City of Chicago v. Terminiello

• Decision Date: 25 June 1947
• Docket Number: Gen. No. 44062.
• Citation: 332 Ill.App. 17,74 N.E.2d 45
• Parties: CITY OF CHICAGO v. TERMINIELLO.
• Court: United States Appellate Court of Illinois

332 Ill.App. 17

74 N.E.2d 45

CITY OF CHICAGO

v.TERMINIELLO.

Gen. No. 44062.

Appellate Court of Illinois, First District, First Division.

June 25, 1947.

Appeal from Municipal Court of Chicago; John V. McCormick, Judge.

Arthur Terminiello was found guilty of violating an ordinance of the City of Chicago by making an improper noise or diversion tending to a breach of the peace, and he appealed directly to the Supreme Court, which transferred the cause to the Appellate Court, 396 Ill. 41, 71 N.E.2d 2.

Affirmed.Maximilian J. St. George and Albert W. Dilling, both of Chicago, for appellant.

Barnet Hodes, J. Herzl Segal, A. A. Pantelis and Harry A. Iseberg, all of Chicago, for appellee.

FEINBERG, Justice.

The defendant was arrested upon a sworn complaint, filed in the Municipal Court of Chicago, charging in the language of the ordinance of Chicago that on the 7th day of February, 1946, he did make, or aid in making, an improper noise, riot, disturbance, breach of the peace or diversion tending to a breach of the peace, within the limits of the City, in violation of chapter 193, section 1(1) of the Revised Code of 1939, as amended. Upon a trial with a jury, a verdict was returned finding him guilty and assessing a fine against him of $100. After motions for a new trial, for judgment notwithstanding the verdict and in arrest of judgment were overruled, the court entered judgment upon the verdict, and defendant appeals.

A direct appeal was taken by the defendant to the Supreme Court. City of Chicago v. Terminiello, 396 Ill. 41, 71 N.E.2d 2. The Supreme Court, holding that no constitutional question was involved, and there being no certificate by the trial judge that the validity of an ordinance was involved, transferred the cause to this court for determination.

The charge grows out of a spech delivered by the defendant and his conduct at a meeting held on February 7, 1946, in the auditorium of a building operated by the West End Woman's Club, located at the northeast corner of Monroe Street and Ashland Avenue in Chicago. It was rented by those in charge of the meeting. One of the witnesses for defendant, who was stationed at the entrance to the auditorium to collect the tickets of admission, estimated the number of people in the auditorium to be from 800 to 1000. It appears from the record that a printed invitation was distributed to announce this meeting, signed by one Gerald L. K. Smith and mailed to people from a mailing list. Accompanying this invitation were cards of admission to be presented at the place of meeting. The invitation is as follows:

‘The

Father Coughlin of the South

Father Terminiello

Will Speak Here.

Dear Patriotic Friend:

Father Arthur W. Terminiello, the Radio Priest of the South, has agreed to speak in Chicago on the 7th of February. This young Priest, age 39, is responsible more than any other single individual in America for bringing about the investigation of the Pearl Harbor scandal.

Father Terminiello has been referred to by many as the Father Coughlin of the South. The same people who hate Father Coughlin hate Father Terminiello. They have persecuted him, hounded him, threatened him, but he has remained unaffected by their anti-Christian campaign against him. You will hear all sorts of reports concerning Father Terminiello. But remember that he is a Priest in good standing and a fearless lover of Christ and America. His dynamic and historic radio address entitled ‘The Cross of War’ has had a circulation running up into millions.

Father Terminiello is a true Christian Nationalist. He is editor of The Crusader. He is the director of a rapidly growing movement known as The Union of Christian Crusaders.

I wish it were possible for me to preside over a meeting where I could introduce Father Charles E. Coughlin. Unable to do this as yet, I consider that Father Terminiello is the best, if not the only, substitute that can be found in the United States.

I enclose herewith a few extra cards. These cards will go like hot cakes! Everyone you see will want them. Therefore, make wise distribution of them.

A special committee has rented the auditorium of the West End Woman's Club. Although it has ample facilities we expect it to be well filled to hear the courageous message of this young Priest. Doubtless what he has to say will be one of the boldest and bravest public statements to which you have ever listened. The slogan should be: Christ or Chaos-Christian Nationalism or World Communism-Which?

Sincerely yours,

Gerald L. K. Smith.'

The card of admission, enclosed with the invitation, reads as follows:

‘This card will admit bearer and one friend to hear Father Arthur W. Terminiello (The Father Coughlin of the South) West End Woman's Club.

