denied. sound Appellants Further, by ap- had also been advised pellee Capitol they only prohibition that, Chief of that Police was that they large Capitol grounds if on to came not march and as one assemble groups group Capitol persons grounds. on the of ten fifteen They although groups that remained such small were also informed all of grounds them within the would be allowed on Louisiana Avenue was just they could, pursuant group persons other Grounds to 40 U.S. (9 129), [They it would C. 193k D.C.Code use § be. would free to be] gathering, per Congress, present or that a visit the members their mаss Square petitions they mit to use could be ob whatever Union desired go anywhere tained National Park Service. could else on the grounds that other members of go upon. could remains, by appellants question controversy 3. The how- initiated character, ever, per- position counsel’s stated at whether continuous of a argument appeal, a de- present record on the us suades claratory originally judgment as- of this hands justiciable character sought, Moore v. the case from removed not dissolved. has sumed the embrace notwith- Ogilvie, standing challenge Com- the constitutional 1; President and Carroll County, requires This Anne tinues. Kennedy consideration of Princess missioners Mendoza-Martinez, however, remand, we shall L.Ed.2d 644. The theOn stated, we case was an action to be Mendoza-Martinez reasons later order for declaratory judgment firstly of mootness issue not foreclose do citizen, secondly he the District was a from consideration Sec- appear. 401(j) Nationality of the then Act situation of as the (1944), under Stat. 746 which dispose of not we do 2. Since citizenship the Government claimed his question the have moot we lost, unconstitutional, the case as had been was and of a jurisdiction the it voiding is within deporta- whether of all of orders under three-judge court convened against plaintiff. tion directed Section depends this Insofar as (j) provided 2284. U.S.C. § that one who re- substantiality the constitu of the mained outside the to United States one was question the case think tional we military thereby avoid service lost his three-judge The broad court. for a citizenship. American Plaintiff had 193g, the absence sweep of and Section been found to factually be within this legislative guidelines provision. of more definite For this reason the Govern- application, not in govern raise its to deported ment had ordered him as an questions First the whether single substantial Judge, alien. A however, District rights in asserted were Amendment (j) held unconstitutional. Section infringed by validly the invocation the the When case reached the appellants that section Court it was considered as a threshold Com and v. President Carroll proceedings statute. question should the whether County, Anne of Princess missioners supra.; heard Carolina, 372 v. South Edwards pursuant to U.S.C. § convened 697; 9 L.Ed.2d negative. the It answered in Court Louisiana, original complaint pointed Cox v. out that the 471, 481; 453, 476, 13 L.Ed.2d relief, injunctive none asked for no and Florida, 87 S. Adderley granted. complaint, v. An was amended Dismissal estop- Ct. issue of collateral which raised an Judge single complaint District pel, prayer the court include a did accordingly inconsistent with enjoin was from en- and restrain defendants Act operation of an forcing against plain- deportation U.S.C. § orders repugnant the Consti to thought ; tiff it clear from but еnjoined sought to be tution was governed stipulation the course which challenge not insubs was constitutional of the framed trial that issues were tantial.3 contemplate injunctive any so as not to Columbia, though statute, geographically the District 3. That Grounds, geographical only applicable of Colum- but limited to the District scope outweighed, considering Congress” bia, within the is an “Act of impor- meaning now embrace 2282 seems § U.S.C. Thompson Shapiro tance attached to an Act of Con- be settled. gress protect leg- cases, companion enacted to n. national very opera- islature at 600. True seat its L.Ed.2d part is, tions. affects the statute agreed substance its which granted lief and a declara- The relief was relief. relief,” contemplate injunctive challenged was un- did section tion that plaintiff’s applied declaration of was a on face and citizen, though a neces as a na- status plaintiff, he was sary incident such declaration States. the United citizen of tional and by the statute invoked Government stated: as, unconstitutional, for exam held Men- despite Thus, the amendment Flemming Nestor, ple, in complaint before doza-Martinez’ com trial, that neither it is clear third parable cases. There the solid dis judge relevant parties nor the Mendoza- tinction between our case and regarded one the action as time cases,4 Martinez, comparable Nestor and injunctive material relief was which clearly should have been no disposition case. Since the injunction disposed under Section restraining the enforcement allegations gave complaint issue, (j) 2282 was § 401 was remain, it that character and even require applicable not in terms convening representations argument counsel three-judge District of a appeal, upon placed which reliance is Court. sections, it from remove those include solely for de- an action Whether representation injunctive relief claratory all circum- under relief-would contemplated is to make effective inappropriate consider- for be stances unconstitutionality declaration when three-judge need court we ation appellants or some of them reassert the decide, that in it is clear not now rights they claim, which leads us now to congressional present the policy case hold that the case not is moot. It ac underlying was the statute cordingly litigation, seems to us that this single before frustrated trial began three-judge case, which as a judge. has not place its lost character as an effort to operation repugnant out of as 154, at 560. at 83 S.Ct. 372 U.S. pro Constitution an ofAct quite dif- to be seems us case Our legislature tective of the national in the injunctive rеlief Not was ferent. environs of its national home. ac We plaintiffs properly moved sought, but cordingly shall remand the case for dis fell case court. for a position by a court to be convened under jurisdiction court. of such a within Section 2284. No time element in thus Injunctive material relief “was volved affects question jurisdic pre- disposition of the as it was case” Moreover, tion. pears. present urgency ap no Moreover, District sented to the Court. declaratory judgment now be should a think need Other matters we issued is unconstitu- authority mention. The of a federal restraining effect tional it would declaratory judgment court to discretionary. issue a relief; ap- comparable injunctive addition, judg In such a pellees might re- themselves well deem ment not be will rendered unless the case - operation day day strained in the “immediacy” “reality” has the es The fact enforcement the statute. particular sential authority. the exercise of this in- court itself deem an well junctive accompany appropriate order declaration, sought. discretion, originally As to the see Ala court’s v, contrast, decision, bama Mc State Federation of Labor the Mendoza-Martinez 1384, Adory, 450, 461, declaratory re- 325 65 in form U.S. S.Ct. “which See, Cir.). g., F.Supp. (4th Currie, Clark, See also e. Three- Petersen v. 285 Judge (N.D.Cal.); District 698 South Constitutional United States v. Litigation, 13-20, Railway F.Supp. 759, 1, Co., 32 ern U.Chi.L.Rеv. 76- 250 766- (D.S.Car.), 49, rev’d, 55 380 F.2d hearing on re- 1725,5 approvingly in the time of the cited L.Ed. 89 Thorpe Authority City Housing mand. v. 268, 47, Durham, n. Saying 108, at 959. U.S. S.Ct. 474, 518, where Zemel 21 L.Ed.2d S.Ct. inquiry,” the undertake that “we now Rusk, v. U.S. pre- pointed follows out as In Zemel cited. 14 L.Ed.2d is also adjudica- requisites for constitutional Rusk, it inter alia: v. is said adjudication by tion, including such Judgment Declaratory declaratory judgments: ed.), Act, (1958 “is 28 U.S.C. 2201 established federal courts “[T]he enabling Act, a dis- an confers pursuant the Consti- to Article III of rather than an cretion courts advisory opinions. tution not render do right litigant.” upon the" absolute adjudication For Wy- Utah Public Serv. Comm’n of legal issues, issues, presented ‘concrete Co., coff U.S. abstractions,’ cases, not are in actual 236, 239, 97 L.Ed. 291. requisite. true of declara- This is as See, also, United Public Workers tory judgments field.” other Mitchell, L. America v. United Public Workers Ed. 754. Mitchell, 330 (1947). “The dif- 91 L.Ed. 754 ques- whether, from the As to aside question ference an between abstract discretion, the case retains such ‘controversy’contemplated and a Declaratory Judgment justifies “immediacy” “reality” neces- Act is rendering deci- of a constitutional sarily degree, one and would Zwickler, sion, see Golden v. difficult, possible, to if it would At 22 L.Ed.2d determining precise test for fashion a litigation, stage earlier Zuñckler every whether there is such Koota, n. Zwickler v. 3, controversy. Basically, question and see al- in each case is the facts whether id. at had S.Ct. Court circumstances, leged, under аll remanded the to the District Court case con- that there is a substantial show proceedings for further would in- which having troversy, parties between ad- of clude consideration court legal interests, verse sufficient im- of prerequisites to whether a declar- “the mediacy reality the is- warrant atory judgment” adjudicated. had been declaratory judgment.” suance of a On the remand the District Court had Maryland Casualty Co. v. Pacific Coal appeared decided this as facts at the Co., 270, 273, & Oil 61 S.Ct. U.S. complaint time was filed. When 510, 512, 85 L.Ed. 826 Court, case returned to the however, supra, Zwickler, as Golden v. 103, 108, 394 U.S. 89 S.Ct. at 959. Fur- the Court this held was erroneous: ther, ‍​‌​‌‌‌​‌​‌‌‌​‌‌​‌​‌‌‌‌‌‌‌​​‌​‌‌‌​​​‌‌‌​‌‌​​​‌​​‌‍said the Court: proper enough inquiry say,

