Le Clair v. O'Neil Jurisdictional Statement

    In the
0n;trrmr Court of tljr IHuitrii ^tatru

October T erm , 1909

no. )s,r
ANN MARIE LE CLAIR, MARY LINDA LUSK, RUTH VAD- 
NEY, JILL WATTS, WILLIAM PASTREICH, NATIONAL 
W ELFARE RIGHTS ORGANIZATION, MASSACHUSETTS 
WELFARE RIGHTS ORGANIZATION, WORCESTER W EL­
FARE RIGHTS ORGANIZATION, individually and on behalf of 

other persons simiarly situated,
APPELLANTS,

V.

GEORGE D. O ’NEIL, Chief of Police of the City of Worcester, 
WILLIAM T, BUCKLEY, District Attorney for the City of 
Worcester, ROBERT H. QUINN, Attorney General of the Com­
monwealth of Massachusetts, JOHN P. GUILFOIL, Director of 
the Worcester Welfare Service Office, ROBERT OTT, Commis­
sioner of Welfare for the Commonwealth of Massachusetts, in­

dividually and in their official capacities,
APPELLEES.

ON APPEAL. PROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF MASSACHUSETTS

JURISDICTIONAL STATEMENT

M elvyn Z aer 
A llan G. R odgers 
L awrence K otin 
B arbara S chwartzbaum 

80 Boylston Street 
Boston, Massachusetts 02116 

Of counsel: A ttorueys for Appellants
A nthony G. A msterdam 
Stephen B ardige 
A ndrew L. P hilip

Blanchard Press, Inc., Boston, Mass. —  Law Printers



INDEX

Opinion Below ...............................................................
Jurisdiction .....................................................................  ^
Statute Involved ..............................................................
Question Presented ........................................................  •’
Statement of the Case ....................................................  •“
The Federal Question Presented is Substantial

The Decision Below Seriously Undermines the Power 
and Responsibility of the Federal Courts to Protect 
Citizens From the Repressive Effects of Vague and 
Overbroad State Laws Trenching Upon First and
Fourteenth Amendment Rights ................................ 8

Conclusion .......................................................................
Appendix

Opinion of the United States District Court for the
District of Massachusetts .........................................  '"i
Judgment of the United States District Court for the 
District of Massachusetts ........................................... 10a

T able of Cases

Page

Ashton v. Kentucky, 384 U.S. 195 (1966) ..................  10
Baggett v. Bullitt, 377 U.S. 360 (1964) ................... 13, 21
Baker v. Bindner, 274 F. Supp. 658 (W.D. Ky. 1967) 24
Brown v. Louisiana, 383 U.S. 131 (1966) ....................  23
Cameron v. Johnson, 390 U.S. 611 (1968) ............... 2,18
Cantwell v. Connecticut, 310 U.S. 296 (1941) . . . .  9,11,16
Carmichael v. Allen, 267 F. Supp. 985 (N.D. Ga. 1966) 24
Commonwealth v. Oaks, 113 Mass. 8 (1873) ............. 8
Cox v. Louisiana, 379 U.S. 536 (1965) ............... 9,10,11
Dombrowski v. Pfister, 380 U.S. 479 (1965) . . .  13,15, 23



11 Index

Edwards v. South Carolina-, 372 U.S. 229 (1963) . . .  9,
10, 11, 16

Garner v. Louisiana, 368 U.S. 157 (1961) ..................  17
Golden v. Zwichler, 394 U.S. 103 (1969) ....................  22
Gregory v. Chicago, 394 U.S. I l l  (1969) ....................  13
Guyot v. Pierce, 372 F.2d 658 (5th Cir. 1967) ...........  24
Hurley v. Hinckley, 304 F. Supp. 704 (D. Mass. 1969), 

aff’d sub nom. Doyle v. O’Brien,------U .S.-------, Jan­
uary 12, 1970 ---------------------------------------------  6,16, 25

Keyishian v. Board of Regents, 385 U.S. 589 (1967) . 19
Landry v. Daley, 280 F. Supp. 968 (N.D. 111. 1968) 8, 24
Maryland Casualty Co. v. Pacific Coal and Oil Co., 312

U.S. 270 (1941) .......................................................... 22
NAACP v. Alabama, 377 U.S. 288 (1964) ................... 10
NAACP v. Button, 371 U.S. 415 (1963) . . 12,16, 20, 21
National Student Association v. Hershey, 412 F.2d

1103 (D.C. Cir. 1969) ................................................. 20
Soglin v. Kauffman, 418 F.2d 163 (7th Cir. 1969) .......  24
Terminiello v. Chicago, 337 U.S. 1 (1949) 9,11
Thornhill v. Alabama, 310 U.S. 88 (1940) ................. 13
Zwichler v. Koota, 389 U.S. 241 (1967) .......  2, 21, 23, 24
Zwichler v. Boll, 391 U.S. 353 (1968) ........................  12

Statutes

P age

28 U.S.C. §1253 ............................................................... 2
28 U.S.C. §1343(3) .........................................................  2,6
28 U.S.C. §2201 ............................................................... 6
28 U.S.C. §2281 ...............................................................  2, 6
42 U.S.C. §1983 ...............................................................  2,6
Mass. G. L. c. 266, §120..............................................  6,18
Mass. G. L. e. 272, §53 ........................................... passim



Index m

Other Authorisation
P age

Note, Declaratory Relief in the Criminal Law, 80 Harv.
L. Rev. 1490 (1967) ...................................................  22

Note, The First Amendment Overbreadth Doctrine, 83 
Harv. L. Rev. 844 (1970) 12, 13, 15, 22

President’s Commission on Law Enforcement and the 
Administration of Justice, Task Force Report, The 
Courts (1967) ........................................................  13,14



Jn
(Unitrt of tit? litnit?b ^tat?o

October T erm , 1969

No.

ANN MARIE LE CLAIR, MARY LINDA LUSK, RUTH 
VADNEY, JILL WATTS, WILLIAM PASTREICH, 
NATIONAL WELFARE RIGHTS ORGANIZATION, 
MASSACHUSETTS WELFARE RIGHTS ORGANIZA­
TION,WORCESTER WELFARE RIGHTS ORGANIZA­
TION, individually and on behalf of other persons similarly

situated,
APPELLANTS,

V.

GEORGE D. O’NEIL, Chief of Police of the City of 
Worcester, WILLIAM T. BUCKLEY, District Attorney 
for the City of Worcester, ROBERT H. QUINN, Attorney 
General of the Commonwealth of Massachusetts, JOHN 
P. GUILFOIL, Director of the Worcester Welfare Service 
Office, ROBERT OTT, Commissioner of Welfare for the 
Commonwealth of Massachusetts, individually and in their 

official capacities,
APPELLEES.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF MASSACHUSETTS

JURISDICTIONAL STATEMENT

Opinion Below

The opinion of the court below is as yet unreported 
and is set forth in the Appendix, p. la, infra..



2

Jurisdiction

Jurisdiction of this Court is invoked pursuant to 28 
U.S.C. §1253 to review the district court’s denial of in­
junctive and declaratory relief and dismissal of appellants’ 
complaint. The district court was composed of three 
judges, as required by 28 U.S.C. §2281, to hear appellants’ 
prayers for interlocutory and permanent injunctions re­
straining enforcement of a portion of a Massachusetts 
statute, Mass. 6.L. c. 272, §53, on grounds of its federal 
unconstitutionality. Original jurisdiction of the suit, 
authorized by 42 U.S.C. §1983, was conferred on the dis­
trict court by 28 U.S.C. §1343 (3).

The judgment of the court below was entered December 
31, 1969 and is set forth in the Appendix, p. 10a, infra. 
Timely notice of appeal to this Court was filed January 
26, 1970.

Cases supporting this Court’s jurisdiction are Zmckler 
v. Koota, 389 U.S. 241 (1967) ; and Cameron v. Johnson, 
390 U.S. 611 (1968).

Statute Involved

This case involves the federal constitutionality of so 
much of Mass. G.L. e. 272, §53, as proscribes “ disturbers 
of the peace.”

