Petitioners, peaceful civil rights demonstrators, were arrested
and convicted for disorderly conduct when they failed to disperse
on orders of the Chicago police, who anticipated civil disorder
because of the bystanders' unruly conduct. The Illinois Supreme
1. Petitioners were denied due process, since there was no
evidentiary support for their convictions. Thompson v. City of
Louisville, 362 U. S. 199
394 U. S.
2. The convictions were for demonstrating, not for refusing to
obey police orders. P. 394 U. S.
3. The trial judge's charge allowed the jury to convict for acts
protected by the First Amendment. Stromberg v. California,
283 U. S. 359
394 U. S.
39 Ill. 2d
, 233 N.E.2d
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
This is a simple case. Petitioners, accompanied by Chicago
police and an assistant city attorney, marched in a peaceful and
orderly procession from city hall to the mayor's residence to press
their claims for desegregation of the public schools. Having
promised to cease singing at 8:30 p.m., the marchers did so.
Although petitioners and the other demonstrators continued to march
in a completely lawful fashion, the onlookers became unruly as the
number of bystanders increased.
Page 394 U. S. 112
Chicago police, to prevent what they regarded as an impending
civil disorder, demanded that the demonstrators, upon pain of
arrest, disperse. When this command was not obeyed, petitioners
were arrested for disorderly conduct.
Petitioners' march, if peaceful and orderly, falls well within
the sphere of conduct protected by the First Amendment. See
Shuttlesworth v. City of Birmingham, post,
p. 394 U. S. 147
Brown v. Louisiana, 383 U. S. 131
383 U. S.
-142 (1966) (prevailing opinion of MR. JUSTICE
FORTAS); Henry v. City of Rock Hill, 376 U.
(1964); Fields v. South Carolina,
375 U. S. 44
240 S.C. 366, 126
(1962). There is no evidence in this record that
petitioners' conduct was disorderly. Therefore, under the principle
first established in Thompson v. City of Louisville,
362 U. S. 199
(1960), convictions so totally devoid of evidentiary support
violate due process.
The opinion of the Supreme Court of Illinois suggests that
petitioners were convicted not for the manner in which they
conducted their march, but rather for their refusal to disperse
when requested to do so by Chicago police.
See 39 Ill. 2d
, 60, 233 N.E.2d
, 429 (1968). However reasonable the police request may have
been, and however laudable the police motives, petitioners were
charged and convicted for holding a demonstration, not for a
refusal to obey a police officer. *
As we said in
Garner v. Louisiana, 368 U. S. 157
368 U. S. 164
"[I]t 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."
See also In re Oliver, 333 U.
, 333 U. S. 273
Page 394 U. S. 113
Finally, since the trial judge's charge permitted the jury to
convict for acts clearly entitled to First Amendment protection,
Stromberg v. California, 283 U. S. 359
(1931), independently requires reversal of these convictions.
The judgments are
MR. JUSTICE DOUGLAS, while joining the concurring opinion of MR.
JUSTICE BLACK, also joins this opinion.
MR. JUSTICE STEWART and MR. JUSTICE WHITE concur in the judgment
of the Court and join its opinion insofar as it holds that, under
the principle established by Stromberg v. California,
283 U. S. 359
petitioners' convictions cannot stand.
* The trial judge charged solely in terms of the Chicago
ordinance. Neither the ordinance nor the charge defined disorderly
conduct as the refusal to obey a police order.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins,
This, I think, is a highly important case which requires more
detailed consideration than the Court's opinion gives it. It in a
way tests the ability of the United States to keep the promises its
Constitution makes to the people of the Nation. Among those
promises appearing in the Preamble to the Constitution are the
statements that the people of the United States ordained this basic
"in Order to form a more perfect Union, establish Justice,
insure domestic Tranquillity . . . and secure the Blessings of
Liberty to ourselves and our Posterity. . . ."
