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DOUGLAS, J., dissenting

398 U.S.

There was no evidence of any type of disorder or interference with the activities of others. About 50 of these demonstrators were arrested for violating the proclamation. Among those arrested was appellant Countryman. At the time of this demonstration, more than 10,000 persons were congregated a few blocks away for the recommissioning ceremony. None of those attending that ceremony were arrested.

2. Prior to issuance of the proclamation, members of an organization called People for Human Rights arranged to go to the homes of three United States Congressmen in the Philadelphia area to petition for passage of the Civil Rights Act of 1968. Members of the organization gathered at the home of one of the Congressmen on April 7, 1968, depositing petitions in his mail slot and distributing petitions to passersby. The size of the group eventually grew to 12 persons, at which time these individuals were arrested for violating the proclamation. Appellant Achtenberg was among those arrested. The demonstration was entirely peaceful; there were no incidents of disorder; the demonstrators violated no law other than the proclamation.

3. On April 8, 1968, a meeting was held by University of Pennsylvania students to discuss the mayor's proclamation. A platform was set up on university property, and approximately 200 to 250 people congregated to hear the various speakers. As part of the meeting, a police officer read the proclamation to the group. After being ordered to disperse, most of the group departed, but about 55 remained and peacefully submitted to arrest. Appellant Stotland was among the group arrested. There was no disruptive or disorderly conduct at this meeting. The speeches were not inflammatory. There was no allegation that the meeting created traffic problems, engendered the hostility of onlookers, or involved any breach of the peace.

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DOUGLAS, J., dissenting

In short, none of the three meetings in which the appellants took part were other than peaceful, orderly, and noninflammatory; none of them interfered with traffic or disrupted other activities; and none of them involved any violation of any law, save for the mayor's proclamation. This much was conceded by the courts below and is not disputed by the appellee.

At least since Hague v. CIO, 307 U. S. 496, decided in 1939, the use of public property such as streets and parks has been deemed an important adjunct to the rights of free speech and assembly protected by the First Amendment. States, of course, have the right to place reasonable regulations upon the time, place, and manner of the exercise of the rights of speech and assembly. As the Court said in Cox v. Louisiana, 379 U. S. 536, 554, one could not, "contrary to traffic regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech or assembly." Such regulatory measures, however, must be narrowly drawn to reach only the legitimate objectives of state regulation. Overbreadth is constitutionally fatal, and we carefully scrutinize all such measures for that defect. Cox v. Louisiana, 379 U. S. 559, 562-564; Edwards v. South Carolina, 372 U. S. 229, 236-238. The ordinance involved in the Hague case, for example, gave the director of public safety of Jersey City, New Jersey, the authority to refuse to issue a permit for a public assembly in or upon the public streets, highways, parks, or buildings of the city, "for the purpose of preventing riots, disturbances or disorderly assemblage." This Court held that ordinance constitutionally infirm, Mr. Justice Roberts stating:

"[The ordinance] can thus, as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs, for the

DOUGLAS, J., dissenting

398 U.S.

prohibition of all speaking will undoubtedly 'prevent' such eventualities. But uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right." 307 U. S., at 516. The Philadelphia ordinance involved in this case, and the mayor's proclamation issued under its authority, raise serious questions under the First Amendment. First, the prohibition of assembly extended not merely to publicly owned property, but to "any outdoor place," public or private. Second, the proclamation covered all types of assembly, except for three narrow exceptions, regardless of how peaceful, orderly, and otherwise lawful that assembly might be. Third, there was no limitation on the length of the prohibition, for the state of emergency could be extended indefinitely. Appellants claim that as a regulatory measure, the ordinance and proclamation are unconstitutionally overbroad. I do not see how that question can be deemed to be "insubstantial."

Control of civil disorders that may threaten the very existence of the State is certainly within the police power of government. Yet does a particular proclamation violate equal protection? Is it used to circumvent con

1 In 1967 the city of Syracuse, New York, imposed a curfew reading as follows: "No person shall enter or remain in any public street, park, square or building in any such part or parts of the city during the hours of the day as may be prescribed by the Mayor."

