In Louisiana places of business catering to both white and Negro
patrons, petitioners, who are Negroes, took seats at lunch counters
where only white persons customarily were served, and they remained
quietly in their seats after being told that they could not be
served there. They made no speeches, carried no placards, and did
nothing else to attract attention to themselves except to sit at
the lunch counters. They were not asked to leave by the proprietors
or their agents, but they were asked to leave by police officers.
Upon failing to do so, they were arrested and charged with
"disturbing the peace." They were convicted in a state court under
a state statute which defines "disturbing the peace" as the doing
of specified violent, boisterous or disruptive acts and "any other
act in such a manner as to unreasonably disturb or alarm the
public." They were denied relief by the State Supreme Court. The
records contained no evidence to support a finding that petitioners
had disturbed the peace, either by outwardly boisterous conduct or
by passive conduct likely to cause a public disturbance.
Held: The convictions were so totally devoid of
evidentiary support as to violate the Due Process Clause of the
Fourteenth Amendment.
Thompson v. Louisville, 362 U.
S. 199. Pp.
368 U. S.
158-174.
(a) There being nothing in the record to indicate that the trial
judge took judicial notice of anything, these convictions cannot be
sustained on the theory that he took judicial notice of the general
situation, including the local custom of racial segregation in
eating places, and concluded that petitioners' presence at the
lunch counters might cause a disturbance which it was the duty of
the police to prevent. P.
368 U. S.
173.
(b) In the circumstances of these cases, merely sitting
peacefully in places where custom decreed that petitioners should
not sit was not evidence of any crime, and it cannot be so
considered either by the police or by the courts. P.
368 U. S.
174.
Reversed.
Page 368 U. S. 158
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
These cases come to us from the Supreme Court of Louisiana, and
draw in question the constitutionality of the petitioners'
convictions in the 19th Judicial District Court, Parish of East
Baton Rouge, Louisiana, for the crime of disturbing the peace. The
petitioners [
Footnote 1] were
brought to trial and convicted on informations charging them with
violating Title 14, Article 103(7), of the Louisiana Criminal Code,
1942, in that
"they refused to move from a cafe counter seat . . . after
having been ordered to do so by the agent [of the establishment],
said conduct being in such manner as to unreasonably and
foreseeably disturb the public. . . ."
In accordance with state procedure, petitioners sought
post-conviction review in the Supreme Court of Louisiana through
writs of certiorari, mandamus and prohibition. They contended that
the
Page 368 U. S. 159
State had presented no evidence to support the findings of
statutory violation, and that their convictions were invalid on
other constitutional grounds, both state and federal. Relief was
denied. Federal questions were properly raised and preserved
throughout the proceedings, and timely petitions for certiorari
filed in this Court were granted. 365 U.S. 840. The United States
Government appeared as
amicus curiae urging, on various
grounds, that the convictions be reversed. An
amicus brief
also urging reversal was filed by the Committee on the Bill of
Rights of the Association of the Bar of the City of New York.
In our view of these cases, and for our disposition of them, the
slight variance in the facts of the three cases is immaterial.
Although the alleged offenses did not occur on the same day or in
the same establishment, the petitioners were all arrested by the
same officers, charged with commission of the same acts,
represented by the same counsel, tried and convicted by the same
judge, and given identical sentences. Because of this factual
similarity and the identical nature of the problems involved in
granting certiorari, we ordered the cases consolidated for
argument, and now deem it sufficient to file one opinion. In
addition, as the facts are simple, we think it sufficient to recite
but one of the cases in detail, noting whatever slight variations
exist in the others.
In No. 28,
Hoston et al. v. Louisiana, Jannette Hoston,
a student at Southern University, and six of her colleagues took
seats at a lunch counter in Kress' Department Store in Baton Rouge,
Louisiana, on March 29, 1960. [
Footnote 2] In Kress', as in Sitman's Drug Store in No.
26,
Page 368 U. S. 160
where Negroes are considered "very good customers," a
segregation policy is maintained only with regard to the service of
food. [
Footnote 3] Hence,
although both stores solicit business from white and Negro patrons,
and the latter as well as the former may make purchases in the
general merchandise sections without discrimination, [
Footnote 4] the stores do not provide
integrated service at their lunch counters.
The manager at Kress' store, who was also seated at the lunch
counter, told the waitress to advise the students that they could
be served at the counter across the aisle, which she did. The
petitioners made no response, and remained quietly in their seats.
After the manager had finished his lunch, he telephoned the police
and told them that "[some Negroes] were seated at the counter
reserved for whites." The police arrived at the store and ordered
the students to leave. The arresting officer testified that the
petitioners did and said nothing, except that one of them stated
that she would like a glass of iced tea, but that he believed they
were disturbing the peace "by sitting there." When none of the
petitioners showed signs of leaving their seats, they were placed
under arrest and taken to the police station. They were then
charged with violating Title 14, Article 103(7), of the Louisiana
Criminal Code, a section of the Louisiana disturbance of the peace
statute.
Before trial, the petitioners moved for a bill of particulars as
to the details of their allegedly disruptive behavior, and to quash
the informations for failure to state any unlawful acts of which
they could be constitutionally convicted. The motions were denied,
and the
Page 368 U. S. 161
petitioners applied to the Supreme Court of Louisiana for writs
of certiorari, prohibition and mandamus to review the rulings. The
Supreme Court denied the writs on the ground that an adequate
remedy was available through resort to its supervisory jurisdiction
in the event of a conviction. The petitioners were then tried and
convicted, [
Footnote 5] and
sentenced to imprisonment for four months, three months of which
would be suspended upon the payment of a fine of $100. Subsequent
to their convictions, the Supreme Court, in denying relief on
appeal, issued the following oral opinion in each case.
"Writs refused."
"This court is without jurisdiction to review facts in criminal
cases.
See Art. 7, Sec. 10, La. Constitution of 1921."
"The rulings of the district judge on matters of law are not
erroneous.
See Town of Ponchatoula v. Bates, 173 La., 824,
138 So., 851. [
Footnote 6]
"
Page 368 U. S. 162
Before this Court, petitioners and the
amici have
presented a number of questions claiming deprivation of rights
guaranteed to petitioners by the First and Fourteenth Amendments to
the United States Constitution. [
Footnote 7] The petitioners contend:
"(a) The decision below affirms a criminal conviction based upon
no evidence of guilt and, therefore, deprives them of due process
of law as defined in
Thompson v. Louisville, 362 U. S.
199."
"(b) The petitioners were convicted of a crime under the
provisions of a state statute which, as applied to their acts, is
so vague, indefinite and uncertain as to offend the Due Process
Clause of the Fourteenth Amendment."
"(c) The decisions below conflict with the Fourteenth
Amendment's guarantee of freedom of expression."
"(d) The decision below conflicts with prior decisions of this
Court which condemn racially discriminatory
Page 368 U. S. 163
administration of State criminal laws in contravention of the
Equal Protection Clause of the Fourteenth Amendment."
With regard to argument (d), the petitioners and the New York
Committee on the Bill of Rights contend that the participation of
the police and the judiciary to enforce a state custom of
segregation resulted in the use of "state action," and was
therefore plainly violative of the Fourteenth Amendment. The
petitioners also urge that, even if these cases contain a relevant
component of "private action," that action is substantially
infected with state, power and thereby remains state action for
purposes of the Fourteenth Amendment. [
Footnote 8]
In the view we take of the cases, we find it unnecessary to
reach the broader constitutional questions presented, and, in
accordance with our practice not to formulate a rule of
constitutional law broader than is required by the precise facts
presented in the record, for the reasons hereinafter stated, we
hold that the convictions in these cases are so totally devoid of
evidentiary support as to render them unconstitutional under the
Due Process Clause of the Fourteenth Amendment. [
Footnote 9] As in
Thompson v.
Louisville, 362 U. S. 199, our
inquiry does not turn on a question of sufficiency of evidence to
support a conviction, but on whether these convictions rest upon
any evidence which would support a finding that the
petitioners'
Page 368 U. S. 164
acts caused a disturbance of the peace. In addition, we cannot
be concerned with whether the evidence proves the commission of
some other crime, for it is as much a denial of due process to send
an accused to prison following conviction for a charge that was
never made as it is to convict him upon a charge for which there is
no evidence to support that conviction. [
Footnote 10]
The respondent, in both its brief and its argument to this
Court, implied that the evidence proves the elements of a criminal
trespass. In oral argument, it contended that the real question
here
"is whether or not a private property owner and proprietor of a
private establishment has the right to serve only those whom he
chooses and to refuse to serve those whom he desires not to serve
for whatever reason he may determine. [
Footnote 11]"
That this is not a question presented by the records in these
cases seems too apparent for debate. Even assuming it were the
question, however, which it clearly is not, these convictions could
not stand for the reason stated in
Cole v. Arkansas,
333 U. S. 196,.
[
Footnote 12]
Page 368 U. S. 165
Under our view of these cases, our task is to determine whether
there is any evidence in the records to show that the petitioners,
by their actions at the lunch counters in the business
establishments involved, violated Title 14, Article 103(7), of the
Louisiana Criminal Code. At the time of petitioners' acts, Article
103 provided:
"Disturbing the peace is the doing of any of the following in
such a manner as would foreseeably disturb or alarm the
public:"
"(1) Engaging in a fistic encounter; or"
"(2) Using of any unnecessarily loud, offensive, or insulting
language; or"
"(3) Appearing in an intoxicated condition; or"
"(4) Engaging in any act in a violent and tumultuous manner by
any three or more persons; or"
"(5) Holding of an unlawful assembly; or"
"(6) Interruption of any lawful assembly of people; or"
"(7) Commission of any other act in such a manner as to
unreasonably disturb or alarm the public."
I
Our initial inquiry is necessarily to determine the type of
conduct proscribed by this statute and the elements of guilt which
the evidence must prove to support a criminal conviction
thereunder. First, it is evident from a reading of the statute that
the accused must conduct himself in a manner that would
"foreseeably disturb or alarm the public." In addition, when a
person is charged with a violation of Paragraph 7, an earlier
version of which was aptly described by the Supreme Court of
Louisiana as "the general portion of the statute which does not
define the
conduct or acts' the members of the Legislature had
in mind" (State v. Sanford, 203 La. 961, 967, 14 So.2d
Page 368 U. S. 166
778, 780), [
Footnote 13]
it would also seem apparent from the words of the statute that the
acts, whatever they might be, must be done "in such a manner as to
[actually] unreasonably disturb or alarm the public." However,
because we find the records barren of any evidence that would
support a finding that the petitioners' conduct would even
"foreseeably" have disturbed the public, we need not consider
whether the statute also requires the acts to be done in a manner
as actually to disturb the peace.
We, of course, are bound by a State's interpretation of its own
statute, and will not substitute our judgment for that of the
State's when it becomes necessary to analyze the evidence for the
purpose of determining whether that evidence supports the findings
of a state court. Hence, we must look to Louisiana for guidance in
the meaning of the phrase "foreseeably disturb or alarm the public"
in order to determine the type of conduct proscribed by
La.Rev.Stat., 1950, § 14:103(7).
