Newman v. Piggie Park Enterprises Appellees' Brief

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subject to regulation is the line between ideas and overt o Stenographically transcribed pursuant to Oklahoma law, acts. 11 Okla. Stat. § 798 (1959), 20 Okla. Stat. §§ 110-111 The example usually given by those who would punish (1962), but the trial court had refused in the absence of f speech is the case of one who falsely shouts fire in a statutory authority to order that a copy be provided peti- : \ crowded theatre. tioner at public expense, although finding that petitioner This is, however, a classic case where speech is brigaded was an indigent whose grounds of appeal were not with- with action. See Speiser v. Randall, 357 U. 8S. 513, 536— out merit, and that neither petitioner nor his appointed 

  

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937. They are indeed inseparable and a prosecution “counsel could make up a transeript of the trial proceed- can be launched for the overt acts actually caused. Apart ings from memory. The Criminal Court of Appeals, in an from rare instances of that kind, speech is, 1 think, original proceeding brought by petitioner, also refused to immune from prosecution. Certainly there is no consti- order that petitioner be provided a copy at public expense. | tutional line between advocacy of abstract ideas as in The court agreed with the trial court that no Oklahoma Yates and advocacy of political action as in Scales. The statute or Oklahoma City ordinance authorized such an quality of advocacy turns on the depth of the conviction; order, and held further that the Fourteenth Amendment and government has no power to invade that sanctuary did not mandate “that an indigent person, convicted for ; of belief and conscience.? a violation of a City ordinance, quasi criminal in nature 

and often referred to as a petty offense, is entitled to | —_ a case-made or transcript at city expense in order to 

  

No. 841.—OcTtoBER TERM, 1968. perfect an appeal from said conviction.” 439 P. 2d 965 
(1968). We granted certiorari. 393 U. S. 998 (1968). A roy We reverse. Tommie E. L. Williams, pd ; : E ; Petitioner On Writ of Certiorari to “This Court has never held that the States are required hid ; y : the Court of Criminal to establish avenues of appellate review, but it is now City of Olbhona City ol al Appeals of Oklahoma. fundamental that, once established, these avenues must 
be kept free of unreasoned distinctions that can only [June 9, 1969.] impede open and equal access to the courts. Griffin v. 
Illinois, 351 U. S. 12; Douglas v. California, 372 U. S. : Per Curiam. 353; Lane v. Brown, 372 U. 8. 477; Draper v. Washington, 
372 U. 8. 487." Rinaldi v. Yeager, 334 U. S. 305, 310— 
311 (1966). Although the Oklahoma statutes expressly 
provide that “[an appeal] to the Criminal Court of Ap- 
peals may be taken by the defendant, as a matter of 
right from any judgment against him . . . . 23 Okla. 
Stat. § 1051 (Supp. 1968) (emphasis added), the decision 
of the Criminal Court of Appeals wholly denies any right 

Petitioner, an indigent, had no funds to pay for a 
transcript of the trial proceedings in the Municipal Crim- 

~. 1nal Court of Oklahoma ‘City required to prepare the 
“= “case-made” needed to perfect his appeal to the Okla- 

homa Criminal Court of Appeals from his conviction for 
drunken driving and the imposition of a 90-day jail sen- 
tence and a $50 fine.* The trial proceedings had been 

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3 See Mr. JusTicE Brack dissenting in Communications Assn. v. of appest to this impoverished peistioncy, but enforces Douds, 339 U. S. 382, 446, 440 et seq. that right only for appellants from like convictions able 
*The pertinent Oklahoma statutes provide as follows: to pay for the preparation of a “case-made.” This is / ; 22 Okla. Stat. § 1059 (19583): an “unreasoned distinction” which the Fourteenth ; 
“In all criminal cases appealable to the Criminal Court of Appeals, Amendment forbids the State to make. See Griffin v. ] the appellant may prepare, and it shall be the duty of the court to Illinois, supra; Draper v. Washington, supra; Eskridge provide for the preparation and settling of a case-made in all respects v. Washington State Board, 357 U. S. 214 (1958). as in civil cases, and the case-made so settled, served and filed in The judgment of the Criminal Court of Appeals is the trial court may be sent to the appellate court in lieu of all other : : oun reversed and the case is remanded for further proceedings records of bills of exception; or the proceeding ‘n the appellate court ti sistent with this vis may be as provided in the next section.” hot ‘inconsistent wi 1% opmion, 7d Bunce : 

18 SO oraered. 22 Okla. Stat. § 1060 (Supp. 1968): 
“Instead of the appeal hereinbefore provided for, any party Mg. Justice BLACK concurs in the result desiring to appeal to the Court of Criminal Appeals in any criminal hay > ; case may proceed by case made and petition in error by filing notice 

of such intent and by making request for case made, both to be made 
In writing, in open court, either at the time the judgment is rendered, 
or within ten days thereafter. In such an appeal the case made must 
be settled and served and the appeal lodged within the time for such 

  
  

appeal as hereinbefore set out. Instead of the case made plaintiff’ 
In error may attach to his petition in error a transeript of the- 
proceedings of record in the trial court.” 

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6-11-69 T ; 5CrL 3111