The a It was whether was not as did the “controversy” Court, requisite to relief under District nevertheless Judgment Declaratory Act existed Zwickler has a “further far broad- opinion Cases, 550; 82, 96, 5. Chief Justice Stone’s 25 L.Ed. Liverpool, of Court Adory, Federation Labor v. Mc N. S. Em Y. & P. S. Co. v. 450, 461, igration Comm’rs, 33, 39, U.S. points 13S9, long 899; out that “It has Burton 28 L.Ed. v. United practice States, [the Court’s] considered not to * * * any ques 482; decide 49 L.Ed. Arkansas Fuel Oil Co. v. Louisiana, necessity tion advance for its decision,” citing, Bridge v. 82 L.Ed. And see Jus Charles River Chief Proprietors principle Bridge, 11 Pet. tice statement of this Warren Warren’s 773; Thorpe Housing Authority, 553, 9 L.Ed. Trade-Mark infra. right general adjudication is situation shown to exist er a which * * hearing unconstitutionality at the time of the on the re- [in] mand.6 that of as well as own interest [h]is anonymity like others with who would It is so ordered. political practice speech in en a free ** constitu BAZELON, Judge vironment (dissenting): Chief question, First Amendment or tional Brigade The Jeannette Rankin and 58 presented otherwise, in the must complaint filed individual women a on grievance. specific live context of a January 8, 1968, seeking declaratory and America United Public Workers against injunctive relief the enforcement Mitchell, supra, 89-90, at 193g (1964), of 40 de- U.S.C. we said: illegal stand, parade, “to clares processions assemblages move in courts, power of “The ulti- * * * United States [the] Court, mately pass upon this complaint Grounds constitutionality of acts of Con- accompanied by requesting motion gress arises when the interests three-judge court under 28 U.S.C. §§ litigants require the use this pass upon their judicial authority protec- for their claims. The District Court denied the actual interference. A complaint motion and dismissed the hypothetical enough.” threat not day ground next on the con- at 960. stitutional raised issues were insubstan- tial, therefore did not Court itself entitle the While plaintiffs three-judge prerequisites for to a issuance court. cluded the declaratory judgment had not been argues that because The Government remand, it on did so established on the although Brigade not has marched— District in the record made since dis- on the Grounds—and posture of our the remand. banded, appеal is moot. ma- record; and no such differs. We have agree, jority I. Al- nor do does reality immediacy and the issue of —of though plaintiffs have abandoned grievances— appellants’ aliveness injunctive relief on demand initially the Dis- should be determined majority appeal, the concludes that time trict on the record re- nevertheless remand, subject hearing on the present posture quired in the case. appropriate. might be such review as point contrary I On this reach conclu- merits, majority our view is not moot the the case in sion. On the Since jurisdiction reach, of I would find and falls within the three-judge a does not the 193g sweep shall so far we remand it exceeds court, convening public for the of such a the limitations the interest whatever questions adjudi- right petition justify upon the mootness and to what granted cation and relief should be to we must declare this law be determined that court on the unconstitutional on its face. basis problems any display flag, banner, 6. While the or therein discretion and to prerequisites designed adapted bring the for or issuance of a device or declaratory judgment separate, they any party, organiza- are into notice tion, movement, except unrelated, bearing upon are not latter the or as herein- Moreover, provided 193j the former. after in the sections and facts with respect may mоotness well be relevant 193k this title. declaratory to the Zwichler for standards statutory The scheme of which section judgment adjudication. 193g part is is a codified as both 40 U.S. provides: (1964) seq. 1. Section C. § 193a et and 9 D.C.Code stand, seq. (1967). parade, It et forbidden or All references in processions opinion assemblages or move will be to convenience Capitol Grounds, said the United United States States Code codification. Washington pro- return to future i tests, however, the To issue broader. Brigade was an Rankin The Jeannette plaintiffs may whether determine the parts all of women coalition ad hoc pursue appeal must we both decide country’s opposed to this nation controversy” there is a whether “case or inattention and in Vietnam involvement meaning within Article the III impress their problems. To to domestic and our Constitution exercise discretion- Congress, upon the the 90th concern ary power Judg- Declaratory under the planned from Union to march members appraise propriety ment Act3 to the January Capitol on to the Station 1968, possible this suit. Because future con- day opening ses- of the second may flicts sometimes create case a Police, sion. Chief controversy, plaintiffs may deserve January however, them on informed they the decision even demand if time pa- 193g prohibited such that Section January chapter has mooted the “pro- Although act forbids all rade. dispute. And, conversely, their our re- police assemblages,”2 cessions adjudicate luctance gloss: explained “I added own chief his imperfect issues an de- record they that if came to the ladies mand affirmance of the dismissal below grounds groups ten to even if the case is not moot in formal persons in such fifteen and remained sense. groups al- of them would be small all just grounds other lowed on the protest march plaintiffs held a persons group of would be.” they may year wish last and claim unacceptable to That concession was Congress again petition sometime. plaintiffs, this lawsuit followed examined, possibility how- The ever, must be January plaintiffs appealed on immediately trough they may now rest in after District Court’s having protests, mo- lost between day. next But since no dismissal the litigation provided by the mentum appellate relief was available before Jan- pro- acquired past yet march uary proceeded not to march pelling plans for an- force concrete Capitol but of the hill behind to the base conduct is other. As far future Capitol, 5,000 where women cerned, Mitch- United Public Workers v. ranks could not see Miss Rankin and her ell4 distance between illustrates the delegation present peti- their 15-woman controversy “hypothetical and a Speаker the House rights may be threat” that constitutional infringed Brigade Majority Senate Leader. plaintiffs to vio- if the decide then with announced in- disbanded allegedly late unconstitutional “to tention return to our communities then decides and if Government and mobilize women on levels to all exer- employees it.5 federal enforce Twelve political power cise reshape portion of attempted there attack society.” American plaintiff had al- Act.6 One Hatch argues charged ready violating The Government that the con- with troversy disappeared Brigade Act; with the met concluded that he the Court Brigade rights and the case is moot. requirements Since “the of defined they and its members claim that wish to threat a definite to interfere with a exceptions applicable 2. With certain not propriety declaratory relief in this sort 193j, here. See 193k 40 II.S.C. §§ situation, they as describe (1964). “doubly contingent.” Hart, See H. M. Wechsler, H. Jr. & The Federal Courts (1964). 3. 28 U.S.C. 2201 § System (1953). Federal the 139—40 4. 91 L.Ed. 754 August 9(a), 6. ch. Act 410 § amended, have, 5. Wechsler with 53 Professors Hart and 5 U.S.C. Stat. answer, (Supp. 1968). advancing 7324(a) III, examined the out 1098 7 rights,” currently impinges statute his possessor the menaced speech by deterring challenged provision him freedom of

