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5409 Version 1.001 Upgraded Fri, Nov 10, 2006. Lawyerdude: 541 476 8954. Lawyerdude1989@yahoo.com

Lawyerdude Explains Overbreadth

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Copyright 2004 Attorney Douglas Palaschak. Lawyerdude is my Trademark and Service Mark.

 

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            The photograph is that of Reverend Fred Shuttlesworth, A National Hero! Reverend Fred Shuttlesworth is still with us today. He is one great man!

Can I get an Amen !

 

If Reverend Fred’s picture did not show up, then click here to see Reverend Fred: www.lawyerdude.8m.com/shut.jpg

Fred Shuttleworth’s most famous Supreme Ct. case (he had 4): http://www.lawyerdude.8m.com/5089.html

Link’s to Fred’s other 3 cases:

                         http://www.lawyerdude.8m.com/5091.html (1969)

                         http://www.lawyerdude.8m.com/5090.html (1963)

                         http://www.lawyerdude.8m.com/5092.html (1958)

 

Overbreadth is the single most powerful constitutional law concept that can be used to combat oppression. Definition of Overbreadth: Excessive breadth of a statute that could lead to Possible Encroachment on lawful speech or activity by person enforcing the statute. A related concept is vagueness. Overbreadth renders the statute unconstitutional - but only if you raise the issue.

“Literally read, therefore, the second part of this ordinance says that a person may stand on a public sidewalk in Birmingham only at the whim of any police officer of that city. The constitutional vice of so broad a provision needs no demonstration. It does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman on his beat."

            - William O. Douglas for the Supreme Court in Shuttlesworth v Birmingham (1965) http://www.lawyerdude.8m.com/5089.html Volume15 of Lawyer's Edition 2nd page 176; 382 U.S. 87; 86 S Ct 211.

This case proves that this overbreadth concept applies to more than mere speech.


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Related pages:

The closely related concept of Vagueness is explained at: http://www.lawyerdude.netfirms.com/vague2.html and http://www.fu.gq.nu/vagueness.html It may be identical to http://www.fu.gq.nu/vague2 and http://www.lawyerdude.netfirms.com/vagueness.html

            List of overbreadth cases pertaining to lawyers and other humans. http://www.lawyerdude.8m.com/5428.html

Related un-named concept in Yick Wo case: http://www.lawyerdude.netfirms.com/yickwo.html

Lawyerdude won two recent cases using overbreadth theory. You can likely use overbreadth in your case if police used an oppressive statute against you - just like the Reverend Fred Shuttlesworth did in 1965.

Overbreadth used in Lawyerdude’s June 2002 victory challenging enforcement of an overbroad law. Www.lawyerdude.8m.com/5124.html

            Lawyerdude’s winning overbreadth brief for Steve762 in Iowa: www.circuitlawyer.8m.com/5571.html

            Overbreadth used in Lawyerdude’s winning closing argument in 1999 while on trial for advertising. 5391.pdf

            List of overbreadth cases pertaining to lawyers and other humans. Page 5428.

            Lawyerdude’s challenge to state bar act as overbroad. www.lawyerdude.8m.com/3789.html

            Getzschman cases. Can you spot the overbreadth issues. Page 5257 They did not raise the issue.

For a link to the version of Shuttlesworth on FindLaw where all the links work, click here: http://laws.findlaw.com/us/382/87.html

 

Reverend Fred Shuttlesworth went to the U.S. Supreme Court 4 times. He went in 1958 in Shuttlesworth v Birmingham Board of Education. He went in 1963, 1965, and 1969 in cases all entitled Shuttlesworth v Birmingham. Next is the 1963 decision:

 SHUTTLESWORTH v. BIRMINGHAM (1963) 10 Lawyer's Edition 2nd page 335,, 373 U.S. 262, 83rd Supreme Court 1130.

Chronologically, this is the 2nd of 4 appearances by Shuttlesworth before the Supreme Court.

Here is the link to the find law opinion where the subordinate links work:

http://laws.findlaw.com/us/373/262.html

Here is the link to SHUTTLESWORTH v. BIRMINGHAM (1969) 22 L Ed 2d 162, 394 U.S. 147, 89 S Ct 935

The 1958 opinion was a simple per curiam affirmation of the lower court opinion. Here it is anyway: SHUTTLESWORTH v. BD. OF EDUCATION (1958) 3 L Ed 2d 145, 358 U.S. 101, 79 S Ct 221.