§53 provides:
Stubborn children, runaways, common night walkers, 
both male and female, common railers and brawlers, 
persons who with offensive and disorderly act or 
language accost or annoy persons of the opposite 
sex, lewd, wanton and lascivious persons in speech 
or behavior, idle and disorderly persons, prostitutes, 
disturbers of the peace, keepers of noisy and disorder­
ly houses and persons guilty of indecent exposure 
may be punished by imprisonment in a jail or house



3

of correction for not more than six months, or by a 
fine of not more than two hundred dollars, or by both
such fine and imprisonment.

Question Presented

Does the decision below, barring federal plaintiffs 
threatened with repeated arrest and prosecution under a 
hopelessly vague and overbroad state penal statute from 
seeking a declaratory judgment concerning its federal 
constitutionality, wTrongly abnegate the federal judicial 
power, enforced by controlling decisions of this Court, to 
protect First Amendment freedoms from such statutes'!

Statement of the Case

This is an appeal from an order of the United States 
District Court for the District of Massachusetts dismissing 
appellants’ complaint seeking 1) declaratory relief invali­
dating so much of Mass. G.L. c. 272, §53 as proscribes “ dis­
turbers of the peace”  and 2) injunctive relief against its 
further enforcement against appellants and others simi­
larly situated.

There are two classes of appellants. The first consists 
of individuals who stand charged under the challenged 
penal provision.1 The second consists of welfare rights 
organizations2 to which the individual appellants belong

1 Appellant LeClair is chairman of the Worcester Welfare Rights 
Organization (WWRO) and a recipient of Aid to Families with 
Dependent Children (AFDC). Appellants Vadney, Lusk and 
Watts are members of the WWRO, and Appellant Pastreich is an 
organizer for the parent organization, National Welfare Rights 
Organization.

2 National Welfare Rights Organization (NWRO) is a nation­
wide voluntary association composed of individual members of 
local affiliated welfare rights organizations, whose members are 
primarily women receiving AFDC. The goals of NWRO include 
adequate income for all Americans, dignity, justice and democracy.



4

and which represent the interests of “ needy mothers of 
dependent children living in Worcester [Massachusetts] 
who are . . . deterred by fear of arrest and prosecution 
[under the challenged penal provision] from participating 
in organizational and other First Amendment activities in 
the Worcester Welfare Service Office, either as members 
or prospective members of the [Worcester Welfare Rights 
Organization] or the other plaintiff organizations, or as 
nonmembers who seek information and assistance pro­
vided by plaintiffs’ activities”  (Complaint, If IV).

The following statement of facts was agreed to by coun­
sel for appellants and the Attorney General of Massachu­
setts, and accepted by the court below.

On July 3, 1969, at approximately 10:30 a.m., the five
To achieve these goals, NWRO distributes information as to the 
entitlements and rights of recipients of public assistance, provides 
technical assistance to help organize local welfare rights organiza­
tions, and serves as a center for cooperation and coordination of 
the activities of local welfare rights organizations.

Appellant Massachusetts Welfare Rights Organization (MWRO) 
is a branch of NWRO and a voluntary association of more than 
2,000 individuals in 23 local organizations throughout the Com­
monwealth of Massachusetts. Its members are primarily, but not 
solely, women with minor children receiving AFDC. The chief 
concerns of the organization are to organize recipients into local 
welfare rights organizations in order to obtain for each minor 
child the fullest and most equitable aid to which he is entitled, to 
publicize and remove the inequities and indignities in the present 
administration of the welfare law, and to inform recipients of 
public assistance of their rights and entitlements under present 
welfare law.

Appellant Worcester Welfare Rights Organization (WWRO) 
is a branch of NWRO and MWRO and a charitable corporation of 
recipients of public assistance in the City of Worcester, Massa­
chusetts. Its members are primarily women with minor children 
receiving AFDC. Its primary concern is to establish and maintain 
a local welfare rights organization so that recipients in Worcester 
can obtain for each minor child the fullest and most equitable aid 
to which he is entitled, to publicize and remove the inequities and 
indignities in the present administration of the welfare law in 
Worcester, and to inform recipients in Worcester of their full 
rights and entitlements under law.



5

individual appellants, together with two other persons 
not named in this action, entered the waiting room of the 
Worcester Welfare Service Office, located at 9 Norwich 
Street in Worcester. The waiting room is a large 
“ L ’ ’-shaped room which has several chairs placed around 
its perimeter and is separated from the actual offices and 
work area of the Welfare Department by a wall. These 
seven persons set up a folding card table near this wall, 
between the door to the inner offices and the receptionist’s 
window, in no one’s way.3 Some of them arranged piles of 
literature4 on the table and distributed it to those welfare 
recipients routinely entering the waiting room who came 
up to the table and requested information. Others affixed 
small signs to the walls of the waiting room, and one 
displayed a flag bearing the insignia of the Welfare Rights 
Organization. During the time these seven persons were 
in the waiting room, only eight to ten welfare recipients 
entered, and no more than three or four were present at 
any one time.

After approximately fifteen minutes, an employee of the 
Welfare Department entered the waiting room from the 
rear office and asked them to remove the table. When 
appellants maintained that they needed the table to dis­
tribute their literature, this employee indicated that they 
would be arrested if they did not comply with his request. 
Shortly thereafter, two uniformed officers arrived and re­
newed the employee’s request. When the table was not 
removed, appellants were placed under arrest. They went

3 No employees of the Welfare Department work in the waiting 
room.

4 This literature consisted of copies of the “ Massachusetts Wel­
fare Rights Handbook” , a manual which employs a simple text, 
cartoons, and sample request forms explaining' welfare benefits; 
household supply request forms; and copies of “ Now — Goals of 
the Welfare Rights Organization” .



6

with the officers quietly and without incident, at about 
11:30 a.m.

As the court below found, the arrest and prosecution 
of these appellants was predicated solely upon their in­
sistence on quietly maintaining the folding card table in 
a nonobstructive place in the waiting room to facilitate their 
distribution of welfare rights literature (Appendix pp. 3a- 
4a, infra). Nevertheless, in addition to the charge of tres­
pass lodged against the individual appellants pursuant to 
Mass. G. L. c. 266, §120,5 they were additionally charged 
with being “ disturbers of the peace”  under Mass. G.L. c. 
272, §53.

On July 14, 1969, appellants filed their complaint in the 
court below, pursuant to 42 U.S.C. §1983 and 28 U.S.C. 
§§1343 (3), 2201 and 2281, seeking a declaratory judgment 
invalidating the “ disturbers of the peace”  law and pre­
liminary and permanent injunctions restraining appellees’ 
enforcement of it against the individual appellants and 
against other members and prospective members of the 
appellant organizations. Appellants claimed that the “ dis­
turbers of the peace”  law was vague and overbroad. The 
vagueness claim — that the law “ does not give sufficient 
notice as to the limits of permissible behavior”  -— was 
stated in the following terms (Complaint, If VI A) :

The statute is unclear as to the scope of the limitations 
which it imposes on plaintiffs’ ability to carry on or­
ganizational and other First Amendment activities 
and to petition government officials within a waiting 
room of a public office, and this vagueness has a chill­
ing effect on plaintiffs’ exercise of their First Amend­
ment rights. The statute has not been clarified by any

5 This trespass law had only recently been sustained against fed­
eral constitutional attack by another three judge panel of the dis­
trict court. Hurley v. Hinckley, 304 F. Supp. 704 (D. Mass. 1.969), 
aff’d sub nom. Doyle v. O’Brien, -------U .S .------- , January 12, 1970.



7

decision of the Massachusetts courts, nor is there any 
readily apparent construction which suggests itself as 
a vehicle for rehabilitating the vague language of the 
statute in a single prosecution.