proceededto find the again distributing anonymous plaintiffs remaining from eleven The valid. engage in His they handbills. own interest as well alleged wished that as that others with like political but were who would prohibited activities speech losing anonymity practise in a free the threat deterred political them, majority persuade found us to jobs. environment As justice plea.14 his Judicial not accord with “it would that responsibility” adjudicate their claims abruptly reversed only speculate to the can since “we opinion. in court a unanimous district appellants activity political kinds of pointed Mr. Justice first out Brennan engage to the contents in or desire holding that court “in lower erred proposed statements or of their declaratory that was Zwickler entitled to 8 publication.” of their the circumstances if relief the elements essential that conduct, past relief existed action possibility like was ‘[w]hen that ” conduct, proper inquiry unspecified open initiated.’ was future ‘controversy’ judicial “whether a ex- doors is shown Golden v. hearing isted plaintiff at the time of on Zwickler.9 The individual 15 distributing remand.” there had convicted anonymous during political handbills Embarking upon inquiry, that campaign. Although appellate rejected court’s con- district York his conviction on New reversed plaintiff clusion could assert grounds, nonconstitutional in- Zwickler “of would with interest others who declaratory judg- stituted suit for a speech.” anonymity practice like free ment that invalid. The was question Since “the Court reversed a decision * * * presеnted context must dismissing district court the suit on grievance,” specific of a live Justice grounds,10 pointing abstention out gaze Brennan limited his to Zwickler footnotes that the trial court remand Having and his handbills.16 thus focused appellant’s should consider “whether al- issue, assigned controlling the Court legations declaratory entitle him to a weight to “the fact most un- that it was judgment” and whether “this matter likely Congressman again that the would properly now dismissed for Congress” be a candidate for de- mootness.” ciding require- Zwickler did not meet the court, relying upon The trial Evers v. declaratory judgment. ments for a Dwyer,13 controversy concluded although political was not moot cam- Congressman disappearance paign long past political was can- political Multer de- was scene opposed unlikely didate Zwickler cisive, however, only the Justices because again to run office: elective complaint read his and the record to in- question no We see reason to Zwick- dicate “Zwickler’s sole concern was challenged ler’s assertion relating congressman literature 7. 330 U.S. at 566. 13. 358 L.Ed.2d Id. S.Ct. at 564. F.Supp. Koota, Zwickler 9. (E.D.N.Y.1968). (U.S., 4, 1969). March 15. 89 S.Ct. at 959. Koota, Zwickler at 960. Id. at 89 S.Ct. L.Ed.2d 444 17. Id. at at 960. 11. Id. n. at at 12. Id. n. at 252 88 S.Ct. at 398. interpre through the device of a A future events his record.”18 different might possible, in com- since catchall ad damnum clause their tation complaint alleged have been plaint. But, plaintiff also other Court that thе as illustrate, anonymous are that “similar cases future events

