UNITED STATES of America, Plaintiff-Appellee, v. David T. DELLINGER et al., Defendants-Appellants, 472 F.2d 340

FAIRCHILD, Circuit Judge. These are appeals from convictions of violation of the 1968 federal Anti-riot Act. The charges arose out of events in Chicago during the last week of August, 1968, during the national convention of the Democratic party. There were several violent encounters between the city police and other persons in the streets and parks. The degree of responsibility of the five present appellants and the intent with which they acted are the focal issues. The appellants are David Dellinger, Rennie Davis, Tom Hayden, Abbie Hoffman, and Jerry Rubin.

They, along with' Bobby Seale, were charged with making certain speeches for the purposes of inciting, organizing, promoting, and encouraging a riot, after having traveled in interstate commerce to . Chicago with intent to do so. Codefendants Froines and Weiner were charged with teaching the use of an incendiary device in violation of another federal statute, and .all eight were charged with conspiracy among themselves and with others to commit offenses under these statutes. All eight stood trial, except that a mistrial was declared, during the trial, as to Mr. Seale.

The appellants were each convicted on the respective substantive counts. Froines and Weiner were acquitted on the substantive count against them, and they and appellants were acquitted on the conspiracy count. Dellinger, Davis and Hayden were associated with an organization called National Mobilization Committee to End the War in Vietnam (often referred to as “Mobe”). Hoffman and Rubin had organized, in late 1967, Youth International Party, Y.I.P. (often referred to as Yippie, or the Yippies).

Mobe was an “umbrella” organization composed of various protest groups and its purpose was to sponsor demonstrations against the military activities of the United States in Vietnam, and racism, poverty, and injustice in the United States. Starting in early 1968, plans were formed for protest demonstrations in Chicago during the Democratic convention. Contact was made from time to time with Chicago city officials.

David Dellinger was one of a number of co-chairmen of Mobe, others identified in the record being Professor Sidney Peek, Western Reserve University, Professor Donald Kalish, University of California at Los Angeles, Msgr. Charles O. Rice, Pittsburgh, and Rev. Ralph Abernathy, Southern Christian Leadership Conference, Atlanta. Rennie Davis, aged 28, was Mobe’s Project Director for these activities and set up an office in Chicago. Yippie was a less formal organization, under the leadership of Hoffman, Rubin and a number of others.

One announced interest was to protest American conventional life style as well as military involvement in Vietnam. Yippie planned to hold a “Festival of Life” in Chicago parks during convention week.

As expressed in one circular, the festival would be “. . a six-day music-film-theatre-anti-draft youth festival which will express the new youth culture and will demonstrate to the world the continuing conflict between the life of youth and the death of the military-political system.” Although Mobe and Yippie were separate organizations, their leaders came together at several meetings early in 1968 where activity for convention week at Chicago was planned. There was a considerable degree of community of effort during the week itself.

The events which are of principal concern in this case occurred in the southern portion of Lincoln Park, and in and near Grant Park. Lincoln Park, in which Yippie held its festival, lies along Chicago’s Lake Michigan shore, and extends northward from 1600 North. Grant Park is also on the lake front, and extends from about 100 North to 1200 South. Michigan Avenue runs north and south along the west edge of Grant Park, and the downtown “Loop” area of Chicago is west of Michigan.

The Conrad Hilton Hotel was a focal point during convention week because of the significant individuals and party committees and groups residing and headquartered there. The Hilton is on the west side of Michigan Avenue, and extends from Balbo Avenue (or East 7th Street) at the north, to East 8th Street at the south. Convention sessions were held at the International Amphitheatre at 43rd and Halsted Streets, many blocks south and some blocks west of the Hilton, a little more than five miles away, over all. The Amphitheatre was the announced objective of a protest march which did not take place.

Count I of the indictment charged that defendants and others conspired not only to travel in and use the facilities of interstate commerce with the intent to incite, organize, promote and encourage a riot, but also to participate in and carry on a riot, to commit acts of violence in furtherance of a riot, and to aid and abet persons in such activities, as well as to commit offenses under 18 U.S.C. § 231 (a)(1) and (3). It alleged a number of overt acts to effect the objects of the conspiracy besides the speeches alleged in the various substantive counts.

By reason of the verdict of acquittal of Count I, we are no longer concerned with its allegations, nor with the proof offered thereunder, except as such proof tends to establish intent or some other requisite of the much more narrow substantive counts.

Each appellant was charged in one count with traveling in interstate commerce from outside of Illinois to Chicago, with intent to incite, organize, promote and encourage a riot, and thereafter, on or about specified dates and at specified locations, with speaking “to an assemblage of persons for the purposes of inciting, organizing, promoting and encouraging a riot.’’ The speech or speeches charged were, against Dellinger in Count II, August 28 at Grant Park; against Davis in Count III, August 1 at 30 West Chicago Avenue. August 9 at the Mobe office (407 S.

Dearborn Street), August 18 at 1012 North Noble Street, and August 26 at Grant Park; against Hayden in Count IV, August 26 at Lincoln Park, and August 28 at Grant Park; against Hoffman in Count V, August 26 at Lincoln Park, August 27 at Lincoln Park, and August 29 at Grant Park; and against Rubin in Count IV, August 25 at Lincoln ParkA August 26 at Lincoln Park, and August 27 at Lincoln Park.

Violent encounters between the city police and other persons occurred in and near Lincoln Park late in the nights of Sunday, Monday, and Tuesday, August 25, 26, and 27, after the police ordered the people' in the park to leave in accordance with the 11:00 P.M. park closing ordinance. The other major violent incident occurred on the evening of Wednesday, August 28th on Michigan Avenue near the Hilton Hotel. The crowd involved there had come from an afternoon rally in Grant Park.

The relevant events during the week are summarized as follows: Sunday, August 25: The Yippies conducted a rock concert in the afternoon in Lincoln Park. Estimates of the number of people ran up to 4,000. There were two minor brushes with the police. During the afternoon Davis and Hayden led a march of several hundred to the Hilton, where a moving picket line was maintained without incident. About 9:00 P.M. there was a confrontation in Lincoln Park between a group of police officers and a group of other persons.

The details are in conflict, but it appears that an exhortation by Rubin to attack the police was the basis for the August 25th speech charged against him in Count VI. About 10:30 P.M., two police officers, assigned to follow Davis and Hayden, and who had followed them into Lincoln Park, discovered two men, allegedly Hayden and Wolfe Lowenthal, letting air out of the tires of the officers’ car. A crowd gathered and the officers elected not to make an arrest at that time, but the arrest of Hayden was made the following afternoon. Sometime after 11:00 P.M., the police announced that the park was closed.

Later, a line of police officers moved from east to west through the park, forcing the remaining crowd out of the park. There was testimony that the police struck people with their nightsticks, both within and outside of the park. Monday, August 26: After the arrest of Hayden, Davis led a protest march of about 1,000 people from Lincoln Park to the police station at 11th and State (two blocks west and three blocks south of the Hilton). After making various chants at the police station, the march proceeded east on 11th to Michigan Avenue and then north along the west edge of Grant Park.

A block south of the Hilton, there is a little hill in the park, topped by an equestrian statue of John A. Logan, Civil War General and United States Senator from Illinois. The first Logan-statue-ineident of the week occurred here. A number of marchers ran up the hill, and several climbed the statue. The extent of any violence does not very clearly appear from the testimony except that one young man who climbed the statue testified that his arm became wedged in some part of it and the police pulled on his legs until his arm broke.

