Petitioners, 32 students, were members of a group of about 200
who on a nonpublic jail driveway, which they blocked, and on
adjacent county jail premises had, by singing, clapping, and
dancing, demonstrated against their schoolmates' arrest and perhaps
against segregation in the jail and elsewhere. The sheriff, the
jail's custodian, advised them that they were trespassing on county
property and would have to leave or be arrested. The 107
demonstrators refusing to depart were thereafter arrested and
convicted under a Florida trespass statute for "trespass with a
malicious and mischievous intent." Petitioners contend that their
convictions, affirmed by the Florida Circuit Court and the District
Court of Appeal, deprived them of their "rights of free speech,
assembly, petition, due process of law and equal protection of the
laws" under the Fourteenth Amendment.
Held:
1. The Florida trespass statute, here applied to a demonstration
on the premises of a jail, which is built for security purposes and
is not open to the public, is aimed at conduct of a limited kind,
and is not unconstitutionally vague, as were the common law breach
of the peace statutes invalidated in
Edwards v. South
Carolina, 372 U. S. 229, and
Cox v. Louisiana, 379 U. S. 536,
379 U. S. 559. Pp.
385 U. S.
41-43.
2. The doctrine of abatement is inapplicable here.
Hamm v.
City of Rock Hill, 379 U. S. 306,
distinguished. P.
385 U. S.
43.
3. The abstract proposition that petty criminal statutes may not
be used to violate minorities' constitutional rights is irrelevant
to this case. P.
385 U. S.
44.
4. There was ample evidence to support petitioners' trespass
convictions for remaining on jail grounds reserved for jail uses
after they had been directed to leave by the sheriff. There was no
evidence at all that petitioners were arrested or convicted for
their views or objectives. Pp.
385 U. S.
44-48.
175 So. 2d 249, affirmed.
Page 385 U. S. 40
MR. JUSTICE BLACK delivered the opinion of the Court.
Petitioners, Harriett Louise Adderley and 31 other persons, were
convicted by a jury in a joint trial in the County Judge's Court of
Leon County, Florida, on a charge of "trespass with a malicious and
mischievous intent" upon the premises of the county jail contrary
to § 821.18 of the Florida statutes set out below. [
Footnote 1] Petitioners, apparently all
students of the Florida A. & M. University in Tallahassee, had
gone from the school to the jail about a mile away, along with many
other students, to "demonstrate" at the jail their protests of
arrests of other protesting students the day before, and perhaps to
protest more generally against state and local policies and
practices of racial segregation, including segregation of the jail.
The county sheriff, legal custodian of the jail and jail grounds,
tried to persuade the students to leave the jail grounds. When this
did not work, he notified them that they must leave, that, if they
did not leave, he would arrest them for trespassing, and that, if
they resisted, he would charge them with that as well. Some of the
students left, but others, including petitioners, remained, and
they were arrested. On appeal, the convictions were affirmed by the
Florida Circuit Court and then by the Florida District Court of
Appeal, 175 So. 2d 249. That being the highest state court to which
they could appeal, petitioners applied to us for certiorari
Page 385 U. S. 41
contending that, in view of petitioners' purpose to protest
against jail and other segregation policies, their conviction
denied them "rights of free speech, assembly, petition, due process
of law and equal protection of the laws as guaranteed by the
Fourteenth Amendment to the Constitution of the United States." On
this "Question Presented," we granted certiorari. 382 U.S. 1023.
Petitioners present their argument on this question in four
separate points, and, for convenience, we deal with each of their
points in the order in which they present them.
I
Petitioners have insisted from the beginning of this case that
it is controlled by and must be reversed because of our prior cases
of
Edwards v. South Carolina, 372 U.
S. 229, and
Cox v. Louisiana, 379 U.
S. 536,
379 U. S. 559. We
cannot agree.
