The opinion of the court was delivered by: Marovitz, District Judge.
Motion of Plaintiffs to Convene a Three-Judge Court
Motion of Defendants to Dismiss.
This is an allegedly a class action brought by plaintiff
Committee, its leaders David Dellinger, Rennie Davis, and Thomas
Hayden, and Jerry Rubin, and Abbie Hoffman, leaders of the Youth
International Party, on their own behalf and on behalf of all
others similarly situated, seeking declaratory and injunctive
relief. Plaintiffs request the convening of a three-judge court
to 28 U.S.C. § 2282 and 2284 in order to declare
unconstitutional 18 U.S.C. § 231, 232, 2101, and 2102. The first
two of these recently enacted statutes deal with the use of
weapons during civil disorders, while the latter two sections
concern the instigation of and participation in a riot.
Plaintiffs also seek a permanent injunction to restrain the
Justice Department from presenting evidence to a Federal Grand
Jury and a similar temporary injunction pending a final hearing
on this prayer. Besides opposing plaintiffs' motion, defendants,
the Attorney General of the United States and the United States
Attorney for the Northern District of Illinois, have moved to
dismiss this suit.
Plaintiffs seek to invoke the jurisdiction of this Court under
a variety of statutes including 28 U.S.C. § 1331, 2201, 2202,
2282, and 2284. Defendants object that the last four sections do
not create independent grounds for jurisdiction and that the
first of these five sections is not applicable because
plaintiffs' claim that the amount in controversy exceeds $10,000
is without basis. We find that jurisdiction lies in that
plaintiffs' claims arise under and are based on constructions of
federal statutes and the Constitution. While the jurisdictional
amount purportedly applies to federal question cases under
28 U.S.C. § 1331, another section, 28 U.S.C. § 1337, grants
jurisdiction in cases arising under congressional acts regulating
commerce without regard to the amount in controversy. See also,
Landry v. Daley, 280 F. Supp. 929, 935 (N.D.Ill. 1967).
The language of 28 U.S.C. § 2284(5), which precludes dismissal
by a single judge, applies only after a three-judge court has
jurisdiction. Eastern States Petroleum Corp. v. Rogers, 108
U.S.App.D.C. 63, 280 F.2d 611, 615 (1960); Landsberger v.
Freeman, 217 F. Supp. 138 (D.C. 1963). Therefore, a single-judge
court must make the initial determination as to whether
plaintiffs' complaint raises a substantial constitutional
question, whether there is, at least, a formally alleged basis
for equitable relief, and whether the case is otherwise
appropriate for hearing by a three-judge court. Idlewild Bon
Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8
L.Ed.2d 794 (1962); Landry v. Daley, 280 F. Supp. 929, 935
A constitutional question will be considered an insubstantial
one if it is "obviously without merit or because its unsoundness
is so clearly demonstrated by previous decisions of the Supreme
Court as to foreclose the subject." Landry v. Daley, 280 F. Supp.
at 935. Plaintiffs contend that the statutes in question are
designed to regulate or inhibit the rights of free speech,
assembly and travel by means of criminal sanctions which are
vague and overbroad. The Civil Disorders provision, 18 U.S.C. § 231
& 232, attempts to regulate the teaching and demonstration of
the use and manufacture of firearms and other devices and
techniques capable of causing injury with the intent that the
same will be used in the furtherance of a civil disorder
(18 U.S.C. § 231(a)(1)), defined as a public disturbance involving
three or more persons and characterized by violence to persons or
property (18 U.S.C. § 232(1)); the manufacture or transportation
of the aforementioned devices by a person knowing or intending
that they be used in a civil disorder (18 U.S.C. § 231(a)(2));
and attempts to obstruct law enforcement officers and firemen who
are engaged in lawful performance of their official duties during
a civil disorder (18 U.S.C. § 231(a)(3)).