Shortly after the original Constitution was adopted, again
undoubtedly in an attempt to "secure the Blessings of Liberty," the
Bill of Rights was added to the Constitution, in which the First
Amendment, later made applicable to the States by the Fourteenth
Amendment, provides that:
"Congress shall make no law . . . abridging the freedom of
speech, or of the press; or the right of the people
Page 394 U. S. 114
peaceably to assemble, and to petition the Government for a
redress of grievances."
In 1954, our Court held that laws segregating people on the
basis of race or color in the public schools unconstitutionally
denied Negroes equal protection of the laws. [Footnote 1
] Negroes, and many others who
sympathized with them, cooperatively undertook to speed up
desegregation. These groups adopted plans under which they marched
on the streets carrying placards, chanting, and singing songs, all
designed to publicize their grievances and to petition the various
units of government, state and national, for a redress of these
grievances. Their activities along these lines quite obviously
aroused highly emotional feelings both on their part and on the
part of others who opposed the changes in local laws and customs
which the "picketers" and "demonstrators" advocated. Agitation
between groups brought about sharp conflicts and clashes, threats,
fights, riots, and near-riots. This Court, to be sure, has had its
difficulties and sharp differences of opinion in deciding the
precise boundaries dividing what is constitutionally permissible
and impermissible in this field. [Footnote 2
] There have also been sharp disputes over
whether the Court can hold laws unconstitutional because the Court
deems them to be "unreasonable," "arbitrary," or contrary to
fundamental standards of ethics, morals, or conscience. [Footnote 3
] Fortunately, however, these
differences need not concern us here. For while we have pointed out
in many cases that the States and their subordinate units do have
Page 394 U. S. 115
power to regulate picketing, demonstrating, and parading by
statutes and ordinances narrowly drawn so as not to abridge the
rights of speech, press, assembly, or petition, neither Chicago nor
Illinois at the time these petitioners were demonstrating had
passed any such narrowly drawn laws. [Footnote 4
The facts upon which these arrests and convictions for
disorderly conduct occurred were these.
Petitioner Gregory and his group had become dissatisfied because
Benjamin Willis, Superintendent of Chicago's public school system,
was not moving speedily enough to desegregate the public schools.
While Mayor Daley did not appear to have legal authority to remove
Dr. Willis, [Footnote 5
group evidently believed the Mayor could cause him to be removed if
he wanted to do so, and their prodding was therefore directed at
the Mayor, as well as against Willis. The group march began near
the Chicago Loop District at 4:30 p.m. and ended five miles away in
the neighborhood of Daley's home. A lieutenant of police, four
police sergeants, and about forty
Page 394 U. S. 116
policemen met Gregory at the gathering place in Grant Park.
There Gregory addressed the marchers, saying:
"First we will go over to the snake pit [city hall]. When we
leave there, we will go out to the snake's house [the mayor's
home]. Then, we will continue to go out to Mayor Daley's home until
he fires Ben Willis [Superintendent of Schools]."
The demonstrators marched to the city hall, and then they
marched to the Mayor's home about five miles away, arriving at
about 8 p.m. The demonstrators were accompanied by the police and
by the Assistant City Attorney from the park to the Mayor's home.
When they reached this neighborhood, the demonstrators began
marching around and around near the Mayor's home. Meanwhile, the
crowd of spectators from the neighborhood kept increasing, and its
language and conduct became rougher and tougher. The events leading
up to the arrest of the demonstrators are set out in detail in the
opinion of the Illinois Supreme Court, and I agree fully with that
court's description of these events, which I have reprinted as an
app|>appendix to this opinion. This episode finally
came to a conclusion at about 9:30 p.m. Fearful that the
threatening crowd of onlookers could no longer be contained, the
police asked Gregory and his marchers to leave the area. When they
refused, they were arrested and charged with violation of Chicago's
disorderly conduct ordinance, which provides as follows:
"All persons who shall make, aid, countenance, or assist in
making any improper noise, riot, disturbance, breach of the peace,
or diversion tending to a breach of the peace, within the limits of
the city; all persons who shall collect in bodies or crowds for
unlawful purposes, or for any purpose, to the annoyance or
disturbance of other persons; . . .