The
Edwards case, like this one, did come up when a
number of persons demonstrated on public property against their
State's segregation policies. They also sang hymns and danced, as
did the demonstrators in this case. But here the analogies to this
case end. In
Edwards, the demonstrators went to the South
Carolina State Capitol grounds to protest. In this case, they went
to the jail. Traditionally, state capitol grounds are open to the
public. Jails, built for security purposes, are not. The
demonstrators at the South Carolina Capitol went in through a
public driveway, and, as they entered, they were told by state
officials there that they had a right as citizens to go through the
State House grounds as long as they were peaceful. Here, the
demonstrators entered the jail grounds through a driveway used only
for jail purposes and without warning to or permission from the
sheriff. More importantly, South Carolina sought to prosecute its
State Capitol demonstrators by charging them with the common law
crime of breach of the peace.
Page 385 U. S. 42
This Court, in
Edwards, took pains to point out at
length the indefinite, loose, and broad nature of this charge;
indeed, this Court pointed out at p.
372 U. S. 237,
that the South Carolina Supreme Court had itself declared that the
"breach of the peace" charge is "not susceptible of exact
definition." South Carolina's power to prosecute, it was emphasized
at p.
372 U. S. 236,
would have been different had the State proceeded under a "precise
and narrowly drawn regulatory statute evincing a legislative
judgment that certain specific conduct be limited or proscribed"
such as, for example, "limiting the periods during which the State
House grounds were open to the public. . . ." The South Carolina
breach of the peace statute was thus struck down as being so broad
and all-embracing as to jeopardize speech, press, assembly and
petition, under the constitutional doctrine enunciated in
Cantwell v. Connecticut, 310 U. S. 296,
310 U. S.
307-308, and followed in many subsequent cases. And it
was on this same ground of vagueness that, in
Cox v. Louisiana,
supra, at
379 U. S.
551-552, the Louisiana breach of the peace law used to
prosecute Cox was invalidated.
The Florida trespass statute under which these petitioners were
charged cannot be challenged on this ground. It is aimed at conduct
of one limited kind, that is, for one person or persons to trespass
upon the property of another with a malicious and mischievous
intent. There is no lack of notice in this law, nothing to entrap
or fool the unwary.
Petitioners seem to argue that the Florida trespass law is void
for vagueness because it requires a trespass to be "with a
malicious and mischievous intent. . . ." But these words do not
broaden the scope of trespass so as to make it cover a multitude of
types of conduct, as does the common law breach of the peace
charge. On the contrary, these words narrow the scope of the
offense.
Page 385 U. S. 43
The trial court charged the jury as to their meaning, and
petitioners have not argued that this definition, set out below,
[
Footnote 2] is not a
reasonable and clear definition of the terms. The use of these
terms in the statute, instead of contributing to uncertainty and
misunderstanding, actually makes its meaning more understandable
and clear.
II
Petitioners in this Court invoke the doctrine of abatement
announced by this Court in
Hamm v. City of Rock Hill,
379 U. S. 306. But
that holding was that the Civil Rights Act of 1064, 78 Stat. 241,
which made it unlawful for places of public accommodation to deny
service to any person because of race, effected an abatement of
prosecutions of persons for seeking such services that arose prior
to the passage of the Act. But this case in no way involves
prosecution of petitioners for seeking service in establishments
covered by the Act. It involves only an alleged trespass on jail
grounds -- a trespass which can be prosecuted regardless of the
fact that it is the means of protesting segregation of
establishment covered by the Act.
Page 385 U. S. 44
III
Petitioners next argue that "petty criminal statutes may not be
used to violate minorities' constitutional rights." This, of
course, is true, but this abstract proposition gets us nowhere in
deciding this case.
IV
Petitioners here contend that "Petitioners' convictions are
based on a total lack of relevant evidence." If true, this would be
a denial of due process under
Garner v. Louisiana,
368 U. S. 157, and
Thompson v. City of Louisville, 362 U.