There is testimony that as the marchers were running up the hill, Davis was yelling on the loudspeaker to “Take the hill.” Later when the police were directing people to come down, the testimony was that Davis yelled: “Don’t let the pigs take the hill.” That appears to be the basis for the August 26th speech charged against Davis in Count III. Talks by Davis at earlier meetings in preparation for the events of convention week were the bases for the speeches charged against him on August 1, 9, and 18. On Monday evening several thousand people gathered in Lincoln Park.

Trash cans, park benches, and similar elements were formed into a barricade, apparently for the purpose of impeding the clearing of the park by police. After 11:00 P.M., and an announcement by the police that people should leave the park, tear gas was spread, and 200 to 300 policemen crossed the park, surmounted the barricade and expelled the crowd.

There was testimony that people were clubbed by the police and that people assaulted police; that missiles were thrown at the police and police vehicles damaged; that the police used mace; pursued people in a several block area near the park, including some who had not been in the park. There was testimony that on Monday, Hoffman and Rubin spoke to groups in Lincoln Park urging that the park be held. These apparently are the bases for the August 26th speeches charged against them in Counts V, and VI. The basis for the August 26th speech charged against Hayden in Count IV is not clearly identified.

Tuesday, August 27: Early Tuesday evening there was a rally in Lincoln Park at which Rubin and Seale spoke. There was also disputed testimony of a talk by Hoffman to a group about 8:00 P.M. These talks were apparently the basis for the August 27th speeches charged against Rubin in Count VI and Hoffman in Count V. At 8:30 P.M. a fund raising rally, termed an “unbirthday” party for President Johnson, was held in the Coliseum, one block west and seven south of the Hilton.

Later, in Lincoln Park, a number of clergymen, presumably in protest against the force used Sunday and Monday by the police, held a service in which about 1,000 people participated. Sometime after 11:00 P.M. the police moved on the crowd, dispensing tear gas. The crowd was expelled from the park, and there was testimony of beatings by police officers, assaults on the police, and commotion and violence in streets near the park for a substantial period. Meanwhile several thousand persons gathered in the portion of Grant Park immediately east of Michigan Avenue, and opposite the Hilton.

About 50 police officers were in a line along the east sidewalk. There was testimony that a few missiles were thrown and epithets shouted at the police. The police made no effort to expelí the crowd from the park and the crowd remained several hours. They left after a speech by Hayden. Wednesday, August 28 : Nomination of a candidate for President was scheduled for the convention on Wednesday. The city had granted Mobe a permit for a rally at the band-shell in Grant Park, although requests for a march to the Amphitheatre or a demonstration in its neighborhood had been denied or rebuffed.

On Wednesday afternoon from about 2:30 P.M. to 5:00 P.M., 10,000 to 15,000 people attended a rally at the bandshell. There were a number of speakers. Dellinger was master of ceremonies and his talks were the basis for the only speech charged against him in Count II. Hayden’s speech near the end of the rally was apparently the basis for the August 28th speech charged against him in Count IV. Police and National Guardsmen were on hand in Grant Park, and before the rally terminated virtually sealed off the park.

One violent incident or confrontation occurred during the rally when an individual lowered the American flag on a flagpole near the bandshell. He was arrested and there was testimony of violence between police and some of the members of the crowd in connection with that incident and in the area where it occurred. Dellinger from the platform urged the audience not to become involved, and there is testimony that some of the marshals recruited by Mobe made an effort to separate the crowd from the police. Davis was injured at about this time and went to a hospital.

There is testimony of a police charge into the seated crowd. Late in the rally, Dellinger announced that he would lead a non-violent march to the Amphitheatre, notwithstanding the lack of a permit. A large segment of the crowd (3,000 or more) formed ranks extending along Columbus Drive, a north-south drive in the park. The head of the march was to the north, near the intersection of Balbo as it crosses the park. The police did not allow the march to proceed, and it remained immobile and orderly for nearly an hour, while the leaders negotiated with police.

The police offered to permit a march to one of several other destinations, but not to the Amphitheatre. Approximately 6:30 to 7:00, Dellinger announced that the march would not occur, and the people began to leave. Parallel to Columbus Drive, and west of it, the depressed Illinois Central Railroad tracks run through the park. The tracks are crossed by bridges at Balbo (700,S.) Congress (500,S.) and Jackson (300,S.), and two pedestrian walkways. All bridges south of Jackson came to be sealed off by guardsmen, and tear gas was released at Columbus Drive and Congress.

Most people crossed at Jackson, and moved south from there on Michigan. There was some attempt to reform the march on Michigan, with the head end at about 10th Street, but the police stopped this and moved the people north. A very heavy concentration of people (several thousand) occupied the Balbo and Michigan intersection. Deputy Superintendent of Police Rochford was in command of the police. He gave the order to clear the street. Arrests and battle between the police and crowd followed.

There is, of course, conflict in the testimony (some of which comes from apparently disinterested people), but there were injuries and assaults on both sides. Superintendent Rochford, although indicating that he considered the crowd a vicious one, and presumably responsible for the injuries which occurred, admitted on cross-examination “As far as the police tactics, some officers went a little beyond what I expect them to do as professional police officers. That’s a matter of fact.

I am dissatisfied with that.” Thursday, August 29: In the afternoon, there was a rally in Grant Park addressed by a number of speakers, including Senator Eugene McCarthy and Mr. Dick Gregory. At one point it was announced that there would be a march to the Amphitheatre. A crowd of several thousand walked south on Michigan Avenue, but was stopped at 18th and Michigan by police, under command of Superintendent Roch-ford. After a few minutes, the crowd proceeded north on Michigan, with Rochford accompanying it. The second Logan-statue-incident occurred.

Roch-ford ascended the hill and talked to the crowd, after which it dispersed and proceeded north to the Hilton area. Remarks allegedly made by Hoffman on this occasion, proposing the kidnapping of Rochford, were apparently the basis for the August 29th speech charged against him in Count V. The government theory of the facts: There is in some instances conflict in the evidence as to what a defendant said or did, or whether the person who said or did something was properly identified as a defendant.

On appellate consideration, we are required to resolve such conflicts in favor of sustaining the jury verdict and hence in favor of the government. In other areas, there is dispute over the inferences which can properly be drawn, largely with respect to the intent with which a defendant traveled to Chicago or spoke or acted at the time of an alleged overt act. The sources of the inferences would be statements and plans before travel, acts and statements after arrival and during the convention, and retrospective statements afterward.

We shall attempt to state, broadly, the government’s theory with respect to intent. Each defendant, it was contended, shared the common aim of producing violence during convention week in Chicago under circumstances where it would seem that the violence had been precipi-' tated by the establishment and appear that the government was forced to destroy its own people in the streets in order to survive. Although that was the real purpose defendants allegedly had in mind, it was a purpose they could not afford to announce.

It was argued that defendants could succeed only if they could induce a large number of people to come to Chicago and be on hand to participate. Rubin and Hoffman used the plan of a Festival of Life and Davis, Dellinger, and Hayden used the idea of holding a “counter convention” to lure multitudes to Chicago to be organized and worked upon to produce a violent confrontation. Permits for use of parks must be sought in order to obtain performers as attractions for the crowd.

Yet if permits were refused, ultimate success in producing violence would be more probable, and the total freedom from restraint announced for the festival rendered denial inevitable. Mobe preparations included the recruitment and training of volunteer marshals, ostensibly to help maintain order among the thousands Mobe hoped to attract. But the government produced testimony that the marshals were trained in techniques for aggressive purposes.

As analyzed by the government, the defendants deemed it a wise tactic to start out on Sunday, August 2'5th, with orderly activity, and gradually to raise the pitch so as to get the crowd more excited and more involved in making trouble, but not so much as to have a mass arrest before Wednesday, when the big crowd was needed for the finale. Hopefully the finale could occur Wednesday evening at the Amphi-theatre, and Mobe sought permits to march to and demonstrate at that location. At the time of the nomination violence could be expected to erupt, or at least be easy to incite.

