Cincinnati, Ohio, ordinance making it a criminal offense for
"three or more persons to assemble . . . on any of the sidewalls
. . . and there conduct themselves in a manner annoying to persons
passing by . . . ,"
which has not been narrowed by any construction of the Ohio
Supreme Court, held
violative on its face of the due
process standard of vagueness and the constitutional right of free
assembly and association. Pp. 402 U. S.
21 Ohio St.2d 66, 255 N.E.2d 247, reversed.
STEWART, J., delivered the opinion of the Court, in which
DOUGLAS, HARLAN, BRENNAN, and MARSHALL, JJ., joined. BLACK, J.,
filed a separate opinion, post,
p. 402 U. S. 616
WHITE, J., filed a dissenting opinion, in which BURGER, C.J., and
BLACKMUN, J., joined, post,
p. 402 U. S.
MR. JUSTICE STEWART delivered the opinion of the Court.
A Cincinnati, Ohio, ordinance makes it a criminal offense
"three or more persons to assemble . . . on any of the sidewalks
. . . and there conduct themselves in a manner annoying to persons
passing by. . . . [Footnote 1
Page 402 U. S. 612
The issue before us is whether this ordinance is
unconstitutional on its face.
The appellants were convicted of violating the ordinance, and
the convictions were ultimately affirmed by a closely divided vote
in the Supreme Court of Ohio, upholding the constitutional validity
of the ordinance. 21 Ohio St.2d 66, 255 N.E.2d 247. An appeal from
that judgment was brought here under 28 U.S.C. § 1257(2), [Footnote 2
] and we noted probable
jurisdiction, 398 U.S. 902. The record brought before the reviewing
courts tells us no more than that the appellant Coates was a
student involved in a demonstration and the other appellants were
pickets involved in a labor dispute. For, throughout this
litigation, it has been the appellants' position that the ordinance
on its face violates the First and Fourteenth Amendments of the
Constitution. Cf. Times Film Corp. v. Chicago,
365 U. S. 43
In rejecting this claim and affirming, the convictions the Ohio
Supreme Court did not give the ordinance any construction at
variance with the apparent plain import of its language. The court
"The ordinance prohibits, inter alia,
'conduct . . .
annoying to persons passing by.' The word 'annoying' is a widely
used and well understood word; it is not necessary to guess its
meaning. 'Annoying' is the present participle of the transitive
verb 'annoy,' which means to trouble, to vex, to impede, to
incommode, to provoke, to harass or to irritate. "
Page 402 U. S. 613
"We conclude, as did the Supreme Court of the United States in
Cameron v. Johnson, 390 U. S. 611
, 390 U. S.
, in which the issue of the vagueness of a statute
was presented, that the ordinance"
"clearly and precisely delineates its reach in words of common
understanding. It is a 'precise and narrowly drawn regulatory
statute [ordinance] evincing a legislative judgment that certain
specific conduct be . . . proscribed.'"
