ance of legitimate labor objectives, but would not protect labor activity designed to extort money for fictitious or unneeded services under the guise of wages.

§ 1723. Blackmail

Section 1723 (a) makes it a crime if a person "obtains property of another by threatening or placing another person in fear that any person will:

(3) *** refuse to employ or renew a contract of employment of any person; (4) Improperly subject any person to economic loss or injury to his business or profession;

(5) Expose a secret or publicize an asserted fact, whether true or false, with intent to ** impair his personal, financial, professional or business reputation;

(emphasis added)

If adopted, these provisions could be construed to effectuate broad scale labor reform sub silentio by outlawing collective bargaining, strikes, and informational picketing. To prevent that result, this section should be amended to exclude activity undertaken in conformity with federal labor laws.

For example, § 1723 (a) (3) could be construed to prohibit collective bargaining. Acceptable collective bargaining behavior includes obtaining employee benefits by threatening or actually refusing to adopt a collective bargaining agreement without certain terms. Arguably, such action constitutes obtaining the property of another, i.e., money from the employer, by refusing to "renew a contract of employment of any person"-a violation of § 1723 (a) (3). Moreover, section 1723 (a) (4) would prohibit a union from using a strike threat as a means of obtaining agreement to a collective bargaining contract anytime a court decided such a threat was "improper”-an undefined standard too susceptible of subjective judicial interpretation to regulate a union's most basic economic sanction. Finally, section 1723(a)(5) would prohibit informational picketing, since such picketing is designed to pressure an employer by publicizing facts which impair the employer's business reputation.

Section 1723(b) does provide a defense which might protect labor activity which fell within the definition of the offense in subsection (a), but its effect is undermined by several defects. First, the language of the defense is vague, and might not be read to protect collective bargaining, striking and informational picketing. For example, if a union struck in order to compel an employer to agree to include certain terms in a collective bargaining agreement, defendant union members would reasonably believe their conduct to be justified-thereby satisfying § 1723 (b) (1). But, a court could find that the strike was not "intended solely to compel or induce the other person [the employer] to take lawful and reasonable action to prevent or remedy the asserted wrong that prompted the defendant's conduct," § 1723 (b) (2), because a court might not consider the employer's failure to agree to a term of a proposed collective bargaining agreement to be an "asserted wrong." If not, this defense would not protect striking union members.

Even if the language of the defense were read to encompass collective bargaining, striking and picketing, its effectiveness is limited by its nature. The burden of proving the defense is on the defendant, instead of on the prosecutor to prove beyond a reasonable doubt that the defendant's actions satisfy the elements of the offense. Furthermore, as a defense, it will not inhibit frivolous persecutions as much as exculpatory language would. See page 12 supra.

The best way to ensure that § 1723 is not used by prosecutors and courts to restrict traditional union activities is to add an exculpatory proviso to § 1723 (a). Such a proviso, placed at the end of § 1723 (a) as proposed, could state the fol lowing: "provided, however, that labor union activity in conformity with federal labor laws shall not constitute a violation of this section."

Chapter 18-Offenses Involving Public Order, Safety, Health and Welfare §§ 1831-1834. Riot offenses

Sections 1831, 1832 and 1834 make it a crime to cause, lead, provide arms to, or engage in a riot. Section 1834 defines a riot as: "a public disturbance (a) that involves ten or more persons as participants; (b) that involves violent and tumultuous conduct on the part of participants; and (c) that causes, or creates a grave danger or imminently causing, injury to persons or damage to property. 'Riot' does not include orderly and lawful conduct for the purpose of pursuing the legitimate objectives or organized labor."

The first sentence of § 1834 represents an improvement over existing law, 18 USC §§ 2101, 2102, and should be adopted. The second sentence should be amended, however, because it does not exclude illegal strike activity from the definition of a riot. In terms of preserving public order, there is no justifiable distinction between a strike to obtain employee benefits which is authorized by statute and one prohibited by statute: an illegal strike could avoid or cause just as much damage as a lawful strike. Consequently, the words "and lawful" should be excised from the second sentence of § 1834. An alternative to this would be to delete the last sentence, since by definition any orderly conduct would not be a riot. § 1834 (b).

Section 1833 (a) should be amended to require specific intent in order to be convicted of engaging in a riot. Otherwise, participation in peaceful group action could inadvertently become “engaging in a riot" when other members of the group undertake violent or tumultuous behavior causing a grave danger of imminent personal injury or property damage. Such a provision might be overbroad. See, National Mobilization Comm. to End War in Vietnam v. Foran, 411 F.2d 934 (7th Cir. 1969); United States v. Featherston, 461 F.2d 1119 (5th Cir. 1972).