S. 199. Both in the petition for certiorari and in the
brief on the merits petitioners state that their summary of the
evidence "does not conflict with the facts contained in the Circuit
Court's opinion" which was, in effect, affirmed by the District
Court of Appeal. 175 So. 2d 249. That statement is correct, and
petitioners' summary of facts, as well as that of the Circuit
Court, shows an abundance of facts to support the jury's verdict of
guilty in this case.
In summary, both these statements show testimony ample to prove
this: disturbed and upset by the arrest of their schoolmates the
day before, a large number of Florida A. & M. students
assembled on the school grounds and decided to march down to the
county jail. Some apparently wanted to be put in jail too, along
with the students already there. [
Footnote 3] A group of around 200 marched
Page 385 U. S. 45
from the school and arrived at the jail singing and clapping.
[
Footnote 4] They went directly
to the jail door entrance, where they were met by a deputy sheriff,
evidently surprised by their arrival. He asked them to move back,
claiming they were blocking the entrance to the jail and fearing
that they might attempt to enter the jail. They moved back part of
the way, where they stood or sat, singing, clapping and dancing, on
the jail driveway and on an adjacent grassy area upon the jail
premises. This particular jail entrance and driveway were not
normally used by the public, but by the sheriff's department for
transporting prisoners to and from the courts several blocks away
and by commercial concerns for servicing the jail. Even after their
partial retreat, the demonstrators continued to block vehicular
passage over this driveway up to the entrance of the jail.
[
Footnote 5] Someone called the
sheriff, who was at the moment apparently conferring with one of
the state court judges about incidents connected with prior arrests
for demonstrations. When the sheriff returned to the jail, he
immediately inquired if all was safe inside the jail, and was told
it was. He then engaged in a conversation with two of the
Page 385 U. S. 46
leaders. He told them that they were trespassing upon jail
property, and that he would give them 10 minutes to leave or he
would arrest them. Neither of the leaders did anything to disperse
the crowd, and one of them told the sheriff that they wanted to get
arrested. A local minister talked with some of the demonstrators
and told them not to enter the jail, because they could not arrest
themselves, but just to remain where they were. After about 10
minutes, the sheriff, in a voice loud enough to be heard by all,
told the demonstrators that he was the legal custodian of the jail
and its premises, that they were trespassing on county property in
violation of the law, that they should all leave forthwith or he
would arrest them, and that, if they attempted to resist arrest, he
would charge them with that as a separate offense. Some of the
group then left. Others, including all petitioners, did not leave.
Some of them sat down. In a few minutes, realizing that the
remaining demonstrators had no intention of leaving, the sheriff
ordered his deputies to surround those remaining on jail premises
and placed them, 107 demonstrators, under arrest. The sheriff
unequivocally testified that he did not arrest any persons other
than those who were on the jail premises. Of the three petitioners
testifying, two insisted that they were arrested before they had a
chance to leave, had they wanted to, and one testified that she did
not intend to leave. The sheriff again explicitly testified that he
did not arrest any person who was attempting to leave.