wished to distribute * ** contingent likely subsequent elec to materialize some- in but handbills spe- sufficiently campaigns to in connection with times are related prompted party cific occasion a lawsuit officials.”19 which election however, correct, developments undoubtedly represent to Court was foreseeable justifies upon continuing controversy “complaint a focus which that the [ed] when, adjudication forthcoming appellate it a case then 1966 election even occasion, trough alleged, congressman would the initial between yet again past, to now But future occasions stand for re-election.” circumstances, opinion In whether arise. these future does not reveal complaint applied a test which cannot be detailed in “focus” under events a referring plaintiffs expected plan other to unless are to a tacked-on clause genera- ignored, campaign “party their the farthest should be unto officials” and, interpreted plaintiffs that sometimes because whether tion— cannot themselves “party expecta- in the to refer election clause to an usher occasions, Congressman not even Multer ble sometimes officials” which future so, suggests test which mea- then. this was a The decision Since is controversy by сandidate. looking cryptic that sures a case observation latter complaint “might only dis focus of a assertion that he Zwickler’s controversy relating geld continuing anonymous doctrine handbills tribute ” improb- vitality. ‘party think it its con of all Since we did not affect officials’ contemplated Congressman that Goldenv. Zwickler clusion since “the held able any precedent, es- party position ‍​‌​‌‌‌​‌​‌‌‌​‌‌​‌​‌‌‌‌‌‌‌​​‌​‌‌‌​​​‌‌‌​‌‌​​​‌​​‌‍such abandonment district elective pecially fit of the care taken leader.” view phrase read- officials” “other important to this distinction is sought only ing plaintiff that case, plaintiffs’ because while the law- noire, personal bete I conclude his attack initially sought injunctive suit relief for allegation contemplated clear that the January protest march, they al- complaint protests removes in this future leged separate in a paragraph of their * * * in Zwickler. case from the rationale complaint “plaintiffs petition Congress intend a con mere assertion ** this occasion but intend there- course, tinuing controversy, of no more after to continue to do so in accordance than, Abraham Lincoln one makes (cid:127) rights.” with their First Amendment leg gives calling sheep’s tail observed Unquestionably, complaint “fo- legs. wooly To five decide animal upon march, cused” the 1968 such protests possibility of future whether the appeal а test their would be moot. Just relief, declaratory plaintiffs entitle however, unquestionably, alleged they must laid this lawsuit protests an intention to renew their re- shape Court decisions garding the inwar the future. continuing-controversy doctrine. chiefly upon Local relies superficial There is Government merit in a test Oil, prevents drawing and Atomic Work No. Chemical plaintiffs beadsight target International Union v. Missouri22 upon ers one occasion— controversy argue ended with that the with its own concrete retain- facts—but ing option rely protest the Work Oil unspecified the 1968 march. 21. Id. at n. at 960. Id. S.Ct. at 960. 19. See id. 89 S.Ct. at 391, 4 L.Ed.2d 20. Id. at 89 at 960. play in the law a substantial role case, state tinues a ers the union attacked response a governor of officials to their activities.” had seized under which the injunc course, Bus in both Of a critical fact utility company an obtained and Employees or- that progress. against and Carroll then tion a strike began ganizations Supreme the lawsuits were By reached the time the case Here, Brigade ended, apparent- still Court, active. had strike and seizure ly exist, under that at least dispute had has ceased underlying labor and the bargain individual were also 58 by name. But there collective a new been settled alleged plaintiffs their intention ing agreement. who The Court found Congress petition occasions. moot, concluding on future “threat that the case disputes” aрpellants as- therefore individual in future labor state seizure ongoing continuing sert in the justify the statute’s interest did not review controversy. argues constitutionality.23 The Government proper ini- their road to relief is brought the same another When sufficiently tiation another lawsuit years three the Court before parade advance some future later, however, concluded the Justices including, protest permit a decision — Assn, Amalgamated Division 1287 of presumably, appellate court one Employees v. Missouri24 Street etc. protestors Perhaps —before the event. labor not moot where the suit was litigate plan ahead, should and far unsettled, although dispute remained rights attempting to exercise before ended. strike and seizure had reality of them. such not the But controversy dispute protest. Spontaneity still often hall- Whether a political opposition. continues is often clear outside mark of Protest less groups commonly struggle labor field. President mixed Carroll v. with County,25 organize Comm’rs of Princess Anne at the success their efforts organiza example, supremacist Realistically, a white final moment. the interval injunc sought parte planning of an tion review ex between the and the execution Although rally. protest issued will be too short for a law- long passed, and appellate the occasion had since suit to reach an court. wish to wаr tinues deserved * * cause “it role in the [the [state Carroll test there continuing 10-day injunction organization’s] activities.” Vietnam, petition exist appears adjudication continues Court concluded represents a broad response upholding the applied a in this dispute that the decision of officials case. Citizens play had controversy concept, concerning a substantial expired, injunction] reading merits be “con- still suit well illustrate the planned was a ecution will might be, sumption rected short-term order in this case. capable concluded that dication of constitutional * * issues In the Carroll -*/ definite against, raised] march. that defense ” defeated repetition, yet generally There ought not threat “ case, The facts of this case ‘consideration [of invalidity actually was, short term assure a criminal rights,” prosecution di evading affecting, be, of the “as ample course, But there orders, review pros since they vin no 368-369, 80 S.Ct. at 395. Id. at 23. 279, L.Ed. 310 U.S. Ogilvie, (1911) ; see Moore also 83 S.Ct. U.S. 23 L.Ed.2d (1963). States, ; Friend v. United cf. 21 L.Ed.2d 25. 393 U.S. U.S.App.D.C. 323, 388 F2d 579 Pfister, 380 Dombrowski 178, 89 at 350. Id. quoting Id. 89 S.Ct. at ICC, 219 Pac. Term. Co. v. Southern “ 33 ficity,” might here, it the facts threat of sanctions seem that ‘[t]he * * * particular potently a immaterial deter almost as would be ”*’ * 29 to application actual of sanctions. our determination whether Section 193g is constitutional its face. Such on Although probability future reasoning, however, presupposes that wе controversy continuing incidents 193g pre- know face with Section right Capitol protest over the on the appellate no cision. Since court has sweep places this case Grounds within statute, authoritatively construed this III, automatically of Article it does not Any precondition may that not be met. plaintiffs follow are entitled adjudication by this court declaratory For relief. accordingly proceed would in tan- need to Rusk, pointed “the out in Zemel v. deciding exactly dem with the task of Judgment Declaratory ‘is Act impor- proscribes. what An conduct enabling Act, an a discre- which confers pillar requirement tant of a tion on the courts an abso- rather than ” controversy 30 case or the consid- crete right litigant.’ upon lute well-developed eration that rec- factual plaintiff sought in Zemel a declaration statutory ord is often an essential aid criminally prosecuted whether he could be interpretation. for travel to Cuba. The adjudicate declined to his claims because po- persude this Two factors me complaint “the filed in this ease does problem preclude declar- tential need not specify appel- the sort travel to Cuba relief, atory first arises however. The opinion lant in mind.” went has involved; from the nature the statute myriad permutations on to discuss second, this case. from record accompanying fact intent forbidding 193g all Section is clear in appellant or which the exit parades Capitol assemblages or on the country in- on or re-enter a direct Grounds, with no to criminal reference trip direct “To or from Cuba. avoid Up- intent or attendant circumstances.34 rendering advisory opinions,” series occasion, course, appellate on an the Court refused to consider “whether may settle a narrow construction gradations each or these of fact uphold constitutionality statute. charge as to would make difference process.35 But there are to this limits liability.” criminal map- elliptic in Where has been books, ping its intention onto the statute declaratory To relief decide whether may supply of an of- courts element case, appropriate the court legislature presumptive- fense which must consider therefore whether subtle ly neglected require wished to but possible factual would shifts in matrices indication, however, state.36 There is no 193g. appraisal affect our surgery appropriate would be overly Since “attacks broad statutes” any presumed conform Section making require person do not that “the Congress. I else- intention of As discuss own con- attack demonstrate that his legislature opinion, in this where regulated by duct could not be repeal modify pointedly declined to requisite speci- drawn with narrow Pfister, Button, Id., v. U.S. quoting 33. Dombrowski 29. from NAACP v. 1116, 1121, 415, 433, L.Ed. (1965). (1963). 2d 405 supra 1. 34. See note 1 30. 4 381 U.S. (1965). L.Ed.2d 179 Secretary Aptheker See, g., e. State, 506, 84 S.Ct. Id. 12 L.Ed.2d 992 1282; cf. 85 S.Ct. at Id States, See, g., States, Morissette v. United e. v. United Travis ; 96 L.Ed. 17 L.Ed.2d 536 Laub, United States statutory protest revising again. Nor I reason this section when again dealing doubt that the will with Police framework prosecution or, for that mat- other statu- threaten ter, Grounds Since in 1967.37 — actually prosecution encompass in- tory provisions will conduct now threatening governmental inter- itiated if do not deter would-be threats definite Although petitioners. apparently accompanied to do there intent an ests so,38 Congress pre- under Sec- I has never conviction must that been a conclude 193g, other threats there served under a belief Section prosecution,39 of one suc- prohibition situa- and at to least blanket extended provi- prosecution.40 cessful of beyond of these Invocation tions the reach unlikely re- is to Consequently, a statute not so bar sions. narrower as posture support lief.41 Nor of this case in this recent does the struction no finds present legislative inadequate will. Nor record manifestation of necessary, declaratory judgment. interpretation to base a is such an in constitutional is the case sometimes adjudication, prevent of to the creation II statutory where a in an area vacuum Having cоncluded this case is may regulations appropriately narrow moot, I next issues consider what must legitimate necessary protect state be appeal. on are before Court interests. plaintiffs initially a three- moved affecting exer- The second factor judge court 28 under U.S.C. §§ grant discretionary power to cise of our original (1964) 2284 com- since their declaratory the evi- relief is withhold plaint declaratory and demanded both us an actual dence the record before injunctive judge, The trial relief. protest plaintiffs de- made march. refusing dismissing complaint and their plans, modified tailed response which were court, three-judge found to convene prosecution, to a threat of challenges to Section constitutional Brigade did march women 193g “plainly unsubstantial." While, Zwick- Hill. the base posture Had the remained in this out, points a concrete ler existence of appeal, be task would on the court's inception controversy lawsuit at the determine whether relief, justify after-the-fact cannot in fact obvi below were issues raised lending cred- addition 1968 march—in ously 28 U.S.C. without merit.42 Since allegations ibility planned con- (1964) provides direct review 1253 protests templated and fears future action Court provides a factual