Ideally, said the prosecutors, defendants wanted the world to see the government using troops to protect itself against protesting youngsters clamoring to enter or attacking and perhaps scaling the walls of the Amphitheatre. The government pointed out that Mobe had obtained more than enough volunteer housing to accommodate all who actually came for both Mobe and Yippie activity, and that none needed to sleep in Lincoln Park. Several defendants urged people to stay there nevertheless, with knowledge that fighting would result when the police expelled the crowd.

One or more defendants had promoted plans for activities which would divide the attention of police and for violent so-called mill-ins. Finally when it became apparent that a march to the Amphitheatre would be blocked, defendants called for a division of the crowd at the Wednesday afternoon rally, some appearing to march and occupying the police with that effort while others, operating in small groups, engaged in violent activity in various parts of the city. As things turned out, the confrontation and battle took place at Michigan and Balbo.

The government relies on subsequent statements made by several defendants about this event, and claims of victory, as proof of a long-abiding intent to cause violence. The defense theory of the facts: Defense counsel urged the jury to accept the defense version where testimony was in conflict. In particular they urged disbelief of the several police witnesses who were attending meetings and events in an undercover role.

In addition, arguing against the inferences urged by the government, the defense contended that defendants’ apparent intent, to demonstrate, to march, to organize peaceful activity, and to hold a contrasting festival of life, was their real intent; that it is ludicrous to believe that this was all a facade for the plan attributed to them by the government. The defense produced a parade of well known witnesses, prominent in literature, music, and politics, some of them involved in Yippie and Mobe, and argued that all these people would have to have been duped by defendants if the government theory were true.

They argued the genuineness of their attempts to obtain permits and of their expressions of willingness to work out plans with city officials. They suggested that had permits been granted all would have proceeded peacefully even though with permits a much greater number of people would have come to Chicago. It is the defense theory that the decisions to have the police actions of major consequence were unnecessary, and that the violence which did occur was the product of police aggression and excessive force.

The defense suggested that the city administration made unwise, and, indeed, unconstitutional, decisions to prevent mass demonstrations near the Am-phitheatre in order to avoid embarrassment to the city as host and to the party, of which the mayor was a prominent leader, and chose to follow a hard line which, in the end, made inevitable the battle at Michigan and Balbo.

With reference to the city’s last minute offer to permit a march to some point other than the Amphitheatre, the defense argued that was like telling the protesting patriots before the Boston Massacre, “Go anywhere you want, but don’t go to the Custom House.” The broad issue of fact was whether the defendants intended only to engage in protected first amendment activity, or, at most, non-violent civil disobedience, or to cause violence.

And secondarily, because of the basis for the federal criminal statute under which they were prosecuted, even if the defendants did by the time of convention week form an intent to cause violence, had this been their intent when they traveled to Chicago ? I. IS THE ANTI-RIOT ACT UNCONSTITUTIONAL? The constitutionality of 18 U.S.C. § 2101 has already been before this court. Plaintiffs in National Mobilization Comm, to End War in Viet Nam v.

Foran, including present defendants, sought to enjoin the presentation of evidence to a grand jury in order to obtain an indictment, arguing that the statute was unconstitutional on its face. The district court concluded that the constitutional questions raised by plaintiffs were not substantial and therefore dismissed the action rather than calling for the three-judge court which would have been required by 28 U.S.C. § 2282.

We affirmed: “Our conclusion is that the plaintiffs’ attack upon these statutes does not present a substantial constitutional question requiring the convening of a three-judge district court.” Defendants here make arguments, in part, which were not brought before us in Foran. Because of these added challenges, the fact that the statute has received only limited judicial treatment, and because it operates in an area where there is substantial potential for abridgment of expression, we have again given the statute careful consideration.

Although acknowledging substantial questions not identified or perceived when Foran was before us, we conclude that when, as we set out below, the statute is fairly read as a whole and all basic relations between elements are noted, the statute is not unconstitutional. In every instance a statute must on its face be at least adequately complete and precise to give notice to reasonable men as to what conduct is prohibited. That warning is at a basic level, setting out those elements and relationships which, when combined, bring one within the statute’s scope.

It reasonably reflects, but does not specify the precise standard of proof or degree of relation between those elements which will be imposed. But a statute’s warning may extend too far — it may describe and give warning regarding conduct which can not constitutionally be penalized.

The traditional and “restrained” approach when this occurs is to judge the statute in terms of the result worked by its application in the case before court. in those instances, however, where statutes clearly warn that constitutionally protected expressive activity will be, or even, with some degree of vagueness, warn that such activity may be penalized, the courts have recognized a “chilling effect,” or deterrence of protected expression which requires more drastic judicial treatment of the statute.

While this same deterrence from unpunishable conduct likely oecurs from an overly broad statute dealing with any type of conduct, the high value attached to uninhibited expression, and the acknowledgment of its sensitive nature, have produced exceptions to the usual judicial attitude toward statutes questioned on constitutional grounds.

First, there is not a requirement that the person attacking the breadth of the statute demonstrate that his own conduct in issue and within the proscription of the statute could not constitutionally be regulated by a statute narrowly drawn — “By permitting determination of the invalidity of these statutes without regard to the permissibility of some regulation on the facts of particular cases, [the Court has] in effect, avoided making vindication of freedom of expression await the outcome of protracted litigation.” An application of the concept is seen in Dennis v.

United States, 341 U.S. 494, 515, 71 S.Ct. 857, 870, 95 L.Ed. 1137, when the Court states, “We see no difference, from the standpoint of vagueness, whether the standard of ‘clear and present danger’ is one contained in haec verba within the statute, or whether it is the judicial measure of constitutional applicability.” Second, although in the instances of statutes not infringing on first amendment areas a person who could show his conduct to be in an area of overbreadth would simply have vindicated his own case, a broader result may be required for first amendment over-breadth.

In those instances of over-breadth where “no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution. . . . ,” the whole statute must be declared a violation of the first amendment, and void for all applications. Third, in a first amendment case the range of construction to avoid overbreadth is significantly narrowed. For any statute, context of language and legislative history are the best guides to congressional purpose and the lengths to which Congress enacted a policy, and thus set the range of construction. Welsh v.

United States, 398 U.S. 333, 347, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970) [Mr. Justice Harlan concurring]. Within this range in non-first amendment cases there might additionally be said to be a presumption that the statute was meant to operate only within the limits of legislative power, and that becomes another component in

interpretation. In first amendment cases that presumption is either greatly weakened or dropped. If a clear meaning, without the presumption, cannot be determined, then the statute suffers the related weakness of vagueness and, if the functional conditions set out below are met, overbreadth.

The doctrine of overbreadth applies when a statute lends itself to a substantial number of impermissible applications, such that it is capable of deterring protected conduct, when the area affected by the challenged law substantially involves first amendment interests, and when there is not a valid construction which avoids abridgment of first amendment interests. With these considerations in mind, we proceed to consider the statute now involved. [a] The Statute. A concern of Congress in July 1967 and March 1968 was stopping riots. 18 U.S.C. ch. 102 was added by Pub.L. 90-284, 82 Stat. 75, enacted April 11, 1968.