Under the foregoing testimony, the jury was authorized to find
that the State had proven every essential element of the crime as
it was defined by the state court. That interpretation is, of
course, binding on us, leaving only the question of whether
conviction of the state offense, thus defined, unconstitutionally
deprives petitioners of their rights to freedom of speech, press,
assembly or petition. We hold it does not. The sheriff, as jail
custodian,
Page 385 U. S. 47
had power, as the state courts have here held, to direct that
this large crowd of people get off the grounds. There is not a
shred of evidence in this record that this power was exercised, or
that its exercise was sanctioned by the lower courts, because the
sheriff objected to what was being sung or said by the
demonstrators or because he disagreed with the objectives of their
protest. The record reveals that he objected only to their presence
on that part of the jail grounds reserved for jail uses. There is
no evidence at all that, on any other occasion had similarly large
groups of the public been permitted to gather on this portion of
the jail grounds for any purpose. [
Footnote 6] Nothing in the Constitution of the United
States prevents Florida from even-handed enforcement of its general
trespass statute against those refusing to obey the sheriff's order
to remove themselves from what amounted to the curtilage of the
jailhouse. The State, no less than a private owner of property, has
power to preserve the property under its control for the use to
which it is lawfully dedicated. For this reason, there is no merit
to the petitioners' argument that they had a constitutional right
to stay on the property, over the jail custodian's objections,
because this "area chosen for the peaceful civil rights
demonstration was not only "reasonable," but also particularly
appropriate. . . ." Such an argument has as its major unarticulated
premise the assumption
Page 385 U. S. 48
that people who want to propagandize protests or views have a
constitutional right to do so whenever and however and wherever
they please. That concept of constitutional law was vigorously and
forthrightly rejected in two of the cases petitioners rely on,
Cox v. Louisiana, supra, at
379 U. S.
554-555 and
379 U. S.
563-564. [
Footnote
7] We reject it again. The United States Constitution does not
forbid a State to control the use of its own property for its own
lawful nondiscriminatory purpose.
These judgments are
Affirmed.
[
Footnote 1]
"Every trespass upon the property of another, committed with a
malicious and mischievous intent, the punishment of which is not
specially provided for, shall be punished by imprisonment not
exceeding three months, or by fine not exceeding one hundred
dollars."
Fla.Stat. § 821.18 (1965).
[
Footnote 2]
"'Malicious' means wrongful, you remember back in the original
charge, the State has to prove beyond a reasonable doubt there was
malicious and mischievious intent. The word 'malicious' means that
the wrongful act shall be done voluntarily, unlawfully, and without
excuse or justification. The word 'malicious' that is used in these
affidavits does not necessarily allege nor require the State to
prove that the defendant had actual malice in his mind at the time
of the alleged trespass. Another way of stating the definition of
'malicious' is by 'malicious' is meant the act was done knowingly
and willfully and without any legal justification."
"'Mischievous,' which is also required, means that the alleged
trespass shall be inclined to cause petty and trivial trouble,
annoyance and vexation to others in order for you to find that the
alleged trespass was committed with mischievous intent."
R. 74.
[
Footnote 3]
The three petitioners who testified insisted that they had not
come to the jail for the purpose of being arrested. But both the
sheriff and a deputy testified that they heard several of the
demonstrators present at the jail loudly proclaim their desire to
be arrested. Indeed, this latter version is borne out by the fact
that, though assertedly protesting the prior arrests of their
fellow students and the city's segregation policies, none of the
demonstrators carried any signs, and, upon arriving at the jail, no
speeches or other verbal protests were made.
[
Footnote 4]
There is no evidence that any attempt was made by law
enforcement officers to interfere with this march, or, for that
matter, that such officers even knew of the march or its ultimate
destination.
[
Footnote 5]
Although some of the petitioners testified that they had no
intention of interfering with vehicular traffic to and from the
jail entrance, and that they noticed no vehicle trying to enter or
leave the driveway, the deputy sheriff testified that it would have
been impossible for automobiles to drive up to the jail entrance,
and that one serviceman, finished with his business in the jail,
waited inside because the demonstrators were sitting around and
leaning against his truck parked outside. The sheriff testified
that the time the demonstrators were there, between 9:30 and 10
Monday morning, was generally a very busy time for using the jail
entrance to transport weekend inmates to the courts and for
tradesmen to make service calls at the jail.
[
Footnote 6]
In
Cox v. Louisiana, supra, at
379 U. S. 558,
the Court emphasized:
"It is, of course, undisputed that appropriate, limited
discretion, under properly drawn statutes or ordinances, concerning
the time, place, duration, or manner of use of the streets for
public assemblies may be vested in administrative officials,
provided that such limited discretion is"
"exercised with 'uniformity of method of treatment upon the
facts of each application, free from improper or inappropriate
considerations and from unfair discrimination' . . . [and with] a
'systematic, consistent and just order of treatment, with reference
to the convenience of public use of the highways. . . .'"
