Zwicker v. Boll

• Decision Date: 01 October 1967
• Docket Number: No. 573,M,573
• Citation: 20 L.Ed.2d 642,391 U.S. 353,88 S.Ct. 1666
• Parties: Robert ZWICKER et al. v. James BOLL et al. isc
• Court: U.S. Supreme Court

391 U.S. 353

88 S.Ct. 1666

20 L.Ed.2d 642

Robert ZWICKER et al.

v James BOLL et al.

No. 573, Misc.

Supreme Court of the United States

October Term, 1967.

May 20, 1968

Melvyn Zarr, William M. Kunstler and Anthony G. Amsterdam, for appellants.

Bronson C. La Follette, Atty. Gen. of Wisconsin, and William A. Platz, Thomas A. Lockyear, and Charles A. Bleck, Asst. Attys. Gen., for appellees.

PER CURIAM.

The motion for leave to proceed in forma pauperis is granted. The motion to affirm is also granted and the judgment is affirmed. Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182.

Mr. Justice DOUGLAS, dissenting.

Appellants are graduate and undergraduate students at the University of Wisconsin and are active in student political and civil rights organizations. They brought an action in the District Court for the Western District of Wisconsin, seeking a declaratory judgment that the Wisconsin disorderly conduct statute¹ is overbroad and therefore unconstitutional on its face, or an injunction re- straining state criminal prosecutions under that statute which were pending against them.

Appellants alleged in their complaint that preceding their arrests they were engaged only in peaceful and constitutionally protected protest activities. Appellants were protesting against American policy in Vietnam. The arrests were made in various buildings of the University of Wisconsin in which appellants and others had gathered to object to a chemical manufacturer of napalm being permitted to conduct employment interviews in the buildings. Appellants were arrested under a 'disorderly conduct' statute. We know that such statutes historically have been used in reprisal against unpopular groups or persons who espouse unpopular causes. Cf. Brown v. State of Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637; Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471; Taylor v. State of Louisiana, 370 U.S. 154, 82 S.Ct. 1188, 8 L.Ed.2d 395; Garner v. State of Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207. But that is a practice no longer permissible now that the First Amendment is applicable to the States by reason of the Fourteenth.

A three-judge court was convened which dismissed the complaint after oral argument but without conducting an evidentiary hearing. Judge Fairchild, concurring, believed that 28 U.S.C. § 2283² prohibited the issuance of an injunction; Judge Doyle, dissenting, was of the contrary opinion. Judge Gordon found it unnecessary to reach that question, deciding rather to abstain in favor of the state criminal proceedings.

In addition to attacking the statute as void on its face for overbreadth, appellants alleged that their arrests were made and prosecutions instituted for purposes of harassment and in a discriminatory manner on account of their political beliefs.³ Appellees in their answer denied these allegations and attached copies of the complaints filed in the state criminal proceedings which alleged that appellants were interfering with classes or interviews in the buildings by speaking in loud voices or by refusing to leave when requested to do so.

We stated in Dombrowski v. Pfister, 380 U.S. 479, 489-490, 85 S.Ct. 1116, 1122-1123, 14 L.Ed.2d 22, that the abstention doctrine is inappropriate for cases in which state statutes are justifiably challenged either on their face or 'as applied for the purpose of discouraging protected activities.' In my view, appellants have adequately alleged in their complaint that their arrests and prosecutions were effected in bad faith and in a discriminatory manner in order to punish and discourage exercise of constitutionally protected rights. Since an issue of fact is presented, I would remand to the court below with directions to conduct a plenary hearing on the point.⁴

Appellants have alleged in their complaint facts surrounding their arrests which suggest harassment solely on account of the nature of appellants' protest.⁵ More- over, the criminal complaints filed against several of the appellants in the state court, and appended to the appellees' answer in this case, raise a strong suspicion that the arrests and prosecutions were carried out in bad faith.⁶

Where there are allegations of bad faith, harassment, and discrimination, critical evidence on the matter can only be drawn out upon cross-examination of the officials involved. The question is not the guilt or innocence of the persons charged, but whether their arrests were made and prosecutions commenced in bad faith, for purposes of harassment and in a discriminatory manner. See Cameron v. Johnson, 390 U.S. 611, 619-620, 621, 88 S.Ct. 1335, 1340-1341, 20 L.Ed.2d 182. If the charge that the statute was used in bad faith were shown, a federal claim would be established.⁷ And it would not matter what the state courts later did, for the interim 'continuing harassment' of appellants for exercising their First Amendment rights would entitle them to relief. See Dombrowski v. Pfister, 380 U.S., AT 490, 85 S.Ct., at 1123.

For these reasons I would note probable jurisdiction, vacate the judgment below, and remand the case for a preliminary hearing on the issue of the use of a disorderly conduct statute to punish people for expression of their unpopular views.

1 Wis.Stat. § 947.01 reads in pertinent part:

'947.01. Disorderly conduct. Whoever does any of the following may be fined not more than $100 or imprisoned not more than 30 days: (1) In a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct under circumstances in which such conduct tends to cause or provoke a disturbance. * * *'

2 28 U.S.C. § 2283 provides:

'A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.'

3 Paragraphs 12 and 13 of appellants' complaint alleged:

'Plaintiffs allege that their arrest under this Statute is basically for the lawful purpose of depriving them of their rights of freedom of speech assembly association, and petitioning their Government for a redress of grievances guaranteed by the First and Fourteenth Amendments to the United States Constitution, and 42 U.S.C. § 1983. Further enforcement of Section 947.01, Wisconsin Statutes, the Disorderly Conduct Statute, will have the effect of punishing those plaintiffs now being prosecuted for the exercise of rights, privileges and immunities secured to them by the Constitution and laws of the United States; has [sic] and will deter plaintiffs and others similarly situated from the future exercise of these rights, privileges and immunities; has encouraged and will encourage defendants and other State, County or local officials, acting under color of law, to engage in further acts of intimidation, harassment, threats and other actions meant to prevent and deter plaintiffs and others similarly situated from the exercise of these rights, privileges, and immunities.

* * *

'Plaintiffs allege that their arrests and prosecutions have been and are being carried on with the basic purpose and effects of intimidating and harassing them and punishing them for and deterring them from, exercise of their constitutionally protected rights of free speech and assembly and association to:

'1. Oppose and protest the policies of the United States Government, the State of Wisconsin, and the University of Wisconsin in supporting and contributing to the...