21 Ohio St.2d at 69, 255 N.E.2d at 249.
Beyond this, the only construction put upon the ordinance by the
state court was its unexplained conclusion that "the standard of
conduct which it specifies is not dependent upon each complainant's
But the court did not indicate upon
whose sensitivity a violation does depend -- the sensitivity of the
judge or jury, the sensitivity of the arresting officer, or the
sensitivity of a hypothetical reasonable man. [Footnote 3
Page 402 U. S. 614
We are thus relegated, at best, to the words of the ordinance
itself. If three or more people meet together on a sidewalk or
street corner, they must conduct themselves so as not to annoy any
police officer or other person who should happen to pass by. In our
opinion, this ordinance is unconstitutionally vague because it
subjects the exercise of the right of assembly to an
unascertainable standard, and unconstitutionally broad because it
authorizes the punishment of constitutionally protected
Conduct that annoys some people does not annoy others. Thus, the
ordinance is vague not in the sense that it requires a person to
conform his conduct to an imprecise but comprehensible normative
standard, but rather in the sense that no standard of conduct is
specified at all. As a result, "men of common intelligence must
necessarily guess at its meaning." Connally v. General
Construction Co., 269 U. S. 385
269 U. S.
It is said that the ordinance is broad enough to encompass many
types of conduct clearly within the city's constitutional power to
prohibit. And so, indeed, it is. The city is free to prevent people
from blocking sidewalks, obstructing traffic, littering streets,
committing assaults, or engaging in countless other forms of
antisocial conduct. It can do so through the enactment and
enforcement of ordinances directed with reasonable specificity
toward the conduct to be prohibited. Gregory v. Chicago,
394 U. S. 111
394 U. S. 118
394 U. S.
-125 (BLACK, J., concurring). It cannot
constitutionally do so through the enactment and enforcement of an
ordinance whose violation may entirely depend upon whether or not a
policeman is annoyed. [Footnote
Page 402 U. S. 615
But the vice of the ordinance lies not alone in its violation of
the due process standard of vagueness. The ordinance also violates
the constitutional right of free assembly and association. Our
decisions establish that mere public intolerance or animosity
cannot be the basis for abridgment of these constitutional
freedoms. See Street v. New York, 394 U.
, 394 U. S. 592
Cox v. Louisiana, 379 U. S. 536
379 U. S.
-553; Edwards v. South Carolina,
372 U. S. 229
372 U. S. 238
Terminiello v. Chicago, 337 U. S. 1
Cantwell v. Connecticut, 310 U. S. 296
310 U. S. 311
Schneider v. State, 308 U. S. 147
308 U. S. 161
The First and Fourteenth Amendments do not permit a State to make
criminal the exercise of the right of assembly simply because its
exercise may be "annoying" to some people. If this were not the
rule, the right of the people to gather in public places for social
or political purposes would be continually subject to summary
suspension through the good faith enforcement of a prohibition
against annoying conduct.. [Footnote 5
Page 402 U. S. 616
And such a prohibition, in addition, contains an obvious
invitation to discriminatory enforcement against those whose
association together is "annoying" because their ideas, their
lifestyle, or their physical appearance is resented by the majority
of their fellow citizens. [Footnote
The ordinance before us makes a crime out of what under the
Constitution cannot be a crime. It is aimed directly at activity
protected by the Constitution. We need not lament that we do not
have before us the details of the conduct found to be annoying. It
is the ordinance on its face that sets the standard of conduct and
warns against transgression. The details of the offense could no
more serve to validate this ordinance than could the details of an
offense charged under an ordinance suspending unconditionally the
right of assembly and free speech.
The judgment is reversed.
"It shall be unlawful for three or more persons to assemble,
except at a public meeting of citizens, on any of the sidewalks,
street corners, vacant lots or mouths of alleys, and there conduct
themselves in a manner annoying to persons passing by, or occupants
of adjacent buildings. Whoever violates any of the provisions of
this section shall be fined not exceeding fifty dollars ($50.00),
or be imprisoned not less than one (1) nor more than thirty (30)
days or both."
Section 901-L6, Code of Ordinances of the City of Cincinnati
"Final judgments or decrees rendered by the highest court of a
State in which a decision could be had, may be reviewed by the
Supreme Court as follows: "
"* * * *"
"(2) By appeal, where is drawn in question the validity of a
statute of any state on the ground of its being repugnant to the
Constitution, treaties or laws of the United States, and the
decision is in favor of its validity."
Cf. Chaplinsky v. New Hampshire, 315 U.
, where this Court upheld a statute that punished
"offensive, derisive or annoying" words. The state courts had
construed the statute as applying only to such words "as have a
direct tendency to cause acts of violence by the persons to whom,
individually, the remark is addressed." The state court also
"The word 'offensive' is not to be defined in terms of what a
particular addressee thinks. . . . The test is what men of common
intelligence would understand would be words likely to cause an
average addressee to fight. . . . The English language has a number
of words and expressions which, by general consent, are 'fighting
words' when said without a disarming smile. . . . Such words, as
ordinary men know, are likely to cause a fight. So are threatening,
profane or obscene revilings. Derisive and annoying words can be
taken as coming within the purview of the statute as heretofore
interpreted only when they have this characteristic of plainly
tending to excite the addressee to a breach of he peace."
This Court was "unable to say that the limited scope of the
statute as thus construed contravenes the Constitutional right of
free expression." 315 U.S. at 315 U. S.