prosecution then — * * * de “required heard be judgment declaratory for a foundation court three district termined judges,” controversy continuing over settle by this review intermediate 193g. Section of the case would on the merits sub short, specula- inappropriate were if issues I cannot dismiss stantial, there possibility the in- and a tive the some parade required.43 appellants fore dividual will wish Voyage Liquor Corp. 42. See Idlewild Bon 37. See note infra Epstein, 713, 82 v. S.Ct. See infra notes 92-94. Enterprises ; (1962) Reed 8 L.Ed.2d 794 Columbia, Feeley U.S.App.D.C. Corcoran, 128 39. See District of v. 354 v. U.S.App.D.C. F.2d F.2d Corp. Voyage Liquor 43. See Idlewild Bon Buchard, No. 40. See v. States United Epstein, Sept. 16, (D.C.Ct.Gen.Sess., 16,019-68 ; (1962) St. Louis Stratton v. 1968). Ry., 10, 51 S. W. Kirk, Gong (1930) ; Ullman, L.Ed. Poe v. Cf. (5th 1967), aff’d 389 Cir. F.2d L.Ed.2d 989 gaze height substantiality claim limit our threshold plaintiffs’ constitutional claims. Since surmount be “substantial” must stated, planned protest has march which occa- unclear. The parte Poresky, passed, sioned this lawsuit in Ex has plaintiffs longer accordingly no face as plainly insub- question The stantial, they .prosecution, imminent a threat ‘obviously it is because either injunc- have abandoned their demand for unsound- merit’ or because its without tive relief enforcement previ- clearly from the results ness so 193g, merely and ask instead to fore- of this court as decisions ous declaratory judgment subject *.44 close the unconstitutional its face. “previous rapidity deci- with which abandoned demon- sions” are sometimes words 28 U.S.C. 2282 § sensitivity required is some require strates that three-judge a district court when apply test.45 of this to latter branсh “injunction restraining an ment, the enforce- branch, lack “obvious The former operation any or execution of Act merit,” similarly imprecise; as Congress” granted. is is to be Conse- “Judges observed, Judge Friendly has quently, language not re- its literal does lenses not identical quire been fitted with three-judge court where just detecting merit is lack of for when declaratory requested. relief is The Su- ‘obviously’ preme such.”46 given approval qualified Court has reasoning. Kennedy to In v. Mendo- moreover, is, ar- an undoubted There za-Martinez,48 plaintiff dropped had any tificiality to review effort injunctive his demand trial, before relief substantiality issues of constitutional single which held before was determining mer- ultimate magnified without judge. difficulty in concluded is it.47 That a statute cases as this where such a three- a remand for retrial before face. unconstitutional attacked as judge panel unnecessary, instead was three-judge appellate panel to ex- For a judgment grant- declaratory affirmed the face order on its amine ed that the statute district court sufficiently are the issues conclude that there involved unconstitutional.49 was three-judge require dis- substantial to At one has criticized least commentator on its the statute trict court examine redupli- statute, argu- might patent reading this literal of the seem some face judicial ing cation of effort. practical that thе effect of a declara- tory judgment, preventing terms however, be- not appeal, I do On this statute, likely enforcement to be shy of the from merits we lieve need U.S.App. Corcoran, 695, 574, 132 Thornton v. 19 L.Ed.2d 784 U.S. 88 S.Ct. Cf. 232, (January 3, (1968). 407 F.2d 695 D.C. 1969). 3, 4, 30, 32, L.Ed. 78 44. 290 U.S. 554, 372 U.S. 152 644 Covert, See, g., Reid v. e. 554; (1957), see also S.Ct. 1 1148 Id. at 83 L.Ed.2d S.Ct. 77 withdrawing Thompson Whittier, Krueger, 81 v. 351 Kinsella v. ; (1961) 5 1342 S.Ct. L.Ed.2d 704 Flem- 100 L.Ed. S.Ct. 76 U.S. ming Nestor, 603, 607, Covert, (1956) ; v. U.S. 80 351 363 v. U.S. Reid ; (1960) ; (1956) 4 S.Ct. 1435 100 L.Ed. 1352 76 Ry., Virginia v. St. Louis S. W. State Bd. Stratton v. West Barnette Educ., L.Ed. ; Allegheny Airlines, overruling (dictum) (1943), Inc. Minersville L.Ed. 1628 F.Supp. 508, (S.D.N.Y. ‍​‌​‌‌‌​‌​‌‌‌​‌‌​‌​‌‌‌‌‌‌‌​​‌​‌‌‌​​​‌‌‌​‌‌​​​‌​​‌‍Fowler, Gobitis, v. Dist. School 1966). 1010, 84 L.Ed. Elections, F.2d Board of 46. Green v. 1967). (2d 445, 448 Cir. injunction.50 (1964),53 disrupt This S.C. the normal