37 S. Ashland Blvd. (cor. Monroe)

Chicago, Illinois

Thursday, February 7, 1946 * * * 8 p. m.

Subject: Christians, Awake!

Dealing with the most dangerous and dynamic issues of the hour. The most fearless speech since the war.

Father Terminiello will be introduced by Gerald L. K. Smith. Auspices: Christian Veterans of America, Frederick Kister, Director.

Admission By Card Only.'

The principal contentions of the defendant, upon which he seeks a reversal, are: (1) that in order for him to be found guilty of the charge in the complaint, the speech of the defendant would necessarily have to be a public utterance at a public meeting, and that this meeting in question was a private one; (2) that the speech delivered by him was one he had a right to deliver and was protected by the First and Fourteenth Amendment to the Constitution of the United States, and by the Constitution of Illinois; that what he said at the meeting, and the manner in which he delivered it, was not a breach of the peace or diversion tending to a breach of the peace and, therefore, did not violate the ordinance.

As to the first contention, whether the meeting was a public meeting, we find in the record the following facts: that the hall was filled to capacity, with about 200 to 300 persons having tickets of admission unable to get in, some having obtained admission who were not desired by those in charge of the meeting; that Ira Latimer testified that he was executive secretary of the Chicago Civil Liberties Committee, with which he was connected for 10 years and prior to which he taught social science at Columbia Teachers College in Chicago and LeMoyne College in Memphis; that he received through the mail at his home the invitation together with 7 or 8 tickets of admission, each ticket permitting admission of two persons; that the invitation was addressed to an old address at which he had not lived for a year prior to receiving it. He attended as an observer for the Chicago Civil Liberties Committee.

Karel, a witness for the plaintiff, testified that he has been in the printing business for 15 years, and prior to that was a druggist; that he entered by ticket, which was taken up at the door.

Lucille McVicker Lipman, a witness for plaintiff, testified that a friend had 2 tickets and took her to this meeting; that these tickets were taken up at the door by Mrs. Kister.

Marybelle McManaman, a witness for defendant, testified that she received the invitation to the meeting, with 4 or 5 tickets enclosed.

Mrs. Kister, a witness for defendant, testified that she took up all of the tickets and admitted everyone at the door; that invitations were sent out, and ‘the tickets were just sent to people that we knew, supposedly’; that they tried to refuse admittance to certain persons, even though they had tickets of admission; that she did not have charge of mailing the tickets, nor did she check the mailing list; that she did not know how many tickets were mailed out.

Donald J. McDaniel, a witness for defendant, testified that he assisted at the door in taking up the tickets, and he estimated there were between 800 and 1000 people in the hall; that he was told the capacity of the hall was 700 or 800; that it was filled well to capacity, and they would not let any more in; that there were some standing in the rear; that the doors were closed by the police; that 200 to 300 persons who had tickets were turned away because the place was filled; that he was at his station practically all of the time of the meeting. On cross-examination he testified: ‘I cannot say that I turned away anyone.’

Clara Schneider, a witness for defendant, testified that she and her husband were on the mailing list.

The cases cited by plaintiff are not helpful as to whether this meeting was a public one. All of them, in one form or another, involve the question as to what is a public place, such as Finnem v. State, 115 Ala. 106, 22 So. 593, or what is public property, or the construction of the word ‘public’, such as State ex rel. Maher v. Baker, 88 Ohio St. 165, 102 N.E. 732. As was said in People v. Johnson, 86 Mich. 175, 177, 48 N.W. 870,13 L.R.A. 163, 24 Am.St.Rep. 116: ‘In general terms the offense is a violation of public order, a disturbance of the public tranquillity, by any act or conduct inciting to violence, or tending to provoke or excite others to break the peace. Each case where the offense is charged must depend upon the time, place, and circumstances of the act.’ (Italics ours.)

City of Bloomington v. Richardson, 38 Ill.App. 60, though not in point because the ordinance was directed at control of public gatherings or meetings of any kind on the public streets or alleys of the City of Bloomington, in defining ‘public meeting’ within the meaning of the ordinance, uses this language: ‘This implies, and truly enough, that a private meeting may be held on a public place and public meeting on a private place.’

We have examined the cases cited by the defendant, and we have no quarrel with the principles laid down by these cases that the declaration must be a public one, but none of them involve the question whether, under all the circumstances, the type of meeting in the instant case was a public or private one.

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