U.S. Supreme Court
Cox v. Louisiana, 379
U.S. 559 (1965)
Cox v. Louisiana
Argued October 21-22, 1964
Decided January 18, 1965
APPEAL FROM THE SUPREME COURT OF LOUISIANA
Appellant was convicted of violating a Louisiana statute
prohibiting picketing "near" a courthouse with the intent to
obstruct justice, the charge being based on the facts set forth in
No. 24, ante
at 383 U. S. 536
and the conviction was upheld by the Louisiana Supreme Court.
1. The statute is narrowly drawn, furthers the State's
legitimate interest of protecting its judicial system from
pressures which picketing near a courthouse might create, is a
valid regulation of conduct, as distinguished from pure speech, and
does not infringe rights of free speech and assembly. Pp.
383 U. S.
2. Even assuming the applicability of a "clear and present
danger" test, there is no constitutional objection to applying the
statute to conduct of the sort engaged in by the demonstrators. Pp.
383 U. S.
3. The evidence of intent to obstruct justice or influence any
judicial official required by the statute was constitutionally
sufficient. Pp. 383 U. S.
4. Appellant was, in effect, advised by the city's highest
police officials that a demonstration at the place where it was
held was not "near" the courthouse, and to permit him to be
convicted for exercising the privilege they told him was available
would be to allow a type of entrapment violative of the Due Process
Clause. Raley v. Ohio, 360 U. S. 423
followed. Pp. 383 U. S.
5. The dispersal order did not limit the time or place of the
demonstration and remove the protection accorded appellant by the
original grant of permission, but was based on the officials'
erroneous conclusion that appellant's remarks constituted a breach
of the peace. Pp. 383 U. S.
245 La. 303, 158 So. 2d 172, reversed
Page 379 U. S. 560
MR. JUSTICE GOLDBERG delivered the opinion of the Court.
Appellant was convicted of violating a Louisiana statute which
"Whoever, with the intent of interfering with, obstructing, or
impeding the administration of justice, or with the intent of
influencing any judge, juror, witness, or court officer, in the
discharge of his duty pickets or parades in or near a building
housing a court of the State of Louisiana . . . shall be fined not
more than five thousand dollars or imprisoned not more than one
year, or both."
La.Rev.Stat. § 14:401 (Cum.Supp. 1962). This charge was based
upon the same set of facts as the "disturbing the peace" and
"obstructing a public passage" charges involved and set forth in
No. 24, ante,
and was tried along with those offenses.
Appellant was convicted on this charge also, and was sentenced to
the maximum penalty under the statute of one year in jail and a
$5,000 fine, which penalty was cumulative with those in No. 24.
These convictions were affirmed by the Louisiana Supreme Court, 245
La. 303, 158 So. 2d 172. Appellant appealed to this Court,
contending that the statute was unconstitutional on its face and as
applied to him. We noted probable jurisdiction, 377 U.S. 921.
We shall first consider appellant's contention that this statute
must be declared invalid on its face as an unjustified restriction
upon freedoms guaranteed by the First and Fourteenth Amendments to
the United States Constitution
Page 379 U. S. 561
This statute was passed by Louisiana in 1950, and was modeled
after a bill pertaining to the federal judiciary, which Congress
enacted later in 1950, 64 Stat. 1018, 18 U.S.C. § 1507 (1958 ed.).
Since that time, Massachusetts and Pennsylvania have passed similar
statutes. Mass.Ann.Laws, c. 268, § 13A; Purdon's Pa.Stat.Ann., Tit.
18, § 4327. The federal statute resulted from the picketing of
federal courthouses by partisans of the defendants during trials
involving leaders of the Communist Party. This picketing prompted
an adverse reaction from both the bar and the general public. A
number of groups urged legislation to prohibit it. At a special
meeting held in March, 1949, the Judicial Conference of the United
States passed the following resolution: "Resolved, That we condemn
the practice of picketing the courts, and believe that effective
means should be taken to prevent it." Report of the Judicial
Conference of the United States, 203 (1949). A Special Committee on
Proposed Legislation to Prohibit Picketing of the Courts was
appointed to make recommendations to the Conference on this
In its Report to the Judicial Conference,
dated September 23, 1949, at p. 3, the Special Committee
"The sentiment of bar associations and individual lawyers has
been and is practically unanimous in favor of legislation to
prohibit picketing of courts."
Upon the recommendation of this Special Committee, the Judicial
Conference urged the prompt enactment of the then-pending bill.
Report of the Judicial Conference of the United States, 17-18
(1949). Similar recommendations were made by the American Bar
Association, numerous state and local bar associations, and
individual lawyers and judges. See
Joint Hearings before
the Subcommittees of the Committees on the Judiciary on S. 1681 and
H.R. 3766, 81st Cong., 1st Sess.; H.R.Rep. No. 1281, 81st Cong.,
1st Sess.; S.Rep. No. 732, 81st Cong., 1st Sess.; Bills
Page 379 U. S. 562
Picketing of Courts Before Congress 33 J.Am.Jud.Soc. 53
This statute, unlike the two previously considered, is a
precise, narrowly drawn regulatory statute which proscribes certain
specific behavior. Cf. Edwards v. South Carolina,
372 U. S. 229
372 U. S. 236
It prohibits a particular type of conduct, namely, picketing and
parading, in a few specified locations, in or near courthouses.
There can be no question that a State has a legitimate interest
in protecting its judicial system from the pressures which
picketing near a courthouse might create. Since we are committed to
a government of laws, and not of men, it is of the utmost
importance that the administration of justice be absolutely fair
and orderly. This Court has recognized that the unhindered and
untrammeled functioning of our courts is part of the very
foundation of our constitutional democracy. See Wood v.
Georgia, 370 U. S. 375
370 U. S. 383
The constitutional safeguards relating to the integrity of the
criminal process attend every stage of a criminal proceeding,
starting with arrest and culminating with a trial "in a courtroom
presided over by a judge." Rideau v. Louisiana,
373 U. S. 723
373 U. S. 727
There can be no doubt that they embrace the fundamental conception
of a fair trial, and that they exclude influence or domination by
either a hostile or friendly mob. There is no room at any stage of
judicial proceedings for such intervention; mob law is the very
antithesis of due process. See Frank v. Mangum,
237 U. S. 309
237 U. S. 347
(Holmes, J., dissenting). A State may adopt safeguards necessary
and appropriate to assure that the administration of justice at all
stages is free from outside control and influence. A narrowly drawn
statute such as the one under review is obviously a safeguard both
necessary and appropriate to vindicate the State's interest in
assuring justice under law
Page 379 U. S. 563
Nor does such a statute infringe upon the constitutionally
protected rights of free speech and free assembly. The conduct
which is the subject of this statute picketing and parading -- is
subject to regulation even though intertwined with expression and
association. The examples are many of the application by this Court
of the principle that certain forms of conduct mixed with speech
may be regulated or prohibited. The most classic of these was
pointed out long ago by Mr. Justice Holmes: "The most stringent
protection of free speech would not protect a man in falsely
shouting fire in a theatre and causing a panic." Schenck v.