Page 394 U. S. 117
shall be deemed guilty of disorderly conduct, and upon
conviction thereof, shall be severally fined not less than one
dollar nor more than two hundred dollars for each offense."
Municipal Code of Chicago, § 191.
I agree with the Illinois Supreme Court that the "record shows a
determined effort by the police to allow the marchers to peacefully
demonstrate and at the same time maintain order." I also think the
record shows that, outside of the marching and propagandizing of
their views and protests, Gregory and his group, while marching,
did all in their power to maintain order. Indeed, in the face of
jeers, insults, and assaults with rocks and eggs, Gregory and his
group maintained a decorum that speaks well for their determination
simply to tell their side of their grievances and complaints. Even
the "snake" and "snake pit" invectives used by Gregory and his
demonstrators, unlike some used by their hecklers, remained within
the general give-and-take of heated political argument. Thus, both
police and demonstrators made their best efforts faithfully to
discharge their responsibilities as officers and citizens, but they
were nevertheless unable to restrain the hostile hecklers within
decent and orderly bounds. These facts disclosed by the record
point unerringly to one conclusion, namely, that when groups with
diametrically opposed, deep-seated views are permitted to air their
emotional grievances, side by side, on city streets, tranquility
and order cannot be maintained even by the joint efforts of the
finest and best officers and of those who desire to be the most
law-abiding protestors of their grievances.
It is because of this truth, and a desire both to promote order
and to safeguard First Amendment freedoms, that this Court has
repeatedly warned States and governmental units that they cannot
regulate conduct connected with these freedoms through use of
Page 394 U. S. 118
statutes that may, because of vagueness, jeopardize these
freedoms. In those eases, however, we have been careful to point
out that the Constitution does not bar enactment of laws regulating
conduct, even though connected with speech, press, assembly, and
petition, if such laws specifically bar only the conduct deemed
obnoxious and are carefully and narrowly aimed at that forbidden
conduct. [Footnote 6
dilemma revealed by this record is a crying example of a need for
some such narrowly drawn law. It is not our duty, and indeed not
within our power, to set out and define with precision just what
statutes can be lawfully enacted to deal with situations like the
one confronted here by police and protestors, both of whom appear
to us to have been conscientiously trying to do their duties as
they understood them. Plainly, however, no mandate in our
Constitution leaves States and governmental units powerless to pass
laws to protect the public from the kind of boisterous and
threatening conduct that disturbs the tranquility of spots selected
by the people either for homes, wherein they can escape the
hurly-burly of the outside business and political world, or for
public and other buildings that require peace and quiet to carry
out their functions, such as courts, libraries, schools, and
The disorderly conduct ordinance under which these petitioners
were charged and convicted is not, however, a narrowly drawn law,
particularly designed to regulate certain kinds of conduct such as
marching or picketing or demonstrating along the streets or
highways. Nor does it regulate the times or places or manner of
carrying on such activities. To the contrary, it might better be
described as a meat-ax ordinance, gathering in
Page 394 U. S. 119
one comprehensive definition of an offense a number of words
which have a multiplicity of meanings, some of which would cover
activity specifically protected by the First Amendment. The average
person charged with its violation is necessarily left uncertain as
to what conduct and attitudes of mind would be enough to convict
under it. Who, for example, could possibly foresee what kind of
noise or protected speech would be held to be "improper"? That, of
course, would depend on sensibilities, nerves, tensions, and on
countless other things. As pointed out in Cantwell v.