Plaintiffs' concern is really centered on the riots statutes,
18 U.S.C. § 2101 and 2102. These provisions attempt to regulate
the use of interstate facilities with the intent to incite or
organize a riot. Plaintiffs contend that certain phrases such as
"to incite a riot" and "to organize, promote, encourage,
participate in, or carry on a riot" are vague and therefore
unconstitutional limitations on free speech. 18 U.S.C. § 2101(a),
However, plaintiffs' argument is clearly insubstantial because
the First Amendment does not protect rioting and the incitement
to riot. The protections afforded by the First Amendment do not
reach a person who urges or instigates others to riot any more
than it covers the now famous theatregoer who falsely shouts
"Fire!" and causes a panic. Schenck v. United States,
249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919). See also United States
v. Woodard, 7 Cir., 376 F.2d 136, 142 (1967).
So it is that a "man may be punished for encouraging the
commission of a crime, Fox v. Washington, 236 U.S. 273 [35 S.Ct.
383, 59 L.Ed. 573], or for uttering `fighting words,' Chaplinsky
v. New Hampshire, 315 U.S. 568 [62 S.Ct. 766, 86 L.Ed. 1031]."
Cox v. Louisiana, 379 U.S. 559, 563, 85 S.Ct. 476, 480, 13
L.Ed.2d 487 (1965).
Regulations on various forms of conduct intertwined with speech
have been upheld to protect a valid interest of the government.
See, e.g., United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673,
20 L.Ed.2d 672 (1968) (destruction of Selective Service
registration card); Cameron v. Johnson, 390 U.S. 611, 88 S.Ct.
1335, 20 L.Ed.2d 182 (1968) (picketing which interfered with
access to county courthouse); Adderley v. Florida, 385 U.S. 39,
87 S.Ct. 242, 17 L.Ed.2d 149 (1966) (demonstration on non-public
section of jail grounds). We do not see how traveling across
state lines with the intent to incite, promote, or participate in
a riot is any less a governmental concern than is the control of
travel on the streets. "The constitutional guarantee of liberty
implies the existence of an organized society maintaining public
order, without which liberty itself would be lost in the excesses
of anarchy." Cox v. Louisiana, 379 U.S. 536, at 554, 85 S.Ct.
453, at 464, 13 L.Ed.2d 471.
Thus, it is clear that First Amendment rights "may be abused by
using speech or press or assembly in order to incite to violence
and crime. The people through their legislatures may protect
themselves against that abuse. But the legislative intervention
can find constitutional justification only by dealing with the
abuse. The rights themselves must not be curtailed." De Jonge v.
Oregon, 299 U.S. 353, 364-365, 57 S.Ct. 255, 260, 81 L.Ed. 278
(1937). Sections 2101 and 2102 of Title 18 deal only with the
abuse of First Amendment rights. When speaking of the instigation
or urging of others to riot, the statute specifically precludes
from its scope the mere advocacy of ideas or expressions of
belief. 18 U.S.C. § 2102(b). It is concerned solely with the use
of interstate facilities by persons who intend to encourage or
participate in acts of violence which pose a clear and present
danger to persons and property.
We agree with plaintiffs that "rioting" and "incitement"
encompass a wide variety of activity which is often closely
related to the immediate circumstances. However, the
constitutionality of a statute does not depend on a possible
misapplication of the statute's sanctions to protected activity.
United States v. Woodard, 7 Cir., 376 F.2d 136, 143 (1967);
Landry v. Daley, 280 F. Supp. at 960. All statutes are susceptible
to some abuse. All that is required
is that, given a normal interpretation, the language is not too
broad. United States v. Petrillo, 332 U.S. 1, 8, 67 S.Ct. 1538,
91 L.Ed. 1877 (1947); United States v. Woodard, 376 F.2d at 140.
A similarly phrased New York disorderly conduct statute aimed
at persons who, with the intent to provoke breach of peace,
disturb or interfere with others has been held not to be
unconstitutionally broad. United States v. Jones, 2 Cir.,
365 F.2d 675 (1966). ...