United States, 249 U. S. 47
249 U. S. 52
man may be punished for encouraging the commission of a crime,
Fox v. Washington, 236 U. S. 273
for uttering "fighting words," Chaplinsky v. New
Hampshire, 315 U. S. 568
This principle has been applied to picketing and parading in labor
disputes. See Hughes v. Superior Court, 339 U.
; Giboney v. Empire Storage & Ice
Co., 336 U. S. 490
Building Service Employees v. Gazzam, 339 U.
. But cf. Thornhill v. Alabama,
310 U. S. 88
authorities make it clear, as the Court said in Giboney,
"it has never been deemed an abridgment of freedom of speech or
press to make a course of conduct illegal merely because the
conduct was in part initiated, evidenced, or carried out by means
of language, either spoken, written, or printed."
Giboney v. Empire Storage & Ice Co., supra,
336 U. S. 502
Bridges v. California, 314 U. S. 252
Pennekamp v. Florida, 328 U. S. 331
not hold to the contrary. Both these cases dealt with the power of
a judge to sentence for contempt persons who published or caused to
be published writings commenting on judicial proceedings. They
involved newspaper editorials, an editorial cartoon, and a telegram
sent by a labor leader to the Secretary of Labor. Here we deal not
with the contempt power --
Page 379 U. S. 564
a power which is "based on a common law concept of the most
general and undefined nature." Bridges v. California,
at 314 U. S. 260
Rather, we are reviewing a statute narrowly drawn to punish
specific conduct that infringes a substantial state interest in
protecting the judicial process. See Cantwell v.
Connecticut, 310 U. S. 296
310 U. S.
-308; Giboney v. Empire Storage & Ice Co.,
We are not concerned here with such a pure form of
expression as newspaper comment or a telegram by a citizen to a
public official. We deal in this case not with free speech alone,
but with expression mixed with particular conduct. In
this Court expressly recognized this distinction
when it said,
"In holding this, we are mindful of the essential importance to
our society of a vigilant protection of freedom of speech and
press. Bridges v. California, 314 U. S.
, 314 U. S. 263
. States cannot
consistently with our Constitution abridge those freedoms to
obviate slight inconveniences or annoyances. Schneider v.
State, 308 U. S. 147
, 308 U. S.
. But placards used as an essential and inseparable
part of a grave offense against an important public law cannot
immunize that unlawful conduct from state control."
336 U.S. at 336 U. S.
We hold that this statute, on its face, is a valid law dealing
with conduct subject to regulation so as to vindicate important
interests of society, and that the fact that free speech is
intermingled with such conduct does not bring with it
We now deal with the Louisiana statute as applied to the conduct
in this case. The group of 2,000, led by appellant, paraded and
demonstrated before the courthouse. Judges and court officers were
in attendance to discharge their respective functions. It is
undisputed that a major purpose of the demonstration was to
Page 379 U. S. 565
what the demonstrators considered an "illegal" arrest of 23
students the previous day. While the students had not been
arraigned or their trial set for any day certain, they were charged
with violation of the law, and the judges responsible for trying
them and passing upon the legality of their arrest were then in the
It is, of course, true that most judges will be influenced only
by what they see and hear in court. However, judges are human, and
the legislature has the right to recognize the danger that some
judges, jurors, and other court officials, will be consciously or
unconsciously influenced by demonstrations in or near their
courtrooms both prior to and at the time of the trial. A State may
also properly protect the judicial process from being misjudged in
the minds of the public. Suppose demonstrators paraded and picketed
for weeks with signs asking that indictments be dismissed, and that
a judge, completely uninfluenced by these demonstrations, dismissed
the indictments. A State may protect against the possibility of a
conclusion by the public under these circumstances that the judge's
action was in part a product of intimidation, and did not flow only
from the fair and orderly working of the judicial process.
S.Rep. No. 732, 81st Cong., 1st Sess., 4.
Appellant invokes the "clear and present danger" doctrine in
support of his argument that the statute cannot constitutionally be
applied to the conduct involved here. He says, relying upon
"[n]o reason exists to apply a different standard to the case of
a criminal penalty for a peaceful demonstration in front of a
courthouse than the standard of clear and present danger applied in
the contempt cases."
(Appellant's Br., p. 22.) He defines the standard to be applied
to both situations to be whether the expression of opinion presents
a clear and present danger to the administration of justice.
Page 383 U. S. 566
We have already pointed out the important differences between
the contempt cases and the present one, supra
383 U. S.
-564. Here, we deal not with the contempt power, but
with a narrowly drafted statute, and not with speech in its
pristine form, but with conduct of a totally different character.
Even assuming the applicability of a general clear and present
danger test, it is one thing to conclude that the mere publication
of a newspaper editorial or a telegram to a Secretary of Labor,
however critical of a court, presents no clear and present danger
to the administration of justice, and quite another thing to
conclude that crowds, such as this, demonstrating before a
courthouse, may not be prohibited by a legislative determination
based on experience that such conduct inherently threatens the
judicial process. We therefore reject the clear and present danger
argument of appellant.
Appellant additionally argues that his conviction violated due
process as there was no evidence of intent to obstruct justice or
influence any judicial official, as required by the statute.
Thompson v. Louisville, 362 U. S. 199
cannot agree that there was no evidence within the "due process"
rule enunciated in Thompson v. Louisville.
We have already
noted that various witnesses and Cox himself stated that a major
purpose of the demonstration was to protest what was considered to
be an illegal arrest of 23 students. Thus, the very subject matter
of the demonstration was an arrest, which is normally the first
step in a series of legal proceedings. The demonstration was held
in the vicinity of the courthouse where the students' trials would
take place. The courthouse contained the judges who, in normal
course, would be called upon to try the students' cases just as
they tried appellant. Ronnie Moore, the student leader of the
demonstration, a defense witness, stated, as we understand
Page 379 U. S. 567
his testimony, that the demonstration was, in part, to protest
injustice; he felt it was a form of "moral persuasion," and hoped
it would have its effects. The fact that the students were not then
on trial and had not been arraigned is not controlling in the face
of this affirmative evidence manifesting the plain intent of the
demonstrators to condemn the arrest and ensuing judicial
proceedings against the prisoners as unfair and unwarranted. The
fact that, by their lights appellant and the 2,000 students were
seeking justice, and not its obstruction, is as irrelevant as would
be the motives of the mob condemned by Justice Holmes in Frank
v. Mangum, supra.
Louisiana, as we have pointed out
has the right to construe its statute to prevent
parading and picketing from unduly influencing the administration
of justice at any point or time in its process, regardless of
whether the motives of the demonstrators are good or bad.
While this case contains direct evidence taking it out of the
Thompson v. Louisville
doctrine, even without this
evidence, we would be compelled to reject the contention that there
was no proof of intent. Louisiana surely has the right to infer the
appropriate intent from circumstantial evidence. At the very least,
a group of demonstrators parading and picketing before a courthouse
where a criminal charge is pending, in protest against the arrest
of those charged may be presumed to intend to influence judges,
jurors, witnesses or court officials. Cf. Screws v. United
States, 325 U. S. 91
325 U. S. 107
(opinion of MR. JUSTICE DOUGLAS).