Connecticut, 310 U. S. 296
310 U. S. 308
(1940), common law breach of peace is, at its best, a confusing
offense that may imperil First Amendment rights. But how infinitely
more doubtful and uncertain are the boundaries of an offense
including any "diversion tending to a breach of the peace. . . ."
Moreover, the ordinance goes on to state that it shall be a crime
for persons to "collect in bodies or crowds for unlawful purposes,
or for any purpose, to the annoyance or disturbance of other
persons. . . ." Such language could authorize conviction simply
because the form of the protest displeased some of the onlookers,
and of course a conviction on that ground would encroach on First
Amendment rights. See Thornhill v. Alabama, 310 U. S.
(1940); Edwards v. South Carolina,
372 U. S. 229
(1963); Cox v. Louisiana, 379 U.
(1965). And it must be remembered that only the
tiniest bit of petitioners' conduct could possibly be thought
illegal here -- that is, what they did after the policeman's order
to leave the area. The right "peaceably to assemble, and to
petition the Government for a redress of grievances" is
specifically protected by the First Amendment. For the entire
five-mile march, the walking by petitioners in a group, the
language, and the chants and songs were all treated by the city's
assistant attorney and its specially detailed policemen as lawful,
not lawless, conduct.
Page 394 U. S. 120
The so-called "diversion tending to a breach of the peace" here
was limited entirely and exclusively to the fact that, when the
policeman in charge of the special police detail concluded that the
hecklers observing the march were dangerously close to rioting and
that the demonstrators and others were likely to be engulfed in
that riot, he ordered Gregory and his demonstrators to leave, and
Gregory -- standing on what he deemed to be his constitutional
rights -- refused to do so. The "diversion" complained of on the
part of Gregory and the other marchers was not any noise they made
or annoyance or disturbance of "other persons" they had inflicted.
Their guilt of "disorderly conduct" therefore turns out to be their
refusal to obey instanter
an individual policeman's
command to leave the area of the Mayor's home. Since neither the
city council nor the state legislature had enacted a narrowly drawn
statute forbidding disruptive picketing or demonstrating in a
residential neighborhood, the conduct involved here could become
"disorderly" only if the policeman's command was a law which the
petitioners were bound to obey at their peril. But, under our
democratic system of government, lawmaking is not entrusted to the
moment-to-moment judgment of the policeman on his beat. Laws, that
is, valid laws, are to be made by representatives chosen to make
laws for the future, not by police officers whose duty is to
enforce laws already enacted and to make arrests only for conduct
already made criminal. One of our proudest boasts is that no man
can be convicted of crime for conduct, innocent when engaged in,
that is later made criminal. See, e.g., Chambers v.
Florida, 309 U. S. 227
309 U. S. 236
(1940). To let a policeman's command become equivalent to a
criminal statute comes dangerously near making our government one
of men, rather than of laws. See Cox v. Louisiana,
379 U. S. 559
379 U. S. 579
Page 394 U. S. 121
(separate opinion). There are ample ways to protect the domestic
tranquility without subjecting First Amendment freedoms to such a
clumsy and unwieldy weapon.
The City of Chicago, recognizing the serious First Amendment
problems raised by the disorderly conduct ordinance as it is
written, argues that these convictions should nevertheless be
affirmed in light of the narrowing construction placed on the
ordinance by the Illinois Supreme Court in this case. That court
held that the ordinance
"does not authorize the police to stop a peaceful demonstration
merely because a hostile crowd may not agree with the views of the
demonstrators. It is only where there is an imminent threat of
violence, the police have made all reasonable efforts to protect
the demonstrators, the police have requested that the demonstration
be stopped and explained the request, if there be time, and there
is a refusal of the police request, that an arrest for an otherwise
lawful demonstration may be made."
39 Ill. 2d
, 60, 233 N.E.2d
, 429. This interpretation of the ordinance is, of course,
binding on this Court, and the construction of the Illinois Supreme
Court is as authoritative as if this limitation were written into
the ordinance itself. But this cannot be the end of our problem.