The City Court granted motions to dismiss informations for violating the curfew, People v. Kearse, 56 Misc. 2d 586, 289 N. Y. S. 2d 346, saying:

"A curfew law, like any other which restricts the activities or conduct of individuals, adults or minors, must not exceed the bounds of reasonableness. Three primary tests have often been invoked. (1) Is there an evil? (2) Do the means selected to curb the evil have a real and substantial relation to the result sought? (3) If the answer to the first two inquiries is yes, do the means availed of

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stitutional procedures for clearing the streets of "undesirable" people? Is it used selectively against an unwelcome minority? Does it give fair notice and are its provisions sufficiently precise so as to survive constitutional challenge? Does it transgress one's constitutional right to freedom of movement which of course is essential to the exercise of First Amendment rights?

I do not intimate that Philadelphia's proclamation has a constitutional infirmity. But the questions are so novel and undecided" that we should hear the case.

This Court can serve no higher function than to review serious and substantial questions regarding alleged infringements of the First Amendment rights of speech and assembly, whether they occur in fair weather or in foul. I would note probable jurisdiction and put the case down for oral argument.

No. 1449. COHEN ET UX. v. WILMINGTON HOUSING AUTHORITY. Appeal from Sup. Ct. Del. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Reported below: 262 A. 2d 246.

Del.

unduly infringe or oppose fundamental rights of those whose activities or conduct is curbed? . . . Section 57 of the ordinance demonstrates the evil to be dealt with. The means selected to curb the evil have a real and substantial relation to the result sought; but the means availed of, the total prohibition of all persons without exception from all of the streets of the city, unduly infringes upon fundamental rights guaranteed by the New York and United States Constitutions." Id., at 594, 289 N. Y. S. 2d, at 355–356. For the same reason the County Court dismissed the appeal. People v. Kearse, 58 Misc. 2d 277, 295 N. Y. S. 2d 192.

2 Comment, Judicial Control of the Riot Curfew, 77 Yale L. J. 1560 (1968); Comment, The Riot Curfew, 57 Calif. L. Rev. 450 (1969); Note, Legislation and Riots-Interaction, 35 Brooklyn L. Rev. 472, 478-481 (1969).

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No. 1776, Misc.

TIJERINA ET AL. v. HENRY ET AL. Appeal from D. C. N. M. dismissed. THE CHIEF JUsTICE took no part in the consideration or decision of this case.

MR. JUSTICE DOUGLAS, dissenting.

Appellants brought this suit as a class action, claiming to represent a class "designated as Indo-Hispano, also called Mexican, Mexican-American and Spanish American, [which is] generally characterized by Spanish surnames, mixed Indian and Spanish ancestry and . . . Spanish as a primary or maternal language." The District Court dismissed the complaint as a class action, holding that appellants' definition of the class was "too vague to be meaningful." 2

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1 Appellants also sought to represent a class designated as "poor," defined as those who qualify for free legal process under certain New Mexico statutes. The District Court ruled that this was not an adequate definition of a class. Appellants do not press a contention of error with regard to this ruling, and I therefore do not deal with that question.

2 The District Court also held that appellants had failed to prove that they would fairly and adequately represent the class. The court did not elaborate on the basis for this holding, nor did it specify what nature of proof it would require to establish adequate representation. Appellants alleged discrimination against a distinct. cultural minority group, and were themselves members of that minority group. Adequate representation requires that the interests of the representatives of the class be compatible with and not antagonistic to the interests of those whom they purport to represent. See, e. g., Clark v. Thompson, 206 F. Supp. 539, 542, and cases cited. It is difficult to see how the District Court could have concluded that there was any antagonism of interest in preventing discrimination against the class. "Racial discrimination is by definition a class discrimination. If it exists, it applies throughout the class." Hall v. Werthan Bag Corp., 251 F. Supp. 184, 186. The District Court's holding may have been based on its doubt that, as regards the appellants' first cause of action, all members of the class would agree that failure to provide Spanish language

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