[
Footnote 7]
"The rights of free speech and assembly, while fundamental in
our democratic society, still do not 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. . . . A group of demonstrators could not insist upon
the right to cordon off a street, or entrance to a public or
private building, and allow no one to pass who did not agree to
listen to their exhortations."
379 U.S. at
379 U. S.
554-555.
"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."
Id. at
379 U. S.
563.
MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE, MR. JUSTICE
BRENNAN, and MR. JUSTICE FORTAS concur, dissenting.
The First Amendment, applicable to the States by reason of the
Fourteenth (
Edwards v. South Carolina, 372 U.
S. 229,
372 U. S.
235), provides that
"Congress shall make no law . . . abridging . . . the right of
the people peaceably to assemble, and to petition the Government
for a redress of grievances."
These rights, along with religion, speech, and press, are
preferred rights of the Constitution, made so by reason of that
explicit guarantee and
Page 385 U. S. 49
what Edmond Cahn in Confronting Injustice (1966) referred to as
"The Firstness of the First Amendment." [
Footnote 2/1] With all respect, therefore, the Court
errs in treating the case as if it were an ordinary trespass case
or an ordinary picketing case.
The jailhouse, like an executive mansion, a legislative chamber,
a courthouse, or the statehouse itself (
Edwards v. South
Carolina, supra) is one of the seats of government, whether it
be the Tower of London, the Bastille, or a small county jail. And
when it houses political prisoners or those who many think are
unjustly held, it is an obvious center for protest. The right to
petition for the redress of grievances has an ancient history
[
Footnote 2/2] and
Page 385 U. S. 50
is not limited to writing a letter or sending a telegram to a
congressman; it is not confined to appearing before the local city
council, or writing letters to the President or Governor or Mayor.
See NAACP v. Button, 371 U. S. 415,
371 U. S.
429-431. Conventional methods of petitioning may be, and
often have been, shut off to large groups of our citizens.
Legislators may turn deaf ears; formal complaints may be routed
endlessly through a bureaucratic maze; courts may let the wheels of
justice grind very slowly. Those who do not control television
Page 385 U. S. 51
and radio, those who cannot afford to advertise in newspapers or
circulate elaborate pamphlets may have only a more limited type of
access to public officials. Their methods should not be condemned
as tactics of obstruction and harassment as long as the assembly
and petition are peaceable, as these were.
There is no question that petitioners had as their purpose a
protest against the arrest of Florida A. & M. students for
trying to integrate public theatres. The sheriff's testimony
indicates that he well understood the purpose of the rally. The
petitioners who testified unequivocally stated that the group was
protesting the arrests, and state and local policies of
segregation, including segregation of the jail. This testimony was
not contradicted, or even questioned. The fact that no one gave a
formal speech, that no elaborate handbills were distributed, and
that the group was not laden with signs would seem to be
immaterial. Such methods are not the
sina qua non of
petitioning for the redress of grievances. The group did sing
"freedom" songs. And history shows that a song can be a powerful
tool of protest.
See Cox v. Louisiana, 379 U.
S. 536,
379 U. S.
546-548. There was no violence; no threat of violence;
no attempted jail break; no storming of a prison; no plan or plot
to do anything but protest. The evidence is uncontradicted that the
petitioners' conduct did not upset the jailhouse routine; things
went on as they normally would. None of the group entered the jail.
Indeed, they moved back from the entrance, as they were instructed.
There was no shoving, no pushing, no disorder or threat of riot. It
is said that some of the group blocked part of the driveway leading
to the jail entrance. The chief jailer, to be sure, testified that
vehicles would not have been able to use the driveway. Never did
the students locate themselves so as to cause interference with
persons or vehicles going to or coming from the jail. Indeed, it is
undisputed that the sheriff and deputy sheriff, in
Page 385 U. S. 52
separate cars, were able to drive up the driveway to the parking
places near the entrance, and that no one obstructed their path.
Further, it is undisputed that the entrance to the jail was not
blocked. And whenever the students were requested to move, they did
so. If there was congestion, the solution was a further request to
move to lawns or parking areas, not complete ejection and arrest.