The infringement of First Amendment rights will not be cured if the
narrowing construction is so unforeseeable that men of common
intelligence could not have realized the law's limited scope at the
only relevant time, when their acts were committed, cf.
Lanzetta v. New Jersey, 306 U. S. 451
306 U. S.
-457 (1939), or if the law remains excessively
sweeping even as narrowed, e.g., Winters v. New York,
333 U. S. 507
(1948). Petitioners particularly press the Court to dispose of the
case on this latter ground. They raise
Page 394 U. S. 122
troublesome questions concerning the extent to which, even under
the narrowed construction, guilt still depends on the mere refusal
to obey a policeman's order. And they suggest that the scope of the
police obligation to attempt first to deal with the hostile
audience is still not made sufficiently clear.
It is not necessary for the Court to resolve such issues in the
present case, however, because the Chicago ordinance, as applied
here, infringed on First Amendment rights for an even more
fundamental reason. Whatever the validity of the Illinois Supreme
Court's construction, this was simply not the theory on which these
petitioners were convicted. In explaining the elements of the
offense to the jury, the trial judge merely read the language of
the ordinance. The jury was not asked to find whether, as the
Illinois Supreme Court's construction apparently requires, there
was "an imminent threat of violence," or whether the police had
"made all reasonable efforts to protect the demonstrators." Rather,
it was sufficient for the jury to decide that petitioners had made
an "improper noise," or a "diversion tending to a breach of the
peace," or had "collect[ed] in bodies or crowds for unlawful
purposes, or for any purpose, to the annoyance or disturbance of
In fact, far from taking account of the limiting factors
stressed by the Illinois Supreme Court, the judge's charge was
based on precisely the opposite theory. The jury was instructed,
over petitioners' objection, that
"the fact that persons other than these Defendants may or may
not have violated any laws or may or may not have been arrested
should not be considered by you in determining the guilt or
innocence of these Defendants."
The significance of this instruction in the context of the
evidence at trial is, of course, apparent -- the jury was simply
told to ignore questions concerning the acts of violence
Page 394 U. S. 123
by the crowd of onlookers and attempts made by the police to
arrest those directly responsible for them. [Footnote 7
] Under these circumstances, the
principle established by Stromberg v. California,
283 U. S. 359
(1931), compels us to set aside these convictions. As we explained
in Williams v. North Carolina, 317 U.
, 317 U. S. 292
"That is to say, the verdict of the jury, for all we know, may
have been rendered on [an unconstitutional] ground alone, since it
did not specify the basis on which it rested. It therefore follows
here, as in Stromberg
. . . , that, if one of the grounds
for conviction is invalid under the Federal Constitution, the
judgment cannot be sustained."
At the time the petitioners were tried, the Illinois Supreme
Court had not yet announced its narrowing construction of the
Chicago disorderly conduct ordinance. The trial judge's
instructions supplied the jury only with the unadorned language of
the statute. Thus, it is entirely possible that the jury convicted
the petitioners on the ground that Gregory and the others who
demonstrated with him had, in the language of the ordinance,
"collect[ed] in bodies or crowds . . . to the annoyance or
disturbance of other persons," simply because the form of their
protest had displeased some of the onlookers. Since the petitioners
could not constitutionally be convicted
Page 394 U. S. 124
on this ground, [Footnote 8
compels the reversal of these convictions.
In agreeing to the reversal of these convictions, however, I
wish once more to say that I think our Federal Constitution does
not render the States powerless to regulate the conduct of
demonstrators and picketers, conduct which is more than "speech,"
more than "press," more than "assembly," and more than "petition,"
as those terms are used in the First Amendment. Narrowly drawn
statutes regulating the conduct of demonstrators and picketers are
not impossible to draft. And narrowly drawn statutes regulating
these activities are not impossible to pass if the people who elect
their legislators want them passed. Passage of such laws, however,
like the passage of all other laws, constitutes in the final
analysis a choice of policies by the elected representatives of the
I, of course, do not mean to say or even to intimate that
freedom of speech, press, assembly, or petition can be abridged so
long as the First Amendment remains unchanged in our Constitution.