much the same as force, argument although pushed functioning courts lower federal has reasoning might require enlarge obligatory jurisdiction of its extreme the three-judge Supreme Court, no district court whenever there need seems statutory constitutionality any expand language chal- statute is lenged any provisions do context —a result to include cases which not danger Appeals present legis prevent would feared declaring lature. ever a statute unconstitutional. consistently Court has legislative redrafting of statutes A taken a the three- “constrictive view” of providing three-judge courts judge doing requirement.54 court so similarity heed be- well the functional Mendoza-Martinez, Kennedy it did injunc- declaratory judgments tween analysis needlessly extend its to de- leg- restraining the tions enforcement solely cide “whether an action declar- A neces- islation. faced with the court atory under all circumstanc- stаtutes, relief would sity apply present drafted inappropriate es be for consideration long ago, closely perhaps should hew three-judge majority court.” expan- prevent their words to an undue opinion instead concluded that a three- require- court sion judge unnecessary in the ment, however. it, present then since “the action before legislative history The of 28 U.S.C. * * * dangers involve none of the [d] (1964) complement deal § addressing Congress to which the was legis ing injunctions against with state itself”: (1964),51 lation. 28 shows U.S.C. 2281 § ** * sought Congress relief affected primarily concerned was Congress totally single an non- Act possibility federal with the that a no judge might totally There was inter- “paralyze oper coercive fashion. large operation of the of the regulatory diction an ation of entire scheme * ** injunc It unconstitu- by was declared statute. issuance of a broad injunctive tional, provisions without even an statutory but tive order.” application of sanction three-judge requiring should cer courts by the Mendoza- tainly remedy Government mis be construed ** statutes, together Martinez. Thus was no there But these chief. since in this invoke reason whatever ease provisions U. with the direct of 28 review Kennedy Mendoza-Martinez, Three-Judge Currie, District See 144, 154, Litigation, L.Ed.2d in Constitutional supra (1963) ; Currie, note see also 14-19 U.Chi.L.Rev. 50, at 3-12. provides: (1964) 51. 28 U.S.C. § injunc- interlocutory permanent provides: or An 53. 28 U.S.C. enforcement, opera- by restraining provided law, Except otherwise tion any any appeal party State statute or execution any deny- granting by restraining officer an or the action from order ing, hearing, or inter- in the enforcement notice and an of such State after injunction locutory permanent of an order statute or or execution such proceeding by any action, re- board made an administrative suit civil statutes, acting by any quired to be under State Act commission any granted district not be a district court shall heard and determined ground judge judges. c. thereof June court three unconstitutionality stat- of such 62 Stat. application is therefor unless ute Wickham, See, g., & Co. v. e. Swift by a district heard and determined 111, 128-129, judges section 2284 of three under court title. 144, 154, 83 S.Ct. 55. 372 U.S. I extraordinary not. special proce- do the statute literal words three-judge policy-based further no reason dure of a court.56 find case, adjudication and the delay of this analysis I applicable to this find this Consequently, suggests majority none. lawsuit, stripped de- as it now is plain- I consider believe we should injunctive no mand relief. There arguments merits. The on their tiffs’ danger regulatory program that a broad ground justice proverbial wheels 193g applies will be halted. Section pace in this case. forward at a tortoise’s scope in- Grounds. Its spinning them I no see reason send deed fall limited that it well so this three- a remand reverse three-judge exception within three-judge judge panel an to a court requirement judicially court constructed proceed- adjudication, requiring no trial merely applicabil- for statutes of local ings, validity of Section of the facial ity.57 193g. majority opposite con- reaches an clusion, finding suit, “which Ill began case, aas main- ” * * * right peaceably people “The no tains that character. I see assemble, petition and to the Govern- why must, leopard, reason a lawsuit like a grievances” is un- ment for a redress keep spots began with life. questionable: so Amendment First Nor did the Court in Mendoza- many provides, precisely words. request The fact Martinez. that the right similarly unquestionable is But injunction here, an dropped appeal regulate conduct in of the Government to rather than before trial in Mendoza- orderly protect areas Martinez, seems distinction without government.59 processes of Nor I difference. can dis- fathom the represents attempted accommodation majority perceives tinction the between conflicting in- these between sometimes a declaration that the us is statute before provides: terests. The statute unconstitutional and the Court’s stand, parade, in or declaration that the it statute before It forbidden to is assemblages in processions Mendoza-Martinez unconstitutional. in move Indeed, reasoning majority Capitol or Grounds of the said United States banner, flag, declaratory any that or display relief therein in this case would bring restraining designed adapted “have a or effect or coercive device organiza- roughly comparable injunctive public any party, relief” into notice precisely except herein- tion, movement, same others or observation 193j commenting upon provided have made Mendoza- after in sections Martinez,58 cogent argu- However 193k of this title. ment, hardly distinguishes it the two 193j and 193k authorize Sections cases. Speaker and the President Senate approach Representatives, I believe we should follow of the House Capitol determine Court and absence Chief underlying policy Police, suspend prohibitions of whether the 28 U.S.C. (1964) requires 193g admit “in § 2282 order ** court in a such of occasions ease as this where due observance 559, Louisiana, 155, ; (1966) U.S. 56. Id. 83 at 560. v. 379 S.Ct. 554 Cox ; (1965) 476, 13 L.Ed.2d 487 85 S.Ct. g., Moody See, Flowers, 57. v. e. 387 U.S. 395, Hampshire, New v. Poulos L.Ed.2d 643 18 87 405-408, L.Ed. (1967). Hampshire, ; Cox v. New 85 L.Ed. 61 S.Ct. supra. 58. See note Connecticut, (1941) ; Cantwell v. 306-307, Adderley Florida, See, g., L.Ed. e. 48-49, becoming cognizance doctrine. tion of the overbreadth interest national insight cau- Congress.” tread must that State and entertainment tiously precision when and with careful ap- language first of Section personal threaten cherished actions pеared books 1882.61 in the statute no schol- so freedoms is indeed basic recod- several Since then there have been attributed ar or court claim or be could changes ifications, in and and various authorship.63 the anteced- But whatever statutory surrounding additions to the doctrine, provisions relating upon of the overbreadth ents to conduct pro- But undisputed Grounds. absolute state action now “processions as- hibition all rights in the of First Amendment area untouched, semblages” de- has remained be couched in the narrowest must legislature spite suggestions pin- accomplish terms will develop- passing years progressive pointed objective permitted consti- protection Amend- in the of First ments tutional mandate and the essential may sorely dated the ment freedoms In this needs of sensi- statute.62 order. field, may employ tive the State among developments Chief has these ongoing broadly fundamen- “means that stifle the advent and adumbra- July 1, 193j (1964) provides: Act 22 Stat. 126. 40 U.S.C. § In order to admit of due observ- Hearings 62. See on 2310 Before the S. ance within the United States Bldgs. on Subcomm. and Grounds of the interest of occasions of national Grounds Works, Cong., Comm. on Public 90th becoming cognizance and entertain- Sess., 9-10, 1st Congress, ment of the President of Speaker analysis appears Senate and the of the House The overbreadth Representatives, acting concurrently, sevеral forms. State action be over- can suspend prop- are authorized to for such in a broad horizontal sense if more indi prohibitions necessary er occasions so much of the viduals than are affected 193b-193g contained in sections of this restriction. Overbreadth this sort prevent Equal See, title as would the use of the violate the Protection clause. grounds g., Carrington Rash, roads and walks by processions said e. assemblages, and the 13 L.Ed.2d 675 decorations, (1965) ; tenBroeck, use music, addresses, them of suitable see also Tussman & ceremonies; Equal Laws, Pro- Protection of the vided, responsible If, That officers shall Cal.L.Rev. 347-53 appointed, arrangements hand, have been the other state action indi affects adequate, properly subject determined which are in the viduals to restriction but judgment of said President of the Sen- interferes with their more interests severe Speaker Rep- ly necessary, analy ate and of the House of than the overbreadth resentatives, the maintenance of sis in functions a vertical sense. This pro- species analysis easily suitable order and decorum in the of can be traced ceedings, guarding Capitol generation, and for g., the back at least a see e. grounds injury. Bridges California, 252, and its v. 314 U.S. 260- (1964) provides: 261, 193k (1941) ; U.S.C. § 86 L.Ed. 192 Washington Alabama, the absence from of Thornhill v. 310 U.S. 105- designated either (1940). of the officers in sec- 84 L.Ed. 1093 193j authority title, may оf this the Some cases be viewed in either given suspend prohibi- fashion, may therein certain in which case there be some 193b-193g uncertainty tions of sections of this title whether state action violates upon other, Equal shall devolve the and in the the Protection Clause or a more Washington purely right, absence from of both it substantive such as the upon shall devolve the Police First Amendment. See Williams v. Provided, notwithstanding Rhodes, Board: That S.Ct. L.Ed. provisions 193g 193j application the of sections 2d For a novel title, analysis of this the Police Board of the overbreadth to bolster a grant finding is authorized the Commis- that a statute constituted a bill attainder, sioners of Brown, the District of Columbia see United States v. authority permit the use of Louisiana 455-456 & n. purposes pro- Avenue for 14 L.Ed.2d 484 by 193g hibited section title.

