United States v. Wefers

• Decision Date: 09 June 1970
• Docket Number: Crim. A. No. 7027.
• Parties: UNITED STATES of America v. Mark WEFERS, Individually and as President of Student Government of the University of New Hampshire.
• Court: U.S. District Court — District of New Hampshire

314 F. Supp. 137

UNITED STATES of America v. Mark WEFERS, Individually and as President of Student Government of the University of New Hampshire.

Crim. A. No. 7027.

United States District Court, D. New Hampshire.

June 9, 1970.

David A. Brock, U. S. Atty., Concord, N. H., for plaintiff.

William P. Shea, Dover, N. H., for defendant.

OPINION

BOWNES, District Judge.

This is a case of alleged criminal contempt arising from a speaking appearance on the campus of the University of New Hampshire by Abbie Hoffman, Jerry Rubin, and David Dellinger (commonly referred to in New Hampshire as the "Chicago 3") on Tuesday, May 5th, from approximately 7:40 P.M. to 10:30 P.M. The defendant, who is charged with willfully disobeying an order of this Court restricting the speaking appearance to between the hours of 3:30 P.M. and 6:30 P.M., is President of the Student Government of the University of New Hampshire.

BACKGROUND

On March 25th, the defendant received a telegram from a person by the name of Robert Lamb, of Chicago, informing him that the so-called "Chicago 7" and their lawyers were available for lectures on college campuses. The defendant directed one of his assistants to send a telegram that same afternoon tentatively offering the sum of $5,000 for the "the nine of them" and generally expressing interest in some type of program. Negotiations between the defendant and Mr. Lamb eventually culminated in an agreement that Abbie Hoffman, Jerry Rubin, and David Dellinger would appear on the University of New Hampshire campus for the sum of $3,500 on Tuesday, May 5th, between the hours of 7:00 P.M. and 10:00 P.M. The date of April 28th was set initially, but was changed for the convenience of the speakers to May 4th, which was also changed to the final date of May 5th. The only time ever discussed between the defendant and the speakers' agent for the speaking appearance was 7:00 P.M. to 10:00 P.M. It is not clear just when the Trustees of the University were informed that the "Chicago 3" had been scheduled to speak on May 5th from 7:00 P.M. to 10:00 P.M., but the Trustees held a special meeting on Friday, May 1st, devoted solely to the appearance of the "Chicago 3" on the campus.

Between March 25th and May 1st, there was a great deal of public controversy throughout the state as to whether or not the "Chicago 3" should be allowed to speak at all. There were editorials and comments in many of the state's newspapers and there was an attempt by some members of the New Hampshire Legislature to absolutely forbid any speaking by the "Chicago 3" on the campus.

At the special meeting on May 1st, the Trustees voted to allow Messrs. Hoffman, Dellinger, and Rubin to speak on the campus of the University of New Hampshire, restricted, however, to between the hours of 2:00 P.M. and 5:00 P.M. on May 5, 1970. The reason given for the 2:00 P.M. to 5:00 P.M. restriction was the Trustees' fear of violence and their belief that the later the hour, the greater the chance of violence erupting on the campus.

CIVIL PROCEEDINGS

On Monday afternoon, May 4th, a civil action entitled "Complaint and Request for Injunction by 5:00 P.M., May 5, 1970," was filed in the United States District Court for the District of New Hampshire by the defendant as President of the Student Government of the University of New Hampshire. Jurisdiction was invoked pursuant to Title 28 U.S.C. § 1343(3) (1964) and Title 42 U. S.C. § 1983 (1964). The complaint alleged that the students of the University of New Hampshire were being deprived of the rights guaranteed to them by the free speech and peaceable assembly clauses of the First Amendment to the Constitution of the United States. The defendant (plaintiff in the civil action) sought an injunction enjoining and restraining the Board of Trustees from enforcing its directive that the "Chicago 3" could speak only between the hours of 2:00 P.M. and 5:00 P.M. and sought an order granting him the right to schedule the appearance of Messrs. Hoffman, Rubin, and Dellinger on Tuesday from 5:00 P.M. until they finished speaking.¹

A hearing was held on the civil action on Tuesday morning, May 5th, starting at 9:50 A.M. At the hearing the defendant made it clear that the original invitation to the "Chicago 3" had been issued on his own initiative and that he was in charge of all arrangements relative to their appearance. During the hearing, the defendant also stated that three hours was the total time required for full delivery of the speeches by these three men. After the hearing had been closed, the Court was informed that Attorney Millimet, the attorney for the Trustees, had some additional information for the Court. Attorney Millimet informed the Court that he had reliable information to the effect that all three speakers would arrive at Logan Airport at approximately 2:20 P.M. and that, therefore, all three could be on the campus of the University of New Hampshire by 3:30 that afternoon. The Court again asked the defendant if three hours was sufficient time for the speakers and he replied in the affirmative.