But to say that the First Amendment grants those broad rights free
from any exercise of governmental power to regulate conduct, as
distinguished from speech, press, assembly, or petition, would
subject all the people of the Nation to the uncontrollable whim and
arrogance of speakers, and writers, and protesters, and grievance
bearers. As Mr. Justice Goldberg wrote for the Court in Cox v.
Louisiana, 379 U. S. 536
379 U. S. 554
"The rights of free speech and assembly, while fundamental in
our democratic society, still do not
Page 394 U. S. 125
mean that everyone with opinions or beliefs to express may
address a group at any public place and at any time. The
constitutional guarantee of liberty implies the existence of an
organized society maintaining public order, without which liberty
itself would be lost in the excesses of anarchy."
Were the authority of government so trifling as to permit anyone
with a complaint to have the vast power to do anything he pleased,
wherever he pleased, and whenever he pleased, our customs and our
habits of conduct, social, political, economic, ethical, and
religious, would all be wiped out, and become no more than relics
of a gone but not forgotten past. Churches would be compelled to
welcome into their buildings invaders who came but to scoff and
jeer; streets and highways and public buildings would cease to be
available for the purposes for which they were constructed and
dedicated whenever demonstrators and picketers wanted to use them
for their own purposes. And perhaps worse than all other changes,
homes, the sacred retreat to which families repair for their
privacy and their daily way of living, would have to have their
doors thrown open to all who desired to convert the occupants to
new views, new morals, and a new way of life. Men and women who
hold public office would be compelled, simply because they did hold
public office, to lose the comforts and privacy of an unpicketed
home. I believe that our Constitution, written for the ages, to
endure except as changed in the manner it provides, did not create
a government with such monumental weaknesses. Speech and press are,
of course, to be free, so that public matters can be discussed with
impunity. But picketing and demonstrating can be regulated like
other conduct of men. I believe that the homes of men, sometimes
the last citadel of the tired, the weary, and the sick, can be
Page 394 U. S. 126
government from noisy, marching, tramping, threatening picketers
and demonstrators bent on filling the minds of men, women, and
children with fears of the unknown.
For these reasons I concur in the reversal.
APPENDIX TO OPINION OF BLACK, J., CONCURRING
Excerpt From Opinion of the Supreme Court of
"About 4:30 P.M., the marchers, two abreast, walked out of the
park and went to the city hall in the loop. The marchers then
walked south on State Street to 35th Street and then proceeded west
to Lowe Avenue, a distance of about 5 miles from the city hall. The
mayor's home is at 3536 South Lowe Avenue. The demonstrators had
increased in number to about 85, and they arrived at the mayor's
home about 8:00 o'clock P.M. In addition to the police, the
marchers were accompanied by their attorney and an assistant city
counsel. At the suggestion of an assistant city counsel, Gregory
had agreed that the group would quit singing at 8:30 P.M. Commander
Pierson, district commander of the 9th police district, which
encompasses this area, met Lieutenant Hougeson at the corner of
35th and Lowe and assumed command of the police operations."
"There were about 35 people on the corner, and a group of about
6 or 8 youngsters carrying a sign 'We Love Mayor Daley' tried to
join the marchers, but the police stopped them. As the
demonstrators started south into the 3500 block of Lowe Avenue,
Gregory testified he went back through the line to tell everyone
just to keep singing and to keep marching."
"Don't stop and don't answer any one back. Don't worry about
anything that is going to be said to you. Just keep marching. If
anyone hits you or anything, try to remember
Page 394 U. S. 127
what they look like, but above all means, do not hit them back.
Keep the line straight, and keep it tight."