Absent an appropriately drawn and applicable statute, entirely
different considerations would apply if, for example, the
demonstrators were picketing to protest the actions of a mayor or
other official of a city completely unrelated to any judicial
proceedings, who just happened to have an office located in the
courthouse building. Cf. In re Brinn,
305 N.Y. 887, 114
N.E.2d 430; Joint Hearings, supra,
Page 379 U. S. 568
There are, however, more substantial constitutional objections
arising from appellant's conviction on the particular facts of this
case. Appellant was convicted for demonstrating not "in," but
"near," the courthouse. It is undisputed that the demonstration
took place on the west sidewalk, the far side of the street,
exactly 101 feet from the courthouse steps and, Judging from the
pictures in the record, approximately 125 feet from the courthouse
itself. The question is raised as to whether the failure of the
statute to define the word "near" renders it unconstitutionally
vague. See Lanzetta v. New Jersey, 306 U.
. Note, The Void-for-Vagueness Doctrine in the
Supreme Court, 109 U.Pa.L.Rev. 67. It is clear that there is some
lack of specificity in a word such as "near." [Footnote 1
] While this lack of specificity may not render
the statute unconstitutionally vague, at least as applied to a
demonstration within the sight and hearing of those in the
courthouse, [Footnote 2
] it is clear that the
statute, with respect to the determination of how near the
courthouse a particular demonstration can be, foresees a degree of
on-the-spot administrative interpretation by officials charged with
responsibility for administering and enforcing it. It is apparent
that demonstrators, such as those involved
Page 379 U. S. 569
here, would justifiably tend to rely on this administrative
interpretation of how "near" the courthouse a particular
demonstration might take place. Louisiana's statutory policy of
preserving order around the courthouse would counsel encouragement
of just such reliance. This administrative discretion to construe
the term "near" concerns a limited control of the streets and other
areas in the immediate vicinity of the courthouse, and is the type
of narrow discretion which this Court has recognized as the proper
role of responsible officials in making determinations concerning
the time, place, duration, and manner of demonstrations. See
Cox v. New Hampshire, 312 U. S. 569
Poulos v. New Hampshire, 345 U. S. 395
the discussion on this point in No. 24, pp.
383 U. S.
It is not the type of unbridled
discretion which would allow an official to pick and choose among
expressions of view the ones he will permit to use the streets and
other public facilities, which we have invalidated in the
obstruction of public passages statute as applied in No. 24,
Nor does this limited administrative regulation of
traffic which the Court has consistently recognized as necessary
and permissible, constitute a waiver of law which is beyond the
power of the police. Obviously, telling demonstrators how far from
the courthouse steps is "near" the courthouse for purposes of a
permissible peaceful demonstration is a far cry from allowing one
to commit, for example, murder, or robbery. [Footnote
The record here clearly shows that the officials present gave
permission for the demonstration to take place across the street
from the courthouse. Cox testified that they gave him permission to
conduct the demonstration
Page 379 U. S. 570
on the far side of the street. This testimony is not only
uncontradicted, but is corroborated by the State's witnesses who
were present. Police Chief White testified that he told Cox "he
must confine" the demonstration "to the west side of the street."
] James Erwin, news director of radio
station WIBR, agreed that Cox was given permission for the assembly
as long as it remained within a designated time. When Sheriff
Clemmons sought to break up the demonstration, he first announced,
"now, you have been allowed to demonstrate." [Footnote 5
] The Sheriff testified that he had "no
objection" to the students "being assembled on that side of the
street." Finally, in its brief before this Court, the State did not
contend that permission was not granted. Rather, in its statement
of the facts and argument, it conceded that the officials gave Cox
and his group some time to demonstrate across the street from the
courthouse. This agreement by the State that, in fact, permission
had been granted to demonstrate across the street from the
courthouse at least for a limited period of time, which the State
contends was set at seven minutes -- was confirmed by counsel for
the State in oral argument before this Court.
The record shows that at no time did the police recommend, or
even suggest, that the demonstration be held further from the
courthouse than it actually was. The police admittedly had prior
notice that the demonstration was planned to be held in the
vicinity of the courthouse. They were prepared for it at that
point, and so stationed themselves and their equipment as to keep
the demonstrators on the far side of the street. As Cox
Page 379 U. S. 571
the vicinity of the courthouse, he was met by the Chief of
Police and other officials. At this point, not only was it not
suggested that they hold their assembly elsewhere or disband, but
they were affirmatively told that they could hold the demonstration
on the sidewalk of the far side of the street, 101 feet from the
courthouse steps. This area was effectively blocked off by the
police, and traffic rerouted.
Thus, the highest police officials of the city, in the presence
of the Sheriff and Mayor, in effect told the demonstrators that
they could meet where they did, 101 feet from the courthouse steps,
but could not meet closer to the courthouse. In effect, appellant
was advised that a demonstration at the place it was held would not
be one "near" the courthouse within the terms of the statute.
In Raley v. Ohio, 360 U. S. 423
this Court held that the Due Process Clause prevented conviction of
persons for refusing to answer questions of a state investigating
commission when they relied upon assurances of the commission,
either express or implied, that they had a privilege under state
law to refuse to answer, though, in fact, this privilege was not
available to them. The situation presented here is analogous to
that in Raley,
which we deem to be controlling. As in
under all the circumstances of this case, after the
public officials acted as they did, to sustain appellant's later
conviction for demonstrating where they told him he could
"would be to sanction an indefensible sort of entrapment by the
State -- convicting a citizen for exercising a privilege which the
State had clearly told him was available to him."
at 360 U. S. 426
The Due Process Clause does not permit convictions to be obtained
under such circumstances.
This is not to say that had the appellant, entirely on his own,
held the demonstration across the street from the courthouse within
the sight and hearing of those
Page 379 U. S. 572
inside, or a fortiori,
had he defied an order of the
police requiring him to hold this demonstration at some point
further away out of the sight and hearing of those inside the
courthouse, we would reverse the conviction as in this case. In
such cases, a state interpretation of the statute to apply to the
demonstration as being "near" the courthouse would be subject to
quite different considerations. See
p. 383 U. S. 568
There remains just one final point: the effect of the Sheriff's
order to disperse. The State in effect argues that this order
somehow removed the prior grant of permission and reliance on the
officials' construction that the demonstration on the far side of
the street was not illegal as being "near" the courthouse. This,
however, we cannot accept. Appellant was led to believe that his
demonstration on the far side of the street violated no statute. He
was expressly ordered to leave not because he was peacefully
demonstrating too near the courthouse, nor because a time limit
originally set had expired, but because officials erroneously
concluded that what he said threatened a breach of the peace. This
is apparent from the face of the Sheriff's statement when he
ordered the meeting dispersed:
"Now, you have been allowed to demonstrate. Up until now, your
demonstration has been more or less peaceful, but what you are
doing now is a direct violation of the law, a disturbance of the
peace, and it has got to be broken up immediately."
discussion in No. 24, ante
at 383 U. S.