The overbreadth claim was stated principally in terms 
of the repressive effect of the law on persons not yet ar­
rested or prosecuted under it. These persons — whether 
members of the appellant organizations who are deterred 
by the law from engaging in associational or educational 
activities or nonmembers who are deterred “ from joining 
by the inhibition of [the individual appellants’ ] rights and 
are . . . denied access to information which WWRO has 
sought to make available to them”  (Complaint, If VI B) 
— are in a peculiary vulnerable position as respects the 
law’s overbroad sweep.6

Appellees moved to dismiss, challenging, inter alia, the 
standing of the appellant organizations to seek injunctive 
relief restraining the pending prosecutions against the in­
dividual appellants. No challenge was raised to the stand­
ing of any of the appellants to seek declaratory relief in­
validating the penal provision or to seek injunctive relief 
restraining its future enforcement. Nevertheless, the court 
below, ex mero motu, held that neither the individual ap­
pellants nor the organizational appellants had standing to 
seek that relief. It reached that result by holding: 1) That 
the individual appellants had no standing to seek any 
relief whatever because of the nature of their conduct; and 
2) for reasons not clear from its opinion, that “ no valid 
distinction relating to standing may, in our view, be drawn 
between the various [appellants] ”  (Appendix, p. 2a, infra). 
Accordingly, it dismissed the complaint.

6 An amended complaint, filed August 2, 1969, challenged the 
law enforcement officers’ good faith in adding on this second 
charge to what was no more than a simple trespass case.



8

Believing that this novel restriction on access to the 
federal courts unjustifiably impedes the protection due 
freedoms of association and expression and conflicts with 
controlling decisions of this Court, appellants prosecute 
the instant appeal.

The Federal Question Presented is Substantial

The Decision Below Seriously Undermines the Power 
and Responsibility of the Federal Courts to Protect Citi­
zens From the Repressive Effects of Vague and Overbroad 
State Laws Trenching Upon First and Fourteenth Amend­
ment Rights.

Appellants begin with the statute which the decision 
below insulates from federal constitutional scrutiny. The 
portion of Mass. G. L. c. 272, §53 proscribing “ disturbers 
of the peace”  is an obviously vague and overbroad penal 
law burdening freedom of expression.

The statute as a whole — “ a charming grabbag of crimi­
nal prohibitions” 7 — was amended in 1943 to introduce 
the challenged provision.8 Since then, the provision has 
received no appellate interpretation. Nor had its common- 
law antecedents received any very illuminating treatment 
by the Massachusetts courts. No case in this century has 
been found which sets forth the elements of the crime.

The leading case, now nearly a century old, appears to 
be Commonwealth v. Oaks, 113 Mass. 8 (1873). There, the 
defendant was convicted of being a “ disturber of the 
peace”  for shouting in the street. The Supreme Judicial 
Court of Massachusetts affirmed his conviction, giving the 
crime the following authoritative interpretation: a “ dis­

7 Landry v. Daley, 280 F. Supp. 968, 969 (N.D. Til. 1968). The 
full text of the statute is set forth at pp. 2-3, supra.

8 St. 1943, e. 377.



9

turber of the peace”  is one whose acts “ are of such nature 
as tend to annoy all good citizens, and do in fact annoy 
any one present and not favoring them”  (113 Mass, at 9).

The challenged statutory provision, as thus authorita­
tively construed, offends numerous decisions of this Court 
safeguarding freedom of expression from laws such as 
these, viz., laws “ sweeping in a great variety of conduct 
under a general and indefinite characterization, and leav­
ing to the executive and judicial branches too wide a dis­
cretion in [their] . . . application.”  Cantwell v. Connecti­
cut, 310 U.S. 296, 308 (1941). See also Terminiello v. Chi­
cago, 337 U.S. 1 (1949); Edwards v. South Carolina, 372 
TJ.S. 229 (1963); Cox v. Louisiana, 379 U.S. 536 (1965).

In Terminiello, this Court reversed a conviction for dis­
orderly conduct, obtained after the trial judge’s charge had 
permitted the jury to convict Terminiello “ if his speech 
stirred people to anger, invited public dispute or brought 
about a condition of unrest”  (337 U.S. at 5). This Court 
held that “ a conviction resting upon any of those grounds 
may not stand”  (337) U.S. at 5), stating:

[A] function of free speech under our system of 
government is to invite dispute. It may indeed best 
serve its high purpose when it induces a condition of 
unrest, creates dissatisfaction with conditions as they 
are, or even stirs people to anger. Speech is often 
provocative and challenging. It may strike at preju­
dices and preconceptions and have profound unset­
tling effects as it presses for acceptance of an idea 
(337 U.S. at 4).

Terminiello was followed in Edwards v. South Carolina., 
supra, in which this Court reversed the breach of the peace 
convictions of about 200 demonstrators who had marched 
to the state Capitol in Columbia, South Carolina to petition



10

for redress of racially discriminatory practices. The city 
manager of Columbia described their conduct as “ bois­
terous” , “ loud” , and “ flamboyant” , consisting of a “ re­
ligious harangue”  by one of their leaders and the loud 
singing of patriotic and religious songs, accompanied by 
the stamping of feet and the clapping of hands (372 U.S. 
at 233). Their conduct, albeit noisy and some impediment 
to traffic, was peaceful and non-violent. They were arrested 
and convicted of common law breach of the peace, a crime 
“ not susceptible of exact definition”  (372 U.S. at 231). 
This court reversed, holding that the common law crime 
was too vague and indefinite to permit the punishment of 
conduct so intimately related to the First Amendment free­
doms of free speech, peaceable assembly and petition for 
redress of grievances (372 U.S. at 237-38).

Edwards was followed in Cox v. Louisiana, supra, in 
which this Court invalidated Louisiana’s breach of the 
peace statute, construed as punishing any act tending “ to 
agitate, to arouse from a state of repose, to molest, to in­
terrupt, to hinder, to disquiet.”  This Court held: “  [A]s in 
Terminiello and Edwards, the conviction under this statute 
must be reversed as the statute is unconstitutional in that 
it sweeps within its broad scope activities that are constitu­
tionally protected free speech and assembly”  (379 U.S. 
at 552).

Under these decisions, the “ disturbers of the peace”  
law, making criminality turn on witnesses ’ annoyance, ‘ ‘ in­
volves calculations as to the boiling point of a particular 
person or a particular group”  (Ashton v. Kentucky, 381 
U.S. 195, 200 (1966)) and thus must be condemned for over- 
breadth. Here as in NAACP v. Alabama, 377 U.S. 288, 307 
(1961), in seeking “ to control or prevent activities consti­
tutionally subject to state regulation” , the law employs 
“ means which sweep unnecessarily broadly and thereby 
invade the areas of protected freedoms” .



11

But the court below refused to invalidate this law, hold­
ing that none of the appellants had standing to seek a de­
claratory judgment invalidating it. There were essentially 
three components of that decision :

1) The court below held that that the challenged pro­
vision was “ general, and not specifically directed against 
speech”  as distinguished from statutes “ in terms. . .over- 
broadly directed against speech,”  (Appendix, pp. 7a-8a, 
infra) ;

2) The court below held that the individual appellants 
were guilty of “ hard-core conduct”  and thus were de­
barred from seeking federal declaratory or injunctive 
relief; and

3) The court below held that the appellant organiza­
tions had no greater claim than the individual appellants 
to standing to seek federal declaratory or injunctive relief.

A. The court’s distinction between statutes “ in terms 
. . .overbroadly directed against speech”  and “ general”  
statutes “ not specifically directed against speech”  (Ap­
pendix, pp. 7a.-8a, infra) cannot save the challenged provi­
sion. Neither in Cantwell nor Terminiello nor Edwards nor 
Cox was the penal provision “ in terms”  directed against 
freedom of expression. In Cox, for example, the statute 
was generally phrased in terms of any act which produced 
the proscribed result of arousing, molesting, disquieting, 
etc. Nevertheless, it was struck down because of its sus­
ceptibility to infringe First Amendment rights.

The distinction drawn below betrays a misunderstand­
ing of the rationale of this Court’s overbreadth decisions. 
These decisions do not depend upon the circumstances that 
a statute is “ in terms”  overbroadly directed against 
speech. Rather, they are concerned with any statute whose 
sphere of operation includes and overreaches constitution­
ally protected speech, and which — through lack of the



12

“ narrow specificity”  required of regulations that operate 
in this area — is “ susceptible of sweeping and improper 
application.”  NAACP v. Button, 371 U.S. 415, 432-433 
(1963). This rationale was stated with clarity in Button, 
supra, 371 U.S. at 432-33:

[I]n appraising a statute’s inhibitory effect upon. . . 
rights [of free expression], this Court has not hesi­
tated to take into account possible applications of the 
statute in other factual contexts besides that at bar 
. . .The objectionable quality of vagueness and over­
breadth does not depend upon absence of fair notice 
to a criminally accused or upon unchannelled delega­
tion of legislative powers, but upon the danger of 
tolerating, in the area of First Amendment freedoms, 
the existence of a penal statute susceptible of sweep­
ing and improper application. . . .Because First 
Amendment freedoms need breathing space to sur­
vive, government may regulate in the area only with 
narrow specificity.