"The demonstrators chanted 'Ben Willis must go, Snake Daley,
also;' 'Ben Willis must go -- When? -- Now; ' 'We are going to the
home of the snake, the snake pit is down the street;' 'Hey, Hey,
what do you know, Ben Willis must go' and 'Hey, Hey, what do you
know, Mayor Daley must go also.' They carried signs which read:
'Daley fire Willis;' 'Defacto, Desmacto, it is still segregation;'
'Ben Willis must go -- now;' and 'Mayor Daley, fire Ben Willis.'
They also sang the civil rights songs, 'We Shall Overcome' and 'We
Shall Not Be Moved.'"
"The police ordered the taverns closed during the march. Police
from the task force, the 9th district and other districts
surrounded the block in which the mayor's home is located. There
were about 10 officers at each of the four intersections and about
10 officers spread along each of the four blocks. The rest of the
100 police officers assigned to the march accompanied the
demonstrators as they marched around the block. The police tried to
keep all spectators across the street from the marchers. They were
equipped with walkie-talkie radios to relay reports of conditions
to each other, and they had a bullhorn with which they addressed
the spectators and the demonstrators."
"As the marchers started around the block the first time, the
neighbors began coming out of their homes. On the second time
around the block, some of the residents had moved their lawn
sprinklers onto the sidewalk and the demonstrators went into the
street just long enough to get around the water. On the third trip
around the block, the water sprinklers had been removed, presumably
by order of the police. Gregory himself testified to several
instances when the police kept the crowd that was accumulating from
interfering with the march."
"One of the neighborhood people stood in front of the
Page 394 U. S. 128
line, and we just stopped. This individual didn't move, and we
didn't move. After a few minutes, the officer standing on the
corner asked him to move and he moved."
"He said that, on their fourth trip around the block (about 8:30
P.M.), people were yelling out the windows and the police made
spectators in doorways close the doors. About 8:30 P.M., the
demonstrators quit their singing and chanting and marched quietly.
Shortly before 9:00 P.M., 100 to 150 spectators formed a line of
march ahead of the demonstrators. Gregory said"
"the lieutenant [Hougeson] asked me if I would hold up the line
until they got those people out of the way. I said, I will hold up
the line, but they have just as much right to march peacefully as
"The spectators were ordered to move. In order to avoid the
appearance that the marchers were following the 100 to 150
spectators who had been ordered to move, Gregory said his group
marched straight south crossing 36th Street thus, taking them one
block south of the block which they had been marching. They had to
stop when they crossed 36th Street while the police opened a
pathway through about 300 spectators they had confined on the
corner across the street."
"Sergeant Golden testified that between 8:00 o'clock and 9:00
o'clock the crowd increased steadily to a few hundred, but that,
from 9:00 o'clock until about 9:20 o'clock, the people just seemed
to come from everywhere until it reached between 1,000 and 1,200.
During this time, the crowd became unruly. There was shouting and
threats. 'God damned nigger, get the hell out of here;' 'Get out of
here, niggers -- go back where you belong or we will get you out of
here' and 'Get the hell out of here or we will break your
blankety-blank head open.' Cars were stopped in the streets with
their horns blowing. There were Ku Klux Klan signs and there was
Page 394 U. S. 129
of the Alabama Trooper song. Children in the crowd were playing
various musical instruments such as a cymbal, trumpet and
"Rocks and eggs were also being thrown at the marchers from the
crowd. The police were dodging the rocks and eggs and attempted to
catch the persons who threw them. Sergeant Golden explained the
"You could see these teenagers behind the crowd. You could see a
boil of activity and something would come over our heads and I or
my partner would go down to try to apprehend who was doing it. You
couldn't see who was doing it. They would vanish into the
"He further testified that, about 9:25 P.M.,"
"They were saying, 'Let's get them,' and, with this, they would
step off the curb to try to cross 35th Street, and we would push
them back with force. Once in a while, somebody would run out and
we would grab ahold of them and throw them back into the
"About 9:30 P.M., Commander Pierson told Gregory the situation
was dangerous and becoming riotous. He asked Gregory if he would
cooperate and lead the marchers out of the area. The request to
leave the area was made about five times. Pierson then told the
marchers that any of them who wished to leave the area would be
given a police escort. Three of the marchers accepted the proposal
and were escorted out of the area. The remaining demonstrators were
arrested and taken away in two police vans."