The claim is made that a tradesman waited inside the jail because
some of the protestants were sitting around and leaning on his
truck. The only evidence supporting such a conclusion is the
testimony of a deputy sheriff that the tradesman "came to the door
. . . , and then did not leave." His remaining is just as
consistent with a desire to satisfy his curiosity as it is with a
restraint. Finally, the fact that some of the protestants may have
felt their cause so just that they were willing to be arrested for
making their protest outside the jail seems wholly irrelevant. A
petition is nonetheless a petition though its futility may make
martyrdom attractive.
We do violence to the First Amendment when we permit this
"petition for redress of grievances" to be turned into a trespass
action. It does not help to analogize this problem to the problem
of picketing. Picketing is a form of protest usually directed
against private interests. I do not see how rules governing
picketing in general are relevant to this express constitutional
right to assemble and to petition for redress of grievances. In the
first place, the jailhouse grounds were not marked with "NO
TRESPASSING," signs, nor does respondent claim that the public was
generally excluded from the grounds. Only the sheriff's fiat
transformed lawful conduct into an unlawful trespass. To say that a
private owner could have done the same if the rally had taken place
on private property is to speak of a different case, as an assembly
and a petition for redress of grievances run to government, not to
private proprietors.
Page 385 U. S. 53
The Court forgets that, prior to this day, our decisions have
drastically limited the application of state statutes inhibiting
the right to go peacefully on public property to exercise First
Amendment rights. As Mr. Justice Roberts wrote in
Hague v.
CIO, 307 U. S. 496,
307 U. S.
515-516:
". . . Wherever the title of streets and parks may rest, they
have immemorially been held in trust for the use of the public,
and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public
questions. Such use of the streets and public places has, from
ancient times, been a part of the privileges, immunities, rights,
and liberties of citizens. The privilege of a citizen of the United
States to use the streets and parks for communication of views on
national questions may be regulated in the interest of all; it is
not absolute, but relative, and must be exercised in subordination
to the general comfort and convenience, and in consonance with
peace and good order; but it must not, in the guise of regulation,
be abridged or denied."
Such was the case of
Edwards v. South Carolina, where
aggrieved people "peaceably assembled at the site of the State
Government" to express their grievances to the citizens of the
State, as well as to the legislature.
Supra at
372 U. S. 235.
Edwards was in the tradition of
Cox v. New
Hampshire, 312 U. S. 569,
where the public streets were said to be "immemorially associated"
with "the right of assembly and the opportunities for the
communication of thought and the discussion of public questions."
Id. at
312 U. S. 574.
When we allow Florida to construe her "malicious trespass" statute
to bar a person from going on property knowing it is not his own
and to apply that prohibition to public property, we discard
Cox and
Edwards. Would the case be any different
if, as is common, the demonstration took place outside a building
which housed both the jail and the legislative body? I think
not.
Page 385 U. S. 54
There may be some public places which are so clearly committed
to other purposes that their use for the airing of grievances is
anomalous. There may be some instances in which assemblies and
petitions for redress of grievances are not consistent with other
necessary purposes of public property. A noisy meeting may be out
of keeping with the serenity of the statehouse or the quiet of the
courthouse. No one, for example, would suggest that the Senate
gallery is the proper place for a vociferous protest rally. And, in
other cases, it may be necessary to adjust the right to petition
for redress of grievances to the other interests inhering in the
uses to which the public property is normally put.
See Cox v.
New Hampshire, supra; Poulos v. New Hampshire, 345 U.
S. 395. But this is quite different from saying that all
public places are off limits to people with grievances.
See
Hague v. CIO, supra; Cox v. New Hampshire, supra; Jamison v.
Texas, 318 U. S. 413,
318 U. S.
415-416;
Edwards v. South Carolina, supra. And
it is farther yet from saying that the "custodian" of the public
property, in his discretion, can decide when public places shall be
used for the communication of ideas, especially the constitutional
right to assemble and petition for redress of grievances.