In striking down a very similar ordinance of Cleveland, Ohio, as
constitutionally invalid, the Court of Appeals for Cuyahoga County
"As it is written, the disorderly assembly ordinance could be
used to incriminate nearly any group or individual. With little
effort, one can imagine many . . . assemblages which, at various
times, might annoy some persons in the city of Cleveland. Anyone
could become an unwitting participant in a disorderly assembly, and
suffer the penalty consequences. It has been left to the police and
the courts to decide when and to what extent ordinance Section
13.1124 is applicable. Neither the police nor a citizen can hope to
conduct himself in a lawful manner if an ordinance which is
designed to regulate conduct does not lay down ascertainable rules
and guidelines to govern its enforcement. This ordinance represents
an unconstitutional exercise of the police power of the city of
Cleveland, and is therefore void."
Cleveland v. Anderson,
13 Ohio App.2d 83, 90, 234
N.E.2d 304, 309-310.
In striking down a very similar ordinance of Toledo, Ohio, as
constitutionally invalid, the Municipal Court of that city
"Under the provisions of Sections 17-10 and 17-11, arrests and
prosecutions, as in the present instance, would have been effective
as against Edmund Pendleton, Peyton Randolph, Richard Henry Lee,
George Wythe, Patrick Henry, Thomas Jefferson, George Washington
and others for loitering and congregating in front of Raleigh
Tavern on Duke of Gloucester Street in Williamsburg, Virginia, at
any time during the summer of 1774 to the great annoyance of
Governor Dunsmore and his colonial constables."
City of Toledo v. Sims,
14 Ohio Op.2d 66, 69, 169
N.E.2d 516, 520.
The alleged discriminatory enforcement of this ordinance figured
prominently in the background of the serious civil disturbances
that took place in Cincinnati in June, 1967. See
the National Advisory Commission on Civil Disorders 26-27
MR. JUSTICE BLACK.
I agree with the majority that this case is
properly before us on appeal from the Supreme Court of Ohio.
This Court has long held that laws so vague
that a person of common understanding cannot know what is forbidden
are unconstitutional on their face. Lanzetta v. New
Jersey, 306 U. S. 451
(1939), United States v. Cohen Grocery Co., 255 U. S.
(1921). Likewise, laws which broadly forbid conduct
or activities which are protected by the Federal Constitution, such
as, for instance, the discussion of political matters, are void on
their face. Thornhill v. Alabama, 310 U. S.
Page 402 U. S. 617
(1940). On the other hand, laws which plainly forbid conduct
which is constitutionally within the power of the State to forbid
but also restrict constitutionally protected conduct may be void
either on their face or merely as applied in certain instances. As
my Brother WHITE states in his opinion (with which I substantially
agree), this is one of those numerous cases where the law could be
held unconstitutional because it prohibits both conduct which the
Constitution safeguards and conduct which the State may
constitutionally punish. Thus, the First Amendment, which forbids
the State to abridge freedom of speech, would invalidate this city
ordinance if it were used to punish the making of a political
speech, even if that speech were to annoy other persons. In
contrast, however, the ordinance could properly be applied to
prohibit the gathering of persons in the mouths of alleys to annoy
passersby by throwing rocks or by some other conduct not at all
connected with speech. It is a matter of no little difficulty to
determine when a law can be held void on its face and when such
summary action is inappropriate. This difficulty has been
aggravated in this case, because the record fails to show in what
conduct these defendants had engaged to annoy other people. In my
view, a record showing the facts surrounding the conviction is
essential to adjudicate the important constitutional issues in this
case. I would therefore vacate the judgment and remand the case
with instructions that the trial court give both parties an
opportunity to supplement the record so that we may determine
whether the conduct actually punished is the kind of conduct which
it is within the power of the State to punish.
MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE
BLACKMUN join, dissenting.
The claim in this case, in part, is that the Cincinnati
ordinance is so vague that it may not constitutionally
Page 402 U. S. 618
be applied to any conduct. But the ordinance prohibits persons
from assembling with others and "conduct[ing] themselves in a
manner annoying to persons passing by. . . ." Cincinnati Code of
Ordinances § 901-L6. Any man of average comprehension should know
that some kinds of conduct, such as assault or blocking passage on
the street, will annoy others and are clearly covered by the
"annoying conduct" standard of the ordinance. It would be frivolous
to say that these and many other kinds of conduct are not within
the foreseeable reach of the law.
It is possible that a whole range of other acts, defined with
unconstitutional imprecision, is forbidden by the ordinance. But,
as a general rule, when a criminal charge is based on conduct
constitutionally subject to proscription and clearly forbidden by a
statute, it is no defense that the law would be unconstitutionally
vague if applied to other behavior. Such a statute is not vague on
its face. It may be vague as applied in some circumstances, but
ruling on such a challenge obviously requires knowledge of the
conduct with which a defendant is charged.