 


 

Lawyerdude’s top ten Overbreadth cases for Lawyers and Humans too.

This list is taken from Lawyerdude's brief #3789: http://www.lawyerdude.8m.com/3789.html

This list is identical to: http://www.lawyerdude.8m.com/5428.html

1.       Birbrower http://www.lawyerdude.netfirms.com/birbrower.html Birbrower, Montalbano, Condon & Frank v Superior Court (1998)17 Cal.4th 119 , 70 Cal.Rptr.2d 304; 949 P 2nd wherein corrupt Chinese idiot Diane Yu loses even though she has a Chinese judge. This case may not mention overbreadth but the state bar act is way overbroad.

2.         Shuttlesworth v Birmingham http://www.lawyerdude.8m.com/5409.html is, of course, a superb overbreadth case proving that actions as well as speech trigger overbreadth protection.

3.         Bates v Arizona http://www.lawyerdude.netfirms.com/bates.html (1977) 53 L Ed 2d 810. Legal Clinic Advertised. Subject: Overbreadth and 1stamendment. The 6th most pertinent case here.

4.         Condon, Estate of http://www.lawyerdude.netfirms.com/condon.html (__1998) 65 Cal App 4th 1138, 76 Cal Rptr 2d 922. For years the bar would not permit unlicensed lawyers to be heard if they attempted to collect money for fees. These lawyers took the bar to task and won! The case is dictatated by the . . .

5.         Baird v State Bar of Arizona (1970) 27 L Ed 2d 639, Superb Annotation @953 of 27 Lawyer's Edition 2nd . Subject: Overbreadth. Bar applicant refused to answer question in bar application regarding his past to age 16 regarding membership in organizations advocating overthrow of government. Note that Judge McMecarch or whomever in Mariposa county refused to take the loyalty oath part of the oath specifically quoted in the California constitution.

6.         Cohen v California http://www.lawyerdude.8k.com/fuckthedraft.html (1971) 30 L Ed 2d 124. "Fuck the draft" written on the back of jacket in court hallway. Overbreadth was the basis of this decision.

7.         Hackin v Lockwood (1966) 361 F2d 499. District court held that Arizona's ABA requirement is constitutional. The court skirted the issue by holding that requiring graduation from an accredited school is constitutional - avoiding completely the issue that ABA requirements were instituted at the behest of Carnegie, a paradigm robber baron, and foisted upon the public in the age of the robber barons with the obvious effect of promoting corporate ficta and limiting the practice of law and even the teaching of law to the wealthy. We can see the folly now in retrospect with the multitude of non-ABA schools in California.

8.         Hackin v Arizona http://www.lawyerdude.netfirms.com/hackin.html (1967)19 L. Ed. 2d 347; 389 U.S. 143; 88 S. Ct. 325. Overbreadth case. There was no written majority opinion. Douglas's strong and cogent dissent shames the majority in this case. Lawyer Hackin having been denied admission to the Arizona bar nonetheless defended a guy who was denied counsel by the court because the proceeding was, hypertechnically, civil in nature, habeas corpus. Hackin stepped forward where bar volunteers failed to do so, defended the otherwise defenseless, and was prosecuted for practicing without a license. Maybe he failed to write a good brief - although he persuaded Justice Douglas. Doran v Salem Inn (1975) 45 L Ed 2d 648. Overbreadth. 3 stripper bars. Ballet Africanus. Leading case. Joe Redner, famous owner of the leading stripper bar in Tampa recognized the name of this case which I chatted with him in Jan 2000. Redner is facing enforcement of an overbroad statute to stop lap dances in his night clubs.

9.         Erznoznik v City of Jacksonville http://www.lawyerdude.netfirms.com/erzoznik.html ( ) 45 L Ed 2d__. Overbreadth. Baby's butt argument regarding drive in theater. The statute was declared unconstitutional because it was so broad as to include the depiction of a baby's butt which the court felt, would not be offensive to anybody.