To require that a statute be directed “ in terms”  against 
speech is to ignore the fact that many statutes which are 
susceptible of sweeping and improper application trench­
ing upon freedom of expression are so hopelessly vague — 
like this one — that it is impossible to discern what, if any­
thing, they are directed against.9

9 It is discernible that ‘ ‘ such statutes historically have been 
used in reprisal against unpopular groups or persons who espouse 
unpopular causes. Cf. Brown v. Louisiana, 383 U.S. 131; Cox v. 
Louisiana, 379 U.S. 536; Taylor v. Louisiana, 370 U.S. 154; Gar­
ner v. Louisiana, 368 U.S. 157.”  Zwicker v. Boll, 391 U.S. 353, 354 
(1968) (dissenting opinion of Mr. Justice Douglas).

See also Note. The First Amendment Overbreadth Doctrine, 83 
Harv. L. Rev. 844, 861, n. 67 (1970) :

The distinction between “ by terms”  and “ general”  laws is 
highly formalistic and rather elusive. How, for example,



13

The doctrines of vagueness and overbreadth are not un­
related, for both respond to sweeping state regulations 
that have the vice of leaving too much discretion in the 
control of expression to the police, prosecutors and the 
courts. The mere presence of such statutes on the books — 
their “ existence”  (NAACP v. Button, supra, 371 IT.S. at 
433) — has a tendency to frighten off free expression by 
requiring the citizen to steer far clear of the danger zone. 
See, e. g., Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940) ; 
Baggett v. Bullitt, 377 U.S. 360, 378-79 (1964); Dombrow- 
ski v. Pfister, 380 IT.S. 479, 494 (1965). Finally, such laws 
raise a threat to the very principle of legality itself.

[UJnder our democratic system of government, law­
making is not entrusted to the moment-to-moment
judgment of the policeman on his beat.......... To let a
policeman’s command become equivalent to a criminal 
statute comes dangerously near making our govern­
ment one of men rather than of laws. . .There are 
ample ways to protect the domestic tranquility with­
out subjecting First Amendment freedoms to such a 
clumsy and unwieldy weapon (Gregory v. Chicago, 
394 IT.S. I ll , 120-21 (1969) (concurring opinion of 
Mr. Justice Black)).

The disadvantages to the community of tolerating these 
laws on the books have long been recognized by legal schol­
ars; only recently they were reiterated by the President’s 
Commission on Law Enforcement and the Administration 
of Justice in its Task Force Report, The Courts, pages 
103-04 (1967);

should laws punishing improper solictitation of legal busi­
ness be categorized? Cf. NAACP v. Button, 371 U.S. 415 
(1963) (barratry law as construed held void for overbreadth).



14

Foremost among its disadvantages is that it consti­
tutes an abandonment of the basic principle upon 
which the whole system of criminal justice in a demo­
cratic community rests, close control over exercise of 
the authority delegated to officials to employ force and 
coercion. This control is to be found in carefully de­
fined laws and in judicial and administrative account­
ability. The looseness of the laws constitutes a charter 
of authority on the street whenever the police deem it 
desirable. The practical costs of this departure from 
principle are significant. One of its consequences is to 
communicate to the people who tend to be the object 
of these laws the idea that law enforcement is not a 
regularized, authoritative procedure, but largely a 
matter of arbitrary behavior by the authorities. The 
application of these laws often tends to discriminate 
against the poor and subcultural groups in the popu­
lation. It is unjust to structure law enforcement in 
such a way that poverty itself becomes a crime. And 
it is costly for society when the law arouses the feel­
ings associated with these laws in the ghetto, a sense 
of persecution and helplessness before official power 
and hostility to police and other authority that may 
tend to generate the very conditions of criminality 
society is seeking to extirpate.

B. The high social and legal cost that attends the ex­
istence of these laws requires a more effective judicial 
remedy than mere reversal of criminal convictions arising



15

under them: they must be expunged altogether.10 This 
court has plainly recognized that point by relaxing tradi­
tional rules of standing in cases where such laws are chal­
lenged under the First Amendment. We must be quick to 
concede with the court below that “  [t]he extent of accept­
able relaxation has never been precisely defined”  (Appen­
dix, p. 7a, infra). Nevertheless, the Court has insisted that 
standing doctrines be adapted to favor challenges to vague 
and overbroad statutes that may jeopardize First Amend­
ment freedoms.

We have consistently allowed attacks on overly broad 
statutes with no requirement that the person making 
the attack demonstrate that his own conduct could not 
be regulated by a statute drawn with the requisite 
narrow specificity . . . By permitting determination of 
the invalidity of these statutes without regard to the 
permissibility of some regulation on the facts of par­
ticular cases, we have, in effect, avoided making vin­
dication of freedom of expression await the outcome 
of protracted litigation (Dombrowski v. Pfister, 380 
U.8. 479, 486-87 (1965)).

10 See Note, The First Amendment Overbreadth Doctrine, 83 
Harv. L. Rev. 844, 874-75 (1970) :

[W]hen analysis . . .  is focused on the judicial process neces­
sary to cure either statutory vagueness or statutory over­
breadth, the two constitutional vices appear in practice to 
merge. If a vague statute is not held bad on its face, it is re­
mitted to a process of hammering out the limits of interven­
tion under the impact of particular fact situations in the 
expectation that over time a core of definite coverage will 
take shape by accretion. But a prolonged and costly process 
of bringing clarity to statutory commands, like the uncertain 
process of case by case excision, holds preferred freedoms in 
abeyance for an indefinite period and tolerates the intimida­
tion of protected activity caused by a law whose (literal or 
permissible) scope is uncertain. Thus the doctrines of vague­
ness and overbreadth supply identical considerations militat­
ing against piecemeal judicial rehabilitation of statutes when 
preferred rights are at stake



16

But what the court below has done is to turn this Court’s 
doctrine on its head: it has specifically required of the in­
dividual appellants that they demonstrate that their own 
conduct could not be regulated by a more narrowly drawn 
statute. It has refused “ to take into account possible ap­
plications of the statute in other factual contexts besides 
that at bar”  (NAACP v. Button, supra, 371 U.S. at 432). 
It has refused to recognize that the statute “ may be invalid 
if it prohibits privileged exercises of First Amendment 
rights whether or not the record discloses that the [indi­
vidual appellants have] engaged in privileged conduct”  
{ibid.).

The court below reached this wrong result by asking the 
wrong threshold question. It posed this question as 
“ whether plaintiffs had a constitutional right to erect a 
table in the waiting room in connection with their distrib­
uting literature and their efforts to organize welfare recipi­
ents”  (Appendix, p. 4a, infra). It held that they did not, and 
then refused to allow them “ to argue that in factual situ­
ations not presented by [this] case enforcement of the 
statute would pass the bounds of state power”  (Appendix, 
p. 5a, infra).

We may assume, for purposes of this case, that appel­
lants did not have “ a constitutional right”  to erect their 
table to distribute literature immune against regulation 
or even prohibition under a narrowly drawn statute such 
as a trespass law.11 But neither did the protestors in, say, 
Cantwell or Edivards have “ a constitutional right”  to en­
gage in their activities immune against all manner of crim­
inal sanctions, however narrowly drawn. In Edwards, this

11 The individual appellants have been convicted of trespass, and 
we may assume for purposes of this decision that this narrowly 
drawn penal provision passes constitutional muster and may be 
constitutionally applied to their activities. See Hurley v. Hinckley, 
304 F. Supp. 704 (D. Mass. 1969) (3 judge court) aff’d sub noun.
Doyle v. O’Brien, ——  U .S .-----38 U.S. L.W. 3253, January 12,
1970.