The Supreme Court of Louisiana has had occasion in the past, in
interpreting the predecessor of Article 103, [
Footnote 14] to give content to these words, and
it is evident from the court's prior treatment of them that they
were not
Page 368 U. S. 167
intended to embrace peaceful conduct. On the contrary, it is
plain that, under the court's application of the statute, these
words encompass only conduct which is violent or boisterous in
itself, or which is provocative in the sense that it induces a
foreseeable physical disturbance. [
Footnote 15] In
State v. Sanford, 203 La. 961,
14 So. 2d 778, the evidence showed that thirty Jehovah's Witnesses
approached a Louisiana town for the purpose of distributing
religious tracts and persuading the public to make contributions to
their cause. The Witnesses were warned by the mayor and police
officers that "their presence and activities would cause trouble
among the population, and asked them to stay away from the town. .
. ." 203 La. at 964, 14 So. 2d at 779. The Witnesses failed to
yield to the warning, and proceeded on their mission. The trial
court found that the acts of the Witnesses in entering the town and
stopping passersby in the crowded street "might or would tend to
incite riotous and disorderly conduct." 203 La. at 965, 14 So. 2d
at 779. The Supreme Court of Louisiana set aside convictions for
breach of the peace, holding that the defendants did not commit any
unlawful act or pursue any disorderly course of conduct which would
tend to disturb the peace -- thus, in effect, that peaceful
conduct, even though conceivably offensive to another class of the
public, is not conduct which may be proscribed by Louisiana's
disturbance of the peace statute without evidence that the actor
conducted himself in some outwardly unruly manner.
The conclusion of the highest Louisiana court that the breach of
the peace statute does not reach peaceful and orderly conduct is
substantiated by the conclusion drawn from reading the statute as a
whole. The catch-all provision under which the petitioners were
tried and convicted
Page 368 U. S. 168
follows an enumeration of six specific offenses, each of which
describes overtly tumultuous or disruptive behavior. It would
therefore normally be interpreted in the light of the preceding
sections as an effort to cover other forms of violence or loud and
boisterous conduct not already listed. [
Footnote 16] We do not mean to imply that an
ejusdem generis reading of the statute is constitutionally
compelled to the exclusion of other reasonable interpretations,
[
Footnote 17] but we do note
that here such a reading is consistent with the Louisiana Supreme
Court's application in
Sanford. [
Footnote 18]
Further evidence that Article 103(7) was not designed to
encompass the petitioners' conduct in these cases has been supplied
by the Louisiana Legislature. Shortly after the events for which
the petitioners were arrested took place, the legislature amended
its disturbance of the peace statute in an obvious attempt to reach
the type of activity involved in these cases. [
Footnote 19] The contrast between the language
of the present statute and the one under which the petitioners were
convicted confirms the interpretation
Page 368 U. S. 169
given the general terms of the latter by the Supreme Court in
State v. Sanford and the natural meaning of the words used
in Article 103.
We are aware that the Louisiana courts have the final authority
to interpret and, where they see fit, to reinterpret that State's
legislation. However, we have seen no indication that the Louisiana
Supreme Court has changed its
Sanford interpretation of
La.Rev.Stat., 1950, § 14:103(7), and we will not infer that an
inferior Louisiana court intended to overrule a longstanding and
reasonable interpretation of a state statute by that State's
highest court. Our reluctance so to infer is supported, moreover,
by the fact that
State v. Sanford was argued by the
petitioners to both the trial court and the Supreme Court, and that
neither court mentioned in its opinion that
Sanford was no
longer to be the law in Louisiana.
We think that the above discussion would given ample support to
a conclusion that Louisiana law requires a finding of outwardly
boisterous or unruly conduct in order to charge a defendant with
"foreseeably" disturbing or alarming the public. However, because
this case comes to us from a state court and necessitates a
delicate involvement in federal-state relations, we are willing to
assume with the respondent that the Louisiana courts might construe
the statute more broadly to encompass the traditional common law
concept of disturbing the peace. Thus construed, it might permit
the police to prevent an imminent public commotion even though
caused by peaceful and orderly conduct on the part of the accused.
Cf. Cantwell v. Connecticut, 310 U.
S. 296,
310 U. S. 308.
We therefore treat these cases as though evidence of such imminent
danger, as well as evidence of a defendant's active conduct which
is outwardly provocative, could support a finding that the acts
might "foreseeably disturb or alarm the public" under the Louisiana
statute.
Page 368 U. S. 170
II
Having determined what evidence is necessary to support a
finding of disturbing the peace under Louisiana law, the ultimate
question, as in
Thompson v. Louisville, supra, is whether
the records in these cases contain any such evidence. With
appropriate notations to the slight differences in testimony in the
other two cases, we again turn to the record in No. 28. [
Footnote 20] The manager of the
department store in which the lunch counter was located testified
that, after the students had taken their seats at the "white lunch
counter" where he was also occupying a seat, he advised the
waitress on duty to offer the petitioners service at the counter
across the aisle, which served Negroes. The petitioners, however,
after being "advised that they would be served at the other
counter," remained in their seats, and the manager continued eating
his lunch at the same counter. In No. 26, where there were no
facilities to serve colored persons, the petitioners were merely
told that they couldn't be served, but were never even asked to
move. In No. 27, a waitress testified that the petitioners were
merely told that they would have to go "to the other side to be
served." The petitioners not only made no speeches, they did not
even speak to anyone except to order food; they carried no
placards, and did nothing, beyond their mere presence at the lunch
counter, to attract attention to themselves or to others. In none
of the cases was there any testimony that the petitioners were told
that their mere presence was causing, or was likely to cause, a
disturbance of the peace, nor that the petitioners were ever asked
to leave the counters or the establishments by anyone connected
with the stores.
Page 368 U. S. 171
The manager in No. 28 testified that, after finishing his meal,
he went to the telephone and called the police department, advising
them that Negroes were in his store sitting at the lunch counter
reserved for whites. This is the only case in which "the owner or
his agent" notified the police of the petitioners' presence at the
lunch counter, and even, here the manager gave no indication to the
officers that he feared any disturbance or that he had received any
complaint concerning the petitioners' presence. In No. 27, a
waitress testified that a bus driver sitting in the restaurant
notified the police that "there were several colored people sitting
at the lunch counter." [
Footnote
21] In No. 26, the arresting officers were not summoned to the
drugstore by anyone even remotely connected with Sitman's but,
rather, by a call from an officer on his "beat" who had observed
the petitioners sitting quietly at the lunch counter.
Although the manager of Kress' Department Store testified that
the only conduct which he considered disruptive was the
petitioners' mere presence at the counter, he did state that he
called the police because he "feared that some disturbance might
occur." [
Footnote 22]
However, his fear is completely unsubstantiated by the record. The
manager continued eating his lunch in an apparently leisurely
manner at the same counter at which the petitioners were sitting
before calling the police. Moreover, not only did he fail to give
the petitioners any warning of his alleged
Page 368 U. S. 172
"fear," [
Footnote 23] but
he specifically testified to the fact that the petitioners were
never asked to move or to leave the store. Nor did the witness
elaborate on the basis of his fear except to state that "it isn't
customary for the two races to sit together and eat together."
[
Footnote 24] In addition,
there is no evidence that this alleged fear was ever communicated
to the arresting officers, either at the time the manager made the
initial call to police headquarters or when the police arrived at
the store. Under these circumstances, the manager's general
statement gives no support for the convictions within the meaning
of
Thompson v. Louisville, supra.
Subsequent to the manager's notification, the police arrived at
the store and, without consulting the manager or anyone else on the
premises, went directly to confront the petitioners. An officer
asked the petitioners to leave the counter because "they were
disturbing the peace and violating the law by sitting there." One
of the students stated that she wished to get a glass of iced tea,
but she and her friends were told, again by the police, that they
were disturbing the peace by sitting at a counter reserved for
whites, and that they would have to leave. When the petitioners
continued to occupy the seats, they were arrested, as the officer
testified, for disturbing the peace "[b]y sitting there" "because
that place was reserved for white people." The same officer
testified that the petitioners had done nothing other than take
seats at that particular lunch counter, which he considered to be a
breach of the peace. [
Footnote
25]
Page 368 U. S. 173
The respondent discusses at length the history of race relations
and the high degree of racial segregation which exists throughout
the South. Although there is no reference to such facts in the
records, the respondent argues that the trial court took judicial
notice of the general situation, as he may do under Louisiana law,
[
Footnote 26] and that it
therefore became apparent to the court that the petitioners'
presence at the lunch counters might cause a disturbance which it
was the duty of the police to prevent. There is nothing in the
records to indicate that the trial judge did in fact take judicial
notice of anything. To extend the doctrine of judicial notice to
the length pressed by the respondent would require us to allow the
prosecution to do, through argument to this Court, what it is
required by due process to do at the trial, and would be "to turn
the doctrine into a pretext for dispensing with a trial."
Ohio
Bell Telephone Co. v. Public Utilities Comm., 301 U.
S. 292,
301 U. S. 302.
Furthermore, unless an accused is informed at the trial of the
facts of which the court is taking judicial notice, not only does
he not know upon what evidence he is being convicted, but, in
addition, he is deprived of any opportunity to challenge the
deductions drawn from such notice or to dispute the notoriety or
truth of the facts allegedly relied upon. Moreover, there is no way
by which an appellate court may review the facts and law of a case
and intelligently decide whether the findings of the lower court
are supported by the evidence where that evidence is unknown. Such
an assumption would be a denial of due process.
Ohio Bell,
supra.
Thus, having shown that these records contain no evidence to
support a finding that petitioners disturbed the peace, either by
outwardly boisterous conduct or by passive
Page 368 U. S. 174
conduct likely to cause a public disturbance, we hold that these
convictions violated petitioners' rights to due process of law
guaranteed them by the Fourteenth Amendment to the United States
Constitution. The undisputed evidence shows that the police who
arrested the petitioners were left with nothing to support their
actions except their own opinions that it was a breach of the peace
for the petitioners to sit peacefully in a place where custom
decreed they should not sit. [
Footnote 27] Such activity, in the circumstances of these
cases, is not evidence of any crime, and cannot be so considered
either by the police or by the courts.
The judgments are reversed.
* Together with No. 27,
Briscoe et al. v. Louisiana,
and No. 28,
Hoston et al. v. Louisiana, also on certiorari
to the same Court.
[
Footnote 1]
Unless otherwise indicated, the term "petitioners" refers to the
petitioners in all three cases, Nos. 26, 27 and 28.
[
Footnote 2]
In No. 26,
Garner et al. v. Louisiana, the petitioners,
two Negro students at Southern University, took seats at the lunch
counter of Sitman's Drug Store in Baton Rouge, and in No. 27,
Briscoe et al. v. Louisiana, the lunch counter at which
the seven Negro students sought service was in the restaurant
section of the Greyhound Bus Terminal in Baton Rouge.
[
Footnote 3]
The same is true, of course, with regard to the bus terminal in
No. 27. The terminal itself caters to both races, but separate
facilities are maintained for the service of food.
[
Footnote 4]
In No. 26, one of the petitioners had purchased an umbrella in
the drugstore just prior to taking his seat at the lunch counter,
and had encountered no difficulty in making the purchase.
[
Footnote 5]
Although the problem was exactly the same in all three cases,
the trial judge appeared to use different formulae for concluding
petitioners' guilt in each opinion. In No. 26, the acts of the
petitioners were said to be "an act done in a manner
calculated
to, and actually did, unreasonably disturb and alarm the
public." In No. 27, the very same conduct was said to be "an act on
their part as would unreasonably disturb and alarm the public." In
No. 28, it was declared that the conduct "
foreseeably
could alarm and disturb the public." (Emphasis added.)