The Court then issued the order which has resulted in this contempt proceeding:

The Board of Trustees of the University of New Hampshire are enjoined and restrained from enforcing their directive that Abbie Hoffman, David Dellinger and Jerry Rubin can speak at the University of New Hampshire only between the hours of 2:00 P.M. and 5:00 P.M. on Tuesday, May 5, 1970.

It is further ordered that Abbie Hoffman, David Dellinger and Jerry Rubin shall be allowed to speak at the University of New Hampshire on Tuesday, May 5, 1970, between the hours of 3:30 P.M. and 6:30 P.M., Tuesday, May 5, 1970. So ordered.

EVENTS AFTER HEARING

After the hearing was closed, defendant and his counsel, Mr. Shortlidge, remained in the courthouse for about thirty minutes to obtain a copy of the order. It is clear from the testimony at the contempt trial that the defendant was not satisfied with the Court's order when and as issued because it did not give him the relief asked: the right to schedule the appearance of the speakers "from 5:00 P.M. until they finish speaking." Attorney Shortlidge advised the defendant at the courthouse that the order meant that unless the Trustees met again and prohibited any speaking after 5:00 o'clock the "Chicago 3" could speak after 6:30 P.M. without restriction. In the light of what had just transpired at the hearing (Appendix A), the Court was sure that the order was understood by both parties and that it would not unreasonably abridge the students' rights of free speech and assembly. Furthermore, neither the defndant nor his attorney attempted to ask the Court, either at the close of the hearing or before they left the courthouse, for a clarification of the order.

Before leaving the courthouse at about 12:30 P.M., the defendant called a Mrs. Carlene Harris who was in charge of the student marshals. The defendant, on cross-examination, stated emphatically that he did not tell Mrs. Harris to do anything, but it is significant that Mrs. Harris' husband was one of the two students who met the visiting speakers at Logan Airport at 2:20 P.M. that afternoon.

At approximately 1:00 o'clock, Dr. McConnell, President of the University, read the Court order to a group of students gathered at what was called at the trial the "T-Hall Rally" and told them that they would hear the "Chicago 3" at the Field House from 3:30 P.M. to 6:30 P.M. The defendant also addressed the same group shortly after the President and told them that "they are going to be in the Field House at 7:30 tonight, OK." Ex. 5.

Sometime between 2:20 P.M. and 2:30 P.M., the three speakers arrived at Logan Airport in Boston. They left the Airport between 2:30 P.M. and 2:40 P. M. with two students, Mr. Harris and a Mr. Scagliotti.

A phone call from Logan Airport was made to President McConnell's office for the defendant at approximately 2:30 P. M. Since the defendant was not immediately available, this call was taken by a Mr. Riviere, one of the defendant's assistants. Another phone call for the defendant was made to the President's office by Mr. Scagliotti at about 3:30 P.M. This call was taken by Mrs. Lambert, the President's secretary. There was no testimony as to where Mr. Scagliotti was when this call was made. Neither Mr. Scagliotti nor Mr. Harris were called to testify.

At approximately 3:45 P.M., the three speakers arrived in Dover, New Hampshire, which is less than ten miles from the University campus, and remained there basking in the sun on a lawn until about 5:10 P.M.

Sometime between 3:30 P.M. and 4:00 P.M., the defendant engaged in a three-way telephone conversation with his attorney, Mr. Shortlidge, and with Mr. Millimet, attorney for the Trustees. This telephone conversation accomplished nothing except to reveal the wide difference between Attorney Millimet's and Attorney Shortlidge's interpretation of the meaning and effect of the Court's order. The defendant testified that he told both attorneys that he would abide by any interpretation that could be agreed upon between them. Suffice it to say that no such agreement was reached.

Shortly after 4:00 o'clock, the defendant made a statement informing the students, who had filled the Field House to capacity, that the speakers were not going to speak until 7:30 P.M. Ex. 6. At this time, the defendant read to the crowd a note from the "Chicago 3" stating that they would speak at 7:30 P.M. and not earlier. Ex. B. The defendant had been informed by Mr. Harris, who delivered the note, that all three were serious about this and definitely would not speak any earlier than 7:30 P.M. The Court accepts this as an accurate estimate of the "Chicago 3's" intent.

Sometime around 4:30 P.M., Attorney Millimet contacted the Court and informed him that there was a serious misunderstanding as to the meaning and effect of the order. The Court, thereupon, telephoned Attorney Shortlidge and learned,...