17

Court distinguished the case before it from one involving 
“ the evenhanded application of a precise and narrowly 
drawn regulatory statute evincing a legislative judgment 
that certain specific conduct be limited or proscribed. If, 
for example, the petitioners had been convicted upon evi­
dence that they had violated a law regulating traffic, or 
had disobeyed a law reasonably limiting the periods during 
which the State House grounds were open to the public, 
this would be a different case. See Cantwell v. Connecticut, 
310 U.S. 296, 307-08. . .; Garner v. Louisiana, 368 U.S. 157, 
207 . . . (concurring opinion) ”  12

But the individual appellants do have “ a constitutional 
right”  not to be additionally subjected to an amorphous 
criminal prohibition like “ disturbers of the peace.”  More 
than that, they have a right under controlling decisions of 
this Court to seek to invalidate that vague and overbroad 
law. And quite apart from the matter of the standing of 
the individual appellants to do so, the appellant organiza­
tions have standing to seek the latter relief.

C. Although the court below should have taken into 
account “ possible applications of the statute in other fac­
tual contexts besides that at bar” , the law’s application 
even in this context reveals its susceptibility to abuse. The 
gravamen of the charge against the individual appellants 
is simply that they quietly set up a folding card table 
against one wall of the welfare office waiting room in order 
to facilitate their distribution of welfare rights literature 
(see Appendix, pp. 3a.-4a, infra). For this, they were ar­
rested, charged with and convicted of trespass — properly, 
we assume, see note 11, supra.

12 Mr. Justice Harlan’s concurring opinion in Garner stressed 
that the vagueness and overbreadth doctrines “ demand of the 
state legislature that it focus on the nature of the otherwise “ pro­
tected”  conduct it is prohibting, and that it then make a legislative 
judgment as to whether that conduct presents so clear and present 
a danger to the welfare of the community that it may legitimately 
be criminally proscribed” . (368 U.S. at 203).



18

But in addition to this charge, the appellee officers lodged 
a second, more serious,13 charge against the individual ap­
pellants. It is hard to escape the conclusion that this second 
charge — of being “ disturbers of the peace”  — added 
nothing to the first but a broad, drastic, efficacious damper 
upon unpopular expression. One might well question the 
good faith of the officers in invoking, cumulatively, this 
second vague, menacing charge.14 But proving the officers’ 
bad faith would be a different matter for, under this 
Court’s decision in Cameron v7. Johnson, 390 U.S. 611, 621 
(1968), the individual appellants would have to show that 
the officers added on the second charge against them “ with 
no expectation of convictions.”

The very impossibility of such a showing points up the 
repressive potential of the charge and the statute on which 
it rests. “ Disturbers of the peace”  is so vague and over­
broad a penal provision that conviction under it would in­
variably be possible. All that police officers or welfare offi­
cials are required to do in order to make out a case against 
the individual appellants is to testify that they were an­
noyed by and did not favor their demonstration (See pp. 
8-9, supra,).15

13 Trespass carried only a small maximum fine at the time, where­
as the “ disturbers of the peace”  provision carries a maximum 
penalty of six months in jail and a $200 fine (see Appendix, p.
2a, infra).

14 See appellants’ amended complaint, discussed, supra, at note 6.
15 Subsequent to the decision below, on February 17, 1970, four 

of the five individual appellants were tried in Worcester’s no-record 
court. That court refused to entertain these appellants’ federal 
constitutional claims, ruling that they were in the exclusive pro­
vince of higher courts. Simply upon the testimony of a welfare 
official that the quiet presence of these appellants disturbed the 
decorum of the welfare office by attracting the attention of his 
subordinates, three of these appellants (LeClair, Lusk and Pas- 
treich) were convicted. They have claimed an appeal to the crim­
inal court of record for a trial de novo. The fourth appellant — 
Jill Watts —  was acquitted on precisely the same testimony.



19

And that same kind of testimony could lead to the arrest, 
prosecution and conviction of the individual appellants or 
of other members or prospective members of the organiza­
tional appellants were they to engage in any of a range 
of associational and educational activities in connection 
with their welfare rights campaign. For example, that 
same kind of testimony could lead to their arrest, prose­
cution and conviction if they were to peacefully and non- 
obstrucively distribute their literature outside the welfare 
office.16

That is precisely why the appellant organizations, quite 
apart from the individual appellants, have standing to 
raise the possible, mischievous applications of the statute 
that menace a wide range of their privileged activities. 
The gravamen of their claim is that needy mothers of de­
pendent children in Worcester, Massachusetts, who have 
not been arrested or prosecuted “ are deterred by fear of 
arrest and prosecution [under §53] from participating in 
organizational and other First Amendment activities in 
the Worcester Welfare Service Office, either as members 
or prospective members of the WWRO or the other [ap­
pellant] organizations, or as nonmembers who seek infor­
mation and assistance provided by appellants’ activities.”  
(Complaint, U IV). Moreover those persons “ who are 
not members of a welfare rights organization are being 
restrained from joining by the inhibition of [appellants’] 
rights, and are also being denied access to information 
which WWRO has sought to make available to them”  
(Complaint, 1J VI B).

In dismissing the complaint on the papers, the court 
below could not have treated these allegations as frivolous

16 “  It is no answer to say that the statute would not be applied 
in such a case.”  (Keyishian v. Board of Regents, 385 II.S. 589, 
599 (1967)), for as long as the possibility exists, the statute poses 
a danger to First Amendment freedoms, see Part A, supra.



20

in law or in fact; indeed, the application of the ‘ ‘ disturb­
ers of the peace”  provision by the Worcester police seems 
to have triggered its subsequent use by four other police 
departments against persons connected with the Massachu­
setts Welfare Rights Organization.

Decisions of this Court make clear that these organi­
zations have standing to assert the constitutional rights 
of their members, prospective members and those they 
seek to serve. See NAACP v. Button, supra, 371 U.S. at 
428.17 See also National Student Association v. Hershey, 
412 F.2d 1103, 1120-21 (D.C. Cir. 1969). The practical rea­
son why the appellant organizations have standing to 
challenge the law is simply that they are in the best posi­
tion to demonstrate the drastic damper that the law im­
poses on the whole range of their associational and educa­
tional activities. Prosecution or conviction under this law 
does not constitute the central threat to these activities. 
Rather, the central threat is posed by the law’s potential 
and actual use to terminate expression through police ac­
tion. As far as the First Amendment is concerned, the 
damage is done when the expression is terminated.

This is so for the obvious reason that expression de­
signed to protest social ills or to stimulate social change 
must be timely to be effective. Activities such as appel­
lants’ must be carried on while the political and social is­
sues they address are alive and the authorities and the 
public are sensitive to them. If peaceful change through 
political persuasion is to remain a possibility in our so­
ciety, a minority’s capacity to carry its just moral claims 
to the public must not be crippled. Arrest, without more, 
has that crippling effect.

17 The similarity of appellants’ nascent associational activities to 
those of labor or civil rights groups is striking, but need not be 
pursued at length here.



21

If the police can terminate privileged activities and ar­
rest the persons involved, First Amendment rights mean 
little. Of course, those arrested may interpose the First 
Amendment as a defense: their prosecutions may later be 
dropped; they may be acquitted; or they may have their 
convictions reversed on appeal. But the damage will have 
been done; their privileged activities will have been ter­
minated and their communication frustrated at the only 
time when it was meaningful. It is in this intensely prac­
tical sense that freedoms of association and expression 
“ are delicate and vulnerable, as well as supremely precious 
in our society.”  NAACP v. Button, supra, 371 IT.S. at 433.

If First Amendment freedoms are to be real and not 
merely academic, they must encompass the right to engage 
in the protected activity itself: they must protect mem­
bers and sympathizers of the appellant organizations from 
arrest and other police interference. That protection can 
only be amply afforded by striking at the source of the 
overhanging threat — the illegal laws themselves, which 
grant to the police censorial discretion over the citizen’s 
fundamental freedoms. This Court’s observation in Bag­
gett v. Bullitt, 377 U.S. 360, 373 (1964) is squarely in 
point: “ Well-intentioned prosecutors and judicials safe­
guards do not neutralize the vice of a vague law. ’ ’

D. This Court has repeatedly reaffirmed the protective 
jurisdiction of the federal courts to provide declaratory 
relief invalidating just such laws. In ZwicMer v. Koota, 
(ZwicMer 1), 389 U.S. 241 (1967), the Court reaffirmed the 
primary role of the federal judiciary in deciding questions 
of federal law, particularly questions concerning the con­
stitutionality of a state statute on its face for repugnancy 
to the First Amendment. “ In such case to force the plain­
tiff who has commenced a federal action to suffer the delay 
of state court proceedings might itself effect the imper­
missible chilling of the very constitutional right he seeks



22

to protect.”  (389 TT.S. at 252). Accord, Cameron v. John­
son, 390II.S. 611, 615 (1968).