H07 IV be more when the end tal liberties narrowly achieved.” comparison To the structure between prohibitions ‍​‌​‌‌‌​‌​‌‌‌​‌‌​‌​‌‌‌‌‌‌‌​​‌​‌‌‌​​​‌‌‌​‌‌​​​‌​​‌‍193g and passage Presi- those from Carroll v. Section As this approved Supreme disapproved Coun- or Anne dent & of Princess Comm’rs analysis ty suggests, has in v. such cases as Edwards South the overbreadth Carolina,71 Louisiana,72 Ad in the area Cox found most soil v. fertile Florida,73 derley to consider Whether v. it is First Amendment freedoms. useful pre- separately is right speak is a The first several factors. and assemble prohibited: specific simply primus inter ac conduct ferred freedom tivity outlawed, glossary pares Bill of outlawed. and where is in the Rights,65 focused Amend has Since state restrictions on First judged upon importance sharply upon ment freedoms must be its fundamental setting primary applied,74 body politic face in rather than as democratic language re upon must be the the breadth focus stern limitations challenged governmental sensitive than ac in this striction rather action becoming tual sphere. conduct case. Of are fast involved each The cases course, legion upon when ad Court has has seized which the Court specific analyzing protect First verted to doctrine conduct overbreadth permissible upon Many scope of these of restrictions Amendment freedoms. speech assembly, loyalty ac oaths that conduct cases dealt with quires sundry upon access relevance. restrictions other public employment.67 Other decisions important A ac- second factor is the subject mat- have involved such diverse companying proved. intent must be passport threatened ter as denials may slippery, mens shift- While rea prosecution barratry69 or al- state ing areas, concept other as in all leged activity.70 subversive proof frequently of intent will conduct. And the sort of conduct clarify helped These cases have requisite demonstrates intent doctrine. contours overbreadth help activity to further for- delimit problem in instance But since the еach bidden, why well as it is the reason particular governmental tois measure forbidden. “breathing space” interest specific private score, important needed interest fac- On this latter stake, being governmental evaluated best tor interest is the dealing protected. an examination of those cases mainte- In some sense the protests unimpeded group with restrictions ad- nance order public property. government always at ministration Secretary State, Aptheker 64. Carroll v. President & Comm’rs See County, Anne Princess (1964) . 21 L.Ed.2d 325 See, g., Pfister, e. Dombrowski Button, See NAACP v. 486, 479, 1116, 85 (1963). U.S. 14 L.Ed.2d 328, S.Ct. 9 L.Ed.2d 405 83 S.Ct. (1965). Compare Cooper, 22 Kovacs v. Pfister, 380 70. v. U.S. See Dombrowski 77, 448, 90-97, 69 S.Ct. 93 336 U.S. (1965). 1116, 479, 22 14 85 S.Ct. L.Ed.2d opinion (1945) (concurring L.Ed. 513 Frankfurter, J.). 680, 229, 71. 9 L.Ed.2d U.S. 83 S.Ct. 372 (1963). 697 Keyishian Regents, 66. See v. Board of 476, 589, 675, 453, 559, 536, L.Ed.2d 85 385 87 S.Ct. 72. S.Ct. U.S. 17 U.S. 379 (1967) ; Baggett Bullitt, (1965). 471, 377 U.S. 629 v. L.Ed.2d 481 13 360, 1316, 12 S.Ct. L.Ed.2d 377 84 242, 39, L.Ed.2d S.Ct. 17 73. U.S. 87 385 (1964). (1966). 149 Robel, 67. See United States v. Pfister, (1967) ; g., 419, 74. E. Dombrowski L.Ed.2d 508 88 S.Ct. 19 22 L.Ed.2d Tucker, 85 14 Shelton . 231 1108 popular But order that stake. the sort of views.”81 for second As the offense, the maintained and nature must be Court found that statute also governmental invalid, process “provide[d] must which be it since no standards will interference

administered without determination of local officials as vary permit And situation. from situation to which assemblies to or which 82 they vary, prohibit.” sort of so too will the conduct subject properly and the restriction 77,83 upon In Cox which the Govern- places restricted. where it principally relies, ment the Court found Carolina,75 187 In v. South Edwards its constitutional on face a which protestors common convicted were provided: They peace. had lаw breach of Whoever, the intent of with inter- groups peacefully of about in marched fering with, obstructing, impeding grounds, “an area house 15 to the state justice, the administration or with general city open to the of two blocks influencing judge, the intent of public.” Stressing that “the circum- juror, witness, officer, or court exercise case reflect an stances discharge juror duty pick- his rights in basic constitutional parades building ets or in or near a form,” pristine classic most and housing a court of the State of Loui- uncon- condemned as Court * * * siana more shall fined not vague stitutionally crime a common law impris- than five dollars thousand “not had termed which the state year, oned more than one or both.84 definition,”78 but susceptible of exact “upon punishment permitted Goldberg evi- which for the Mr. Justice reasoned majority than that “prohibits no more dence which showed the statute protestors] particular opinions conduct, pick- were type namely, [the which sufficiently peaceably expressing eting parading, specified were in a few majority of opposed locations, to the views in or near To courthouses.” community a crowd appellant’s to attract contention that the failure protection.” police necessitate rendered the statute to “near” define vague, unconstitutionally opinion it Cox v. Louisiana came noting responded, the statute after separate cases under as two applied had to a demonstration name, from same arose both courthouse, hundred feet from the so segregation. protest against march racial protestors had to a court marched administrative discretion to [The] house, then stood across street lim- strue the term “near” concerns sing away, steps, feet about ited other control the streets and hymns. 7,80 the leader Cox vicinity immediate areas state demonstration was convicted under type courthouse and is of narrow breaches statutes directed has discretion which this Court rec- peace obstructing public passages. ognized proper responsi- as the role of offense, con As for first making ble determinations officials overbroad; statute was cluded duration, concerning time, place, Edwards, permitted conviction as in expressing “merely peacefully un of demonstrations.86 manner 75. L.Ed.2d 81. Id. at 85 S.Ct. at 462. 82. at 465. Id. at Id. at S.Ct. at 681. Id. at 78. 84. at at 83 S.Ct. 680. Id. at 478. Id. 684.

79. Id. at 83 S.Ct. at 85. at at 479. Id. S.Ct. (Emphasis L.Ed.2d 80. 86. Id. S.Ct. at at added.)

H09 justice, upheld in- Adderley administration of or with the Finally, Florida87 influencing any judge, juror, tent of protest marchers convictions of discharge witness, officer, jail or in Mr. aat local had demonstrated who * * duty majority, of *.” for the his Black found Justice argued any petition under It could that trespass statute The Florida charged grievances its for the object of has petitioners redress which these were goal influencing challenged someone. of [as cannot be of at But Cox II a demonstration involved aimed at conduct It is overbroad]. traditionally, judiciary is, person kind, a one courthouse: one limited prop- pub- to trespass does reference persons decide cases or opinion. Consequently, and lic erty of with a malicious state another properly prohibit has conduct which intent.88 mischievous object “influencing” judge only or its particularly majority stressed other court official a demonstration intent, pointing out requirement of of sentiment. together with the words the statute jury given “instead to the instructions legislature quite in- But another uncertainty contributing misun- concept very represent- stitution. The meaning derstanding, actually its makes legislators democracy requires ative 89 The and clear.” more understandable feelings heed the constituents. opinion particular paid also attention result, simple As a intent to “influ- Criticizing concept “the property. Congress by expression pub- ence” an assumption people who want sentiment, more, hardly lic without could propagandize protests or views be outlawed. the “intent This leaves right do so whenever interfering with, obstructing, imped- please,”90 they and however the Court ing government. the administration” distinguished carefully in- the conduct accompanied by such a While conduct goal present in in Edwards from that volved Adderley: properly could forbidden outside legislative halls as well across courthouse, 193g street from a Section Edwards, went In the demonstrators requires no intent. such Capitol to the State South Carolina they protest. this Grounds 193g distinguished Section can also be Traditionally, jail. state to the went from the II terms statute Cox grounds public. capitol open are pro- the area demonstrations are where The Jails, security purposes, are built for hibited. latter statute forbade not91 building “pickets parades in or near a