[
Footnote 6]
The opinions of the Supreme Court of Louisiana are not
officially reported.
Under Art. 7, Sec. 10, of the Louisiana Constitution, the
appellate jurisdiction of the Supreme Court over criminal cases
extends only to questions of law, and then only where,
inter
alia, a fine exceeding three hundred dollars or imprisonment
exceeding six months has been imposed.
See State v. Di
Vincenti, 232 La. 13,
93 So. 2d
676;
State v. Gaspard, 222 La. 222, 62 So. 2d 281;
State v. Price, 164 La. 376, 113 So. 882. The Louisiana
Supreme Court has held that a question of law is presented, and
that a case is thus reviewable, where the contention is that there
is no evidence to support an element of the crime charged.
State v. Daniels, 236 La. 998,
109
So. 2d 896;
State v. Brown, 224 La. 480,
70 So. 2d
96;
State v. Sbisa, 232 La. 961,
95 So. 2d
619, and cases cited at n. 6, 232 La., at 969-970, 95 So.2d, at
622.
See Comment, 19 La.L.Rev. 843 (1959). Despite the
court's purported review of the questions of law in these cases,
the degree of punishment inflicted would deprive the court of
appellate jurisdiction under Art. 7, Sec. 10. However, the Supreme
Court also has a general supervisory jurisdiction, exercised only
in the sound discretion of the court (
see State v. Morgan,
204 La. 499, 502, 15 So. 2d 866, 867), over all inferior courts
under Art. 7, Sec. 10; it appears that this is the provision which
the petitioners attempted to invoke with their extraordinary writs
in these cases.
See also Art. 7, Sec. 2, of the Louisiana
Constitution.
[
Footnote 7]
In addition to the petitioners' contentions, the United States
argues that, in No. 27, the petitioners' arrests and convictions
deprived them of their rights under the Interstate Commerce Act to
service on a nondiscriminatory basis in a restaurant of a bus
terminal operated as part of interstate commerce.
Cf. Boynton
v. Virginia, 364 U. S. 454.
[
Footnote 8]
The Government, as well as petitioners, point out that, in
addition to state statutes requiring segregation in specific
situations in Louisiana, the Louisiana Legislature in 1960 adopted
the following preface to a joint resolution concerning the possible
integration of any tax-supported facility in the State:
"WHEREAS, Louisiana has always maintained a policy of
segregation of the races, and"
"WHEREAS, it is the intention of the citizens of this sovereign
state that such a policy be continued. . . ."
Act No. 630 of 1960, to amend Article X of the Louisiana
Constitution.
[
Footnote 9]
See Thompson v. City of Louisville, 362 U.
S. 199.
[
Footnote 10]
Cf. Cole v. Arkansas, 333 U. S. 196,
333 U. S. 201.
See Thompson v. City of Louisville, 362 U.
S. 199,
362 U. S. 206,
and the cases cited at footnote 13.
[
Footnote 11]
Counsel for the respondent admitted on oral argument that the
Louisiana trespass statute in force at the time of the petitioners'
arrests would probably not have applied to these facts. Apparently,
the Louisiana Legislature agreed, for, in 1960, subsequent to
petitioners' acts, the legislature passed a new criminal trespass
statute (La.Rev.Stat. 1950, § 14:63.3 (1960 Supp.)), which
reads:
"No person shall without authority of laws go into or upon . . .
any structure . . . which belongs to another . . . after having
been forbidden to do so . . . by any owner, lessee, or custodian of
the property or by any other authorized person. . . ."
We express no opinion whether, on the facts of these cases, the
petitioners' conduct would have been unlawful under this
statute.
[
Footnote 12]
The Supreme Court of Louisiana has also held that an accused may
not be convicted on pleadings which fail to state the specific
crime with which he is charged.
State v. Morgan, 204 La.
499, 15 So. 2d 866 (1943).
[
Footnote 13]
We express no view as to the constitutionality of the
petitioners' convictions as attacked by their argument that the
statute (§ 103(7)) is so vague and uncertain, with its resulting
lack of notice of what conduct the legislature intended to make
criminal, as to violate due process.
Cf. Lanzetta v. New
Jersey, 306 U. S. 451;
Musser v. Utah, 333 U. S. 95;
Winters v. New York, 333 U. S. 507.
[
Footnote 14]
The predecessor of Title 14, Section 103, was Act No. 227 of
1934, which provided,
inter alia,
"That any person who shall go into any public place, [or] into
or near any private house . . . and who shall [shout, swear, expose
himself, discharge a firearm] . . . or who shall do any other act,
in a manner calculated to disturb or alarm the inhabitants thereof,
or persons present . . ."
should be adjudged guilty of breaching the peace. In
State
v. Sanford, 203 La. 961, 14 So. 2d 778, discussed immediately
following in the text, the defendants were charged, as were the
petitioners in the cases at bar, under the general, catch-all
provision.
[
Footnote 15]
See Town of Ponchatoula v. Bates, 173 La. 824, 138 So.
851 (dictum).
[
Footnote 16]
See 2 Sutherland, Statutes and Statutory Construction,
§§ 4909-4910 (Horack ed. 1943).
[
Footnote 17]
Such an interpretation has not been made where there was
evidence of a contrary legislative intent or judicial reading.
United States v. Alpers, 338 U. S. 680,
338 U. S.
682-683;
Gooch v. United States, 297 U.
S. 124,
297 U. S. 128;
Helvering v. Stockholms Enskilda Bank, 293 U. S.
84,
293 U. S.
88-89.
[
Footnote 18]
See also Town of Ponchatoula v. Bates, supra, note 15
[
Footnote 19]
La.Rev.Stat., 1950, § 14:103.1 (1960 Supp.), now reads, in
pertinent part, as follows:
"A. Whoever with intent to provoke a breach of the peace, or
under circumstances such that a breach of the peace may be
occasioned thereby:"
"
* * * *"
"(4) refuses to leave the premises of another when requested so
to do by any owner, lessee, or any employee thereof, shall be
guilty of disturbing the peace."
[
Footnote 20]
In all three cases, the prosecution called as witnesses only the
arresting officer and an employee from the restaurant in question.
In none of the cases did the petitioners themselves testify or
introduce any witnesses in their defense.
[
Footnote 21]
There is some inconsistency in the record, not material to our
disposition of the case (
see No. 28), as to who called the
police; a police officer made a statement based on hearsay that the
desk sergeant was called by "some woman."
[
Footnote 22]
As noted previously, this is the only case in which a
representative of the restaurant called the police. In addition,
this is the only case in which there is anything in the record
concerning the possibility of a disturbance, and, even here, it is
limited to the manager's single statement noted above.
[
Footnote 23]
Of course, even such a warning was not sufficient evidence to
support a finding of breach of the peace in
State v.
Sanford.
[
Footnote 24]
Compare the basis for the state action in
Buchanan
v. Warley, 245 U. S. 60,
and Cooper v. Aaron, 358 U. S. 1.
[
Footnote 25]
The evidence in the records in Nos. 26 and 27 is similar. Each
witness called by the State testified that the petitioners were
arrested solely because they were Negroes sitting at a white lunch
counter.
[
Footnote 26]
La.Rev.Stat., 1950, § 15:422, provides that Louisiana courts may
take judicial notice of "social and racial conditions prevailing in
[the] state."
See State v. Bessa et al., 115 La. 259, 38
So. 985.
[
Footnote 27]
Compare the evidence contained in the records in
Terminiello v. Chicago, 337 U. S. 1, and in
Feiner v. New York, 340 U. S. 315.
MR. JUSTICE FRANKFURTER, concurring in the judgment.
Whether state statutes are to be construed one way or another is
a question of state law, final decision of which rests, of course,
with the courts of the State. When, as here, those courts have not
spelled out the meaning of a statute, this Court must extrapolate
its allowable meaning and attribute that to the highest court of
the State. We must do so in a manner that affords the widest
latitude to state legislative power consistent with the United
States Constitution.
Since La.Rev.Stat., 1950, § 14:103, is concededly a statute
aimed at "disturbing the peace," we begin with the breadth of
meaning derived from that phrase in
Town of Ponchatoula v.
Bates, 173 La. 824, 138 So. 851, 852 (1931). To be sure, that
amounted to an abstract discussion and in the limited circumstances
considered by the Louisiana Supreme Court in
State v.
Sanford, 203 La. 961, 14 So. 2d 778 (1943), the allowable
scope of the statutory prohibition was not fully explored. But
construction of the statute to prohibit nonviolent, nonreligious
behavior in a private shop when that behavior has a tendency to
disturb
Page 368 U. S. 175
or alarm the public is fairly derivable from a reading of the
Sanford opinion.
The action of the Louisiana Legislature in amending its statutes
after the events now under review took place is not a safe, or even
relevant, guide to the scope of the prior statute. Legislatures not
uncommonly seek to make prior law more explicit or reiterate a
prohibition by more emphatic concreteness. The rule of evidence
that excludes proof of post-injury repairs offers a useful analogy
here.
See II Wigmore, Evidence, § 283 (Third ed. 1940). It
is not our province to limit the meaning of a state statute beyond
its confinement by reasonably read state court rulings.
Assuming for present purposes the constitutionality of a statute
prohibiting nonviolent activity that tends to provoke public alarm
or disturbance, such a tendency, as a crucial element of a criminal
offense, must be established by evidence disclosed in the record to
sustain a conviction. A judge's private knowledge, or even
"knowledge by notoriety," to use Dean Wigmore's phrase, IX
Evidence, § 2569 (Third ed. 1940), not presented as part of the
prosecution's case capable of being met by a defendant, is not an
adequate basis, as a matter of due process, to establish an
essential element of what is punished as crime.
Thompson v.
City of Louisville, 362 U. S. 199.
It may be unnecessary to require formal proof, even as to an
issue crucial in determining guilt in a criminal prosecution, of
what is incontestably obvious. But some showing cannot be dispensed
with when an inference is at all doubtful. And it begs the whole
question on the answer to which the validity of these convictions
turns to assume that the "public" tended to be alarmed by the
conduct of the petitioners here disclosed.
See Devlin,
L.J., in
Dingle v. Associated Newspapers, [1961] 2 Q.B.
162, 198. Conviction under this Louisiana statute cannot be
sustained by reliance merely upon likely consequences in the
generality of cases. Since particular persons
Page 368 U. S. 176
are being sent to jail for conduct allegedly having a particular
effect on a particular occasion under particular circumstances, it
becomes necessary to appraise that conduct and effect by the
particularity of evidence adduced.
The records in these cases, whatever variance in unimportant
details they may show, contain no evidence of disturbance or alarm
in the behavior of the cafe employees or customers or even
passers-by, the relevant "public" fairly in contemplation of these
charges. What they do show was aptly summarized both in the
testimony of the arresting police and in the recitation of the
trial judge as the "mere presence" of the petitioners.
Silent persistence in sitting after service is refused could no
doubt conceivably exacerbate feelings to the boiling point. It is
not fanciful speculation, however, that a proprietor who invites
trade in most parts of his establishment and restricts it in
another may change his policy when nonviolently challenged.* With
records as barren as these of evidence from which a tendency to
disturb or alarm the public immediately involved can be drawn,
there is nothing before us on which to sustain such an inference
from what may be hypothetically lodged in the unopened bosom of the
local court.