The

chapter consists of two sections, 2101, “Riots”, prescribing a penalty for certain activities, and 2102, “Definitions”, defining certain terms used in § 2101. § 2101(a)(1) provides, “Whoever travels in interstate or foreign commerce or uses any facility of interstate or foreign commerce, including, but not limited to, the mail, telegraph, telephone, radio, or television, with intent— (

A) to incite a riot; or (

B) to organize, promote, encourage, participate in, or carry on a riot; or (

C) to commit any act of violence in furtherance of a riot; or (

D) to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot; and who either during the course of any such travel or use or thereafter performs or attempts to perform any other overt act for any purpose specified in subparagraph (A), (B), (C), or (

D) of this paragraph— Shall be fined not more than $10,000, or imprisoned not more than five years, or both.” § 2102(

a) defines the term “riot” to mean a public disturbance involving ■ “(1)

an act or acts of violence by one or more persons part of an assemblage of three or more persons, which act or acts shall constitute a clear and present danger of, or shall result in, damage or injury to the property of any other person or to the person of any other individual or (2) a threat or threats of the commission of

an act or acts of violence by one or more persons part of an assemblage of three or more persons having, individually or collectively, the ability of immediate execution of such threat or threats, where the performance of the threatened act or acts of violence would constitute a clear and present danger of, or would result in, damage or injury to the property of any other person or to the person of any other individual.” § 2102(

b) sets the threshold meaning for the intended results, referred to in § 2101(a)(1)(

A) and (B): “As used in this chapter, the term ‘to incite a riot’, or ‘to organize, promote, encourage, participate in, or carry on a riot’, includes, but is not limited to, urging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.” [b] Relation of First Amendment. Ideally the analysis should begin with a delineation of the scope of speech protected by the first amendment.

Such delineation is difficult, for as each element is suggested, one’s mind is flooded with illustrations which will not fit. Of course, on the one hand, protected “speech” is not limited to vocal, verbal, or art-form expression, and, on the other, there are myriad examples of everyday injurious activity directed or carried on by means of the spoken or written word which government has unquestioned power to regulate or forbid. All expression of ideas is efr fected by, or is, itself, conduct, and all conduct necessarily expresses some idea, emotion, or thought.

Perhaps we can do no better than a generalization which equates first amendment “speech” with conduct which makes an offer in the market place of ideas. Indeed we need no more precise delineation for the purpose of considering the statute here, for it is clear that individual or group conduct for the dominant and virtually sole purpose of expressing views on public questions is well within the concept of speech protected by the first amendment. The fact that conduct qua expression is “speech” does not mean that it can not at all be regulated or made a crime, but does result in severe limitations on that process.

The first amendment by its negative drafting (“Congress shall make no law abridging the freedom of speech. . ”) protects conduct qua expression unless it can be removed from that protection pursuant to some doctrine judicially recognized as consistent with the first amendment. Thus, one who challenges the application of a statute to conduct which amounts to expression does not have the burden of bringing his expression within the first amendment.

Rather the burden is on his opponent to show that such expression is within one of those narrow areas which by their relation to action partake of the essential qualities of action rather than expression and therefore are carved away from the first amendment. As to any given statute then there is first the threshold question whether the statute relates to expression and is therefore governed by first amendment considerations. We look for that answer in reality and not solely in the words of the statute.

Thus, if a statute in its impact has or can be expected substantially to involve expression, that must be sufficient, whether or not the words of the statute so provide. There is, secondly, the removal question, whether the expressive conduct is so related to action that the expression is therefore carved away from the protection of the first amendment. As to the Anti-riot Act, the government at times argues that travel with intent and not expression is the “gravamen of the offense” and that, therefore, the doctrines of the first amendment are not relevant to our determination of constitutionality.

We are unable to accept this argument. There would be most serious doubt whether an individual’s travel with intent to do something inimical to the interests of the community, but without any step other than the individual travel being taken to effect the intent, could be made an offense. Even if it could, Congress has not done so here. We view the statutory element of interstate travel (or use of facilities), accompanied by the specified intent, as an element which Congress required as the foundation for its power to punish the conduct of inciting or participating in a riot.

We consider the first amendment test to be applied to this federal statute the same as that which would have to be applied to a state statute, identical except not requiring interstate travel as an element of the offense. A realistic approach compels application of a first amendment test to a statute which punishes activity leading up to and furthering a riot, for at least two reasons. One is that rioting, in history and by nature, almost invariably occurs as an expression of political, social, or economic reactions, if not ideas.

The rioting assemblage is usually protesting the policies of a government, an employer, or some other institution, or the social fabric in general, as was probably the case in the riots of 1967 and 1968 which are the backdrop for this legislation. A second reason is that 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 responsibility for the activity for which the legislative body validly prescribes a penalty. In many of its provisions (incite, organize, promote, encourage) the anti-riot statute relates to persons causing the possibility that others will riot, and makes those persons liable because of their causal rather than active role. It is by expression, in whatever form, that causation adequate to bring on punishment must be most likely to occur.

As examples only, but certainly very relevant examples, the counts against the five defendants here charged with inciting, organizing, promoting and encouraging a riot under this statute, were based wholly on the making of speeches. [c] Removal of expression from First Amendment Protection. For our purposes the most fundamental principle guarding against removal from first amendment protection is that the removed expression must have a very substantial capacity to propel action, or some similarly entwining relationship with it.

This requirement is at the heart of the clear and present danger test enunciated by Mr. Justice Brandeis in Whitney v. California. It is implicit in the distinction in Yates v. United States, between advocacy to do something and advocacy to believe in something. It is the essence of the dual requirement in Brandenburg v.

Ohio, that before advocacy of the use of force of law violation can be proscribed it must be shown (1) that “such advocacy is directed to inciting or producing imminent lawless action” and (2) that such advocacy “is likely to incite or produce such action.” The first amendment is premised upon the value of unfettered speech. Constitutional protection is clearly not to be limited, therefore, to mild or innocuous presentation, and it is unrewarding to search for a formula describing punishable advocacy of violence in terms of fervor or vigor.

The real question is whether particular speech is intended to and has such capacity to propel action that it is reasonable to treat such speech as action.

The test for the attributes which speech in favor of violent action must achieve before it may be classified as action and thus removed from first amendment protection has been variously phrased — clear and present danger— directed to inciting and likely to incite imminent lawless action — whether the harm sought by expression is immediate and instantaneous and irremediable except by punishing the expression and thereby preventing the conduct — whether the expression is inseparably locked with action.

Our question, in examining the validity of the Anti-riot Act on its face is whether, properly construed, it punishes speech only when a sufficiently close relationship between such speech and violent action is found to exist. Semantically the cases suggest that while a statutory prohibition of advocacy of violence is overbroad, since protected speech is included within advocacy, a prohibition of intentional incitement of violence is not overbroad. The latter depends upon a construction of “incitement” which is sufficiently likely to propel the violent action to be identified with action.

We consider the statute as a whole in determining whether §§ 2101 and 2102 require the relation between expression and action necessary to avoid first amendment protection. The base concept of the statute is “riot.” Although there is much to be said in favor of a definition of “riot” requiring a larger assemblage threatening greater public danger we are unable to conclude that Congress in § 2102(

a) has not described a disorder of a type which is enough of an assault on the property and personal safety interests of the community so that participation in a riot or intentionally and successfully causing a riot can be made a criminal offense. There is, however, no requirement in §§ 2101 and 2102 that the riot as defined in § 2102(

a) occur. Rather there are listed in § 2101(a)(1) four categories. “(

A) to incite a riot; or (

B) to organize, promote, encourage, participate in, or carry on a riot; or (

C) to commit any act of violence in furtherance of a riot; or (

D) to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot.” One of these categories must be specifically intended at the time of travel, and one of them must be the purpose for which the required overt act is done or attempted.