10.       Ficker v Curran 950 F Supp 123, Affirmed at 119 F3d 1150. Attorney solicitation. Overbreadth regarding bar acts regulating attorneys. Attorney solicitation law was held unconstitutional. Used in my brief 3596 at page 10 which brief is here: http://www.lawyerdude.netfirms.com/3596.html

11.       Houston v Hill http://www.lawyerdude.netfirms.com/houston.html (1987) 96 L Ed 2d 390. Our friend Ed Heimlich from Houston knows this guy Ray Hill. “Pick on somebody your own size” are the words that triggered an illegal arrest. Overbreadth. Famous Texan Charles Alan Wright argued this case. "Interview" with police as they were chasing a suspect. Defendant said "Why don't you pick on somebody your own size!" The statements were not fighting words or obscenity. The Supreme Court ruled in favor of the guy shouting at police as they were chasing a suspect. It is okay to be provocative. Any non-speech was pre-empted by state statute. Extrapolation from Houston case: With regard to laws against attorneys speaking without license: Any non-truth is pre-empted by fraud statutes. Any truth is protected by the 1st amendment. The supreme Court said that the city "had numerous opportunities to narrow and has not done so." Similarly the state bar act suffers from overbreadth and the implied and also explicit ambiguity of defining what constitutes the practice of law.

12.       Keyishian v Board of Regents (1967) 17 L Ed 2d 629, 385 U.S. 589. Peddler registration. Overbreadth. Ordinance required solicitors to register with the police. Ruled unconstitutional.

13.       McSurely v Ratliff (1967) 282 F Supp 848 (E.D. Ky. 1967). Anti communist law. Raid. Court declared Kentucky's anti sedition law unconstitutional. Case arose from overbreadth, an unjustified raid based on an overbroad statute. See McSurely v McClellan (1976) 553 F2d 1277, 1282, note 9 (D.C. Cir. 1976)(en banc) discussing a safekeeping order for the personal diaries and other seized items of McSurely. The case ordering the return of the documents of McSurelys is McSurely v Ratliff(1968) 398 F2d 817 (6th Cir 1968). The endnotes of In Our Defense contain an excellent brief regarding the search and seizure issues in a politically motivated raid.

 

Supplement: Free Speech cases are based on Clear and Present Danger test

14.       Bridges case decided on the day after Pearl Harbor: http://www.lawyerdude.netfirms.com/bridges.html Read about the “extremely serious evil with extremely high imminence test” at http://www.lawyerdude.netfirms.com/bridges.html

 

Supplement: Deprivation of License Requires Prior Due Process; It is a property interest.

15.     In Re Ming http://www.lawyerdude.8m.com/ming.html 469 F 2d 1353 (7th Cir. 1971) Even federal court rules must render due process. Disciplinary proceeding. The Executive Committee of the United States District Court for Northern District of Illinois issued suspension order, and appeal was taken. The Court of Appeals, Pell, Circuit Judge, held that if a conviction itself is to be used to show commission of underlying acts which are of such nature as to form basis for disbarment or suspension, conviction must have reached finality, or at least to the extent of exhaustion of direct appeals. In addition, the Court held that failure to afford hearing prior to issuing order of suspension based on misdemeanor conviction violated due process. Reversed. If a conviction itself is to be used to show commission of underlying acts which are of such nature as to form basis for disbarment or suspension, conviction must have reached finality, at least to the extent of exhaustion of direct appeals. U.S. Dist. Ct. Rules, N.D. Ill., General Rule 8. District courts are free to adopt their own local rules defining grounds for disbarment and suspension and the procedures to be followed; however, such rules must meet the essential requirements of due process. License to practice law constitutes a type of "new property" the divestment of which cannot be affected without affording substantial due process, including the opportunity to be heard and to confront and cross-examine adverse witnesses. Failure to afford hearing prior to issuing order of suspension based on misdemeanor conviction violated due process.[Comment by Palaschak: What a joke! The Court completely ignores the fact that the practice of law being primarily speech and writing is perhaps protected by the first amendment!]

16.       Bell v Burson http://www.circuitlawyer.8m.com/Burson.html (1971) 26 L Ed 90, 401 US 535 State cannot take a driver license without hearing. Used in motion 3596 at page 3.

17.       In Re Crow http://www.lawyerdude.netfirms.com/crow.html (1959) 3 L Ed 2d 1025-27. Annotation 3 L Ed 2d. Essentially overruled by Ming. Non criminal disbarment. Attorney disbarred in Ohio. U.S. Supreme Court issues OSC. He responded. Douglas dissents that they should have appoint a committee. Annotation re In Re Crow 3 L Ed 2d 1960-65 is excellent as usual from Lawyer’s Edition. Douglas dissented in Hackin also.