Since the "mere presence" that these records prove has, in any
event, not been made a crime by the Louisiana statute under which
these petitioners were charged, their convictions must be
reversed.
* If it were clear from these records that the proprietors
involved had changed their policies and consented to the
petitioners' remaining, we would, of course, have an entirely
different case.
MR. JUSTICE DOUGLAS, concurring.
If these cases had arisen in the Pacific Northwest -- the area I
know best -- I could agree with the opinion of the Court. For while
many communities north and south, east and west, at times have
racial problems, those areas which have never known segregation
would not be
Page 368 U. S. 177
inflamed or aroused by the presence of a member of a minority
race in a restaurant. But in Louisiana, racial problems have
agitated the people since the days of slavery. The landmark case of
Plessy v. Ferguson, 163 U. S. 537 --
the decision that announced in 1896 the now-repudiated doctrine of
"separate but equal" facilities for whites and blacks -- came from
Louisiana, which had enacted in 1890 a statute requiring
segregation of the races on railroad trains. In the environment of
a segregated community, I can understand how the mere presence of a
Negro at a white lunch counter might inflame some people as much as
fisticuffs would in other places. For the reasons stated by MR.
JUSTICE HARLAN in these cases, I read the Louisiana opinions as
meaning that this law includes "peaceful conduct of a kind that
foreseeably may lead to public disturbance" -- a kind of "generally
known condition" that may be "judicially noticed" even in a
criminal case.
This does not mean that the police were justified in making
these arrests. For the police are supposed to be on the side of the
Constitution, not on the side of discrimination. Yet, if all
constitutional questions are to be put aside and the problem
treated merely in terms of disturbing the peace, I would have
difficulty in reversing these judgments. I think, however, the
constitutional questions must be reached, and that they make
reversal necessary.
Restaurants, whether in a drugstore, department store, or bus
terminal, are a part of the public life of most of our communities.
Though they are private enterprises, they are public facilities in
which the States may not enforce a policy of racial
segregation.
I
It is, of course, state action that is prohibited by the
Fourteenth Amendment, not the actions of individuals. So far as the
Fourteenth Amendment is concerned, individuals
Page 368 U. S. 178
can be as prejudiced and intolerant as they like. They may, as a
consequence, subject themselves to suits for assault, battery, or
trespass. But those actions have no footing in the Federal
Constitution. The line of forbidden conduct marked by the Equal
Protection Clause of the Fourteenth Amendment is crossed only when
a State makes prejudice or intolerance its policy and enforces it,
as held in the
Civil Rights Cases, 109 U. S.
3. Mr. Justice Bradley, speaking for the Court,
said:
". . . civil rights, such as are guaranteed by the Constitution
against state aggression, cannot be impaired by the wrongful acts
of individuals, unsupported by state authority in the shape of
laws,
customs, or judicial or executive proceedings."
Id. at
109 U. S. 17.
(Italics added.)
State policy violative of the Fourteenth Amendment may be
expressed in legislative enactments that permit or require
segregation of the races in public places or public facilities
(
Brown v. Board of Education, 347 U.
S. 483) or in residential areas.
Buchanan v.
Warley, 245 U. S. 60.
It may be expressed through executive action, as where the
police or other law enforcement officials act pursuant to, or under
color of, state law.
See, e.g., Screws v. United States,
325 U. S. 91;
Monroe v. Pape, 365 U. S. 167.
It may be expressed through the administrative action of state
agencies in leasing public facilities.
Burton v. Wilmington
Parking Authority, 365 U. S. 715.
It may result from judicial action, as where members of a race
are systematically excluded from juries (
Hernandez v.
Texas, 347 U. S. 475), or
where restrictive covenants based on race are enforced by the
judiciary (
Barrows v. Jackson, 346 U.
S. 249), or where a state court fines or imprisons a
person for asserting his federal right to use the facilities of an
interstate bus terminal,
Boynton v. Virginia, 364 U.
S. 454.
As noted, Mr. Justice Bradley suggested in the
Civil Rights
Cases, supra, that state policy may be as effectively
Page 368 U. S. 179
expressed in customs as informal legislative, executive, or
judicial action.
It was indeed held in
Baldwin v. Morgan, 287 F.2d 750,
756, that the "custom, practice and usage" of a city and its police
in arresting four Negroes for using "white" waiting rooms was state
action in violation of the Fourteenth Amendment, even though no
ordinance was promulgated and no order issued. In the instant
cases, such an inference can be drawn from the totality of
circumstances permeating the environment where the arrests were
made -- not an isolated arrest, but three arrests; not arrests on
account of fisticuffs, but arrests because the defendants were
Negroes seeking restaurant service at counters and tables reserved
for "whites."
There is a deep-seated pattern of segregation of the races in
Louisiana, [
Footnote 2/1] going
back at least to
Plessy v. Ferguson, supra. It was
restated in 1960 -- the year in which petitioners were arrested and
charged for sitting in white restaurants -- by Act No. 630, which,
in its preamble, states:
"WHEREAS, Louisiana has always maintained a policy of
segregation of the races, and "
Page 368 U. S. 180
"WHEREAS, it is the intention of the citizens of this sovereign
state that such a policy be continued."
La.Acts 1960, p. 1200.
Louisiana requires that all circuses, shows, and tent
exhibitions to which the public is invited have one entrance for
whites and one for Negroes. La.Rev.Stat., 1950, c. 4, § 5. No
dancing, social functions, entertainment, athletic training, games,
sports, contests "and other such activities involving personal and
social contacts" may be open to both races. La.Rev.Stat., 1950, c.
4, § 451. Any public entertainment or athletic contest must provide
separate seating arrangements and separate sanitary drinking water
and "any other facilities" for the two races. La.Rev.Stat., 1950,
c. 4, § 452. Marriage between members of the two races is banned.
La.Rev.Stat., 1950, c. 14, § 79. Segregation by race is required in
prisons. La.Rev.Stat., 1950, c. 15, § 752. The blind must be
segregated. La.Rev.Stat., 1950,. c. 17, § 10. Teachers in public
schools are barred from advocating desegregation of the races in
the public school system. La.Rev.Stat., 1950, c. 17, §§ 443, 462.
So are other state employees. La.Rev.Stat., 1950, c. 17, § 523.
Segregation on trains is required. La.Rev.Stat., 1950, c. 45, §§
528-532. Common carriers of passengers must provide separate
waiting rooms and reception room facilities for the two races
(La.Rev.Stat., 1950, c. 45, § 1301) and separate toilets and
separate facilities for drinking water as well. La.Rev.Stat., 1950,
c. 45, § 1303. Employers must provide separate sanitary facilities
for the two races. La.Rev.Stat., 1950, 23:971. Employers must also
provide separate eating places in separate rooms and separate
eating and drinking utensils for members of the two races.
La.Rev.Stat., 1950, c. 23, § 972. Persons of one race may not
establish their residence in a community of another race without
approval of the majority of the other race. La.Rev.Stat., 1950, c.
33, § 5066. Court dockets must reveal the race of the parties in
divorce actions. La.Rev.Stat., 1950, c. 13, § 917. And all public
parks, recreation centers, playgrounds, community centers and
"other such facilities at which swimming, dancing, golfing, skating
or other recreational activities are
Page 368 U. S. 181
conducted" must be segregated. La.Rev.Stat., 1950, c. 33, §
4558.1.
Though there may have been no state law or municipal ordinance
that,
in terms, required segregation of the races in
restaurants, it is plain that the proprietors in the instant cases
were segregating blacks from whites pursuant to Louisiana's custom.
Segregation is basic to the structure of Louisiana as a community;
the custom that maintains it is at least as powerful as any law. If
these proprietors also choose segregation, their preference does
not make the action "private," rather than "state," action. If it
did, a minuscule of private prejudice would convert state into
private action. Moreover, where the segregation policy is the
policy of a State, it matters not that the agency to enforce it is
a private enterprise.
Baldwin v. Morgan, supra; Boman v.
Birmingham Transit Co., 280 F.2d 531.
II
It is my view that a State may not constitutionally enforce a
policy of segregation in restaurant facilities. Some of the
argument assumed that restaurants are "private" property in the
sense that one's home is "private" property. They are, of course,
"private" property for many purposes of the Constitution. Yet so
are street railways, power plants, warehouses, and other types of
enterprises which have long been held to be affected with a public
interest. Where constitutional rights are involved, the proprietary
interests of individuals must give way. Towns, though wholly owned
by private interests, perform municipal functions and are held to
the same constitutional requirements as ordinary municipalities.
Marsh v. Alabama, 326 U. S. 501.
State regulation of private enterprise falls when it discriminates
against interstate commerce.
Port Richmond Ferry v. Hudson
County, 234 U. S. 317.
State regulation of private enterprise that results in impairment
of other constitutional
Page 368 U. S. 182
rights should stand on no firmer footing, at least in the area
where facilities of a public nature are involved.
Long before Chief Justice Waite wrote the opinion in
Munn v.
Illinois, 94 U. S. 113,
holding that the prices charged by grain warehouses could be
regulated by the State, a long list of businesses had been held to
be "affected with a public interest." Among these were ferries,
common carriers, hackmen, bakers, millers, wharfingers, and
innkeepers.
Id. at
94 U. S. 125.
The test used in
Munn v. Illinois was stated as
follows:
"Property does become clothed with a public interest when used
in a manner to make it of public consequence, and affect the
community at large."
Id. at
94 U. S. 126.
In reply to the charge that price regulation deprived the
warehousemen of property, Chief Justice Waite stated,
"There is no attempt to compel these owners to grant the public
an interest in their property, but to declare their obligations, if
they use it in this particular manner."
Id. at
94 U. S.
133.
There was a long span between
Munn v. Illinois and
Nebbia v. New York, 291 U. S. 502,
which upheld the power of a State to fix the price of milk. A
business may have a "public interest" even though it is not a
"public utility" in the accepted sense, even though it enjoys no
franchise from the State, and even though it enjoys no monopoly.
Id. at
291 U. S. 534.
The examples cover a wide range from price control to prohibition
of certain types of business.
Id. at
291 U. S.
525-529. Various systems or devices designed by States
or municipalities to protect the wholesomeness of food in the
interests of health are deep-seated as any exercise of the police
power.
Adams v. Milwaukee, 228 U.
S. 572.
Years ago, Lord Chief Justice Hale stated in
De Portibus
Maris, 1 Harg. Law Tracts 78, " . . . if a man set out a
street in new building on his own land, it is now no longer bare
private interest, but is affected with a public interest." Those
who run a retail establishment under permit
Page 368 U. S. 183
from a municipality operate, in my view, a public facility in
which there can be no more discrimination based on race than is
constitutionally permissible in the more customary types of public
facility.
Under Louisiana law, restaurants are a form of private property
affected with a public interest. Local boards of health are given
broad powers. La.Rev.Stat., 1950, c. 40, § 35; La.Rev.Stat., 1950,
c. 33, § 621. The City of Baton Rouge, in its City Code, requires
all restaurants to have a permit. Tit. 6, c. 7, § 601. The Director
of Public Health is given broad powers of inspection, and permits
issued can be suspended.
Id., § 603. Permits are not
transferable.
Id., § 606. One who operates without a
permit commits a separate offense each day a violation occurs.