-551. Appellant correctly conceived, as we have held
in No. 24, ante,
that this was not a valid reason for the
dispersal order. He therefore was still justified in his continued
belief that, because of the original official grant of permission,
he had a right to stay where he was for the few additional minutes
required to conclude the meeting. In addition, even if we were to
accept the State's version that the sole reason for terminating the
Page 379 U. S. 573
was that appellant exceeded the narrow time limits [Footnote 6
] set by the police, his conviction could not
be sustained. Assuming the place of the meeting was appropriate --
as appellant justifiably concluded from the official grant of
permission -- nothing in this courthouse statute, nor in the breach
of the peace or obstruction of public passages statutes, with their
broad sweep and application that we have condemned in No. 24,
at 383 U. S.
-558, authorizes the police to draw the narrow time
line, unrelated to any policy of these statutes, that would be
approved if we were to sustain appellant's conviction on this
ground. Indeed, the allowance of such unfettered discretion in the
police would itself constitute a procedure such as that condemned
in No. 24, ante
at 383 U. S.
-558. In any event, as we have stated, it is our
conclusion from the record that the dispersal order had nothing to
do with any time or place limitation, and thus, on this ground
alone, it is clear that the dispersal order did not remove the
protection accorded appellant by the original grant of
Of course, this does not mean that the police cannot call a halt
to a meeting which though originally peaceful, becomes violent. Nor
does it mean that, under properly drafted and administered statutes
and ordinances, the authorities cannot set reasonable time limits
for assemblies related to the policies of such laws and then order
them dispersed when these time limits are exceeded. See
the discussion in No. 24, ante,
at 383 U. S.
-558. We merely hold that, under circumstances such
as those present in this case, appellant's conviction cannot be
sustained on the basis of the dispersal order
Page 379 U. S. 574
Nothing we have said here or in No. 24, ante,
is to be
interpreted as sanctioning riotous conduct in any form or
demonstrations, however peaceful their conduct or commendable their
motives, which conflict with properly drawn statutes and ordinances
designed to promote law and order, protect the community against
disorder, regulate traffic, safeguard legitimate interests in
private and public property, or protect the administration of
justice and other essential governmental functions.
Liberty can only be exercised in a system of law which
safeguards order. We reaffirm the repeated holdings of this Court
that our constitutional command of free speech and assembly is
basic and fundamental, and encompasses peaceful social protest, so
important to the preservation of the freedoms treasured in a
democratic society. We also reaffirm the repeated decisions of this
Court that there is no place for violence in a democratic society
dedicated to liberty under law, and that the right of peaceful
protest does not mean that everyone with opinions or beliefs to
express may do so at any time and at any place. There is a proper
time and place for even the most peaceful protest, and a plain duty
and responsibility on the part of all citizens to obey all valid
laws and regulations. There is an equally plain requirement for
laws and regulations to be drawn so as to give citizens fair
warning as to what is illegal; for regulation of conduct that
involves freedom of speech and assembly not to be so broad in scope
as to stifle First Amendment freedoms, which "need breathing space
to survive," NAACP v. Button, 371 U.
, 371 U. S. 433
for appropriate limitations on the discretion of public officials
where speech and assembly are intertwined with regulated conduct,
and for all such laws and regulations to be applied with an equal
hand. We believe that all of these requirements can be met in an
ordered society dedicated to liberty. We reaffirm our conviction
that "[f]reedom and viable government
Page 379 U. S. 575
are . . . indivisible concepts." Gibson v. Florida
Legislative Comm., 372 U. S. 539
372 U. S.
The application of these principles requires us to reverse the
judgment of the Supreme Court of Louisiana.
This is to be contrasted, for example, with the express
limitation proscribing certain acts within 500 feet of foreign
embassies, legations, or consulates within the District of
Columbia. 52 Stat. 30 (1938); D.C.Code, 1961, § 22-1115. See
McKinney's N.Y.Laws, Penal Law § 600 (prohibiting certain
activities within 200 feet of a courthouse).
Cf. United States v. National Dairy Products Corp.,
372 U. S. 29
109 U.Pa.L.Rev. 67. Cf. Cole v. Arkansas, 333 U.
(holding constitutional a statute making certain
types of action unlawful if done "at or near" any place where a
labor dispute exists, though the issue of the possible vagueness of
the word "near" in the context of that case was not expressly
American Law Institute, Model Penal Code §
2.04(3)(b) and comment thereon, Tentative Draft No. 4, pp. 17-18,
138-139; Hall and Seligman, Mistake of Law and Men Rea, 8
U.Chi.L.Rev. 641, 675-677 (1941); People v. Ferguson,
Cal. App. 41, 24 P.2d 965.
It is true that the Police Chief testified that he did not
subjectively intend to grant permission, but there is no evidence
at all that this subjective state of mind was ever communicated to
appellant, or, in fact, to anyone else present.
p. 383 U. S. 572
for the Sheriff's full statement at this time.
As we have pointed out in No. 24, ante
at 383 U. S. 541
2, the evidence is conflicting as to whether appellant and his
group were given only a limited time to hold their meeting and
whether, if so, such a time limit was exceeded.
MR. JUSTICE BLACK, concurring in No. 24 and dissenting in No.
I concur in the Court's judgment reversing appellant Cox's
convictions for violation of the Louisiana statutes prohibiting
breach of the peace and obstructing public passages, but I do so
for reasons which differ somewhat from those stated in the Court's
opinion. I therefore deem it appropriate to state separately my
reasons for voting to hold both these statutes unconstitutional and
to reverse the convictions under them. On the other hand, I have no
doubt that the State has power to protect judges, jurors,
witnesses, and court officers from intimidation by crowds which
seek to influence them by picketing, patrolling, or parading in or
near the courthouses in which they do their business or the homes
in which they live, and I therefore believe that the Louisiana
statute which protects the administration of justice by forbidding
such interferences is constitutional, both as written and as
applied. Since I believe that the evidence showed practically
without dispute that appellant violated this statute, I think this
conviction should be affirmed.
There was ample evidence for the jury to have found the
following to be the facts: On December 14, 1961, 23 persons were
arrested and put in jail on a charge of illegal picketing. That
night, appellant Cox and others made plans to carry on a
"demonstration," that is, a parade and march, through parts of
Baton Rouge, ending at the courthouse. Their purpose was to
Page 379 U. S. 576
against what they called the "illegal arrest" of the 23
picketers. They neither sought nor obtained any permit for such a
use of the streets. The next morning, December 15, the plan was
carried out. Some 2,000 protesters marched to a point 101 feet
across the street from the courthouse, which also contained the
jail. State and county police officers, for reasons as to which
there was a conflict in the evidence from which different
inferences could be drawn, agreed that the picketers might stay
there for a few minutes. The group sang songs along with the
prisoners in the jail and did other things set out in the Court's
opinion. Later, state and county officials told Cox, the group's
leader, that the crowd had to "move on." Cox told his followers to
stay where they were, and they did. Officers then used tear gas,
and the picketers ran away. Cox was later arrested.
. THE BREACH OF PEACE CONVICTION
I agree with that part of the Court's opinion holding that the
Louisiana breach of the peace statute, [Footnote
] on its face and as construed by the State Supreme Court,
is so broad
Page 379 U. S. 577
as to be unconstitutionally vague under the First and Fourteenth
Amendments. See Winters v. New York, 333 U.