18.       Delaware v Prouse http://www.lawyerdude.s5.com/prouse.html

Some lesser Leading cases regarding Overbreadth:

19.       Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389 (2002)

20.       Los Angles Police Dept. v. United Reporting Publishing Corp., 528 U.S. 32 (1999)

21.       Osborne v. Ohio, 495 U.S. 103 (1990)

22.       Virginia v. American Booksellers Association, Inc., 484 U.S. 383 (1988)

23.       Los Angeles City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984)

24.       Broadrick v. Oklahoma, 413 U.S. 601 (1973)

25.       Gooding v. WIilson, 405 U.S. 518 (1972)

Regarding vagueness: Graynard v. Rockford www.lawyerdude.netfirms.com/grayned.html , 408 U.S. 104 (1972)

 


 

Related pages:

Medley of Free Speech cases:

            a.         Lawyerdude's free speech page: www.lawyerdude.netfirms.com/5956.htm

            b.         Clear and Present Danger Test explained: http://www.lawyerdude.8k.com/5802.html

            c.          I talked about this 1941 Bridges case in my 1999 winning argument to the jury in my free speech case. Bridges case about the clear and present danger test is at this link www.lawyerdude.netfirms.com/bridges.html

            d.         That winning argument is here: http://www.lawyerdude.netfirms.com/5918.html Look on page 9 for the Bridges case.

            e.         "Fuck the draft" case: http://www.lawyerdude.8m.com/fuckthedraft.html

            f.          Bridges is on Findlaw is: http://laws.findlaw.com/us/314/252.html

            g.         My "tell em how to make the bomb page: http://www.lawyerdude.8k.com/5833.html

            h.         Pentagon papers case: http://www.lawyerdude.8k.com/5801.html

            i.           This clear and present danger test was used in brief #3789: www.lawyerdude.8m.com/3789.html

            j.           Overbreadth case: Shuttlesworth. My overbreadth page: http://www.lawyerdude.8m.com/5409.html

            k.          List of overbreadth cases pertaining to lawyers and other humans. http://www.lawyerdude.8m.com/5428.html

            l.           Fred Shuttleworth's most famous Supreme Ct. case (he had 4): http://www.lawyerdude.8m.com/5089.html

            m.        Link's to Fred's other 3 cases:

                         i.           http://www.lawyerdude.8m.com/5091.html (1969)

                         ii.          http://www.lawyerdude.8m.com/5090.html (1963)

                         iii.         http://www.lawyerdude.8m.com/5092.html (1958)

            n.         Related un-named concept in Yick Wo case: http://www.lawyerdude.netfirms.com/yickwo.html

            o.         Unlawful Prior Restraint explained: http://www.lawyerdude.8k.com/5799.html

            p.         The clear and present danger test is on the top ten list of liberating constitutional concepts: www.lawyerdude.8k.com/5798.html

            q.         Near v Minnesota page: www.lawyerdude.8k.com/near.html

            r.          Here is an explanation of prior restraint: http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/priorrestraints.htm Top ten liberating constitutional concepts: www.lawyerdude.8k.com/5798.html

            s.          Top 100 liberating decisions of the supreme court. http://www.lawyerdude.8m.com/5095.html

            t.          Brief 3789 explaining the speech rights of lawyers. Www.lawyerdude.8m.com/3789.html

            u.         Table of authorities for brief 3789: http://www.lawyerdude.8m.com/3789authorities.html

            v.          History of bar oppression against me: http://www.lawyerdude.8m.com/3789history.html

 

Medley of cases regarding the Amish, Jehovah’s witnesses and other honest folks fighting for freedom.

Amish don't have to pay social security tax. See this link. http://www.amishnews.com/amisharticles/amishss.htm

Amish don't have to send their kids to high school. God Bless the Amish! See Wisconsin v Yoder at this following link: http://www.lawyerdude.netfirms.com/amish.html

Here is my link to special rights won by Amish, Jehovah’s Witnesses, and other good honest folks:

             http://www.lawyerdude.8k.com/5731.html

My other Jehovah’s Witness page: http://www.circuitlawyer.8m.com/5716.html

 


 

lVersion 1.010 Crass Promotional Links: Upgraded Friday, June 23, 2006 Upgraded October 4, 2006.

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16.       Courtroom assertiveness 101: How to be assertive in court. Scripts for the Pro Se litigant:

                                                                 http://www.circuitlawyer.8m.com/5537.html

17.       Were you strip searched? Sue em! http://www.circuitlawyer.8m.com/5728.html Do they do a strip search anus check every time you go to the law library? Did your jail not have a law library?

18.       List of the most quotable cases and the most useful web pages for the pro se Litigator: http://www.lawyerdude.8k.com/medley.html

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All about Lawyerdude Palaschak

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