As stated by the Seventh Circuit Court of Appeals in United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), cert. denied, 410 U.S. 970 (1973):

[A] riot may well erupt out of an originally peaceful demonstration which many participants intended to maintain as such. Each participant is entitled to a careful distinction between responsibility for the lawful and constitutionally protected demonstration and responsibiliity for the activity for which the legislative body validly prescribes a penalty." 472 F.2d at 359.

The distinction referred to by the Seventh Circuit can be provided by making § 1833 a specific intent crime. Section 1833 (a) would then read: "A person is guilty of an offense if he intentionally engages in a riot."

§ 1861. Failing to obey a public safety order

Section 1861, which creates a wholly new federal crime, states:

"A person is guilty of an offense if he disobeys an order of a [federal] public servant to move, disperse, or refrain from specified activity in a particular place, and the order:

"(1) is issued in response to a fire, flood, riot, or other condition that creates a risk of serious injury to a person or serious damage to property; and "(2) is, in fact, lawful and reasonably designed to prevent serious bodily injury to a person or serious damage to property. (emphasis added)

This section authorizes federal employees and other federal public servants acting under the scope of their general authority to break up a picket line, forbid a strike, or disperse a peaceful mass demonstration whenever that public servant believes that there is a risk of personal injury or property damage. Such authority "does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman [or other public servant] on his beat." Cox v. State of Louisiana, 379 U.S. 536, 559, 579 (1965) (Black, J. concurring), quoted in Shuttlesworth v. City of Birmingham, 382 U.S. 87, 91 (1965).

The Senate made two important changes in its version of § 1861, which should be adopted to amend § 1861 (a) of H.R. 6869. First, § 1861 (a) of S. 1437 requires that the order be "issued by a [federal] law enforcement officer, or by a [federal] public servant assigned public safety responsibilities . . ." This requirement appropriately narrows which federal public servants can make public safety orders which must be obeyed. Second, § 1861 (a) of S. 1437 includes a requirement that the disobedient person knows that the order is issued by that class of federal public servants. This ensures that person who would have obeyed the order if he knew it was issued by an official with proper authority is not subject to criminal sanction because that fact is somehow unknown.

There is further need of narrowing of § 1861 (a), however, because § 1861 (a), even if amended to conform to the Senate version, would still accord broad power to federal law enforcement officers and a specified class of federal public servants. The situations under which such persons are authorized to order persons to "move, disperse or refrain from specified activity" should be circumscribed. The open-ended phrase "“or other condition that creates a risk of serious injury to a person or serious damage to property"-should be deleted. This phrase is vague, thereby failing to notify persons when an order from a law enforcement officer must be obeyed and inviting arbitrary or selective enforcement. Furthermore, it

fails to provide a clear standard by which the behavior of police or other specified public servants could be judged later.

Alternatively, this vague phrase should be clarified by inserting the words "imminent and substantial" before "risk". Such an amendment would restrict the authority of the specified class of public servants to circumstances which justify the exercise of such broad discretionary authority.

CONCLUSION

NEA hopes that the Subcommittee adopts its proposed changes. Thank you for the opportunity of making this statement.

STATEMENT OF THE LIBERAL PARTY OF NEW YORK STATE

H.R. 6869, the House version of the proposed Criminal Code Reform Act of 1978, contains some improvements over existing law, but also contains some potential dangers to the free exercise of basic civil rights.

Although its Senate version (S. 1437) was adopted after the acceptance of amendments eliminating or minimizing many problems presented by the draft initially worked out under the leadership of McClellan and Kennedy, the bill which passed the Senate still leaves much to be desired.

Even that improved Senate bill (and the House version to date does not have even the amendments adopted by the Senate) is unnecessarily broad and vague, and creates, or in some cases continues, definitions of criminal behavior which are dangerous to freedom of expression and peaceful demonstration.

We are cognizant of the importance of legal mechanisms to combat organized crime and organized violations of civil rights statutes. Nevertheless zealousness in pursuit of these goals does not justify provisions which are so broad as to threaten the rights of free expression of honest citizens, the right to freedom from unwarranted intervention by law enforcement and the facilitation of deadly chills upon the vigorous practice of democracy.