, 333 U. S.
-510. The statute does not itself define the
conditions upon which people who want to express views may be
allowed to use the public streets and highways, but leaves this to
be defined by law enforcement officers. The statute therefore
neither forbids all crowds to congregate and picket on streets, nor
is it narrowly drawn to prohibit congregating or patrolling under
certain clearly defined conditions while preserving the freedom to
speak of those who are using the streets as streets in the ordinary
way that the State permits. A state statute of either of the two
types just mentioned, regulating conduct -- patrolling and marching
-- as distinguished from speech, would, in my judgment, be
constitutional, subject only to the condition that, if such a law
had the effect of indirectly impinging on freedom of speech, press,
or religion, it would be unconstitutional if, under the
circumstances, it appeared that the State's interest in suppressing
the conduct was not sufficient to outweigh the individual's
interest in engaging in conduct closely involving his First
Amendment freedoms. As this Court held in Schneider v.
State, 308 U. S. 147
308 U. S.
"Mere legislative preferences or beliefs respecting matters of
public convenience may well support regulation directed at other
personal activities, but be insufficient to justify such as
diminishes the exercise of rights so vital to the maintenance of
democratic institutions. And so, as cases arise, the delicate and
difficult task falls upon the courts to weigh the circumstances and
to appraise the substantiality of the reasons advanced in support
of the regulation of the free enjoyment of the rights."
See also, e.g., Brotherhood of R. Trainmen v. Virginia ex
rel. Virginia State Bar, 377 U. S. 1
NAACP v. Button, 371 U. S. 415
NAACP v. Alabama ex rel.
Page 379 U. S. 578
U.S. 449; Martin v. City of Struthers, 319 U.
; Cantwell v. Connecticut, 310 U.
; Lovell v. City of Griffin, 303 U.
; Grosjean v. American Press Co.,
297 U. S. 233
I discussed at length in my dissenting opinion in Barenblatt v.
United States, 360 U. S. 109
360 U. S.
-142, when passing on the validity of a regulation of
conduct, which may indirectly
infringe on free speech,
this Court does,and I agree that it should, "weigh the
circumstances" in order to protect, not to destroy, freedom of
speech, press, and religion.
The First and Fourteenth Amendments, I think, take away from
government, state and federal, all power to restrict freedom of
speech, press, and assembly where people have a right to be for
This does not mean, however, that these
amendments also grant a constitutional right to engage in the
conduct of picketing or patrolling, whether on publicly owned
streets or on privately owned property. See Labor Board v.
Fruit & Vegetable Packers & Warehousemen, 377 U. S.
, 377 U. S. 76
(concurring opinion). Were the law otherwise, people on the
streets, in their homes and anywhere else could be compelled to
listen against their will to speakers they did not want to hear.
Picketing, though it may be utilized to communicate ideas, is not
speech, and therefore is not of itself protected by the First
Amendment. Hughes v. Superior Court, 339 U.
, 339 U. S.
-466; Giboney v. Empire Storage & Ice
Co., 336 U. S. 490
Bakery & Pastry Drivers & Helpers v. Wohl,
315 U. S. 769
315 U. S.
-777 (DOUGLAS, J., concurring).
However, because Louisiana's breach of peace statute is not
narrowly drawn to assure nondiscriminatory application, I think it
is constitutionally invalid under our holding in Edwards v.
South Carolina, 372 U. S. 229
See also Musser v. Utah, 333 U. S. 95
333 U. S. 96
however, as I understand it, did not hold that
either private property owners or the States are constitutionally
Page 379 U. S. 579
to supply a place for people to exercise freedom of speech or
assembly. See Bell v. Maryland, 378 U.
, 378 U. S.
-346 (dissenting opinion). What Edwards,
I read it, did hold, and correctly, I think, was not that the
Federal Constitution prohibited South Carolina from making it
unlawful for people to congregate, picket, and parade on or near
that State's capitol grounds, but rather that, in the absence of a
clear, narrowly drawn, nondiscriminatory statute prohibiting such
gatherings and picketing, South Carolina could not punish people
for assembling at the capitol to petition for redress of
grievances. In the case before us, Louisiana has by a broad, vague
statute given policemen an unlimited power to order people off the
streets, not to enforce a specific, nondiscriminatory state statute
forbidding patrolling and picketing, but rather whenever a
policeman makes a decision on his own personal judgment that views
being expressed on the street are provoking or might provoke a
breach of the peace. Such a statute does not provide for government
by clearly defined laws, but rather for government by the
moment-to-moment opinions of a policeman on his beat. Compare
Yick Wo v. Hopkins, 118 U. S. 356
118 U. S.
-370. This kind of statute provides a perfect device
to arrest people whose views do not suit the policeman or his
superiors, while leaving free to talk anyone with whose views the
police agree. See Feiner v. New York, 340 U.
, 340 U. S. 321
(dissenting opinion); cf. Peters v. Hobby, 349 U.
, 349 U. S.
-350 (concurring opinion); Barsky v. Board of
Regents, 347 U. S. 442
347 U. S.
-464 (dissenting opinion); Shaughnessy v. United
States ex rel. Mezei, 345 U. S. 206
345 U. S.
-218 (dissenting opinion); Ludecke v.
Watkins, 335 U. S. 160
335 U. S. 173
(dissenting opinion). In this situation, I think Edwards v.
and other such cases invalidating statutes for
vagueness are controlling. Moreover, because the statute makes an
exception for labor organizations, and therefore tries to limit
Page 379 U. S. 580
the streets to some views but not others, I believe it is
unconstitutional for the reasons discussed in Part II of this
opinion, dealing with the street obstruction statute,
For all the reasons stated, I concur in reversing
the conviction based on the breach of peace statute.
. THE OBSTRUCTING PUBLIC PASSAGES CONVICTION
The Louisiana law against obstructing the streets and sidewalks,
] while applied here so as to
convict Negroes for assembling and picketing on streets and
sidewalks for the purpose of publicly protesting racial
discrimination, expressly provides that the statute shall not bar
picketing and assembly by labor unions protesting unfair treatment
of union members. I believe that the First and Fourteenth
Amendments require that, if the streets of a town are open to some
views, they must be open to all. It is worth noting in passing that
the objectives of labor unions and of the group led by Cox here may
have much in common. Both frequently protest discrimination against
their members in the matter of employment. Compare New Negro
Alliance v. Sanitary Grocery Co., 303 U.