housing a court.” im- construed “near” to mean “in the V vicinity” mediate of the courthouse. argues II that Cox The Government Adderley province, on govern I cannot Section has as this case. and agree. hand, Here, II, the other Grounds. Cox display (1964), per- protestors “parade” or Under 40 193a U.S.C. forbids however, grounds signs. 193g, imeters of are determined picket Section by map illegal approved simply the Architect “stand” also makes considering Capitol. certain assemblage. important Without More outposts map such any requirement of intent exotic included absence Poplar Nursery, 193g. lies in Cox as the Point The statute under River, inter- find across the Anaeostia one “the intent we II had element map with, obstructing, impeding fering Grounds 245. Id. 87. 385 U.S. at 247. Id. at Id. at at 244. at 244. Id. at 87 S.Ct permitted north of the offense in Edwards which strеtch some six blocks Station, “merely peacefully expressing Capitol some viction Union itself unpopular the foun- three to include views.” blocks south Building, beyond tains the House Office application To reach a sound of the Capitol of three blocks west to the base analysis, overbreadth should the Court Hill, and east a similar three blocks prohibitions rather of measure the Sec- Congress Library the rear of the of 193g against legitimate govern- tion the annex. protects, mental interests it in order greensward justify spacious decide whether the latter can the This studded with concluded, government certainly of former. The district mansions beyond sweeps “The are vi- [of statute] far “immediate restrictions insuring cinity” Building, Capitol reasonable non-interference and en- legislature', compasses with the of work areas where even the loudest scarcely of protest maintenance free of tour- hosanna of distract movement could legislator legislating. ists and and visitors into around the seat from his task government protection of land- Adderley, As for whatever one scape.” think in- of “malicious and mischievous catalogu- appropriate While this tent” as an a stat- element which makes ing governmental meaning to be interests ute’s “more understandable protected, jurors, 193g acquiesce I cannot in the con- clear” to lacks even Section Quite simply, its clusion. such a some shorthand reminder language leg- requires required. form neither More mens rea is disrupted, important, property islature be the free flow nature of disrupted landscape involved, surpass- tourists nor the dam- which the Court found aged, ingly important Adderley, nor intent distin- even that there be an guishes controversy present achieve one these results. that case. This is not an area where the evils possible feared are so diffuse or jail Here we have not a “built specifics improper mani- conduct so security purposes.” Rather, we precision fold that cannot be demanded Capitol very And Grounds. words * * * legislation. Here, with even a modi- Adderley, “Traditionally, cap- craftsmanship Congress cum of could grounds traditionally open ítol to the are * have “tailored [the statute] public.” * * * precisely needs exact 193g prohibits, Because with- Section of the case.” any intent, out all reference to assem- fact, amended in has. As blages approriate for within a wide area surrounding statutory framework protest, I conclude use cannot specificity the outlaws with Adderley its that Cox establish II sort lead to of conduct which constitutionality. Ed- But neither do evils court. Sec outlined the district automatically wards and Cox I establish “any disorderly 193f(4) forbids unconstitutionality although I note — engaged disruptive in on the conduct” expression this statute forbids Capitol impede, intent Grounds “with Grounds, any Capitol on the views orderly disrupt, or conduct disturb the arguably notch renders it a broad- Congress any session of the fatally vague er than common law any place disruptive conduct, amended, provides: 193f, 92. 40 U.S.C. any person Grounds the United States shall be unlawful It Buildings any persons willfully group within and know- of * * * disrupt, impede, or disturb ingly with intent any orderly session threatening, conduct loud, or abusive to utter disorderly thereof engage House language, or either or to

lili (b) (5) it unlawful declares Section 193f passage impede obstruct, “to or QUAKER A al. ACTION GROUP et * * * through Capitol within, or ** Finally, Section *.”93 Grounds al., Appellants. Walter J. HICKEL et injures any 193e conduct which forbids No. 22983. Capitol landscape or facilities of the Appeals of States Court United Grounds.94 of Circuit. District Columbia sweep of Section The indiscriminate Argued May 193g to these in sore contrast stands 24, 1969. Decided June Congress narrowly prohibitions. drawn upon may impose limitations reasonable right assembly ex- of free and free

pression. must be such restrictions But the evil feared.

whittled to scale assembly and all ex- upon all

The ban

pression blan- contained Section ‍​‌​‌‌‌​‌​‌‌‌​‌‌​‌​‌‌‌‌‌‌‌​​‌​‌‌‌​​​‌‌‌​‌‌​​​‌​​‌‍activity protected as that well

kets may rightly prohibit. Congress

which

Consequently, declare should upon its unconstitutional statute

face.95 any orderly such or the conduct within 90-108, (5) (October 6(b) § Pub.L. No. 20, 1967). any any before, building hearing or any of, or sub- deliberations committee Congress either or committee of provides: (1964) 193e 94. 40 § U.S.C. House therеof. step upon, or climb It is forbidden to 90-108, 6(b) (4) (October any any way injure statue, remove, Pub.L. No. § inor 20, 1967). seat, fountain, wall, other erection or any tree, feature, or architectural or (3), 193f(b) See also 40 § U.S.C. shrub, plant, or said turf United provides as amended: Capitol States Grounds. any person It shall be unlawful persons willfully group or and know- authority conferred Sections * * * ingly 193j 193k, upon supra see note any room to enter or to remain the President the Senate and any Capitol Buildings Speaker Representatives, of the within House designated Capitol use for the absence the of the set aside or or in their Chief Congress any suspend prohibitions Police, Mem- either House of ber, committee, subcommittee, or officer, 193g “in to admit of the Section order * * * employee or either or due observance of occasions cognizance disrupt becoming House with intent thereof national interest orderly Congress” conduct of official busi- and entertainment of does not unconstitutionally sweep. : ness cure broad 193j scarcely provides a concrete (October 6(b) Pub.L. No. § guide these officials in the standard 20, 1967). entrusted to exercise discretion Louisiana, them. See Cox amended, 193f(b) (5), U.S.C. 536, 557-558, provides: Griffin, (1965) ; City of Lovell v. any person It shall be unlawful 451— willfully persons group and know- or (1938). Consequently reliance L.Ed. ingly ap- prevent inappropriate them to passage plications impede obstruct, would not be justified. within, through States the United Grounds Buildings;

Case Details

Case Name: Jeannette Rankin Brigade v. Chief of the Capitol Police

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 20, 1969

Citation: 421 F.2d 1090

Docket Number: 21566_1

Court Abbreviation: D.C. Cir.