"While we have gone into considerable detail in describing the
events leading to the arrest of defendants, only a complete reading
of the record can give one a true picture of the dilemma
confronting the police. During the entire march from 4:30 P.M.
until 9:30 P.M., the marchers were accompanied by their attorney,
who advised them, and the police were accompanied by an
Page 394 U. S. 130
city attorney, who advised them. In short, the record shows a
determined effort by the police to allow the marchers to peacefully
demonstrate and at the same time maintain order."
Brown v. Board of Education, 347 U.
See, e.g., Cox v. Louisiana, 379 U.
(1965); Adderley v. Florida,
385 U. S. 39
See, e.g., Chambers v. Florida, 309 U.
, 309 U. S.
-236, n. 8 (1940); Rochin v. California,
342 U. S. 165
at 342 U. S. 174
(concurring opinion); Ferguson v. Skrupa, 372 U.
The nearest thing to such a law in existence at that time was §
36-31 of the Municipal Code of Chicago, which required written
permits for parades on "any public way" or for "any open air public
meeting . . . in or upon any public way." Petitioners were neither
charged with nor convicted for the offense of failing to obtain a
written permit. Indeed, the city clearly gave its effective
permission to the marchers by sending a city attorney and a detail
of specially trained officers to protect them along every foot of
their march. Since "[d]eeply embedded traditional ways of carrying
out state policy . . . are often tougher and truer law than the
dead words of the written text," Nashville, C. & St. L.R.
Co. v. Browning, 310 U. S. 362
310 U. S. 369
(1940), this march could not be considered illegal in and of
Respondent asserts that, under Ill.Rev.Stat., c. 122, § 34-13
(1967), the Superintendent of Schools is accountable solely to the
Board of Education, and not to the Mayor.
See, e.g., Thornhill v. Alabama, 310 U. S.
(1940); Cantwell v. Connecticut,
310 U. S. 296
(1940); Giboney v. Empire Storage Co., 336 U.
(1949); Scull v. Virginia, 359 U.
The trial judge explained the need for this instruction to
counsel, in chambers, as follows:
"[T]he record is replete with evidence that a Jury may well
consider to establish the violation of the law on the part of the
so-called spectators and neighbors, and the record is silent as to
whether any of them were arrested or not."
"* * * *"
"As far as why didn't they arrest these other people, why didn't
they arrest the spectators and so on and so on, it seems to me
that, by virtue of the way the evidence went in, this will be a
question that will bother these Jurors unless it is taken care
See Thornhill v. Alabama, 310 U. S.
(1940); Edwards v. South Carolina,
372 U. S. 229
(1963); Cox v. Louisiana, 379 U.
See also Cole v. Arkansas, 333 U.
(1948); Cole v. Arkansas, 338 U.
MR. JUSTICE HARLAN, concurring in the result.
Two factors in this case run afoul of well established
constitutional principles, and clearly call for reversal. These are
the ambulatory sweep of the Chicago disorderly conduct ordinance,
see, e.g., Cantwell v. Connecticut, 310 U.
(1940), and Garner v. Louisiana,
368 U. S. 157
368 U. S. 186
(1961) (HARLAN, J., concurring in judgment), and the possibility
that, as the case went to the jury, the convictions may have rested
on a constitutionally impermissible ground. See Stromberg v.
California, 283 U. S. 359
I agree with the concurring opinion of my Brother BLACK on both
of these scores, and, to that extent, join in it.