*1 ^[05] 1—A CO

May 22, 1970 Attorney Byrne, District No. -. of Suffolk County Appli- et al. D. C. Mass. C., v. P. B. I. Inc., stay equally an divided court. cation for denied Black, Justice, Har- Justice Chief Justice Mr. Mr. stay. grant and Mr. Stewart would lan, Justice herein, order see 397 U. earlier S. 1082.] [For

May 25, 1970* Pennsylvania. Ap- No. 1267. et al. Stotland peal Super. Ct. Pa. dismissed for want of a substan- question. tial federal took no Brennan Justice Mr. part in the consideration decision of this case.

Mr. Justice Douglas, dissenting.

In August 1967, City Philadelphia Council of passed an ordinance authorizing mayor to declare state of in “if emergency city, he City finds that the or any part thereof suffering is danger is imminent of suffering civil disturbance, disorder, riot other occur- seriously rence which will substantially endanger the health, safety property of the citizens.” When a state of is emergency declared, mayor is authorized “[pjrohibit or limit the number of may who gather or congregate ... outdoor place, except per- sons who are awaiting transportation, engaging recre- ational activities at a usual customary place, or peaceably entering or leaving buildings.” The ordinance provides that the state of emergency shall exist “not in

*Except Mr. Justice No. No. Misc., No. Marshall took no in the consideration or decision of the orders of this date. weeks,” may

excess of two it be “extended periods provi- additional two weeks.” There are *2 the mayor’s sions for review of decision to declare a state of emergency. April 1968,

On 4, King, Reverend Martin Luther Jr., April 5, p.m., was assassinated. On at 9 1968, mayor proclaimed a limited of effec- emergency, state April tive until 6 on “unless further ex- a.m. of tended,” prohibited groups persons 12 or more in any ex- gathering congregating outdoor place, cept in those situations authorized ordinance. proclamation specific contained no factual findings support the conclusion that threat of disturbance,” a “civil “disorder,” or “riot” existed. The below, however, courts proclamation found that supported by was various city scattered acts of occurring disorder of Phila- delphia between the proclamation, assassination breaking, damage such as window automobiles, false fire, alarms of of some jostling pedestrians, of which occurred incident to demonstrations. There had been disorders in other cities after the assassination.

Appellants were arrested for peaceful, par- nonviolent ticipation of outdoor 12-or more gatherings violation of proclamation. Three separate gather- ings were involved: prior

1. Several weeks to the proclama- issuance of the tion, the Philadelphia Committee Non-Violent Action plans made to protest the recommissioning of a battle- ship, which place April was to take on 1968. A group of approximately gathered park at a near the site of the on recommissioning April 6, planted a tree, and then sat around the tree holding hands and A singing. permit for this demonstration had been issued by park commission. There were some speakers, but none of them advocated There violence. was threat between the hostility demonstrators any spectators. or inter- disorder any type no evidence There was of these About 50 of others. the activities ference with proclama- violating arrested were demonstrators Countryman. appellant arrested Among those tion. 10,000 per- more than demonstration, this the time of At for the recom- away few blocks congregated were sons attending that of those ceremony. None missioning arrested. ceremony were members of proclamation, Prior to issuance

2. Rights arranged Human People for called organization an Congressmen three States homes of United go passage of the petition Philadelphia area in the organization of 1968. Members Act Rights Civil *3 on Congressmen one of the the home of gathered in his mail slot and depositing petitions 7, 1968, April The of the passersby. size petitions to distributing 12 at which time these eventually persons, grew group proclamation. violating were arrested individuals The among those arrested. Achtenberg was Appellant entirely peaceful; there were no inci- was demonstration violated no disorder; the demonstrators law dents of proclamation. other than by University 1968, a was held April 8, meeting 3. On mayor’s procla- Pennsylvania students to discuss university platform up property, A was set on mation. people 200 to 250 approximately congregated hear and speakers. part police As of the meeting, the various proclamation to the After group. being officer read the of the disperse, group departed, ordered to most but about peacefully Appel- 55 remained and submitted arrest. among group lant was There Stotland arrested. disorderly disruptive was no conduct at this meeting. inflammatory. were not speeches There was created allegation meeting traffic en- problems, hostility of onlookers, gendered any involved peace. of the breach