Id., § 604. Moreover, detailed provisions are made
concerning the equipment that restaurants must have, the protection
of ready-to-eat foods and drink, and the storage of food.
Id., § 609.
Restaurants, though a species of private property, are in the
public domain. Or, to paraphrase the opinion in
Nebbia v. New
York, supra, restaurants in Louisiana have a "public
consequence," and "affect the community at large."
291 U. S. 291 U.S.
502,
291 U. S.
533.
While the concept of a business "affected with a public
interest" normally is used as a measure of a State's police power
over it, it also has other consequences. A State may not require
segregation of the races in conventional public utilities any more
than it can segregate them in ordinary public facilities. [
Footnote 2/2] As stated by the court in
Page 368 U. S. 184
Boman v. Birmingham Transit Co., 280 F.2d 531, 535, a
public utility "is doing something the state deems useful for the
public necessity or convenience." It was this idea that the first
Mr. Justice Harlan, dissenting in
Plessy v. Ferguson,
supra, advanced. Though a common carrier is private
enterprise, "its work," he maintained, is public.
Id., at
554. And there can be no difference, in my view, between one kind
of business that is regulated in the public interest and another
kind so far as the problem of racial segregation is concerned. I do
not believe that a State that licenses a business can license it to
serve only whites or only blacks or only yellows or only browns.
Race is an impermissible classification when it comes to parks or
other municipal facilities by reason of the Equal Protection Clause
of the Fourteenth Amendment. By the same token, I do not see how a
State can constitutionally exercise its licensing power over
business either in terms or in effect to segregate the races in the
licensed premises. The authority to license a business for public
use is derived from the public. Negroes are as much a part of that
public as are whites. A municipality granting a license to operate
a business for the public represents Negroes as well as all other
races who live there. A license to establish a restaurant is a
license to establish a public facility and necessarily imports, in
law, equality of use for all members of the public. I see no way
whereby licenses issued by a State to serve the public can be
distinguished from leases of public facilities (
Burton v.
Wilmington Parking Authority, supra) for that end.
One can close the doors of his home to anyone he desires. But
one who operates an enterprise under a
Page 368 U. S. 185
license from the government enjoys a privilege that derives from
the people. Whether retail stores, not licensed by the
municipality, stand on a different footing is not presented here.
But the necessity of a license shows that the public has rights in
respect to those premises. The business is not a matter of mere
private concern. Those who license enterprises for public use
should not have under our Constitution the power to license it for
the use of only one race. For there is the overriding
constitutional requirement that all state power be exercised so as
not to deny equal protection to any group. As the first Mr. Justice
Harlan stated in dissent in
Plessy v. Ferguson, supra, at
163 U. S.
559,
". . . in view of the constitution, in the eye of the law, there
is in this country no superior, dominant, ruling class of citizens.
There is no caste here. Our constitution is color-blind. . . ."
[
Footnote 2/1]
Article 135 of Louisiana's 1868 Constitution forbade segregation
of the races in public schools. But that prohibition was dropped
from Louisiana's 1879 Constitution. The latter, by Article 231,
authorized the establishment of a university for Negroes.
Woodward, Strange Career of Jim Crow (1955), pp. 7-8:
". . . In bulk and detail, as well as in effectiveness of
enforcement, the segregation codes were comparable with the black
codes of the old regime, though the laxity that mitigated the
harshness of the black codes was replaced by a rigidity that was
more typical of the segregation code. That code lent the sanction
of law to a racial ostracism that extended to churches and schools,
to housing and jobs, to eating and drinking. Whether by law or by
custom, that ostracism eventually extended to virtually all forms
of public transportation, to sports and recreations, to hospitals,
orphanages, prisons, and asylums, and ultimately to funeral homes,
morgues, and cemeteries."
[
Footnote 2/2]
We have held on numerous occasions that the States may not use
their powers to enforce racial segregation in public facilities.
Mayor and City Council of Baltimore City v. Dawson, 350
U.S. 877 (1955) (public beaches and bathhouses);
Holmes v.
Atlanta, 350 U.S. 879 (1955) (municipal golf courses);
Gayle v. Browder, 352 U.S. 903 (1956) (buses operated on
city streets);
New Orleans City Park Improvement Association v.
Detiege, 358 U. S. 54 (1958)
(golf course and city parks). For decisions of the lower federal
courts holding racial segregation unconstitutional as applied to
facilities open to public enjoyment and patronage,
see
Department of Conservation & Development, Division of Parks, of
Virginia v. Tate, 231 F.2d 615 (state park);
City of St.
Petersburg v. Alsup, 238 F.2d 830 (municipal beach and
swimming pool);
Morrison v. Davis, 252 F.2d 102 (public
transportation facilities).
MR. JUSTICE HARLAN, concurring in the judgment.
I agree that these convictions are unconstitutional, but not for
the reasons given by the Court. Relying on
Thompson v. City of
Louisville, 362 U. S. 199, the
Court strikes down the convictions on the ground that there is no
evidence whatever to support them. In my opinion, the
Thompson doctrine does not fit these cases. However, I
believe the convictions are vulnerable under the Fourteenth
Amendment on other grounds: (1) the kind of conduct revealed in
Garner, No. 26, and in
Hoston, No. 28, could not
be punished under a generalized breach of the peace provision, such
as Art. 103(7), La.Crim. Code; [
Footnote 3/1] (2) Art. 103(7) as applied in
Briscoe, No. 27 (as
Page 368 U. S. 186
well as in the
Garner and
Hoston cases) is
unconstitutionally vague and uncertain.
The Court's reversal for lack of evidence rests on two different
views of Art. 103(7). First, it is said that the statute, as
construed by the Louisiana courts, reaches at most only "violent,"
"boisterous," or "outwardly provocative" conduct that may
foreseeably induce a public disturbance. On this view, these cases
are found evidentially wanting because the petitioners' conduct,
being entirely peaceful, was not of the character proscribed by the
statute so construed. Alternatively, it is recognized that the
statute is susceptible of a construction that would embrace as well
other kinds of conduct having the above effect. On that view, the
convictions are also found evidentially deficient in that
petitioners' conduct, so it is said, could not property be taken as
having any tendency to cause a public disturbance. In my opinion,
the first of these holdings cannot withstand analysis with
appropriate regard for the limitations upon our powers of review
over state criminal cases; the second holding rests on untenable
postulates as to the law of evidence.
I
Turning to the first holding, it goes without saying that we are
not at liberty to determine for ourselves the scope
Page 368 U. S. 187
of this Louisiana statute. That was a function belonging
exclusively to the state courts, and their interpretation is
binding on us.
E.g., Appleyard v. Massachusetts,
203 U. S. 222,
203 U. S. 227;
Hebert v. Louisiana, 272 U. S. 312,
272 U. S. 316;
Williams v. Oklahoma, 358 U. S. 576,
358 U. S. 583.
For me, the Court's view that the statute covers only nonpeaceful
conduct is unacceptable, since I believe that the Louisiana Supreme
Court decided the opposite in these very cases. I think the State
Supreme Court's refusal to review these convictions, taken in light
of its assertion that the "rulings of the district judge on matters
of law are not erroneous," must be accepted as an authoritative and
binding state determination that the petitioners' activities, as
revealed in these records, did violate the statute; in other words
that, contrary to what this Court now says in Part I of its
opinion, the enactment
does cover peaceful conduct of a
kind that foreseeably may lead to public disturbance. [
Footnote 3/2]
This Court's view of the statute rests primarily, if not
entirely, on an earlier Louisiana case,
State v. Sanford,
203 La. 961, 14 So. 2d 778, involving a different, but comparable,
breach of the peace statute. That case is regarded as establishing
that breaches of the peace under Louisiana law are confined to
nonpeaceful conduct. While I do not find the
Sanford case
as "plan" as the Court does (
infra, pp.
368 U. S.
191-192), that earlier holding cannot in any event be
deemed controlling on the significance to be attributed to the
action of the State Supreme Court in
Page 368 U. S. 188
these cases. There can be no doubt that Louisiana had to follow
the principles of
Sanford only to the extent that it felt
bound by
stare decisis. A departure from precedent may
have been wrong, unwise, or even unjust, but it was not
unconstitutional.
Patterson v. Colorado, 205 U.
S. 454,
205 U. S. 461.
[
Footnote 3/3]
See also
Brinkerhoff-Faris Trust & Savings Co. v. Hill,
281 U. S. 673,
281 U. S. 680,
and cases there cited;
cf. Great Northern R. Co. v. Sunburst
Oil & Refining Co., 287 U. S. 358,
287 U. S.
364.
More basically, established principles of constitutional
adjudication require us to consider that the Louisiana Supreme
Court's refusal to review these cases signifies a holding that the
breach of the peace statute which controls these cases does embrace
the conduct of the petitioners, peaceful though it was.
These state judgments come to us armored with a presumption that
they are not founded "otherwise than is required by the fundamental
law of the land,"
Ex parte Royall, 117 U.
S. 241,
117 U. S. 252
(
see also Darr v. Burford, 339 U.
S. 200,
339 U. S.
205), comparable to the presumption which has always
attached to state legislative enactments.
See, e.g.,
51 U. S.
Pennsylvania, 10 How. 402,
51 U. S. 415.
That presumption should render impermissible an interpretation of
these judgments as resting on the view that the relevant breach of
the peace statute reaches only unruly
Page 368 U. S. 189
behavior. For, on the Court's premise that there is no evidence
of that kind of behavior, such an interpretation, in effect,
attributes to the Louisiana Supreme Court a deliberately
unconstitutional decision, under principles established by
Thompson v. City of Louisville, supra, which had already
been decided at the time these cases came before the Louisiana
courts.
Moreover, the kind of speculation in which the Court has
indulged as to the meaning of the Louisiana statute is surely out
of keeping with the principle that federal courts should abstain
from constitutional decision involving doubtful state law questions
until a clarifying adjudication on them has first been obtained
from the state courts.
See Railroad Comm'n v. Pullman Co.,
312 U. S. 496,
312 U. S. 500;
Harrison v. NAACP, 360 U. S. 167.
Cf. Glenn v. Field Packing Co., 290 U.
S. 177;
Leiter Minerals, Inc., v. United
States, 352 U. S. 220,
352 U. S.
228-229;
Louisiana Power & Light Co. v.
Thibodaux, 360 U. S. 25. If
there be doubt as to how the statute was construed in this respect,
the cases should be returned to the Louisiana Supreme Court for
clarification of its judgments.
See Herb v. Pitcairn,
324 U. S. 117.
Our recent decision in
Thompson v. City of Louisville,
362 U. S. 199,
cannot well be taken as justification for considering the judgments
under review as other than a holding by Louisiana's highest court
that breach of the peace under then existing state law may include
conduct that in itself is peaceful. In
Thompson, the
petitioner was convicted of two offenses defined by ordinances of
the City of Louisville. One of these ordinances, prohibiting
loitering, expressly enumerated three elements of the offense. The
prosecution introduced no evidence to establish any of these
definitely prescribed components, which were not suggested to have,
by virtue of state judicial interpretation, any other than their
plain meaning. We held that, "[u]nder the words of the ordinance
itself," there was no evidence to support the conviction.