, 303 U. S. 561
This Louisiana law opens the streets for union assembly, picketing,
Page 379 U. S. 581
public advocacy, while denying that opportunity to groups
protesting against racial discrimination. As I said above, I have
no doubt about the general power of Louisiana to bar all picketing
on its streets and highways. Standing, patrolling, or marching back
and forth on streets is conduct, not speech, and, as conduct, can
be regulated or prohibited. But by specifically permitting
picketing for the publication of labor union views, Louisiana is
attempting to pick and choose among the views it is willing to have
discussed on its streets. It thus is trying to prescribe by law
what matters of public interest people whom it allows to assemble
on its streets may and may not discuss. This seems to me to be
censorship in a most odious form, unconstitutional under the First
and Fourteenth Amendments. And to deny this appellant and his group
use of the streets because of their views against racial
discrimination, while allowing other groups to use the streets to
voice opinions on other subjects, also amounts, I think, to an
invidious discrimination forbidden by the Equal Protection Clause
of the Fourteenth Amendment. [Footnote 2/3
Moreover, as the Court points out, city officials, despite this
statute, apparently have permitted favored groups other than labor
unions to block the streets with their gatherings. For these
reasons, I concur in reversing the conviction based on this
. THE CONVICTION FOR PICKETING NEAR A COURTHOUSE
I would sustain the conviction of appellant for violation of
Louisiana's Rev.Stat. § 14:401 (Cum.Supp. 1962), which makes it an
offense for anyone, under any conditions,
Page 379 U. S. 582
to picket or parade near a courthouse, residence or other
building used by a judge, juror, witness, or court officer, "with
the intent of influencing" any of them. [Footnote
] Certainly the record shows beyond all doubt that the
purpose of the 2,000 or more people who stood right across the
street from the courthouse and jail was to protest the arrest of
members of their group who were then in jail. As the Court' opinion
states, appellant Cox so testified. Certainly the most obvious
reason for their protest at the courthouse was to influence the
judge and other court officials who used the courthouse and
performed their official duties there. The Court attempts to
support its holding by its inference that the Chief of Police gave
his consent to picketing the courthouse. But quite apart from the
fact that a police chief cannot authorize violations of his State's
criminal laws, [Footnote 2/5
] there was strong,
emphatic testimony that, if any consent was given, it was limited
to telling Cox and his group to come no closer to the courthouse
than they had already come without the consent of any official,
city, state, or federal. And there was also testimony that, when
told to leave, appellant Cox defied the order by telling the crowd
not to move. I fail to understand how the Court can justify the
reversal of this conviction
Page 379 U. S. 583
because of a permission which testimony in the record denies was
given, which could not have been authoritatively given anyway, and
which even if given was soon afterwards revoked. While I agree that
the record does not show boisterous or violent conduct or indecent
language on the part of the "demonstrators," the ample evidence
that this group planned the march on the courthouse and carried it
out for the express purpose of influencing the courthouse officials
in the performance of their official duties brings this case
squarely within the prohibitions of the Louisiana statute, and I
think leaves us with no alternative but to sustain the conviction
unless the statute itself is unconstitutional, and I do not believe
that this statute is unconstitutional, either on its face or as
This statute, like the federal one which it closely resembles,
] was enacted to protect courts
and court officials from the intimidation and dangers that inhere
in huge gatherings at courthouse doors and jail doors to protest
arrests and to influence court officials in performing their
duties. The very purpose of a court system is to adjudicate
controversies, both criminal and civil, in the calmness and
solemnity of the courtroom according to legal procedures. Justice
cannot be rightly administered, nor are the lives and safety of
prisoners secure, where throngs of people clamor against the
processes of justice right outside the courthouse or jailhouse
doors. The streets are not now and never have been the proper place
to administer justice. Use of the streets for such purposes has
always proved disastrous to individual liberty in the long run,
whatever fleeting benefits may have appeared to have been achieved.
And minority groups, I venture to suggest, are the ones who always
have suffered and always will suffer most when street multitudes
are allowed to substitute
Page 379 U. S. 584
their pressures for the less glamorous, but more dependable and
temperate, processes of the law. Experience demonstrates that it is
not a far step from what to many seems the earnest, honest,
patriotic, kind-spirited multitude of today, to the fanatical,
threatening, lawless mob of tomorrow. And the crowds that press in
the streets for noble goals today can be supplanted tomorrow by
street mobs pressuring the courts for precisely opposite ends.
Minority groups in particular need always to bear in mind that
the Constitution, while it requires States to treat all citizens
equally and protect them in the exercise of rights granted by the
Federal Constitution and laws, does not take away the State's
power, indeed its duty, to keep order and to do justice according
to law. Those who encourage minority groups to believe that the
United States Constitution and federal laws give them a right to
patrol and picket in the streets whenever they choose, in order to
advance what they think to be a just and noble end, do no service
to those minority groups, their cause, or their country. I am
confident from this record that this appellant violated the
Louisiana statute because of a mistaken belief that he and his
followers had a constitutional right to do so, because of what they
believed were just grievances. But the history of the past 25 years
if it shows nothing else shows that his group's constitutional and
statutory rights have to be protected by the courts, which must be
kept free from intimidation and coercive pressures of any kind.
Government under law as ordained by our Constitution is too
precious, too sacred, to be jeopardized by subjecting the courts to
intimidatory practices that have been fatal to individual liberty
and minority rights wherever and whenever such practices have been
allowed to poison the streams of justice. I would be wholly
unwilling to join in moving this country a single step in that
Page 379 U. S. 585
La.Rev.Stat. § 14:103.1 (Cum.Supp. 1962) provides in relevant
"Whoever with intent to provoke a breach of the peace, or under
circumstances such that a breach of the peace may be occasioned
thereby: (1) crowds or congregates with others, providing however
nothing herein contained shall apply to a bona fide legitimate
labor organization or to any of its legal activities such as
picketing, lawful assembly or concerted activity in the interest of
its members for the purpose of accomplishing or securing more
favorable wage standards, hours of employment and working
conditions, in or upon . . . a public street or public highway, or
upon a public sidewalk, or any other public place or building . . .
and who fails or refuses to disperse and move on, or disperse or
move on, when ordered so to do by any law enforcement officer of
any municipality, or parish, in which such act or acts are
committed, or by any law enforcement officer of the state of
Louisiana, or any other authorized person . . . shall be guilty of
disturbing the peace. . . ."
La.Rev.Stat. § 14:100.1 (Cum.Supp. 1962) provides in relevant
"No person shall willfully obstruct the free, convenient and
normal use of any public sidewalk, street, highway, bridge, alley,
road, or other passageway, or the entrance, corridor or passage of
any public building, structure, watercraft or ferry, by impeding,
hindering, stifling, retarding or restraining traffic or passage
thereon or therein."
"Providing however nothing herein contained shall apply to a
bona fide legitimate labor organization or to any of its legal
activities such as picketing, lawful assembly or concerted activity
in the interest of its members for the purpose of accomplishing or
securing more favorable wage standards, hours of employment and
working conditions. . . ."
It is of interest that appellant Cox, according to a state
witness, said this about the reason his group picketed the
"[H]e said that, in effect, that it was a protest against the
illegal arrest of some of their members and that other people were
allowed to picket and that they should have the right to picket. .
La.Rev.Stat. § 14:401 (Cum.Supp. 1962) provides in relevant
"Whoever, with the intent of interfering with, obstructing, or
impeding the administration of justice, or with the intent of
influencing any judge, juror, witness, or court officer, in the
discharge of his duty, pickets or parades in or near a building
housing a court of the State of Louisiana, or in or near a building
or residence occupied or used by such judge, juror, witness, or
court officer, or with such intent uses any sound-truck or similar
device or resorts to any other demonstration in or near any such
building or residence, shall be fined not more than five thousand
dollars or imprisoned not more than one year, or both. . . ."