Assuming that the overt act required by the statute must itself be a fulfillment of one of the elements listed in (A)-(D) (and not merely a step toward one such element), then our question is whether one could ever be convicted under the statute, reasonably construed, for a speech which fulfilled one of these elements without being sufficiently closely related as a propelling cause of a riot. (

C) itself requires action. (

D) requires aiding and abetting another in participating in or carrying on, under (B), and thus could occur only if action occurred, or in inciting, under (A), and thus there would have to exist the same relationship to action as would be required for incitement.

The argument might be developed that while to “incite,” “participate in,” “carry on,” and “aid or abet” any of the foregoing all embody a relation to action in that they logically appear to require that the riot occur, at least to the extent specified in § 2102(a)(2), or, with respect to incitement, require the element of propelling the action, that does not so clearly appear with respect to “to organize, promote, encourage,” and that a less close and perhaps insufficient relationship is required as to them. We note, however, that all elements of (

A) and (

B) are treated alike in § 2102(b), and each “indudes, but is not limited to, urging or instigating other persons to riot.” We think the more natural construction is that all the terms are on an equal footing with respect to the degree of causal relationship required. A further argument might be made that “urge,” under some of its dictionary

definitions, e. g., “solicit or entreat earnestly” might mean little more than an effort at persuasion, unrelated to its potential for or success in producing the desired action. We conclude, however, that in this statute “urge” does embody the required relation of expression to action — (

i) Nearly all

definitions suggest an impelling beyond mere persuasion, and it is said that “URGE indicates a pressing, impelling, seeking to influence, or overcoming some obstacle, check, or drawback to a certain course.” (ii) The use of the term in other statutes has been taken to embody a relation to action. Street v. New York, 394 U.S. 576, 591, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969). (iii) Unless we conclude that the phrase following completely changes its meaning, the exclusion in § 2102(

b) of “the mere oral or written (1) advocacy of ideas or (2) expressions of belief . ” can be taken to indicate an awareness by the drafters of the necessity of avoiding categories which do not relate to action. It seems to us that the threshold definition of all categories as “urging or instigating” puts a sufficient gloss of propulsion on the expression described that it can be carved away from the comprehensive protection of the first amendment’s guarantee of freedom of speech. If we could be persuaded that the overt act “for any purpose specified in subparagprah (A), (B), (C), or (

D) of this paragraph” could be a speech which only was a step toward one of the elements of (A)-(D), taking those merely as goals, we would be unable to conclude that the statute required an adequate relation between such speech and action. We think the phrase “for any purpose specified” is amenable to either meaning, i. e., (A)-(

D) as goals or (A)-(

D) as the overt acts. We find what we consider an adequate and uncontradicted answer in § 2101(

b) which refers to “one or more of the overt, acts described in subparagraph (A), (B), (C), or (

D) of paragraph (1) of subsection (a). . . . ” Reading “overt act for any purpose specified” as equivalent to fulfillment of any purpose specified in (A)-(

D) leaves the statute with an adequate relation between expression and action as described in the preceding step. The conclusion that the statute adequately establishes the required relation to action which can be made illegal disposes as well of defendants’ argument that the statute infringes on the fundamental constitutional right to travel. The existence of that relationship narrows the imposition on travel to instances adequately “involving a purpose which the government may counter. Aptheker v. Secretary of State, 378 U.S. 500, 511, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964).

We do not pretend to minimize the first amendment problems presented on the face of this statute. In one hypothetical application, the statute could result in punishment of one who, having traveled interstate, or used the mail, with intent to promote a riot, attempted to make a speech or circulate a handbill for the purpose of encouraging three people to riot. Arguably the statute does not require that the speech, if made, or the handbill, if circulated, succeed in any substantial degree in encouraging the audience to riot.

Arguably a frustrated attempt to speak or circulate would not achieve the constitutionally essential relationship with action in any event. Arguably the statute does not require that a speech or handbill succeed in producing a riot or bringing the persons addressed to the brink of a riot, prevented only by some intervening and superseding force, and arguably no less degree of propelling of action by speech or handbill will suffice, even though intent to succeed must also be proved.

Although we reject these arguments, in part as constructions of the statute, and in part as grounds for declaring it void, we acknowledge the case is close. There is an additional attack, based on a particular phrase in § 2102(b). The contention is that by reason of this phrase in definition, § 2101 expressly forbids a segment of protected expression, mere advocacy of violence without propelling such action.

The whole problem, which we shall term the “double negative,” is created by the last phrase (which we have here italicized) of § 2102(b): “As used in this chapter, the term ‘to incite a riot’, or ‘to organize, promote, encourage, participate in, or carry on a riot’, includes, but is not limited to, urging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.” A true negation of a negation is an affirmation, and a careful exclusion from an exclusion is at least likely to result in an inclusion.

If the statute provides punishment for mere oral or written advocacy of

an act of violence or assertion of the rightness of

an act of violence, established principles already referred to would require that it be declared void. Thus, the italicized phrase creates a serious problem which was not presented to nor considered by either the district court or this court in Foran. The legislative history gives no help in identifying the intent with which the challenged phrase was added. It does show warnings offered, during the period the matter was under consideration, that mere advocacy, even of unlawful conduct, could not constitutionally be forbidden.

If we were to conclude that the drafters of the double negative intended to make mere advocacy an offense, we would have to believe they did so in the face of warning that so providing would render the statute invalid. The structure of the statute as a whole likewise gives little aid. The government calls the phrase “awkward phraseology” meant to exclude the described advocacy, not from the preceding exclusion, but from the terms being defined. This explanation assumes the drafters meant a repetition since exclusions (1) and (2) would have sufficed.

The defendants point to the phrasing as evidence of the vindictive intent of the drafters. Their explanation fails to recognize that it is likely that exclusions (1) and (2) were unnecessary and show only an abundance of caution, as does § 2101(

e) excluding travel for the purpose of pursuing the legitimate objectives of organized labor through orderly and lawful means. If so, an exclusion from (1) and (2) should not be read to change the intent of the statute which precedes exclusions (1) and (2).

Another approach is to assume that the drafters of this phrase realized that a truly inciting, action-propelling speech will include advocacy of acts of violence and assertion of the rightness of such acts, and intended that the challenged phrase forestall any claim by such speaker that in that context such advocacy and assertion constitute mere advocacy of ideas or expression of belief excluded under (1) and (2).

There is still, in this construction, some awkwardness and an assumption that unnecessary language was employed, but under all the circumstances, including the relationship of this phrase to the other parts of the statute, we deem it the most reasonable construction. We are aware of the sensitivity with which a court must undertake construction of a portion of a statute against a claim that, properly construed, such portion creates first amendment overbreadth.

Possibility of prosecution for protected conduct under a vague statute which arguably may cover it is itself an element of overbreadth. “Even if it can be said that a conviction for falsely taking this oath would not be sustained, the possibility of a prosecution cannot be gainsaid. ‘It is not the penalty itself that is invalid, but the exaction of obedience to a rule or standard that is so vague and indefinite as to be really no rule or standard at all.’ ” Baggett v.

Bullitt, 377 U.S. 360, 374, 84 S.Ct. 1316, 1324, 12 L.Ed.2d 377 (1964). “So long as the statute remains available to the State the threat of prosecutions of protected expression is a real and substantial one. Even the prospect of ultimate failure of such prosecutions by no means dispels their chilling effect on protected expression. A Quantity of Copies of Books v. [State of] Kansas, 378 U.S. 205 [84 S.Ct. 1723, 12 L.Ed.2d 809]; Bantam Books, Inc. v. Sullivan, 372 U.S. 58 [83 S.Ct. 631, 9 L.Ed.2d 584]; Marcus v. Search Warrant [s of Property, etc.], 367 U.S. 717 [81 S.Ct. 1708, 6 L.Ed.2d 1127]; Speiser v.