This code, as any purportedly all-encompassing criminal code, should be viewed with the knowledge that it is unwise to assume that criminal statutes will always be applied with appropriate care and restraint, particularly in cases involving unpopular accuseds or those whose views simply differ sharply from the views of a particular political administration.

Mr. Justice Oliver Wendell Holmes once said that "legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts."

His words are taken, often, as a directive to judges to keep hands off, but they are also an exhortation to Congress and the state legislatures to assume their traditional task of protecting the ordinary man from governmental oppression.

It is dangerous to assume that a civil rights minded Supreme Court will always be in the wings ready to strike down questionable legislation or practices as unconstitutional. The Supreme Court, as many other institutions, reflects to a considerable extent the values of those who compose it at a given time, and as its composition changes, so may its philosophy or perception of what is permissible under the Constitution, and what is not.

We should not forget that neither the Alien and Sedition Acts of the 1790's nor the Sedition and Espionage Acts of the First World War were held void by the courts. And many people's careers were grievously and wrongfully injured before the Court's ruling on the Smith Act of 1940.

Zachariah Chafee has observed, and we agree, that

"Those who are concerned for the preservation of elementary freedoms must not take refuge in legalism. It is not sufficient for freedom to be vindicated by the courts, or by constitutional experts. That is, in a sense, a barren vindication. If the preservation of our freedom depends upon the courts, then we are, indeed, lost, for in the long run neither courts nor Constitution can save us from our own errors, follies, or wickedness", Chafee, Civil Liberties Under Attack, p. 3.

In his speech in opposition to this bill's counterpart in the Senate (S. 1437), Senator Cranston observed:

"Americans enjoy unparalleled civil and political freedom partly because our Constitution, in addition to the specific guarantees of the Bill of Rights, does not concentrate police power in any one place. On the contrary, the Constitution

deliberately disrupts and makes difficult the consolidation of power. Between the cracks and the gaps, freedom, like an alpine flower flourishes.

The Department of Justice wants the bill passed because existing law is inconsistent, contains omissions and is difficult to enforce from a prosecutor's point of view. When the plastering over of existing cracks and filling the gaps is completed, the Department will have in its grasp a monolithic prosecutorial and investigative jurisdiction capable of reaching virtually every nook and cranny of American life ***"

As Senator Cranston then pointed out, the bill grants new and broad interpre tive authority and discretion to the Department of Justice and the courts. This is true in a number of areas. "Principles of Construction" (Section 112).

A long established and salutory principle of construction of criminal statutes is that criminal statutes, particularly where they may effect constitutional rights, should be "strictly" or "narrowly" construed. This bill (House version), however, provides that its provisions are to be construed "in accordance with the fair import of their terms to effectuate the general purposes" of the criminal code. There should be strict construction of criminal statutes. It is incumbent upon a legislature which enacts criminal statutes to make clear the behavior which it means to proscribe. It is important that citizens know what constitutes a crime before arrests are made and prosecutions commenced-indeed, before an act is committed which may result in an arrest or criminal charges.

This is not a concern only of liberals. A similar provision in S. 1437 was revised after strong objections were voiced by both the American Civil Liberties Union and Americans for Constitutional Action.

While it is true that new state penal codes, and even Representative Cohen's bill (H.R. 2311), which is generally preferred by some eminent civil liberties advocates, depart from strict construction principles, we agree with those who insisted on a revision of such a provision in S. 1437. Section 112, as set forth in H.R. 6869 upon referral to this committee, is a threat to civil liberties. The provision eventually adopted by the Senate is preferable, to wit,

"(a) Construction in general.-The provisions of this title shall be construed in accordance with the fair import of their terms to effectuate the general purposes of this title particularly to assure definition and notice of the conduct prohibited in accordance with the rule of strict construction as applied by the Federal courts."

Indeed, it should not be necessary to retain the reference to "fair import" and "general purposes of this title", at all.

The vagueness suggested by the Principle of Construction proposed in this bill is compounded by the broad sweep of the inchoate crimes as defined in the bill. The inchoate crimes (attempt, conspiracy, complicity and solicitation) are of a type which are particularly susceptible to use by overzealous officials against political opposition. They permit the conviction of persons for conduct which is prior to the occurrence of a regular crime, and who did not personally participate in a crime which was supposedly the object of an agreement, plan or discussion. They can be used to harass individuals who participate peaceably in group political activity by making everyone associated with the group liable for the offenses of a few militant members, or for conduct of an agent provocateur. Inchoate crimes may be useful in dealing with organized crime, drug offenses or violations of the anti-trust or civil rights laws, but, because of their inherent danger of abuse, they should be constructed with care where they may touch upon the right of free expression of political views.