Page 368 U. S. 190
The other offense of which the petitioner in
Thompson
was convicted was "disorderly conduct," not at all defined in the
ordinance. The only evidence in the record relating to conduct
which might conceivably have come within the prohibited scope
indicated was that the petitioner was "argumentative" with the
arresting officers. We said of this conviction (362 U.S. at
362 U. S.
206):
"We assume, for we are justified in assuming, that merely
'arguing' with a policeman is not, because it could not be,
'disorderly conduct' as a matter of the substantive law of
Kentucky.
See Lanzetta v. New Jersey, 306 U. S.
451."
In other words, we held that the ordinance could not, for want
of adequate notice, constitutionally be construed by the Kentucky
courts to cover the activity for which the city sought to punish
the petitioner.
Where, as was true of the disorderly conduct charge in
Thompson, application of a generally drawn state statute
or municipal ordinance to the conduct of a defendant would require
a constitutionally impermissible construction of the enactment, we
are not bound by the state court's finding that the conduct was
criminal. In the cases now before us, however, the Court does not
suggest that Louisiana's disturbance of the peace statute was too
vague to be constitutionally applied to the conduct of the
petitioners. I think we are obliged, because of the state courts'
dispositions of these cases, to hold that there was presented at
petitioners' trials evidence of criminal conduct under Louisiana
law.
Herndon v. Lowry, 301 U. S. 242,
301 U. S.
255.
Thompson v. City of Louisville should be recognized for
what it is, a case involving a situation which, I think it fair to
say, was unique in the annals of the Court. The case is bound to
lead us into treacherous territory unless we apply its teaching
with the utmost circumspection, and with due sense of the
limitations upon our reviewing authority.
Page 368 U. S. 191
The Court's holding on this phase of the matter also suffers
from additional infirmities. I do not think that
State v.
Sanford, the cornerstone of this branch of the Court's
opinion, is as revealing upon the meaning of breach of the peace
under Louisiana law as the Court would make it seem. In that case,
the Louisiana Supreme Court reversed the convictions, under the
then breach of the peace statute, of four Jehovah's Witnesses who
had solicited contributions and distributed pamphlets in a
Louisiana town, with an opinion which cited,
inter alia,
Cantwell v. Connecticut, 310 U. S. 296, and
Martin v. Struthers, 319 U. S. 141.
Reference was made to "the provisions of the Constitution of the
United States guaranteeing freedom of religion, of the press and of
speech." 203 La. at 968, 14 So. 2d at 780. The court said, most
clearly,
"The application of the statute by the trial judge to the facts
of this case and his construction thereof would render it
unconstitutional under the above Federal authorities."
203 La. at 970, 14 So. 2d at 780-781. In addition, the opinion
noted, conviction under the statute might violate the Louisiana
Constitution
"because it is well settled that no act or conduct, however
reprehensible, is a crime in Louisiana, unless it is defined and
made a crime clearly and unmistakably by statute."
203 La. at 970, 14 So. 2d at 781. In the concluding part of its
opinion, the Louisiana Supreme Court also said what this Court now
considers to be the sole ground of its decision:
"It is our opinion that the statute is inapplicable to this case
because it appears that the defendants did not commit any unlawful
act or pursue an unlawful or disorderly course of conduct which
would tend to disturb the peace."
203 La. at 970, 14 So. 2d at 781.
Thus, a full reading of
Sanford will disclose that
there were at least three considerations which led to the result:
(1) the likelihood that a contrary holding would violate provisions
of the Federal Constitution relating to religion,
Page 368 U. S. 192
speech, and press under the principles declared in then-recent
decisions of this Court; (2) the possibility that the statute was
too vague and unclear under the Louisiana Constitution adequately
to define the bounds of the conduct being declared criminal; (3)
the unfairness of convicting under a general breach of the peace
statute persons engaged in such peaceable religious activity.
The Court now isolates this last factor from this multifaceted
opinion, and, using it as an immutable measures of what Louisiana
law requires, declares that the present convictions must fall
because the standard so unclearly set out in
Sanford has
not been met. Apart from other considerations already discussed, I
am not prepared to rest a constitutional decision on so insecure a
foundation.
It is further significant that the State Supreme Court's order
refusing to review the present cases does not cite
State v.
Sanford, but rather relies on another earlier case,
Town
of Ponchatoula v. Bates, 173 La. 824, 138 So. 851. The
Bates decision, upholding the constitutionality of an
ordinance making it a crime "to engage in a fight or in any manner
disturb the peace," defined disturbance of the peace as
"any act or conduct of a person which molests the inhabitants in
the enjoyment of that peace and quiet to which they are entitled,
or which throws into confusion things settled, or which causes
excitement, unrest, disquietude, or fear among persons of ordinary,
normal temperament."
173 La. at 828, 138 So. at 852. Such a definition would, of
course, bring within the compass of the statute even peaceful
activity, so long as it threw "into confusion things settled," or
caused disquietude among ordinary members of the community. I think
it was that construction which the Louisiana Supreme Court placed
upon the breach of the peace statute involved in the cases now
before us.
Page 368 U. S. 193
II
The alternative holding of the Court in Part II of its opinion
also stands on unsolid foundations. Conceding that this breach of
the peace statute "might" be construed to cover peaceful conduct
carried on "in such a manner as would foreseeably disturb or alarm
the public," the Court holds that there was no evidence that
petitioners' conduct tended to disturb or alarm those who witnessed
their activity.
There is, however, more to these cases than what physically
appears in the record. It is an undisputed fact that the "sit-in"
program, of which petitioners' demonstrations were a part, had
caused considerable racial tension in various States, including
Louisiana. Under Louisiana law, La.Rev.Stat., 1950, § 15:422,
Louisiana courts may take judicial notice of "the political, social
and racial conditions prevailing in this state."
State v.
Bessa, 115 La. 259, 38 So. 985. This Court holds, nonetheless,
that the Louisiana courts could not, consistently with the
procedural guarantees of the Fourteenth Amendment, judicially
notice the undisputed fact that there was racial tension in and
around Baton Rouge on March 28 and 29, 1960 (the dates of these
"sit-in"), without informing the parties that such notice was being
taken, and without spreading the source of the information on the
record.
Support for this constitutional proposition is found in
Ohio
Bell Telephone Co. v. Public Utilities Commission,
301 U. S. 292,
301 U. S.
302-303. The Court there held that it was repugnant to
the Fourteenth Amendment for a state agency to deprive the
telephone company of property on the basis of rates set by a
precise mathematical computation derived from undisclosed
statistics. This was because the procedure afforded no opportunity
for rebuttal with respect to the underlying data, and for possible
demonstration
Page 368 U. S. 194
that the figures should not be judicially noticed, since their
source was unknown and the statistics were not disclosed to any
reviewing court.
See Morgan, Some Problems of Proof (1956)
56.
The situation we have here is quite different. The existence of
racial tensions, of which the Louisiana courts must have taken
judicial notice in order to find that petitioners' conduct alarmed
or disturbed the public, was notorious throughout the community,
and, indeed, throughout that part of the United States. The truth
of that proposition is not challenged, nor is any particular
authority required to confirm it. This kind of generally known
condition may be judicially noticed by trial and appellate courts
without prior warning to the parties, since it does not require any
foundation establishing the accuracy of a specific source of
information.
See Uniform Rules of Evidence, 9(2)(c); ALI,
Model Code of Evidence, Rule 802(c); 1 Morgan, Basic Problems of
Evidence (1954), 9-10.
Cf. Mills v. Denver Tramway Corp.,
155 F.2d 808 (C.A.10th Cir.). I perceive no reason why that
principle should be considered as applying only in civil cases, and
I am not aware of any American authority which so holds.
Indeed, the fact of which I think we must consider judicial
notice was taken in this instance was so notorious throughout the
country that, far from its being unconstitutional for a court to
take it into consideration, it would be quite amiss for us not to
deem that the Louisiana courts did so on their own initiative.
See, e.g., Uniform Rule of Evidence, 9(1);
cf.
Note, 12 Va.L.Rev. 154 (1925), and cases there cited. It might have
been procedurally preferable had the trial judge announced to the
parties that he was taking judicial notice, as is suggested in
Model Code of Evidence, Rule 804. But we would be exalting the
sheerest of technicalities were we to hold that a conviction is
constitutionally
Page 368 U. S. 195
void because of a judge's failure to declare that he has noticed
a common proposition when at no stage in the proceeding is it
suggested that the proposition may be untrue. Whether a trial judge
need notify the parties of his intention to take judicial notice of
"routine matters of common knowledge which . . . [he] would notice
as a matter of course" is best left to his "reasonable discretion."
McCormick, Evidence (1954), 708. Appellate courts have always
reserved the authority to notice such commonly known propositions
as are needed to support the judgment of a lower court, even if no
express reference has been made below.
See Comment, 42
Mich.L.Rev. 509, 512-513 (1943).
Moreover, in this instance, the fact that the trial court had
taken judicial notice of the impact of petitioners' conduct, which
indeed had obviously been engaged in for the very purpose of
producing an impact on others in this field of racial relations,
albeit, I shall assume, with the best of motives, could hardly have
failed to cross the minds of petitioners' counsel before the trial
had ended. They however neither sought to introduce countervailing
evidence on that issue nor have they undertaken at any stage of
these proceedings, including that in this Court, to question the
availability of judicial notice on this aspect of the State's
case.
Were we to follow the reasoning of the majority opinion where it
would logically lead, this Court would be violating due process
every time it noticed a generally known fact without first calling
in the parties to apprise them of its intention. Yet, without any
such notification, this Court has many times taken judicial notice
of well known economic and social facts,
e.g., Atchison, Topeka
& S.F. R. Co. v. United States, 284 U.
S. 248,
284 U. S. 260;
West Coast Hotel Co. v. Parrish, 300 U.
S. 379,
300 U. S.
398-400;
Hoyt v. Florida, 368 U. S.
57 at p.
368 U. S. 62,
and even of the tendency of
Page 368 U. S. 196
particular epithets to cause a breach of the peace.
Chaplinsky v. New Hampshire, 315 U.
S. 568,
315 U. S.
574.
It is no answer to say in these cases that, while it was
permissible for the Louisiana courts to take judicial notice of
racial conditions generally, they could not take notice of the
particular conditions on the premises involved in these
prosecutions. In the absence of contrary evidence, it was certainly
not constitutionally impermissible for the Louisiana courts to
consider that the racial conditions in Baton Rouge and in the
establishments where petitioners sat were not dissimilar to those
existing throughout the State. Judicial notice of racial conditions
in a State has sufficient probative value in determining what were
the racial conditions at a particular location within the State to
withstand constitutional attack. Reversing these convictions for
want of evidence of racial tension would, in effect, be putting
this Court into the realm of reviewing the
sufficiency of
the evidence to support these convictions, something which both
Thompson v. City of Louisville, supra, 362 U. S. 199, and
the Court's opinion in the present cases,
ante,
368 U. S. 163,
recognize is not properly within our purview.
In my opinion, skimpy though these records are, the convictions
do not fall for want of evidence, in the constitutional sense.
III
Were there no more to these cases, I should have to vote to
affirm. But, in light of principles established by
Cantwell v.
Connecticut, 310 U. S. 296, and
consistently since recognized, I think the convictions are subject
to other constitutional infirmities.