Randall, supra [357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460]. Since § 364(4) is so intimately bound up with a definition invalid under the reasoning of Baggett v. Bullitt, we hold that it is invalid for the same reasons.” Dombrowski v. Pfister, 380 U.S. 479, 494, 85 S. Ct. 1116, 1125, 14 L.Ed.2d 22 (1965). We consider any possibility that prosecution would be undertaken in reliance on defendants’ proffered construction of the challenged phrase as minimal.

Bearing in mind the purpose served by the overbreadth doctrine, to avoid the chilling of free speech, we consider it unreal, as well, to suppose that the existence of this obtuse and obscure provision will deter expression. The problem now raised escaped recognition in Form, by the then attorney for the present defendants, by the district court, and by this court. Accordingly we conclude that the presence of the challenged phrase does not amount to overbreadth. II. ADEQUACY OF INDICTMENT. Defendants challenged the indictment for failure to state an offense and also sought a bill of particulars.

Each count charged a particular defendant with travelling during a period of time in interstate commerce from outside Illinois to Chicago, “with intent to incite, organize, promote and encourage a riot” and that on or about a specified date at a specified location in Chicago “he did speak to [an] assemblage[s] of persons for the purposes of inciting, organizing, promoting and encouraging a riot;” in violation of 18 U.S.C. § 2101. We conclude that each count adequately stated an offense.

To the extent that there was any uncertainty as to which of two or more speeches given the same day at the same location would be relied on, a bill of particulars may have been appropriate. As will be seen, we have decided to reverse for trial error and abuse of discretion. The first trial, together with our discussions in this opinion, has supplied whatever identification of particular speeches might be required to avoid surprise at a new trial if the government elects to proceed.

We acknowledge some attractiveness in an argument that in an indictment charging an inciting speech as an offense, first amendment considerations require greater specificity than is found in this indictment. A grand jury may be less likely to indict merely for the expression of extreme views if forced to set out at least the substance of the statement and the circumstances giving reason to believe the statement had the capacity to propel unlawful action. The resulting process of analysis would be an additional prophylactic against prosecution for protected expression.

We are not, however, persuaded that there is real need for a departure from the usual principles applicable to the sufficiency of indictments. III. VALIDITY OF INDICTMENT: JURY SELECTION. Defendants moved to dismiss the indictment on the ground the grand jury was improperly selected. They later challenged the array of petit jurors on the same ground. In view of our decision with respect to trial error, we are directly concerned only with the challenge to the grand jury and the indictment.

Defendants attack the use of lists of voters (registered or actual) as the source from which names in the master jury wheel are, in effect, randomly drawn,' arguing that this “results in the disproportionate exclusion of blacks, the mobile, youth and the politically alienated, as these classes are most likely to be members of the disenfranchised populace.” The indictment was returned after December 22, 1968, the effective date of the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-71.

The grand jury had been empaneled before the effective date, at a time, however, when voter registration lists were the source of 97% of the names of prospective jurors. The act, § 1861, declares the general policy that litigants “shall have the right to grand and petit juries selected at random from a fair cross

section of the community in the district or division wherein the court convenes,” and, § 1862, forbids exclusion on several specified grounds.

It also provides, § 1863(b)(2), that each jury plan shall, in addition to registration or actual voter lists, “prescribe some other source or sources of names in addition to voter lists where necessary to foster the policy and protect the rights secured by sections 1861 and 1862.” To the extent defendants claim substantial failure to comply with the jury act, their motion is subject to a period of limitations prescribed by § 1867(a) —“before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier.” It appears to be conceded that defendants’ motion came too late under this statutory provision.

Hence their claims must be tested by constitutional standards independently of whether or not the act seeks a more perfect cross

section than the constitution itself requires as a minimum. This court has held that a system of grand jury selection using only voter lists as sources of names is permissible. When the voter lists are the only source of names, it is obvious that the system “excludes” residents qualified for jury service but who are not qualified or do not choose to vote. Defendants suggest that the persons so “excluded” constitute a class of the politically alienated. An infinite number of political attitudes and inclinations go into the phenomenon of non-participation in the electoral process.

It is not clear that the attitudes relevant to the grand jury function which might be characteristic of political alienation are not also held by many persons who do choose to vote. We do not think that providing the label “politically alienated” creates a cognizable group that is being excluded from jury service. It does appear, generally, that a lower percentage of some of the younger age groups register to vote, compared with the percentage of some of the older age groups who register.

At the time the prospective jurors were selected for the grand jury in this case, persons aged 18 to 21 were not qualified to vote. It would follow that if there are attitudes relevant to the grand jury function which are characteristic of the underrepresented or excluded age groups and different from those characteristic of the older age groups, exclusive use of voter lists as the source of random selection will make it less probable that those attitudes will be represented, or proportionally represented, on any particular grand jury.

And there are many attitudes toward life and government in which it is commonly thought that younger people generally differ from older people. Feasibility makes reliance on voter lists attractive. They contain a large if not precisely perfect sample of the qualified residents of an area, reflecting all the varying attitudes relevant to the grand jury function which such residents hold. Among persons qualified to vote, and absent discriminatory practices in administering the election system, not demonstrated here, the voter list is open as a matter of choice.

The choice of the voter list as the source of names for jury selection is surely not invidious discrimination, except where the list itself reflects discriminatory practices. We view the underrepresentation on voter lists of younger residents, and thus of any relevant attitudes which may be more prevalent among younger than older residents, as reason why it is desirable to seek feasible ways to supplement the voter list, but we are not prepared to say that the use of the voter list per se results in distortion of a perfect cross

section sufficient to render an indictment constitutionally invalid. IV. VOIR DIRE EXAMINATION. One of the paths to the impartial jury guaranteed by the sixth amendment is the voir dire examination. Defendants seek reversal on the ground that the voir dire examination was inadequate. This claim has two branches. The first is that the voir dire was so “perfunctory” with respect to attitude that it failed to provide a basis for defendants’ challenges, both for cause and peremptory. The second is that the court similarly failed to inquire about any effect of pretrial publicity. A. Juror Attitudes. The voir dire examination took a little over a day. Pursuant to Rule 24(

a) F. R.Cr.P., the district judge conducted the examination, after having solicited proposed questions from the parties.

He asked the entire group of veniremen the following questions: whether the prospective jurors were acquainted with employees of the FBI, or of the Justice Department; whether they were acquainted with defendants, their counsel, or their associates; whether they could agree to follow the law as given to them; whether they could keep an open mind until time to reach a verdict; whether they could treat the testimony of a government agent the same as that of any other witness; whether prior jury service would prevent them from being impartial; and whether there was any reason they could not be fair and impartial jurors in this case.

Fifty-six veniremen stated without explanation that they could not be impartial and were excused by agreement of the parties. Two others who said they could not be impartial for a particular reason were also excused. The jury box was filled and the court questioned the first 12 individually. The court asked standard questions, primarily relating to marital and family status, occupation of prospective juror and spouse, employer and length of employment of prospective juror and spouse, number of children, their schools and occupations.

Two veniremen who said they worked for the federal government were asked whether being a government employee would influence their judgment. Another was asked, “Do you feel that the fact that your father is a member of the Chicago Police Force and has been for many years would affect your judgment as a juror if you were selected in this case?” All said they could still be impartial. After interviewing each of these first 12, the court inquired of the group whether any had close relatives or friends who were employed by any law enforcement agency or other agency of the local, state or federal government.

When five answered yes, the court asked each whether this would influence his judgment. All answered that it would not. The court did not ask this question of the succeeding veniremen who entered the jury box. Defense counsel repeated defendants’ request that the judge ask the questions they had submitted.