In Williams v. United States, 341 U. S.
(1951), a police officer was charged under federal
statutes with extracting confessions by force and thus, under color
of law, depriving the prisoner there involved of rights,
privileges, and immunities secured or protected by the Constitution
and laws of the United States, contrary to 18 U.S.C. § 242. The
defendant there urged that the standard -- rights, privileges, and
immunities secured by the Constitution -- was impermissibly vague
and, more particularly, that the Court was often so closely divided
on illegal confession issues that no defendant could be expected to
know when he was violating the law. The Court's response was that,
while application of the statute
Page 402 U. S. 619
to less obvious methods of coercion might raise doubts about the
adequacy of the standard of guilt, in the case before it, it
"plain as a pikestaff that the present confessions would not be
allowed in evidence whatever the school of thought concerning the
scope and meaning of the Due Process Clause."
at 341 U. S. 101
The claim of facial vagueness was thus rejected.
So too in United States v. National Dairy Corp.,
372 U. S. 29
(1963), where we considered a statute forbidding sales of goods at
"unreasonably" low prices to injure or eliminate a competitor, 15
U.S.C. § 13a, we thought the statute gave a seller adequate notice
that sales below cost were illegal. The statute was therefore not
facially vague, although it might be difficult to tell whether
certain other kinds of conduct fell within this language. We
"In determining the sufficiency of the notice a statute must of
necessity be examined in the light of the conduct with which a
defendant is charged."
at 372 U. S. 33
See also United States v. Harriss, 347 U.
(1954). This approach is consistent with the host
of cases holding that
"one to whom application of a statute is constitutional will not
be heard to attack the statute on the ground that impliedly it
might also be taken as applying to other persons or other
situations in which its application might be unconstitutional."
United States v. Raines, 362 U. S.
, 362 U. S. 21
(1960), and cases there cited.
Our cases, however, including National Dairy,
a different approach where the statute at issue purports to
regulate or proscribe rights of speech or press protected by the
First Amendment. See United States v. Robel, 389 U.
(1967); Keyishian v. Board of Regents,
385 U. S. 589
(1967); Kunz v. New York, 340 U.
(1951). Although a statute may be neither vague,
overbroad, nor otherwise invalid as applied to the conduct charged
against a particular defendant, he is
Page 402 U. S. 620
permitted to raise its vagueness or unconstitutional overbreadth
as applied to others. And if the law is found deficient in one of
these respects, it may not be applied to him either, until and
unless a satisfactory limiting construction is placed on the
statute. Dombrowski v. Pfister, 380 U.
, 380 U. S.
-492 (1965). The statute, in effect, is stricken down
on its face. This result is deemed justified since the otherwise
continued existence of the statute in unnarrowed form would tend to
suppress constitutionally protected rights. See United States
v. National Dairy Corp., supra,
at 372 U. S.
Even accepting the overbreadth doctrine with respect to statutes
clearly reaching speech, the Cincinnati ordinance does not purport
to bar or regulate speech as such. It prohibits persons from
assembling and "conduct[ing]" themselves in a manner annoying to
other persons. Even if the assembled defendants in this case were
demonstrating and picketing, we have long recognized that picketing
is not solely a communicative endeavor, and has aspects which the
State is entitled to regulate even though there is incidental
impact on speech. In Cox v. Louisiana, 379 U.
(1965), the Court held valid on its face a
statute forbidding picketing and parading near a courthouse. This
was deemed a valid regulation of conduct, rather than pure speech.
The conduct reached by the statute was "subject to regulation even
though [it was] intertwined with expression and association."
at 379 U. S. 563
The Court then went on to consider the statute as applied to the
facts of record.
In the case before us, I would deal with the Cincinnati
ordinance as we would with the ordinary criminal statute. The
ordinance clearly reaches certain conduct, but may be illegally
vague with respect to other conduct. The statute is not infirm on
its face, and, since we have no information from this record as to
what conduct was
Page 402 U. S. 621
charged against these defendants, we are in no position to judge
the statute as applied. That the ordinance may confer wide
discretion in a wide range of circumstances is irrelevant when we
may be dealing with conduct at its core.
I would therefore affirm the judgment of the Ohio Supreme