At the outset, it is important to focus on the precise factual
situation in each of these cases. Common to all three are the
circumstances that petitioners were given the invitation, extended
to the public at large, to patronize
Page 368 U. S. 197
these establishments; that they were told that they could be
served food only at the Negro lunch counters; that their conduct
was not unruly or offensive; and that none of them was ever asked
by the owners or their agents to leave the establishments. While,
in
Briscoe, No. 27, there was some very slight, but in my
view constitutionally adequate, evidence that those petitioners
were expressly asked "to move" from the "white" lunch counter,
[
Footnote 3/4] and undisputed
evidence that they did not do so, in
Garner, No. 26, and
Hoston, No. 28, there was no evidence whatever of any
express request to the petitioners in those cases that they move
from the "white" lunch counters where they were sitting.
Nor do I think that any such request is fairly to be implied
from the fact that petitioners were told by the management that
they could not be served food at such counters. The premises in
both instances housed merchandising establishments, a drugstore in
Garner, a department store in
Hoston, which
solicited business from all comers to the stores. I think the
reasonable inference is that the management did not want to risk
losing Negro patronage in the stores by requesting these
petitioners to leave the "white" lunch counters, preferring to rely
on the hope that the irritations of white customers or the
Page 368 U. S. 198
force of custom would drive them away from the counters.
[
Footnote 3/5] This view seems the
more probable in circumstances when, as here, the "sitters"
behavior was entirely quiet and courteous, and, for all we know,
the counters may have been only sparsely, if to any extent,
occupied by white persons. [
Footnote
3/6]
In short, I believe that, in the
Garner and
Hoston cases, the records should be taken as indicating
that the petitioners remained at the "white" lunch counters with
the
Page 368 U. S. 199
implied consent of the management, [
Footnote 3/7] even though a similar conclusion may not
be warranted in the
Briscoe case. Under these
circumstances, applying principles announced in
Cantwell,
I would hold all these convictions offensive to the Fourteenth
Amendment in that: (1) in
Garner and
Hoston,
petitioners' conduct, occurring with the managements' implied
consent, was a form of expression within the range of protections
afforded by the Fourteenth Amendment which could in no event be
punished by the State under a
general breach of the peace
statute; and (2) in
Briscoe, while petitioners' "sitting"
over the management's objection cannot be deemed to be within the
reach of such protections, their convictions must nonetheless fall
because the Louisiana statute, as there applied (and,
a
fortiori, as applied in the other two cases), was
unconstitutionally vague and uncertain.
In the
Cantwell case, a Jehovah's Witness had been
convicted for breach of the peace under a Connecticut statute
embracing what was considered to be the common law concept of that
offense. [
Footnote 3/8]
"The facts which were held
Page 368 U. S. 200
to support the conviction . . . were that he stopped two men in
the street, asked, and received, permission to play a phonograph
record, and played the record 'Enemies,' which attacked the
religion and church of the two men, who were Catholics. Both were
incensed by the contents of the record, and were tempted to strike
Cantwell [the defendant] unless he went away. On being told to be
on his way, he left their presence. There was no evidence that he
was personally offensive, or entered into any argument with those
he interviewed."
310 U.S. at
310 U. S.
302-303.
Accepting the determination of the state courts that, although
the defendant himself had not been disorderly or provocative, his
conduct under Connecticut law nonetheless constituted a breach of
the peace because of its tendency to inflame others, this Court
reversed. Starting from the premise that the "fundamental concept
of liberty embodied in [the Fourteenth] Amendment embraces the
liberties guaranteed by the First Amendment," the Court found that
the defendant's activities fell within the protection granted to
the "free exercise" of religion. Then recognizing the danger to
such liberties of "leaving to the executive and judicial branches
too wide a discretion" in the application of a statute "sweeping in
a great variety of conduct under a general and indefinite
characterization," the Court held that the defendant's activities
could not constitutionally be reached under a general breach of the
peace statute, but only under one specifically and narrowly aimed
at such conduct. 310 U.S. at
310 U. S.
307-308. The Court stated:
"Although the contents of the [phonograph] record not
unnaturally aroused animosity, we think that, in
Page 368 U. S. 201
the absence of a statute narrowly drawn to define and punish
specific conduct as constituting a clear and present danger to a
substantial interest of the State, the petitioner's communication,
considered in the light of the constitutional guarantees, raised no
such clear and present menace to public peace and order as to
render him liable to conviction of the common law offense in
question."
(Citing to such cases as
Schenck v. United States,
249 U. S. 47.) 310
U.S. at
310 U. S. 311.
I think these principles control the
Garner and
Hoston cases. There was more to the conduct of those
petitioners than a bare desire to remain at the "white" lunch
counter and their refusal of a police request to move from the
counter. We would surely have to be blind not to recognize that
petitioners were sitting at these counters, where they knew they
would not be served, in order to demonstrate that their race was
being segregated in dining facilities in this part of the
country.
Such a demonstration, in the circumstances of these two cases,
is as much a part of the "free trade in ideas,"
Abrams v.
United States, 250 U. S. 616,
250 U. S. 630
(Holmes, J., dissenting), as is verbal expression, more commonly
thought of as "speech." It, like speech, appeals to good sense and
to "the power of reason as applied through public discussion,"
Whitney v. California, 274 U. S. 357,
274 U. S. 375
(Brandeis, J., concurring), just as much as, if not more than, a
public oration delivered from a soapbox at a street corner. This
Court has never limited the right to speak, a protected "liberty"
under the Fourteenth Amendment,
Gitlow v. New York,
268 U. S. 652,
268 U. S. 666,
to mere verbal expression.
Stromberg v. California,
283 U. S. 359;
Thornhill v. Alabama, 310 U. S. 88;
West Virginia State Board of Education v. Barnette,
319 U. S. 624,
319 U. S.
633-634.
See also NAACP v. Alabama,
357 U. S. 449,
357 U. S.
460.
Page 368 U. S. 202
If the act of displaying a red flag as a symbol of opposition to
organized government is a liberty encompassed within free speech as
protected by the Fourteenth Amendment,
Stromberg v. California,
supra, the act of sitting at a privately owned lunch counter
with the consent of the owner, as a demonstration of opposition to
enforced segregation, is surely within the same range of
protections. This is not to say, of course, that the Fourteenth
Amendment reaches to demonstrations conducted on private property
over the objection of the owner (as in
Briscoe), just as
it would surely not encompass verbal expression in a private home
if the owner has not consented.
No one can deny the interest that a State has in preserving
peace and harmony within its borders. Pursuant to this interest, a
state legislature may enact a trespass statute, or a disturbance of
the peace statute which either lists in detail the acts condemned
by legitimate state policy or proscribes breaches of the peace
generally, thus relating the offense to the already developed body
of common law defining that crime. Or it may, as Louisiana has
done, append to a specific enumeration in a breach of the peace
statute a "catch-all" clause to provide for unforeseen but
obviously disruptive and offensive behavior which cannot be
justified, and which is not within the range of constitutional
protection.
But when a State seeks to subject to criminal sanctions conduct
which, except for a demonstrated paramount state interest, would be
within the range of freedom of expression as assured by the
Fourteenth Amendment, it cannot do so by means of a general and
all-inclusive breach of the peace prohibition. It must bring the
activity sought to be proscribed within the ambit of a statute or
clause
"narrowly drawn to define and punish specific conduct as
constituting a clear and present danger to a substantial interest
of the State."
Cantwell v. Connecticut, supra, at
310 U. S. 311;
Thornhill v.
Alabama, 310
Page 368 U. S. 203
U.S. 88,
310 U. S. 105.
[
Footnote 3/9] And, of course, that
interest must be a legitimate one. A State may not "suppress free
communication of views, religious or other, under the guise of
conserving desirable conditions."
Cantwell, supra, at
310 U. S.
308.
These limitations exist not because control of such activity is
beyond the power of the State, but because sound constitutional
principles demand of the state legislature that it focus on the
nature of the otherwise "protected" conduct it is prohibiting, and
that it then make a legislative judgment as to whether that conduct
presents so clear and present a danger to the welfare of the
community that it may legitimately be criminally proscribed.
[
Footnote 3/10]
Page 368 U. S. 204
The Louisiana Legislature made no such judgment before the
petitioners in
Garner and
Hoston engaged in their
"sit-in" activity. In light of the
Cantwell case, whose
reasoning, of course, cannot be deemed limited to "expression"
taking place on the public streets,
cf. Terminiello v.
Chicago, 337 U. S. 1;
Niemotko v. Maryland, 340 U. S. 268,
340 U. S. 281
(concurring opinion), Louisiana could not, in my opinion,
constitutionally reach those petitioners' conduct under subsection
(7) -- the "catch-all clause" -- of its then-existing disturbance
of the peace statute. [
Footnote
3/11] In so concluding, I intimate no view as to whether
Louisiana could, by a specifically drawn statute, constitutionally
proscribe conduct of the kind evinced in these two cases, or upon
the constitutionality of the statute which the State has recently
passed. [
Footnote 3/12] I deal
here only with these two cases, and the statute that is before us
now.
Page 368 U. S. 205
IV
.
Finally, I believe that the principles of
Cantwell lead
to the conclusion that this general breach of the peace provision
must also be deemed unconstitutional for vagueness and uncertainty,
as applied in the circumstances of all these cases. As to
Garner and
Hoston, this affords an alternative
ground for reversal. As to
Briscoe, where the evidence
falls short of establishing that those petitioners remained at the
"white" lunch counter with the express or implied consent of the
owner (notes
368
U.S. 157fn3/4|>4,
368
U.S. 157fn3/5|>5,
supra), I would rest reversal
solely on this ground. [
Footnote
3/13]
While
Cantwell was not explicitly founded on that
premise, it seems to me implicit in the opinion that a statute
which leaves the courts in uncertainty as to whether it was
intended to reach otherwise constitutionally protected conduct
must, by the same token, be deemed inadequate warning to a
defendant that his conduct has
Page 368 U. S. 206
been condemned by the State.
See Chaplinsky v. New
Hampshire, 315 U. S. 568,
315 U. S.
573-574.
Cf. Winters v. New York, 333 U.
S. 507,
333 U. S.
509-510;
Smith v. California, 361 U.
S. 147,
361 U. S. 151;
Thompson v. City of Louisville, 362 U.
S. 199,
362 U. S. 206.
Such warning is, of course, a requirement of the Fourteenth
Amendment.
Lanzetta v. New Jersey, 306 U.
S. 451,
306 U. S.
453.
This conclusion finds added support in the cases requiring of
state legislatures more specificity in statutes impinging on
freedom of expression than might suffice for other criminal
enactments.
See Winters v. New York, supra, at
333 U. S.
509-510;
Smith v. California, supra, at
361 U. S. 151;
cf. Herndon v. Lowry, 301 U. S. 242,
301 U. S.
261-264. To the extent that this Louisiana statute is
explicit on the subject of expression it prohibits only that which
is "unnecessarily loud, offensive, or insulting" or activity
carried on "in a violent or tumultuous manner by any three or more
persons" (
368
U.S. 157fn3/1|>note 1,
supra). No charge was made
or proved that petitioners' conduct met any of those criteria. Nor
has the statute been elucidated in this respect before, or since,
petitioners' conviction, by any decision of the Louisiana courts of
which we have been advised.