It should also be borne in mind that street demonstrations are in effect the poor man's press. It is a way for those who cannot afford to finance campaigns through the mail or media nevertheless to bring their views to the attention of the general public. The right to peaceable demonstration must always be regarded as a precious first amendment right, and the right to meet, to discuss, and to advocate use of that right is equally important.

The inchoate crime provisions, as presently constructed in this bill, could have a severe and dangerous chilling effect on these rights particularly when used in conjunction with certain other substantive provisions in this code.

For example, this bill would create a new crime entitled, "Obstructing a Government Function by Physical Interference" (section 1302). It is defined as follows:

"(a) Offense.-A person is guilty of an offense if, by means of physical interference or obstacle, he intentionally obstructs or impairs a government function in fact involving:

"(1) the performance by a public servant of an official duty;

"(2) the performance by an inspector of a specific duty imposed by a statute, or by a regulation, rule or order pursuant thereto;

"(3) the delivery of mail; or

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"(4) the exercise of a right, or the performance of a duty, under a court order, judgment, or decree."

This could conceivably be deemed to cover peaceful picketing in front of a post office or other federal facility to protest a questionable act of the federal government or of a federal official, or even a demonstration temporarily blocking construction of an interstate highway through a park.

Application of federal criminal law to such situations would be to say the least, of questionable propriety or wisdom; it is submitted that the law should be drawn so as to exclude its use against basically peaceful demonstrations of that nature. Yet, the situation presented by this proprosed crime is made even more serious by the conspiracy provision; under it, anyone who agrees to such a demonstration might be convicted as a conspirator if, in the words of the conspiracy provision, the agreement is followed by "any conduct (by any of the persons who agreed to the demonstrations) with intent to effect any objective of the agreement". Criminal conspiracy should be limited to serious crimes, and particularly should be defined by Section 1004 (b) to exclude the types of situations indicated above, it should also include the bar to prosecutions adopted by the Senate (cases involving acquittals of all other alleged conspirators) and should also at least require some adequate corroboration by witnesses and conduct which is a substantial step towards the completion of a truly criminal goal.

Moreover there is an inchoate crime in this bill which is even further removed from actual commission of the offense which may be contemplated, to wit, crime of "solicitation" (section 1003). The gist of this offense is an entreaty or attempt to persuade a person to engage in conduct constituting a crime. No further overt act is required.

If this crime is to be retained in the code there should certainly be an exemption similar to that in section 1004 of the revised S. 1437, covering an alleged solicitation to evade the military or alternative civilian service where the person engaging in the solicitation is a member of the immediate family of the person soliciting or is providing professional advice as a clergyman or attorney where such advice has been sought by the person advised.

Despite the fact that this bill represents a considerable improvement over S. 1, it still evidences an inappropriate intent to defend the government at the expense of the citizen, rather than defend the citizen's right to freedom of expression and security where same may be inconvenient to a government or its officials. Thus, in the proposed crime of "Obstructing a Government Function by Physical Interference" the statute provides it is a defense to prosecution if the government function was unlawful and "conducted by a public servant who was not acting in good faith". If an action of an official, or a court order or decree, is unlawful, that in itself should be an adequate defense. A person who obstructs an unlawful function should not be convicted upon speculation as to whether the unlawful exercise of power by an official was in "good faith".

Suppose for example, a homeowner should resist entrance into his house, in the middle of the night, by a governmental employee who is not acting under circumstances which would permit him to do so without a search warrant, who does not have a search warrant, or who enters by mistake, having a warrant for another house. Suppose the intruder is an official with the mentality of a Howard Hunt or his erstwhile colleagues. Upon whom should the hazard of an "obstruction" fall in such circumstances? Not, we submit, on the homeowner.

This bill would place in the hands of public officials, unnecessarily, powers and potentialities for abuse far beyond those which Congress and the courts have seen fit to accord them to date. In view of recent revelations of officials misconduct and invasion of citizens' rights by federal officials, such innovations should not be expected of a vigilant and concerned Congress.

A number of other provisions which would effect changes of that nature are enumerated and discussed below. To more fully indicate the tilt of this bill in favor of officialdom, at this point we wish to call your attention in particular to two of these and ask that you consider them in conjunction with the observations made above.

Failing to Obey a Public Safety Order.—(Section 1861) As set forth in H.R. 6869, this offense would be committed if a person "disobeys an order of a public