See
Hague v. CIO, supra; Schneider v. State, 308 U.
S. 147,
308 U. S.
163-164;
Cantwell v. Connecticut, 310 U.
S. 296;
Largent v. Texas, 318 U.
S. 418;
Niemotko v. Maryland, 340 U.
S. 268;
Shuttlesworth v. City of Birmingham,
382 U. S. 87. For
to place such discretion in any public official, be he the
"custodian" of the public property or the local police commissioner
(
cf. Kunz v. New York, 340 U. S. 290), is
to place those who assert their First Amendment rights at his
mercy. It gives him the awesome power to decide whose ideas may be
expressed and who shall be denied a place to air their claims and
petition their government. Such power is out of step with all our
decisions prior to
Page 385 U. S. 55
today where we have insisted that, before a First Amendment
right may be curtailed under the guise of a criminal law, any evil
that may be collateral to the exercise of the right must be
isolated and defined in a "narrowly drawn" statute (
Cantwell v.
Connecticut, supra, at
310 U. S. 307)
lest the power to control excesses of conduct be used to suppress
the constitutional right itself.
See Stromberg v.
California, 283 U. S. 359,
283 U. S. 369;
Herndon v. Lowry, 301 U. S. 242,
301 U. S.
258-259;
Edwards v. South Carolina, supra, at
372 U. S. 238;
NAACP v. Button, supra, at
371 U. S.
433.
That tragic consequence happens today when a trespass law is
used to bludgeon those who peacefully exercise a First Amendment
right to protest to government against one of the most grievous of
all modern oppressions which some of our States are inflicting on
our citizens.
What we do today disregards the admonition in
De Jonge v.
Oregon, 299 U. S. 353,
299 U. S.
364-365:
"These [First Amendment] rights may be abused by using speech or
press or assembly in order to incite to violence and crime. The
people, through their legislatures, may protect themselves against
that abuse. But the legislative intervention can find
constitutional justification only by dealing with the abuse. The
rights themselves must not be curtailed. The greater the importance
of safeguarding the community from incitements to the overthrow of
our institutions by force and violence, the more imperative is the
need to preserve inviolate the constitutional rights of free
speech, free press and free assembly in order to maintain the
opportunity for free political discussion, to the end that
government may be responsive to the will of the people, and that
changes, if desired, may be obtained by peaceful means. Therein
lies the security of the Republic, the very foundation of
constitutional government. "
Page 385 U. S. 56
Today, a trespass law is used to penalize people for exercising
a constitutional right. Tomorrow, a disorderly conduct statute, a
breach of the peace statute, a vagrancy statute will be put to the
same end. [
Footnote 2/3] It is said
that the sheriff did not make the arrests because of the views
which petitioners espoused. That excuse is usually given, as we
know from the many cases involving arrests of minority groups for
breaches of the peace, unlawful assemblies, and parading without a
permit. The charge against William Penn, who preached a
nonconformist doctrine in a street in London, was that he caused "a
great concourse and tumult of people" in contempt of the King and
"to the great disturbance of his peace." 6 How.St.Tr. 951, 955.
That was in 1670. In modern times, also, such arrests are usually
sought to be justified by some legitimate function of government.
[
Footnote 2/4] Yet, by allowing
these orderly and civilized protests against injustice to be
suppressed, we only increase the forces of frustration which the
conditions of second-class citizenship are generating amongst
us.
[
Footnote 2/1]
"Where would we really find the principal danger to civil
liberty in a republic? Not in the governors as governors, not in
the governed as governed, but in the governed unequipped to
function as governors. The chief enemies of republican freedom are
mental sloth, conformity, bigotry, superstition, credulity,
monopoly in the market of ideas, and utter, benighted ignorance.