Cf. United States v. Philadelphia National Bank,
374 U. S. 321
374 U. S.
-352; California v. Federal Power Comm'n,
369 U. S. 482
369 U. S.
-485; United States v. Socony-Vacuum Oil
Co., 310 U. S. 150
310 U. S.
18 U.S.C. § 1507 (1958 ed.).
MR. JUSTICE CLARK, concurring in No. 24 and dissenting in No.
According to the record, the opinions of all of Louisiana's
courts and even the majority opinion of this Court, the appellant,
in an effort to influence and intimidate the courts and legal
officials of Baton Rouge and procure the release of 23 prisoners
being held for trial, agitated and led a mob of over 2,000 students
in the staging of a modern Donnybrook Fair across from the
courthouse and jail. He preferred to resolve the controversy in the
streets, rather than submit the question to the normal judicial
procedures by contacting the judge and attempting to secure bail
and an early trial for the prisoners.
Louisiana's statute, § 14:401, under attack here, was taken
in haec verba
from a bill which became 18 U.S.C. 1507
(1958 ed.). The federal statute was enacted by the Congress in 1950
to protect federal courts from demonstrations similar to the one
involved in this case. It applies to the Supreme Court Building
where this Court sits. I understand that § 1507 was written by
members of this Court after disturbances similar to the one here
occurred at buildings housing federal courts. Naturally, the Court
could hardly be expected to hold its progeny invalid either on the
ground that the use in the statute of the phrase "in or near a
building housing a court" was vague or that it violated free speech
or assembly. It has been said that an author is always pleased with
his own work.
But the Court excuses Cox's brazen defiance of the statute --
the validity of which the Court upholds -- on a much more subtle
ground. It seizes upon the acquiescence of the Chief of Police
arising from the laudable motive to avoid violence and possible
bloodshed to find that he made an on-the-spot administrative
determination that a demonstration confined to the west side of
Page 379 U. S. 586
St. Louis Street -- 101 feet from the courthouse steps -- would
not be "near" enough to the court building to violate the statute.
It then holds that the arrest and conviction of appellant for
demonstrating there constitutes an "indefensible sort of
entrapment," citing Raley v. Ohio, 360 U.
With due deference, the record will not support this novel
theory. Nor is Raley
apposite. This mob of young Negroes
led by Cox -- 2,000 strong -- was not only within sight but in
hearing distance of the courthouse. The record is replete with
evidence that the demonstrators with their singing, cheering,
clapping and waving of banners drew the attention of the whole
courthouse square as well as the occupants and officials of the
court building itself. Indeed, one judge was obliged to leave the
building. The 23 students who had been arrested for sit-in
demonstrations the day before and who were in custody in the
building were also aroused to such an extent that they sang and
cheered to the demonstrators from the jail which was in the
courthouse and the demonstrators returned the notice with like
activity. The law enforcement officials were confronted with a
direct obstruction to the orderly administration of their duties as
well as an interference with the courts. One hardly needed an
on-the-spot administrative decision that the demonstration was
"near" the courthouse with the disturbance being conducted before
the eyes and ringing in the ears of court officials, police
officers and citizens throughout the courthouse.
Moreover, the Chief testified that, when Cox and the 2,000
Negroes approached him on the way to the courthouse he was faced
with a "situation that was accomplished." From the beginning they
had been told not to proceed with their march; twice officers had
requested them to turn back to the school; on each occasion, they
had refused. Finding that he could not stop them without
Page 379 U. S. 587
the use of force the Chief told Cox that he must confine the
demonstration to the west side of St. Louis Street across from the
All the witnesses, including the appellant, state that the time
for the demonstration was expressly limited. The State's witnesses
say seven minutes, while Cox claims his speech was to be seven
minutes but the program would take from 17 to 25 minutes.
Regardless of the amount of time agreed upon, it is a novel
construction of the facts to say that the grant of permission to
demonstrate for a limited period of time was an administrative
determination that the west side of the street was not "near" the
courthouse. This implies that the amount of time might somehow be
relevant in deciding whether an activity is within the prohibitions
of the statute. The inclusion of a time limitation is, to me,
entirely inconsistent with the view that an administrative
determination was made. The only way the Court can support its
finding is to ignore the time limitation and hold -- as it does
-- that, once Cox and the 2,000 demonstrators
were permitted to occupy the sidewalk they could remain
indefinitely. Once the administrative determination was made that
the west side of St. Louis Street was not so close to the
courthouse as to violate the statute it could not be later drawn
within the prohibited zone by Cox's refusal to leave. Thus, the
2,000 demonstrators must be allowed to remain there unless in the
meanwhile some other statute empowers the State to eject them.
This, I submit, is a complete frustration of the power of the
Because I am unable to agree that the word "near," when applied
to the facts of this case, required an administrative
interpretation, and since I feel that the record refutes the
conclusion that it was made, I must respectfully dissent from such
Page 379 U. S. 588
Nor can I follow the Court's logic when it holds that the case
is controlled by Raley v. Ohio, supra.
the petitioners whose convictions were reversed were told that they
had a right to exercise their privilege and refuse to answer
questions propounded to them in an orderly way during the conduct
of a hearing. The administrative determination upon which this
Court turns the present case was in actuality made, if at all, in
the heat of a racial demonstration in a southern city for the sole
purpose of avoiding what had the potentialities of a race riot. In
there was no large crowd of 2,000 demonstrators
endangering a tenuous racial peace. Indeed, the petitioners in
might well have chosen to waive their privilege and
not be subject to prosecution at all but for the advice tendered
them by those conducting the hearing. Here, the demonstrators were
determined to go to the courthouse regardless of what the officials
told them regarding the legality of their acts. Here, like the one
petitioner in Raley
whose conviction was affirmed by an
equally divided Court, appellant never relied on the advice or
determination of the officer. The demonstration, as I have
previously noted, was a fait accompli.
In view of these
distinctions, I can see no enticement or encouragement by agents of
the State sufficient to establish a Raley
And even though, arguendo,
one admits that the Chief's
action was an administrative determination, I cannot see how the
Court can hold it binding on the State. It certainly was not made
in the free exercise of his discretion.
Reading the facts in a way most favorable to the appellant
would, in my opinion, establish only that the Chief of Police
consented to the demonstration at that location. However, if the
Chief's action be consent, I never knew until today that a law
enforcement official -- city, state or national -- could forgive a
breach of the criminal laws. I missed that, in my law school, in my
practice and for
Page 379 U. S. 589
the two years while I was head of the Criminal Division of the
Department of Justice.
I have always been taught that this Nation was dedicated to
freedom under law,
not under mobs, whether they be
integrationists or white supremacists. Our concept of equal justice
under law encompasses no such protection as the Court gives Cox
today. The contemporary drive for personal liberty can only be
successful when conducted within the framework of due process of
law. Goals, no matter how laudable, pursued by mobocracy in the end
must always lead to further restraints of free expression. To
permit, and even condone, the use of such anarchistic devices to
influence the administration of justice can but lead us to
disaster. For the Court to place its imprimatur upon it is a
misfortune that those who love the law will always regret.