Of course, not everyone has standing to challenge such 
a statute, even though society’s stake in its invalidation 
is large. Thus, this Court has required that the issue of the 
statute’s validity be more than just an abstract question: 
it “ must be presented in the context of a specific live griev­
ance.”  Golden v. Zwickler (Zwickler II),  394 U.S. 103, 110 
(1969).18 But this requirement is nothing more than the 
basic notion of justiciability, enunciated in Maryland Cas­
ualty Go. v. Pacific Coal and Oil Co., 312 U.S. 270, 273 
(1941) as:

Basically the question in each case is whether the facts 
alleged, under all the circumstances, show that there 
is a substantial controversy, between parties having 
adverse legal interests, of sufficient immediacy and 
reality to warrant the issuance of a declaratory judg­
ment.

The present case plainly meets that test, for we take it 
to be indisputable that there is a real, substantial and im­
mediate controversy between the parties as to the validity 
of the “ disturbers of the peace”  provision.19 The court 
below found nothing to the contrary. But it proceeded to 
introduce a new, more restrictive test phrased in terms of 
standing — a test which it thought justified by certain

18“ [T]he standing objection survives to protect court and 
prosecutor from idle litigation from the unharmed, merely curious 
or truculent citizen. ”  Note, Declaratory Belief in the Criminal Law, 
80 Harv. L. Rev. 1490, 1509 (1967).

19 See Note, The First Amendment Overbreadth Doctrine, 83 
Harv. L. Rev. 844, 909 (1970), which argues that “ a party’s 
‘ standing ’ to assert overbreadth should be dependent on the same 
factors which determine whether the challenged statute should be 
invalidated on its face or not. ’ ’



passing references of this Court to the term “ hard-core 
conduct” .20

Appellants do not doubt or deny the validity of some 
such restriction upon justiciability (or standing) as is ex­
pressed by the “ hard-core”  concept. We may assume that 
if the individual appellants had thrown their card table or 
their literature about the welfare office a different case 
would be presented from the case at bar. This would be so, 
simply, because the application of the “ disturbers”  stat­
ute to extreme conduct of that sort could not possibly signal 
any overhanging threat of the law’s use within the scope 
of First Amendment concern. But if the phrase “ hard­
core conduct”  has—as we think it does—the utility of 
making this point, it also has considerable ambiguity. 
Misunderstood and extravagantly employed as it was be­
low, the “ hard-core”  notion trenches deeply on the con­
trolling, protective decisions of this Court discussed in 
parts B and C, supra. So used, it threatens broadside 
abridgement of vital procedural safeguards devised by the 
court to protect First Amendment freedoms from the 
destructive impact of vague and overbroad penal provi­
sions such as that under attack here.

The subversive effect of this novel limitation of the 
federal protective jurisdiction is nicely illustrated by ap­
plying the reasoning of the court below to ZwicMer I. Un­
der the “ hard-core”  test of standing used below, Zwickler 
would have been forclosed from seeking declaratory relief 
against the anonymous handbill statute if, for example, 
he had also engaged in conduct justifying a charge of 
littering. He would thereby have been guilty of “ hard­
core conduct”  within the lexicon of the court below: i.e., 
conduct which could be reached by a law drawn with the 
“ requisite narrow specificity”  (Bombrowski, supra, 380

20 See Bombrowski v. Pfister, supra, 380 U.S. at 491-92; Brown 
v. Louisiana, 383 U.S. 131, 142 (1966) (concurring opinion).



24

U.S. at 486). Accordingly lie would have been denied 
standing to challenge even a statute not so drawn.

But in ZwicJcler I, there was no inquiry by this Court 
as to whether Zwickler’s activities might have been regu­
lated by a more narrowly drawn statute. Indeed, in the 
subsequent case of Cameron v. Johnson, supra, the Court 
upheld a challenged statute, together with the appellants’ 
standing to challenge it, while at the same time implying 
that that very statute could validly be applied to their ac­
tivities.

The court below conceded (Appendix, p. 8a, supra) 
that its decision brought it into conflict with numerous deci­
sions of other lower federal courts. See, e.g., Baker v. Bind- 
ner, 274 F. Supp. 658 (W.D. Ky. 1967) (3-judge court) ; 
Carmichael v. Allen, 267 F. Supp. 985 (N.D. Ca. 1966) 
(3-judge Court); Lanclry v. Daley, 280 F. Supp. 968 (N.D. 
111. 1968). The conflict is real indeed, generated by those 
courts’ firm adherence to the controlling decisions of this 
Court previously cited. And recently the Court of Ap­
peals for the Seventh Circuit decisively rejected an at­
tempt to give the “ hard-core doctrine”  the interpretation 
adopted by the court below. Soglin v. Kauffman, 418 F.2d 
163, 166 (7th Cir. 1969).

The court below offered no considerations of policy to 
justify its extension of the “ hard-core”  concept so as to 
undercut such decisions of this Court as ZwicMer I, nor 
did it appear to recognize the mischievous effect its ruling 
would have upon the federal protective jurisdiction that 
is indispensable to safeguard First Amendment freedoms 
against vague and overbroad state penal laws. Indeed 
the principal effect of the ruling below is to “ only delay 
the drafting and enactment of [a statute] which in a con­
stitutional manner wouuld protect legitimate regulation 
of the activities here involved.”  Guyot v. Pierce, 372 F.2d



25

658, 663 (5th Cir. 1967).21 The decision below is unsup­
ported by reason or policy, destructive of vital First 
Amendment safeguards, and in conflict, with controlling 
decisions of this Court. It urgently requires correction 
by this Court.

Conclusion

For the foregoing reasons, appellants pray that prob­
able jurisdiction be noted.

Respectfully submitted,

M elvyn Z arr 
A llay  Gf. R odgers 
L awrence K otin 
B arbara S chwartzbaum 

80 Boylston Street 
Boston, Massachusetts 02116 

Attorneys for Appellants
Of Counsel:

A nthony Gf. A msterdam 
S tephen B ardige 
A ndrew L. P hilip

21 Indeed, in Hurley v. Hinckley, supra, noted in the decision 
below, Appendix, p. 2a, infra, another three-judge panel of the 
Massachusetts District Court reached and decided the question 
of the validity of the Massachusetts trespass statute, in a suit 
brought by welfare rights demonstrators charged for activities 
much more instrusive upon the routine of the welfare office than 
those of the individual appellants here. The district court held 
the statute constitutional and this Court summarily affirmed, 
Doyle v. O’Brien, ——  U .S .------ , January 12, 1970.



la

APPENDIX

Opinion of the United States District Court 
For the District of Massachusetts

Civil Action No. 69-748-J

U nited S tates D istrict Court 
D istrict op Massachusetts

A nn  M arie L eClair, M ary L inda L usk , R uth  Y adney, 
■Jill W atts, W illiam  P astreich, National W elfare 
R ights Organization, M assachusetts W elfare R ights 
Organization, W orcester W elfare R ights Organization, 
individually and on behalf of other persons similarly

situated,
v.

George D. O ’Neil, Chief of Police of the City of Worcester, 
W illiam  T. B uckley', District Attorney for the City of 
Worcester, R obert H. Qu in n , Attorney General of the 
Commonwealth of Massachusetts, J ohn P. Guilfoil, Di­
rector of the Worcester Welfare Service Office, R obert 
Ott , Commissioner of Welfare for the Commonwealth of 
Massachusetts, individually and in their official capacities,

DEFENDANTS.

Before A ldrich, Circuit Judge,
J ulian and Garrity, District Judges.

OPINION 
December 23, 1969

A ldrich , Circuit Judge. Before isolating the ques­
tions of standing which we find determinative of this case 
in which three judges in the District of Massachusetts are 
asked to consider the constitutionality of a Massachusetts 
disturbing-the-peace statute, a detailed statement of the 
facts and background would be appropriate.