Cf. Winters v. New York,
supra, at
333 U. S. 514;
Terminiello v. Chicago, 337 U. S. 1,
337 U. S. 4.
Lastly, it is worth observing that, in
State v. Sanford,
the Louisiana Supreme Court seriously questioned on the score of
vagueness the validity of that earlier breach of the peace statute
under the State Constitution, as there applied to conduct within
the same range of constitutional protection. [
Footnote 3/14]
In the absence of any Louisiana statute purporting to express
the State's overriding interest in prohibiting petitioners'
Page 368 U. S. 207
conduct as a clear and present danger to the welfare of the
community, peaceful demonstration on public streets, and on private
property with the consent of the owner, was constitutionally
protected as a form of expression. Louisiana's breach of the peace
statute drew no distinct line between presumably constitutionally
protected activity and the conduct of the petitioners in
Briscoe, as a criminal trespass statute might have done.
[
Footnote 3/15] The fact that, in
Briscoe, unlike
Garner and
Hoston, the
management did not consent to the petitioners' remaining at the
"white" lunch counter does not serve to permit the application of
this general breach of the peace statute to the conduct shown in
that case. For the statute, by its terms, appears to be as
applicable to "incidents fairly within the protection of the
guarantee of free speech,"
Winters v. New York, supra, at
333 U. S. 509,
as to that which is not within the range of such protection. Hence,
such a law gives no warning as to what may fairly be deemed to be
within its compass.
See Note, 109 U. of Pa.L.Rev. 67,
75-76, 99-104 (1960).
For the foregoing reasons, I dissent from the opinion of the
Court, but join in the judgment.
[
Footnote 3/1]
The Louisiana statute, La.Rev.Stat., 1950, § 14:103, then
provided:
"Disturbing the peace is the doing of any of the following in
such a manner as would foreseeably disturb or alarm the
public:"
"(1) Engaging in a fistic encounter; or"
"(2) Using of any unnecessarily loud, offensive, or insulting
language; or"
"(3) Appearing in an intoxicated condition; or"
"(4) Engaging in any act in a violent and tumultuous manner by
any three or more persons; or"
"(5) Holding of an unlawful assembly; or"
"(6) Interruption of any lawful assembly of people; or"
"(7) Commission of any other act in such a manner as to
unreasonably disturb or alarm the public."
"Whoever commits the crime of disturbing the peace shall be
fined not more than one hundred dollars, or imprisoned for not more
than ninety days, or both."
[
Footnote 3/2]
As Mr. Justice Jackson put it in
Gryger v. Burke,
334 U. S. 728,
334 U. S.
731:
"We are not at liberty to conjecture that the trial court acted
under an interpretation of the state law different from that which
we might adopt, and then set up our own interpretation as a basis
for declaring that due process has been denied. We cannot treat a
mere error of state law, if one occurred, as a denial of due
process; otherwise, every erroneous decision by a state court on
state law would come here as a federal constitutional
question."
[
Footnote 3/3]
There, Mr. Justice Holmes said of a claim that a state court was
constitutionally obliged to follow its own precedents:
"Even if it be true, as the plaintiff in error says, that the
Supreme Court of Colorado departed from earlier and well
established precedents to meet the exigencies of this case,
whatever might be thought of the justice or wisdom of such a step,
the Constitution of the United States is not infringed. It is
unnecessary to lay down an absolute rule beyond the possibility of
exception. Exceptions have been held to exist. But, in general the
decision of a court upon a question of law, however wrong and
however contrary to previous decisions, is not an infraction of the
Fourteenth Amendment merely because it is wrong, or because earlier
decisions are reversed."
[
Footnote 3/4]
In
Briscoe, the waitress who had spoken to the
defendants testified at the trial that she told them "they would
have to go to the other side to be served." It was only when she
responded affirmatively to a leading question, "And you told them
you couldn't serve them and asked them to move, is that correct?"
that she provided any evidence at all to support a finding that the
defendants were even asked by the management to move from the
"white" lunch counter. Contrary to what the trial court in
Briscoe may have meant when it said that the defendants
"were requested to leave, and they refused to leave" before the
police appeared, the waitress' laconic reply furnished no evidence
whatever that the defendants were requested to leave the
establishments.
[
Footnote 3/5]
The owner of the drugstore in
Garner testified that his
store provided eating "facilities for only one race, the white
race," and that, when petitioners sat down at the lunch counter, he
"advise[d] them that we couldn't serve them." He admitted that
"negroes are very good customers" in the drugstore section of the
establishment. In
Hoston, the manager of the department
store repeatedly insisted at the trial that the petitioners had not
been "requested to move over to the counter reserved for colored
people." When asked, "They weren't asked to go over there?" he
replied, "They were advised that we would serve them over there."
He denied that the petitioners had been "refused" service:
"We did not refuse to serve them. I merely did not serve them,
and told them that they would be served on the other side of the
store. . . . As I stated before, we did not refuse to serve them.
We merely advised them they would be served on the other side of
the store."
In contrast to what appears in
Garner and
Hoston, the circumstances in
Briscoe seem to me
quite different. There is little reason to believe that the
management of a restaurant in a Greyhound Bus Terminal would be
nearly as concerned with offending Negro patrons because of their
refusal to sit at the Negro counter as would the management of a
merchandising establishment dependent on other trade than that
available at its eating facilities. It may well have been assumed
that pique at being asked to leave a "white" lunch counter would
readily yield to the need of having to use the buses to get to
one's destination. Further, for all that appears, the restaurant
and bus companies, in this instance, may have been entirely
separate enterprises, or these "sitters" may only have been
"eaters" and not "travelers" as well.
[
Footnote 3/6]
In
Garner, there was evidence that "a number of
customers [were] seated at the counter." In
Hoston, there
was no evidence even of that kind.
[
Footnote 3/7]
The manager of the department store in Hoston seemed
particularly complacent. Although two Negro girls sat "adjoining"
him while he was eating lunch at the counter, he finished his meal
before calling the police. He instructed a waitress "to offer
service at the counter across the aisle," but never approached the
petitioners himself. He testified that his purpose in calling the
police was that he "feared that some disturbance might occur."
[
Footnote 3/8]
The Connecticut statute, Cong.Gen.Stat. § 6194 (1930),
provided:
"Any person who shall disturb or break the peace by tumultuous
and offensive carriage, noise or behavior, or by threatening,
traducing, quarreling with, challenging, assaulting or striking
another
or shall disturb or break the peace, or provoke
contention, by following or mocking any person, with abusive or
indecent language, gestures or noise, or shall, by any writing,
with intent to intimidate any person, threaten to commit any crime
against him or his property or shall write or print and publicly
exhibit or distribute, or shall publicly exhibit, post up or
advertise, any offensive, indecent or abusive matter concerning any
person, shall be fined not more than five hundred dollars or
imprisoned in jail not more than one year or both."
(Emphasis added.)
[
Footnote 3/9]
Compare, for example, the statutes upheld in
Beauharnais v. Illinois, 343 U. S. 250;
Breard v. Alexandria, 341 U. S. 622;
Kovacs v. Cooper, 336 U. S. 77;
Valentine v. Chrestensen, 316 U. S.
52;
Chaplinsky v. New Hampshire, 315 U.
S. 568;
Cox v. New Hampshire, 312 U.
S. 569.
[
Footnote 3/10]
Mr. Justice Roberts, speaking for a unanimous Court in
Cantwell, stated (310 U.S. at
310 U. S.
307-308):
"Conviction on the fifth count [disorderly conduct] was not
pursuant to a statute evincing a legislative judgment that street
discussion of religious affairs, because of its tendency to provoke
disorder, should be regulated, or a judgment that the playing of a
phonograph on the streets should in the interest of comfort or
privacy be limited or prevented. Violation of an Act exhibiting
such a legislative judgment and narrowly drawn to prevent the
supposed evil, would pose a question differing from that we must
here answer. Such a declaration of the State's policy would weigh
heavily in any challenge of the law as infringing constitutional
limitations. Here, however, the judgment is based on a common law
concept of the most general and undefined nature. The court below
has held that the petitioner's conduct constituted the commission
of an offense under the State law, and we accept its decision as
binding upon us to that extent."
"The offense known as breach of the peace embraces a great
variety of conduct destroying or menacing public order and
tranquility. It includes not only violent acts, but acts and words
likely to produce violence in others. No one would have the
hardihood to suggest that the principle of freedom of speech
sanctions incitement to riot, or that religious liberty connotes
the privilege to exhort others to physical attack upon those
belonging to another sect. When clear and present danger of riot,
disorder, interference with traffic upon the public streets, or
other immediate threat to public safety, peace, or order, appears,
the power of the State to prevent or punish is obvious. Equally
obvious is it that a State may not unduly suppress free
communication of views, religious or other, under the guise of
conserving desirable conditions. Here we have a situation analogous
to a conviction under a statute sweeping in a great variety of
conduct under a general and indefinite characterization, and
leaving to the executive and judicial branches too wide a
discretion in its application."
[
Footnote 3/11]
It follows, of course, that petitioners' refusal to accede to
the request to leave made by police officers could also not
constitutionally be punished under this general statute. Were it
otherwise, the determination whether certain conduct constitutes a
clear and present danger would be delegated to a police officer.
Simply by ordering a defendant to cease his "protected" activity,
the officer could turn a continuation of that activity into a
breach of the peace.
[
Footnote 3/12]
After the incidents which gave rise to these cases, the
Louisiana Legislature passed a bill adding to the disturbance of
the peace statute a second clause, La.Rev.Stat., 1950, § 14:103,
subd. B, which provides:
"B. Any person or persons . . . while in or on the premises of
another . . . on which property any store, restaurant, drug store .
. . or any other lawful business is operated which engages in
selling articles of merchandise or services or accommodation to
members of the public, or engages generally in business
transactions with members of the public, who shall:"
"(1) prevent or seek to prevent, or interfere or seek to
interfere with the owner or operator of such place of business, or
his agents or employees, serving or selling food and drink . . .
or"
"(2) prevent or seek to prevent, or interfere or seek to
interfere with other persons who are expressly or impliedly invited
upon said premises, or with prospective customers coming into or
frequenting such premises in the normal course of the operation of
the business conducted and carried on upon said premises, shall be
guilty of disorderly conduct and disturbing the peace. . . ."
1 La.Acts, 1960, pp. 235-236.
[
Footnote 3/13]
Because of the absence of any evidence in the
Briscoe
record regarding the legal relationship between the restaurant and
the Greyhound Bus Terminal in Baton Rouge, on whose premises it was
located, I would not pass in this case on the Solicitor General's
suggestion, made as
amicus curiae, that segregated
facilities were prohibited by § 216(d) of Part II of the Interstate
Commerce Act, 49 U.S.C. § 316(d).
See Boynton v. Virginia,
364 U. S. 454.
[
Footnote 3/14]
I do not intend to suggest that the present Louisiana statute,
either on its face or as it might be applied with respect to
conduct not within the "liberty" assured by the Fourteenth
Amendment, is or would be unconstitutional for vagueness.
Cf.
Winters v. New York, supra, at
333 U. S.
524-526 (dissenting opinion).
[
Footnote 3/15]
The criminal trespass statute in force in Louisiana at the time
of petitioners' acts prohibited only "unauthorized and intentional
taking [of] possession" and "unauthorized and intentional entry" on
another's property. La.Rev.Stat., 1950, § 14:63 (1950). No attempt
was made to prosecute the petitioners under this law. The statute
has since been amended to cover "remaining in places after being
forbidden," 1 La.Acts, 1960, pp. 245-248, and an anti-trespass
provision is now included in the disturbance of the peace statute,
1 La.Acts, 1960, p. 234.