I must, therefore, respectfully dissent from this action and
join my Brother BLACK on this facet of the case. I also agree with
him that the statute prohibiting obstruction of public passages is
invalid under the Equal Protection Clause. [Footnote 3/1
] And, as will be seen, I arrive at the
same conclusion for the same reason on the question regarding the
breach of the peace statute. However, I cannot agree that the
latter Act is unconstitutionally vague.
The statute declares congregating "with intent to provoke a
breach of the peace" and refusing to disperse after being ordered
so to do by an officer to be an offense. Each of these elements is
set out in clear and unequivocal language. Certainly the language
in the present statute is no more vague than that in the New York
statute which was challenged on vagueness grounds in Feiner v.
New York, 340 U. S. 315
] There, the Court upheld
Page 379 U. S. 590
Feiner's conviction on a disorderly conduct charge. I concur
completely in the Court's statement that the present case is a "far
cry from the situation" presented in Feiner:
"There, the demonstration was conducted by only one person and
the crowd was limited to approximately 80, as compared with the
present lineup of some [2,000] demonstrators and  onlookers. .
. . Perhaps [appellant's] speech was not so animated but in this
setting their actions . . . created a much greater danger of riot
and disorder. It is my belief that anyone conversant with the
almost spontaneous combustion in some Southern communities in such
a situation will agree that the [Sheriff's] action may well have
averted a major catastrophe."
Edwards v. South Carolina, 372 U.
, 372 U. S.
-244 (dissenting opinion of CLARK, J.)
Nor can I agree that the instant case is controlled by either
Edwards v. South Carolina, supra,
or Fields v. South
Carolina, 375 U. S. 44
(1963). Both went off on their peculiar facts and neither dealt
with a situation like the one here before the Court. Moreover,
involved convictions for
common law breach of the peace and not violation of a statute.
In any event, I believe the language of the breach of the peace
statute is as free from ambiguity or vagueness
Page 379 U. S. 591
as is the statute prohibiting picketing of a courthouse which
the Court today upholds. There, the relevant words are parading "in
or near a building housing a court of the State . . ." with the
intent of obstructing justice. Certainly, both of the statutes are
as clear as the words "below cost" which this Court approved in
United States v. National Dairy Products, 372 U. S.
(1963), and cases there cited
However, because this statute contains an express exclusion for
the activities of labor unions, I would hold the statute
unconstitutional on the equal protection ground my Brother BLACK
enunciated with regard to the statute condemning obstruction of
On these grounds I dissent.
Parts I and II
Section 722 of the Penal Law of New York in effect at that time
"Any person who with intent to provoke a breach of the peace, or
whereby a breach of the peace may be occasioned, commits any of the
following acts shall be deemed to have committed the offense of
disorderly conduct: "
"1. Uses offensive, disorderly, threatening, abusive or
insulting language, conduct or behavior;"
"2. Acts in such a manner as to annoy, disturb, interfere with,
obstruct, or be offensive to others;"
"3. Congregates with others on a public street and refuses to
move on when ordered by the police;"
"4. By his actions causes a crowd to collect, except when
lawfully addressing such a crowd."
MR. JUSTICE WHITE, with whom MR. JUSTICE HARLAN joins,
concurring in part and dissenting in part.
In No. 49, I agree with the dissent filed by my Brother BLACK in
his opinion. In No. 24, although I do not agree with everything the
Court says concerning the breach of peace conviction, particularly
its statement concerning the unqualified protection to be extended
to Cox's exhortations to engage in sit-ins in restaurants, I agree
that the conviction for breach of peace is governed by Edwards
v. South Carolina, 372 U. S. 229
must be reversed.
Regretfully, I also dissent from the reversal of the conviction
for obstruction of public passages. The Louisiana statute is not
invalidated on its face, but only in its application. But this
remarkable emasculation of a prohibitory statute is based on only
very vague evidence that other meetings and parades have been
allowed by the authorities. The sole indication in the record from
the state court that such has occurred was contained in the
testimony of the Chief of Police who, in the process of
Page 379 U. S. 592
pointing out that Cox and his group had not announced the fact
or purpose of their meeting, said "most organizations that want to
hold a parade or a meeting of any kind, they have no reluctance to
evidence their desires at the start." There is no evidence in the
record that other meetings of this magnitude had been allowed on
the city streets, had been allowed in the vicinity of the
courthouse, or had been permitted completely to obstruct the
sidewalk and to block access to abutting buildings. Indeed, the
sheriff testified that "we have never had such a demonstration
since I have been in law enforcement in this parish." He also
testified that "any other organization" would have received the
same treatment if it "had conducted such a demonstration in front
of the Parish Courthouse," whether it had been "colored or white,
Protestant, Catholic, Jewish, any kind of organization, if they had
conducted this same type of demonstration. . . ." Similarly, the
trial judge noted that, although Louisiana respects freedom of
speech and the right to picket, Louisiana courts "have held that
picketing is unlawful when it is mass picketing."
At the oral argument in response to MR. JUSTICE GOLDBERG's
question as to whether parades and demonstrations are allowed in
Baton Rouge, counsel said,
"arrangements are usually made depending on the size of the
demonstration, of course, arrangements are made with the officials
and their cooperation is not only required it is needed where you
have such a large crowd."
In my view, however, all of this evidence together falls far
short of justification for converting this prohibitory state
statute into an open-ended licensing statute invalid under prior
decisions of this Court as applied to this case. This is
particularly true since the Court's approach is its own invention
and has not been urged or litigated by the parties either in this
Court or the courts below.
Page 379 U. S. 593
Certainly the parties have had no opportunity to develop or to
refute the factual basis underlying the Court's rationale.
Under the Court's broad, rather uncritical approach it would
seem unavoidable that these same demonstrators could have met in
the middle of any street during the rush hour or could have
extended their meeting at any location hour after hour, day after
day, without risking any action under this statute for interfering
with the normal use of the streets and sidewalks. I doubt that this
bizarre intrusion into local management of public streets is either
required or justified by the prior cases in this Court.
Furthermore, even if the obstruction statute, because of prior
permission granted to others, could not be applied in this case so
as to prevent the demonstration, it does not necessarily follow
that the federal license to use the streets is unlimited as to time
and circumstance. Two thousand people took possession of the
sidewalk in an entire city block. Building entrances were blocked,
and normal use of the sidewalk was impossible. If the crowd was
entitled to obstruct in order to demonstrate, as the Court holds,
it is nevertheless unnecessary to hold that the demonstration and
the obstruction could continue ad infinitum.
demonstration was permitted to proceed for the period of time that
the demonstrators had requested. When they were asked to disband,
Cox twice refused. If he could refuse at this point, I think he
could refuse at any later time as well. But, in my view, at some
point, the authorities were entitled to apply the statute and to
clear the streets. That point was reached here. To reverse the
conviction under these circumstances makes it only rhetoric to talk
of local power to control the streets under a properly drawn