2a

On June 20, 1969 another panel of three judges sitting 
in this district in the ease of Hurley v. Hinckley, Chief of 
Police, 304 F. Supp. 704, a class suit brought by and on 
behalf of plaintiffs similar to those presently at bar, 
held that Mass. Gr.L. c. 266, § 120, a criminal trespass 
statute, hereafter § 120, did not violate due process because 
of vagueness and overbreadth, or unconstitutionally limit 
the plaintiffs’ First Amendment rights sought to be exer­
cised in a Welfare Service Office. On July 3, 1969 the pres­
ent plaintiffs engaged in activities more fully described 
hereafter, in another Welfare Service Office, and refused 
to desist from certain conduct until the police were called. 
On July 5 they were charged in a local court with trespass 
under § 120, and with being “ distributors of the peace,”  
under Mass, Gr.L. c. 272, § 53.1 Section 53 carries a maxi­
mum penalty of six montlis in jail, and a $200 fine where­
as 4 120 carries only a small fine. Trial was set for both 
sets of cases on July 17.

On July 14 plaintiffs filed the present complaint. The 
defendants moved to dismiss,2 but stipulated that the prose­
cution under § 53 would be postponed until further notice. 
After the three-judge court was constituted defendants 
were temporarily restrained from prosecuting the § 53

1 “ Stubborn children, runaways, common night walkers, both 
male and female, common railers and brawlers, persons who with 
offensive and disorderly act or language accost or annoy persons 
of the opposite sex, lewd, wanton and lascivious persons in speech 
or behavior, idle and disorderly persons, prostitutes, disturbers of 
the peace, keepers of noisy and disorderly houses and persons 
guilty of indecent exposure may be punished by imprisonment in 
a jail or house of correction for not more than six months, or by 
a fine of not more that two hundred dollars, or by both such fine 
and imprisonment.”

2 While defendants ’ motion to dismiss challenges the standing 
only of plaintiffs not being prosecuted in the state court, the argu­
ment at the hearing encompassed all plaintiffs. As explained infra, 
no valid distinction relating to standing may, in our view, be drawn 
between the various plaintiffs.



3a

actions until further order of court, and after hearing, a 
temporary injunction was entered to the same effect. On 
this same day the court heard defendants’ motion to dis­
miss. Meanwhile, plaintiffs had been convicted of tres­
pass under § 120, from which they have claimed an appeal.

The complaint alleges that four of the plaintiffs are 
members of the Worcester (Massachusetts) Welfare Rights 
Organization, (WWRO), a branch of geographically larger 
organizations, and that one is a Worcester recipient of Aid 
to Families with Dependent Children. The fifth plain­
tiff, William Pastreich, is a paid organizer. The defend­
ants are the Worcester Chief of Police, the District Attor­
ney, the Attorney General and various Welfare officials. 
Plaintiffs assert that, they bring this action on behalf of 
themselves and “ needy mothers of dependent children liv­
ing in Worcester who are threatened and intimidated by 
the arrest and prosecution of the above-named plaintiffs 
and who are deterred by fear of arrest and prosecution 
from participating in organizational and other First 
Amendment activities in the Worcester Welfare Service 
Office.”

According to the complaint the five plaintiffs, and two 
others, entered the waiting room of the Worcester Welfare 
Office, hung up some signs, and distributed circulars. In 
the wall between the waiting room and the inner office 
where applicants were processed there was a receptionist’s 
window. Plaintiffs set up a folding card table near this 
wall. Plaintiffs created no other disturbance, but refused 
requests to remove the table until the police arrived.3

The prosecution which plaintiffs seek to enjoin relates

3 Other facts, of no relevancy, are omitted. Considerable space 
was spent in the record and at the argument over plaintiffs’ as­
sertion that before they arrived they had received permission to 
erect the table. Not only did defendants deny this, but plaintiffs 
ultimately conceded, as they must, that any permission was duly 
revoked and that their conduct continued nonetheless.



4a

solely to plaintiffs’ insistence on maintaining the table; 
no other strictures were placed upon them. They were 
not requested to leave, either before or after they set up 
the table, or to reduce their number, or to desist from 
assembling or organizing, to take down their signs or to 
stop distributing their circulars. Additionally, the com­
plaint refers to plaintiffs’ right to “ petition.”  There 
are no factual allegations that they were seeking to peti­
tion, let alone that they were prevented from doing so.

Turning to the question whether plaintiffs have standing 
to maintain the present action, plaintiffs base their claim 
on the contention that they are seeking to vindicate First 
Amendment rights. Even if freedom to exercise these 
rights exists within the Welfare Office, which, for present 
purposes, we assume, plaintiffs face substantial difficulties. 
These may be divided into two basic questions: whether 
plaintiffs had a constitutional right to erect a table in the 
waiting room in connection with their distributing litera­
ture and their efforts to organize welfare recipients, and 
whether, if they did not, they had standing to protect the 
future exercise of rights from “ chills”  resulting from the 
use of a potentially broad statute against persons claim­
ing and exercising First Amendment rights.4

4 There is still further matter, whether since the state proceed­
ings had previously commenced, plaintiffs are precluded from 
maintaining this action by reason of 28 U.S.C. § 2283. We do not 
reach that question. See Baines v. City of Danville, 4 Cir., 1964, 
337 F.2d 579, cert, denied sub nom. Chase v. McCain, 1965, 381 
U.S. 939; Cooper v. Hutchinson, 3 Cir., 1950, 184 F.2d 119, 124 
and n. 11; Landry v. Daley, N.D. 111., 1968, 288 F. Supp. 200, 221- 
25, appeal dismissed sub. nom. Landry v. Boyle, 393 U.S. 220. 
Comment, Federal Injunctions Against State Actions, 35 Geo. 
Wash. L. Rev. 744, 782 (1967) ; Note, Power to Enjoin State 
Prosecutions Violative of Federally Protected Rights, 114 TJ. Pa. 
L. Rev. 561 (1966) ; Brewer, Dombroski v. Pfister: Federal In­
junctions Against State Prosecutions in Civil Rights Cases — A 
New Trend in Federal-States Judicial Relations, 34 Fordham L. 
Rev. 71, 97-103; Note, Incompatibility —  The Touchstone of Sec­
tion 2283’s Express Authorization Exception, 50 U. Va. L. Rev. 
1404, 1414-23 (1964).



The usual prerequisite for a successful attack upon a 
statute for constitutional infirmity is that one’s own con­
duct be constitutionally protected; normally a party may 
not rely on another’s constitutional rights. United States 
v. Raines, 1960, 362 TT.S. 17, 21; Yazoo d  M.V.R.R. v. 
Jackson Vinegar Co., 1912, 226 U.S. 217. If a party is 
prosecuted for engaging in conduct which the state has 
power to punish he will not normally be allowed to argue 
that in factual situations not presented by his case enforce­
ment of the statute would pass the bounds of state power. 
His is not the most appropriate case for decision of issues 
turning on the impact of the statute in imagined situations 
involving quite different activities. See A. Bickel, The 
Least Dangerous Branch, 149 (1962). If this rule is to be 
applied in the case at bar we are clear that plaintiffs have 
no standing. Whatever First Amendment rights existed 
in the Welfare Office, they could not be exercised at the 
expense of the primary purpose the office was designed to 
serve.

“ Even where municipal or state property is open to the 
public generally, the exercise of First Amendment rights 
may be regulated so as to prevent interference with the 
use to which the property is ordinarily put by the State.”  
Food Employees v. Logan Valley Plaza, Inc., 1968, 391 
U.S. 308, 320 (dictum). See Note, Regulation of Demon­
strations, 80 Harv. L. Rev. 1773, 1776-77, (1967). Cf. 
Adderley v. Florida 1966, 385 U.S. 39; Cox v. New Hamp­
shire, 1941, 312 U.S. 569. Reasonable latitude must be 
permitted to the persons in charge. Waiting rooms are not 
traditional forums of protest, and a high degree of peace 
and order is necessary to their normal operation. Cf. 
Note, Regulation of Demonstrations, supra, at 1777.