The court responded, “I have reached the conclusion that those I haven’t asked are not germane to the issues presented here by the indictment and the pleas of not guilty thereto.” The jury was selected after 24 persons had been individually questioned, the defense had exercised 10 of their 17 peremptory challenges, and the government two. Appellants accepted the tendered jury but “under the greatest of protest” because the court had not asked questions they considered necessary for fully exercising their challenges.

In order to sustain their present contention, it is not necessary for defendants to show that members of the jury were in fact prejudiced. The focus is exclusively on whether the procedure used for testing impartiality created a reasonable assurance that prejudice would be discovered if present. We recognize that there is no generally accepted formula for determining the appropriate breadth and depth of the voir dire, except that the court’s discretion is “subject to the essential demands of fairness.” Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 471, 75 L.Ed. 1054 (1931).

We start with the exclusion of jurors for cause, where actual bias is admitted or presumed. The Supreme Court has said that “ . . . ' the trial court has a serious duty to determine the question of actual bias,” Dennis v. United States, 339 U.S. 162, 168, 70 S.Ct. 519, 521, 94 L.Ed. 734 (1950), and that “[a] 11 persons otherwise qualified for jury service are subject to examination as to actual bias.” United States v. Wood, 299 U.S. 123, 133, 57 S.Ct. 177, 179, 81 L.Ed. 78 (1936). Jury service by a person with actual bias in a particular case would violate the right to an impartial jury.

Subsidiary to challenge for cause is the peremptory challenge where bias is suspected or implied. It is exercised “on grounds normally thought irrelevant to legal proceedings” such as “the race, religion, nationality, occupation or affiliations of people summoned for jury duty,” appearance, association, and the like, and it is “exercised without a reason stated, without inquiry and without being subject to the court’s control.” Swain v. Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 836, 13 L.Ed.2d 759 (1965).

The government argues that the court is obligated to inquire only into matters that would disqualify the juror for cause, and that the court’s first group of questions were adequate to produce disclosure of any relevant prejudice. We disagree. The government’s position must rest upon an assumption that a general question to the group whether there is any reason they could not be fair and impartial can be relied on to produce a disclosure of any disqualifying state of mind. We do not believe that a prospective juror is so alert to his own prejudices.

Thus it is essential to explore the backgrounds and attitudes of the jurors to some extent in order to discover actual bias, or cause. See Kiernan v. Van Schaik, 347 F.2d 775, 779 (3d Cir., 1965). But beyond this, an answer which falls short of an admission of bias may nevertheless aid counsel in deciding to exercise a peremptory challenge.

The Supreme Court has stated that the peremptory challenge, although not required in the Constitution, is “one of the most important of the rights secured to the accused,” and that “ [t] he denial or impairment of the right is reversible error without a showing of prejudice.” Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965). The peremptory challenge is provided in the federal system by Rule 24(b), F.R.Cr.P.

If this right is not to be an empty one, the defendants must, upon request, be permitted sufficient inquiry into the background and attitudes of the jurors to enable them to exercise intelligently their peremptory challenges, Cf. United States v. Esquer, 459 F.2d 431, 434 (7th Cir., 1972); United States v. Lewin, 467 F.2d 1132 (7th Cir., 1972); Spells v. United States, 263 F.2d 609, 611 (5th Cir.), cert. denied, 360 U.S. 920, 79 S.Ct. 1439, 3 L.Ed.2d 1535 (1959). The government is correct that collateral or unrelated issues should not be raised. United States v. Daily, 139 F.2d 7 (7th Cir., 1943).

But this does not mean that all questions must relate directly to the indictment or pleas in the case. Some questions may appear tangential to the trial but are actually so integral to the citizen juror’s view of the case, especially one with publicly controversial issues, that they must be explored. For example, in Daily, id., this court acknowledged the right of a defendant of the Jehovah’s Witness faith to a limited inquiry into the jurors’ prejudice against Jehovah’s Witnesses, even though his religious faith was not an issue before the court. Similarly, in United States v.

Clancy, 276 F.2d 617, 632 (7th Cir., 1960), rev’d on other grounds, 365 U.S. 312, 81 S.Ct. 645, 5 L.Ed.2d 574 (1961), a case in which the defendants were tried for evasion of wagering taxes, we found no error in the district court’s refusal to ask questions tendered by defendants, but we noted that the trial court had substituted two questions “designed to uncover prejudice against gamblers and religious scruples against gambling.” At a minimum, when requested by counsel, inquiry must be made into matters where the likelihood of prejudice is so great that not to inquire would risk failure in assembling an impartial jury.

What these essential inquiries are, of course, varies with each case. Many elements of this ease might have aroused the jurors’ prejudices. One of the central themes was the protest against this nation’s involvement in war in Vietnam. Defendants were leaders in such protest and claimed that their militancy did not go beyond constitutionally protected bounds. There were and are deep divisions in our society resulting from that war, gravely illustrated by this unprecedented confrontation at the convention of a major political party in 1968.

Anti-war activists, such as these defendants, have over the last decade challenged the validity of a concept of patriotism that requires young people, sons of people who might be akin to prospective jurors, to die for country in a war they consider mistaken, and immoral. We do not believe that the court could safely assume, without inquiry, that the veniremen had no serious prejudice on this subject, or could recognize such prejudices and lay them aside.

In evaluating this topic, it is important to recall the time when this trial occurred, and to recognize that the division in public attitudes toward the Vietnam war has changed and is changing still. The extent of unpopularity of the war in 1972, when this opinion is written, is not a fair index of the probable opinions on that subject in a cross

section selected in September, 1969. Perspective is important. These defendants’ plans for activities in Chicago in August, 1968 were first formed when President Johnson was expected to be a candidate to succeed himself. He withdrew March 31, 1968. The 1968 candidacies of Senators Eugene McCarthy and Robert Kennedy, the latter assassinated in June, 1968, were associated with anti-war sentiment. Further crystallization of anti-war sentiment is associated with the Cambodian venture and the Kent State killings, both in the spring of 1970.

These episodes had not yet occurred when the jury was selected for this trial in September, 1969. We have no doubt that defendants brought to trial in 1969 upon charges that their anti-war activities were carried beyond constitutional protection were entitled to a testing of their jurors for biased attitudes on this subject. Perhaps secondary, but significant, were the conflicts of values represented by the so-called youth culture — hippies, yippies and freaks — in contrast with the more traditional values of the vast majority of the community, presumably including most citizens summoned for jury service.

Again, we are not unaware that many otherwise qualified members of the community could not be impartial toward, and in fact are often offended by, persons who wear long hair, beards, and bizarre clothing and who seem to avoid the burdens and responsibilities of regular employment. Several defendants would exemplify this conflict. A similar conflict of values was symbolized in the confrontation between the city police and the demonstrators. A juror’s basic sympathies with the actors in these events could easily impair his ability to consider alternative views of the case as presented in court.

A venireman’s relationship with law enforcement officers would be an important factor to be inquired about in evaluating his ability to be an impartial juror. In our view, some minimal inquiry into at least these three basic areas was essential to a fair trial of this extraordinary case, at least when defendants requested such inquiry. We have pointed out the inadequacy of a general question in testing a juror’s possible prejudice in a specific area where it may well exist. United States v. Robinson, 466 F.2d 780, p. 782 (7th Cir., 1972); United States v. Lewin, 467 F.2d 1132, pp. 1137, 1138 (7th Cir., 1972).

Comparison of the questions the court did ask will illustrate our point. The district court asked approximately ten general questions of the entire venire, which appear to have probed attitudes and associations, answers to which could have led to a challenge for cause in any given case. Many veniremen were dismissed as a result of answers to those questions. The more specific questions to individual jurors touched primarily family and employment status, with an occasional question whether a particular fact, primarily government employment, would prevent the persons from being impartial.

