*1 ZWICKER DISTRICT BOLL, ATTORNEY et al.
OF DANE COUNTY et al. May No. Misc. Decided 1968. Zarr, Melvyn Kunstler, G. Anthony William M. appellants. Amsterdam for Follette, Attorney Wisconsin, C. La General of
Bronson Platz, A. Lockyear, William Thomas A. Charles Bleck, Attorneys appellees. A. Assistant for General,
Per Curiam. in proceed pauperis
The motion leave to forma granted. granted The motion affirm is also and the judgment is affirmed. Cameron v. S.U. 611. Douglas, dissenting.
Mr. Justice students undergraduate graduate are and are active at the of Wisconsin student They brought an rights organizations. civil political and for the Western District of action in the District Court seeking declaratory Wis- judgment Wisconsin, there- disorderly conduct is overbroad and consin statute1 re- face, its or an fore unconstitutional on pertinent part: 1 Wis. Stat. reads § 947.01 any following "947.01. conduct. does Whoever imprisoned $100 more than 30 be fined not than not more abusive, days: (1) public private place, engages violent, unreasonably boisterous, loud, or dis- indecent, profane, otherwise orderly tends under circumstances which such conduct provoke a disturbance . . . .” to cause statute under straining state criminal *2 them. pending against which were in alleged complaint preceding their that Appellants only in con- engaged peaceful were their arrests stitutionally activities. protected in protesting against policy were American Vietnam. buildings in various of the Uni- were made in which had versity Wisconsin napalm a chemical gathered object to to manufacturer in being permitted employment to conduct interviews the buildings. Appellants “disorderly arrested under a conduct” statute. know that such statutes histori- We in cally reprisal against unpopular groups been used have persons espouse unpopular who causes. Cf. Brown v. Louisiana, Louisiana, Cox 131; v. 379 S.U. Louisiana, Taylor 154; v. 370 S. Garner 536; U. Louisiana, a practice S. 157. But is no U. that longer now the permissible that First Amendment by reason applicable to the States of the Fourteenth. A three-judge court was convened which dismissed the argument after oral but conducting without evidentiary an hearing. Judge be- Fairchild, concurring, 2prohibited § lieved that 28 U. S. C. 2283 issuance Judge an injunction; Doyle, dissenting, was of the con- trary opinion. Judge unnecessary Gordon found it to question, deciding reach that rather to abstain favor proceedings. criminal state attacking the statute as addition void on its face for overbreadth, appellants alleged arrests were made and instituted for purposes of harass- ment and manner on account of their provides: 28 U. S. C. §2283 grant “A court of the United States not an stay proceedings except expressly in a by State court as authorized Congress, necessary Act of jurisdiction, where aid of its or to protect or judgments.” effectuate its
political beliefs.3 Appellees in their answer denied these allegations and copies attached complaints filed in the state criminal proceedings which ap- pellants were interfering with classes or interviews
3Paragraphs 12 appellants’ and 13 of complaint alleged: allege “Plaintiffs their arrest under basically this Statute is purpose depriving unlawful them of their of freedom speech, assembly, association, petitioning their Government grievances for a guaranteed redress of by First and Fourteenth Amendments to the United Constitution, States U. S. C. 1983. Further § enforcement of 947.01, Section Statutes, Wisconsin Conduct Statute, will have punishing the effect of plaintiffs those being prosecuted now for the rights, priv- exercise of ileges and immunities secured to them the Constitution and laws *3 States; United has plaintiffs and will [sic] deter and others similarly situated from the future rights, exercise of privileges these and immunities; encouraged has encourage and will defendants and State, other County officials, acting local under law, color of to engage in further of intimidation, acts harassment, and threats prevent actions meant to plaintiffs and deter and similarly from situated the exercise of rights, privileges, these and immunities. allege “Plaintiffs their prosecutions arrests and have been being and are carried on with the purpose basic and of effects intimidating harassing and them punishing and them for and deter- ring from, them of exercise constitutionally protected their rights speech of assembly free and and association to: Oppose “1. protest policies and of the United States Govern- ment, the Wisconsin, State of University and the of Wisconsin supporting contributing and to the war effort in Vietnam; Oppose
“2. protest and foreign policy of States; the United “3. publicly express Or unpopular otherwise and unorthodox views public on issues vital concern. “This intimidation and plaintiffs harassment of pursuant is to a policy political discrimination which is encouraged, followed and by legislation enforced including Disorderly Statute, Conduct Section 947.01 of the Wisconsin Statutes, by and action of the execu- judicial tive or branches of the State Wisconsin. The Statute, Conduct 947.01, Statutes, Wisconsin is on unconstitutional its applied. face and as permits It encourages and Wisconsin execu- judicial tive or officials to against plaintiffs discriminate and others by refusing to by in loud voices buildings speaking to do so. requested leave when Pfister, 489- in Dombrowski U. S. We stated inappropriate the abstention doctrine justifiably challenged are in which state statutes cases purpose of dis- applied their face or “as for the either on my view, appellants activities.” couraging protected complaint their have their adequately in bad faith and in effected discourage punish manner order to constitutionally rights. an protected exercise of Since I court presented, issue of fact