919 meetings In none of the three which short, orderly, peaceful, were other than appellants took none them interfered with noninflammatory; disrupted of them activities; traffic or other and none any law, mayor’s involved violation of save proclamation. This much conceded the courts disputed by not appellee. below and is CIO, Hague At least since decided U. S. in 1939, public property the use of such as streets parks important adjunct rights has been deemed an speech protected of free and assembly by the First States, course, place Amendment. have the right upon time, reasonable manner regulations place, and speech assembly. of the rights exercise As Louisiana, the Court Cox v. 536, 554, said 379 U. S. “contrary one could not, to traffic regulations, insist a street meeting the middle of Square Times at the rush hour a form of speech assembly.” as freedom of regulatory Such measures, however, narrowly must be drawn to reach only the legitimate objectives of state regulation. constitutionally fatal, Overbreadth is carefully we scrutinize all such measures that defect. Louisiana, Cox v. U. Edwards v. 562-564; S. Carolina, South 372 U. S. 236-238. The ordinance *4 Hague in involved the case, example, for gave the director safety public Jersey of of City, Jersey, authority New the permit refuse to issue a public assembly for a in or public streets, the highways, parks, or buildings of the “for the city, purpose of preventing riots, disturb- disorderly ances or assemblage.” This held Court that ordinance constitutionally infirm, Mr. Justice Roberts stating: thus, can as the ordinance] record discloses,

“[The the be made instrument of arbitrary suppression of free of expression views on national affairs, the undoubtedly 'pre- will speaking of all

prohibition uncontrolled official But eventualities. vent’ such be made a sub- of cannot privilege the suppression in order connection duty for the to maintain stitute 516. right.” S., the 307 U. of with the exercise case, this Philadelphia The ordinance involved authority, raise issued under its mayor’s proclamation First, First Amendment. under the questions serious merely publicly assembly of extended not prohibition “any place,” or public outdoor property, owned types of Second, proclamation covered all private. except exceptions, regardless three narrow assembly, lawful that as- orderly, how and otherwise peaceful, of be. there no limitation on the sembly might Third, emergency state of length prohibition, that indefinitely. Appellants extended claim could be proclamation the ordinance and regulatory measure, as a unconstitutionally overbroad. I do not see how that are be question can be deemed to “insubstantial.” may very Control of civil disorders threaten the certainly police power of the State is within existence a particular proclamation Yet does government. Is it equal protection?1 used to circumvent eon- violate city Syracuse, York, imposed New 1 In 1967 the curfew read person ing any public as “No shall enter remain follows: or street, square building any park, parts such day city may prescribed by hours as during the be Mayor.” granted City motions to Court dismiss informations for vio People Kearse, curfew,

lating Misc. 2d 289 N. Y. S. 346, saying: 2d law, like other “A curfew which restricts the activities individuals, minors, adults or

conduct of must not exceed the bounds primary Three of reasonableness. tests have often been invoked. (2) (1) evil? Do the Is there an means selected to curb the evil (3) relation have a real and substantial If sought? result inquiries yes, is the first two do the answer means availed of *5 921 procedures stitutional clearing the streets “unde- sirable” people? Is it used selectively against an unwel- come fair minority? give Does it notice and are its provisions sufficiently precise so as survive constitu- tional challenge? Does it transgress one’s constitutional right to freedom of movement which of course is essen- tial to the exercise of First Amendment rights?

I do not intimate Philadelphia’s proclamation has infirmity. constitutional But questions are so novel and undecided2 that we should hear the case.

This Court can serve no function higher than to review serious and questions substantial in- regarding alleged fringements of the First Amendment rights speech they assembly, whether occur in fair weather or in foul. I probable jurisdiction would note put the case down for argument. oral Wilmington Housing

No. 1449. Cohen et ux. v. Authority. Appeal Sup. Ct. Del. dismissed for jurisdiction. want Treating papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.

unduly infringe oppose rights fundamental of those whose activi- ties conduct is curbed? . . . Section 57 of the ordinance demon- strates evil to be dealt with. The means selected to curb evil have a real and sought; substantial relation to the result of, the means availed prohibition the total of all exception without from all of city, unduly the streets of infringes rights guaranteed by fundamental the New York and United Id., States 2d, Constitutions.” 289 N. Y. S. at 355-356. County For the same reason the appeal. People Court dismissed the Kearse, 58 2d Misc. 295 N. Y. S. 2d 192. 2 Comment, Judicial Control of the Curfew, Riot 77 Yale L. J. (1968); Comment, Curfew, The Riot 57 Calif. L. Rev. 450 (1969); Note, Legislation Interaction, Brooklyn L. Riots — (1969). Rev. 478-481