By and large, they were neutral questions, the answers to which were not probative of actual or suspected prejudice.

The only question that could be said to relate peculiarly to the case before the court was the one addressed to the first 12 interviewed: “I would ask each and every one of the prospective jurors in the jury box . . . whether you have any close relatives or friends who are employed by any law enforcement agency or other agency of the local, State or Federal Government.” Of those who responded affirmatively, the court asked whether that would influence their judgment, and all answered that it would not. But since this was not asked again, only four of those who served on the jury were subjected to this inquiry.

However satisfactory this limited examination might be in some trials, under the circumstances of this case, the court’s severe restriction of the voir dire may well have curtailed defendants’ challenges for cause and failed to provide them with reasonable guidance in exercising peremptory challenges. Government counsel submitted a list of requested questions, some of which were asked at least in substance, by the district judge.

Other questions requested by the government, but not asked, inquired whether the prospective juror had read about, or was downtown in Chicago during, the Democratic national convention; whether he knew anyone who participated in protest demonstrations then, or at any other time, or whether he himself had participated in a protest demonstration; whether he had ever had an unpleasant experience with law enforcement officers. Defense counsel submitted a list of 44 questions. Some raised inappropriate subjects of inquiry and few were properly phrased even where the subject was appropriate.

Some of the questions, however, would have elicited a prospective juror’s attitude toward dissent, and public protest against the Vietnam war; toward long hair, beards, unorthodox clothing, and life styles differing from his own; and toward policemen and law enforcement. We do not suggest that the court was obligated to ask all the often propagandists questions in the form submitted by defendants. But their request raised a judicial duty “to do what was reasonably practicable to enable the accused to have the benefit of the right of peremptory challenge or to prevent unfairness in the trial.” Bailey v.

United States, 58 F.2d 982, 984 (5th Cir., 1931); cf. United States v. Mattin, 419 F.2d 1086 (8th Cir., 1970). B. Pretrial Publicity. The disorders from which this case arose generated world-wide publicity. There was frequent and continuing local press coverage. In March and April of 1968 the Chicago media covered meetings of “radical” leaders who were planning protest activity at the convention.

Names of certain leaders, including defendants Davis, Del-linger, Hayden, Hoffman and Rubin, began to appear, and it was announced that the Chicago police department had assigned policemen to “tail” certain of these leaders on a 24-hour basis. In July and August, the media carried copious accounts of the security measures being taken in anticipation of violent demonstrations, for example, installation of barbed wire fences near the Amphitheatre, activation of the national guard, and provision of special court ac-cqmmodations for an overflow of arres-tees.

Defendants Davis, Dellinger, Hayden, Hoffman and Rubin, again, were identified as leaders of various groups at which the security measures were directed. Publicity peaked during convention week. The media published all shades of opinion, ranging from those which blamed the violence on “terrorists” and “outside agitators,” to those blaming it on the city administration’s “gestapo tactics.” A substantial part of the evidence at trial consisted of news films, parts of which had been shown on television at the time of the events in August, 1968.

In September, 1968, the federal grand jury began its investigation and the city administration released its account of the disorders, Strategy of Confrontation. October brought hearings before the House Un-American Activities Committee. December continued news coverage with the release of the Walker Report, a federally commissioned investigation. The articles before the court show that from December 1968 through March 1969 the press engaged in much speculation about the grand jury’s continuing investigation and the anticipated indictments.

Publicity rose again when the jury returned its indictments on March 20, when, of course, all these defendants, who had often been linked with the disorders, were clearly identified with the coming prosecution. Because the articles were presented to the district court on May 9, 1969, the record contains little of the press coverage after that time, but it does appear that the arraignment on April 9 as well as the arrest of defendant Seale in August in connection with Connecticut charges of murder and conspiracy were other matters that brought the case, and the defendants again into the public view.

The jury was selected in September, 1969. On May 9, 1969 defendants moved for a continuance until July, 1970 because of pretrial publicity. With the motion they presented to the court over 200 pages of newspaper articles (upon which the above

summary is based) related to the convention disorders, its aftermath of investigations, reports and hearings, and the indictments of the eight defendants. The court denied the motion. On August 27, 1969, defendants again moved for continuance because of contemporaneous publicity concerning defendant Seale’s arrest. In denying the latter motion the court said that a careful voir dire examination was the proper procedure for safeguarding against prejudicial publicity.

In anticipation of the publicity issue in the voir dire defendants moved for nine additional peremptory challenges for each defendant and for questioning each venireman out of the presence of the others. Both requests were denied and the examination took place as described in Part A above.

After the government tendered the panel, but before the defense began exercising peremptories, defendants made a motion to reopen the voir dire “to include questions . . . concerning the exposure of the veniremen to press, radio & TV reporting concerning the facts surrounding this case.” The court denied the motion on the grounds that it had asked a general question of the entire venire about whether they could be impartial.

This question was, “I ask you, ladies and gentlemen of the jury, whether there is any reason you can think of now, that would lead you to feel that if you are selected by the lawyers as jurors in this case, you could not be fair and impartial in this case, giving the United States of America, Mr. David T. Dellinger, Mr. Rennard C. Davis, Mr. Thomas E. Hayden, Mr. Abbott H. Hoffman, Mr. Jerry C. Rubin, Mr. Lee Weiner, Mr. John R. Froines and Mr. Bobby G. Seale a fair and impartial trial ?” It should be noted that the court had, at the beginning of the voir dire, gone over the indictment.

Count I, the conspiracy count referred to many of the facts in the background of the charges, so that the prospective jurors may well have recognized that the case involved episodes in August, 1968, news of which they had seen or heard. Defendants claim that the district court breached its duty to protect them from prejudice by reason of pretrial publicity. They claim error in the voir dire as well as in the court’s failure to grant a continuance to protect against prejudicial publicity.

They maintain that the general question on voir dire of whether there was any reason the jurors could not be impartial was insufficient to probe the pretrial publicity issue, and that combined with the denial of their various motions, defendants received no protection from “the barrage of prejudicial pretrial publicity” that surrounded this case and the events from which it arose. The government argues that the general impartiality question was adequate to evoke the response of persons who had formed an opinion of the case as a result of pretrial publicity.

This method also prevented the veniremen from being “reinfected” with the publicity by stirring up their memories of these events in the presence of one another. Even if the voir dire might have been handled differently, the government argues that defendants waived the issue. They point to defendants’ failure to ask for a continuance on the eve of trial, or to move for a change of venue.

Further, at the impanelling of the jury, defendants failed to submit proposed voir dire questions relating to publicity, declined to exercise all their peremptory challenges, and did not request inquiry into pretrial publicity until after the government had tendered the panel, which the government says was too late.

Government counsel interpret this conduct as a “nefarious attempt to inject error into the record.” Or at least, they argue, the court has no duty to concern itself with pretrial publicity if the parties do not request it, so defendants must accept the unfavorable consequences of their chosen course of action. They rely on United States v. Cook, 432 F.2d 1093, 1101-1102 (7th Cir., 1970), cert. denied, 401 U.S. 996, 91 S.Ct. 1224, 28 L.Ed.2d 535 (1971). Taking first the question of whether defendants waived this issue, we reject the government’s view.

Since the district court had denied several motions for continuance, two of which related to pretrial publicity, a motion for-continuance on the eve of trial may well have been futile, and failure to make it should not prejudice defendants in seeking the protection which would be afforded by an adequate voir dire. The same should be true with respect to their election not to seek a change of venue. Further, we can not accept the argument tha

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