is would remand to the plenary hearing on below with directions point.4 alleged in their have facts sur- solely rounding suggest their arrests which harassment appellants’ protest.5 on nature of account More- similarly political ideas, situated reason of beliefs and and to by arrest, detention, brutality, intimidate and harass bail excessive prosecution thereof, plaintiffs or the threat or all who exercise speech, assembly, petitioning of free association and grievances express unpopular their Government for redress of public unorthodox views on issues of vital concern or to oppose policies States, certain of the United State Wis- public issues, contrary consin or the on Wisconsin vital *4 equal protection guaranteed by to the of the laws the Fourteenth Amendment to the Constitution of the United States.” Whether 2283 constitutes a bar to issuance of an § question deciding is a the Court has from refrained in circumstances appears injunction might improper where it that an be on other grounds. See Cameron v. n. 3 (majority opinion), 628, (dissenting opinion). 5n. complaint alleges appellant The attempted that Cohen to enter university’s Building carrying signs the protesting Commerce the napalm university’s policy use of permitting Vietnam and the a napalm employment chemical manufacturer of to conduct inter building. Cohen, alone, stopped just views the who was was by police inside the door officers and told he could not enter the building signs. attempted signs with He to enter with the and the criminal over, complaints against filed several of the appellants state court, appended the and the appel- lees’ answer this raise a case, strong suspicion the were carried out in bad faith.6 grabbed by pushed was away. Appellee an officer and Hansen (chief university’s department of the protection security) allegedly was grabbed summoned. He signs Cohen’s and threw them out the door into the snow. why When Cohen asked he did that, allegedly replied, you Hansen “Because make me nervous all you time, the make me allegedly nervous.” Hansen jostled then stated, you.” Cohen and “I don’t like Cohen and Hansen then point building moved to a in the where some students, other includ- ing appellant Zwicker, conducting a discussion. Cohen told group signs that his destroyed; signs had been appeared and one was allegedly handed to Cohen. began yelling Hansen people building could not talk in the signs, and could not have began tearing up signs. then jostling Some shoving apparently police allegedly ensued attempted grab as signs. university Another official then told Cohen building. to leave the regulation When Cohen university asked what broken, he had allegedly replied, official know, “I don’t you but the looks enough.” Cohen was then arrested building. and taken from the suggest These documents that the arrests have been made appellants because the university were a nuisance to the rather than “disorderly because conduct under circumstances in which such provoke conduct tends to cause or a disturbance.” Wis. Stat. (1). §947.01 example, For against appellant while the formally Webb
charges tendency disorderliness and to cause disturbance, nothing complaint’s in the supports statement of charge. “essential facts” complaint alleges engaged “was Webb in a demon- stration Engineering in the Building University Chemical on the Campus. Wisconsin Madison sitting Defendant was in an interview interfering room with being interviews which were conducted for prospective students of the employment. Defendant was asked to leave several complaints times and refused.” Other alleged facts; similar still appellants that certain spoke thereby disrupted in loud voices and classes, language which might scope come within (1) (“unreasonably 947.01 loud .. . § [tending] provoke disturbance”). to cause or But if evidentiary can hearing demonstrate at an that, as *5 358 allegations harassment, of bad faith, there are
Where discrimination, critical evidence on matter can of the officials only upon out cross-examination be drawn or of question guilt not the innocence involved. but whether their arrests were made persons charged, faith, purposes commenced bad for discriminatory Cam- manner. See harassment If 611, 619-620, eron 390 S. 621. v. U. charge that the statute used bad faith were shown, was claim would be established.7 And it would not federal what courts later for the interim did, matter state “continuing appellants exercising harassment” of for First Amendment would entitle them to relief. Pfister, Dombrowski 380 atS., See U. 490. v. I probable
For these reasons would note jurisdiction, judgment below, vacate the remand the for a case preliminary hearing on the of a disorderly issue the use punish people statute to for expression of their unpopular views. purposefully
allege, intentionally has been the statute enforced against suppress them in a manner to the ideas espouse, constitutionally which could not be con- Hughes, 1; Note, Discriminatory victed. See Snowden v. 321 U. S. Equal Law, Law Enforcement and Protection From the 59 Yale L. J. (1950). Louisiana, 354 Brown Cf. v. 383 U. S. 141-142. And People Darcy, App. 342, 360, see 59 Cal. 2d 2d P. (Cal. App. 1943) (dissenting opinion). (“It Dist. Ct. is much better society go for free, that an accused should than for our criminal processes polluted by prosecutions to be prejudice against founded on political accused”) and hatred beliefs of the provides: C. § “Every person who, any under color statute, ordinance, regu- custom, any lation, usage, Territory, subjects, State or or causes any subjected, to be person citizen the United States or other jurisdiction deprivation any within the priv- thereof to the rights, ileges, or immunities secured laws, Constitution and shall be party injured liable to the law, an action at equity, suit in proper proceeding for redress.”