Under these circumstances the only question is whether 
the welfare officials, in curtailing plaintiffs’ activities, 
abused their discretion. Massachusetts Welfare Rights Or­



6a

ganization v. Ott, 1 Cir., 11/6/69; Wolin v. Port of New 
York Authority, 2 Cir., 1968, 392 F.2d 83, cert, denied, 
393 U.S. 940. We cannot say that it was unreasonable to 
object to the erection of a table within the waiting room. 
We distinguish the suggestion in Wolin that it may be a 
question of fact whether it is unreasonable to object to a 
table in a large terminal building. In the present case 
quite apart from any question whether the particular lo­
cation interfered with the privacy of applicants wishing 
to talk with employees in the inner office, we hold that 
it was within the discretion of the welfare officials to 
determine that a table occupied by non-applicants unduly 
burdened the capacity of a room, necessarily of limited 
size, provided for waiting applicants. Plaintiffs assert 
that at the time in question there were never more than 
four applicants in the room. Non constat that many more 
might well be expected at other times. Plaintiffs’ own 
conduct suggests as much. It was scarcely necessary to 
introduce five plaintiffs and two others to proselytize four 
applicants.5 In any normal waiting room, such as that 
described in the complaint, extra furniture has a poten­
tial for obstruction and officials need not wait until the 
potential is realized before acting. We conclude that no 
undue restriction was placed upon plaintiffs’ exercise of 
First Amendment rights.

Because of what is termed the chilling effect of uncon­
stitutional statutes and prosecutions upon the general

5 Alternatively, the fact that plaintiffs entered the waiting room 
seven strong to assert a right to maintain a table may suggest 
that the issue was not simply the table as such, but was who was 
to be the boss. Additionally, if one were to look to labor union cases 
as a guide, the table might be taken to suggest that the Welfare 
officials were taking sides and affirmatively endorsing the re­
cruitment activities of the WWRO, so that speech was, in effect, 
being put into their mouths. If this was the confrontation, or the 
issue, plainly it must be resolved in favor of those in charge of 
the office.



exercise of First Amendment rights by any person wish­
ing to do so, courts have sometimes relaxed the require­
ment that the complaining party show that as to him a 
statute has been applied unconstitutionally, that is, that 
his conduct was constitutionally privileged and could not 
be prohibited by the state. See, e.g., Thornhill v. Alabama, 
1940, 310 U.S. 88; Winters v. New York, 1948, 333 U.S. 
507; Runs v. New York, 1951, 340 U.S. 290. But cf. Feiner 
v. New York, 1951, 340 U.S. 315; Dennis v. United States, 
1951, 341 U.S. 494; United States v. Petrillo, 1947, 332 U.S. 
1. The extent of acceptable relaxation has never been pre­
cisely defined. See generally Sedler, Standing to Assert 
Constitutional Jus Terti in the Supreme Court, 71 Yale 
L. J. 599 (1962); Amsterdam, Note, The Void-For-Vague- 
ness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 
67 (1960). Mr. Justice Brennan, concurring in Brown v. 
Louisiana, 1966, 383 U.S. 131, 143, expressed the view, 
at 147-48 that “ It suffices that petitioners’ conduct was 
arguably constitutionally protected and was ‘ not the sort 
of ‘ ‘ hard-core ’ ’ conduct that would obviously be prohibited 
under any construction.’ ” 6 We would elaborate on this 
suggestion. Since the purpose of permitting a party, 
not himself engaged in constitutionally protected conduct, 
to attack a statute is to remove the chilling effect for the 
benefit of others, the standard should be set by the reason 
itself: do the overall circumstances reasonably suggest 
that regardless of whether the plaintiff’s particular conduct 
was constitutionally privileged, privileged conduct would 
not be exempted from prosecution?

The chilling effect may be found in the fact that the 
statute in terms is overbroadly directed against speech.

6 The inner quote was from Dombrowski v. Pfister, 1965, 380 U.S. 
479, at 491-92, an abstention case. With great, deference, we sug­
gest the problems of abstention and standing are not necessarily 
the same.



8a

This was the case in, e.g., Thornhill v. Alabama, supra; 
Winters v. New York, supra. See Sedler; supra, 71 Yale 
L. J. 599, 614-25 (1962). In such a situation it may well 
be anticipated that the authorities, so directed, cannot 
be counted upon to restrict themselves to clearly legitimate 
prosecutions. If, on the other hand, the statute is general, 
and not specifically directed against speech, one must look 
beyond the statute to the circumstances as a whole in order 
to determine whether other persons, viewing what the 
authorities have in fact done, might justifiably appre­
hend that bona fide attempts on their part to exercise 
First Amendment rights would be likely to be prose­
cuted.7

In applying this test we do not look at any single mat­
ter, but at the overall circumstances. So viewing the case 
at bar, we do not think it could be fairly said that the 
statute was being employed to inhibit First Amendment 
rights. Plaintiffs were accorded throughout broad liberties 
of speech and association. Their presence was not objected 
to ; their soliciting, their speech, their organizational ac­

7 We cannot suggest that the courts have adopted this ap­
proach. Indeed, one can find a case such as Baker v. Binder, W.D. 
Ky., 1967, 274 F. Supp. 658, where the court drew no distinction 
between statutes addressed to speech and statutes addressed to 
conduct generally, and granted relief after specifically finding 
that the police had acted in an exemplary fashion under the cir­
cumstances. The issue of standing was not even considered. A dis­
senting judge urged that there should be abstention. In other 
cases disorderly conduct statutes have been declared unconstitu­
tional on their face without close discussion of the quality of past 
official conduct. See Landry v. Daley, N.D. 111., 1968, 280 F. Supp. 
969 (incorporating by reference 280 F. Supp. 944-52) ; Commer­
cial v. Allen, N.D. Ga., 1965, 267 F. Supp. 985. On the other hand, 
some cases could be taken to implicitly indicate that when general 
statutes are under attack there is no standing to assert the First 
Amendment rights of others. See United States v. Petrillo, supra; 
Sedler, supra, 71 Yale L. J. 599, 614-25 (1962). Cf. Feiner v. New 
York, supra.



9a

tivities were not interrupted. The sole stricture was 
against obstruction of the office. In seeking to analogize 
Brown v. Louisianna, supra, plaintiffs overlook that the 
protesters there were arrested and removed for merely 
being present. Here plaintiffs were asked only to cease the 
physically obstructing part of their conduct. The authori­
ties distinguished between permissible, non-disturbing 
speech, and conduct that they could reasonably feel in­
terfered with the activities of the office.8

Plaintiffs accordingly fail to fit even a liberal test of 
standing. Their assertion that their prosecution “ re­
strained [plaintiffs and others] in the exercise of their 
right to assemble, organize, distribute literature and peti­
tion’ ’ and that other persons were “ being denied access 
to information which WWRO has sought to make avail­
able to them”  are mere conclusions of the pleader, unwar­
ranted on the record, in fact and in law.

Because plaintiffs have not shown a violation of their 
constitutional rights, the complaint must be dismissed.

(s ) B ailey A ldrich 
B ailey A ldrich

U. 8. Circuit Judge 
(s ) A nthony J ulian 

A nthony J ulian 
U. 8. District Judge 

(s) W . A rthur Garrity, J r. 
W . A rthur Garrity, J r . 

U. 8. District Judge

8 For what it is worth we might note that plaintiffs were not 
automatically proceeded against for disturbing the peace, but 
were first requested to remove the table, and were given fair 
warning when they persisted, before the police were called.



10a

Judgment of the United States District Court 
For the District of Massachusetts

[Caption Omitted]
Before A ldbich, Circuit Judge, and J ulian and G arrity, 

District Judges.
ORDER OF DISMISSAL 

December 31, 1969
In accordance with the Opinion, handed down on Decem­

ber 23, 1969, it is 
Ordered:

That the Preliminary Injunction, entered in the above- 
entitled action on September 15, 1969 be, and it hereby 
is, dissolved.

I t I s F urther Ordered that said Complaint be, and it 
hereby is, dismissed.

(s) B ailey A ldrich 
B ailey A ldrich

U. 8. Circuit Judge 
(s) A nthony J ulian 

A nthony J ulian 
U. S. District Judge 

(s) W . A rthur Garrity, J r . 
W . A rthur Garrity, J r . 

U. S. District Judge