Relying as it does on the consent of the governed, representative
government cannot succeed unless the community receives enough
information to grasp public issues, and make sensible decisions. As
lights which may have been enough for the past do not meet the
needs of the present, so present lights will not suffice for the
more extensive and complex problems of the future. Heretofore
public enlightenment may have been only a manifest desideratum;
today, it constitutes an imperative necessity. The First Amendment,
says Justice Black,"
"reflects the faith that a good society is not static, but
advancing, and that the fullest possible interchange of ideas and
beliefs is essential to attainment of this goal."
"[From
Feldman v. United States, 322 U. S.
487,
322 U. S. 501 (dissenting
opinion).]"
Cahn,
supra, at 102.
[
Footnote 2/2]
The historical antecedents of the right to petition for the
redress of grievances run deep, and strike to the heart of the
democratic philosophy. C. 61 of the Magna Carta provided:
"[T]hat if we or our justiciar, or our bailiffs, or any of our
servants shall have done wrong in any way toward anyone, or shall
have transgressed any of the articles of peace or security, and the
wrong shall have been shown to four barons of the aforesaid
twenty-five barons, let those four barons come to us or to our
justiciar, if we are out of the kingdom, laying before us the
transgression, and let them ask that we cause that transgression to
be corrected without delay."
Sources of Our Liberties 21 (Perry ed.1959). The representatives
of the people vigorously exercised the right in order to gain the
initiative in legislation and a voice in their government.
See Pollard, The Evolution of Parliament 329-331 (1964).
By 1669, the House of Commons had resolved that "it is an inherent
right of every commoner of England to prepare and present Petitions
to the house of commons in case of grievance," and "That no court
whatsoever hath power to judge or censure any Petition presented. .
. ." 4 Parl.Hist.Eng. 432-433 (1669). The Bill of Rights of 1689
provided "That it is the right of the subjects to petition the king
and all commitments and prosecutions for such petitioning are
illegal." Adams & Stephens, Select Documents of English
Constitutional History 464. The right to petition for a redress of
grievances was early asserted in the Colonies. The Stamp Act
Congress of 1765 declared "That it is the right of the British
subjects in these colonies, to petition the king or either house of
parliament." Sources of Our Liberties 271 (Perry ed.1959). The
Declaration and Resolves of the First Continental Congress, adopted
October 14, 1774, declared that Americans
"have a right peaceably to assemble, consider their grievances,
and petition the king, and that all prosecutions, prohibitory
proclamations, and commitments for the same, are illegal."
Id. at 288. The Declaration of Independence assigned as
one of the reasons for the break from England the fact that "Our
repeated Petitions have been answered only by repeated injury." The
constitutions of four of the original States specifically
guaranteed the right. Mass.Const., Art. 19 (1780); Pa.Const., Art.
IX, § 20 (1790); N.H.Const., Art. 3 (1784): N.C.Const., Art. 18
(1776).
[
Footnote 2/3]
In 1932, over 28,000 veterans demanding a bonus marched on
Washington, D.C., paraded the streets, and camped mostly in parks
and other public lands in the District, Virginia, and Maryland,
only to be routed by the Army.
See Waters, B. E. F.
(1933).
[
Footnote 2/4]
See, e.g., De Jonge v. Oregon, 299 U.
S. 353;
Feiner v. New York, 340 U.
S. 315;
Niemotko v. Maryland, 340 U.
S. 268;
Edwards v. South Carolina, 372 U.
S. 229;
Cox v. Louisiana, 379 U.
S. 536;
Shuttlesworth v. City of Birmingham,
382 U. S. 87. The
same is true of other measures which inhibit First Amendment
rights.
See, e.g., NAACP v. Alabama, 357 U.
S. 449;
Bates v. City of Little Rock,
361 U. S. 516;
Shelton v. Tucker, 364 U. S. 479;
NAACP v. Button, 371 U. S. 415. If
the invalidity of regulations and official conduct curtailing First
Amendment rights turned on an unequivocal showing that the measure
was intended to inhibit the rights, protection would be sorely
lacking. It is not the intent or purpose of the measure, but its
effect on First Amendment rights, which is crucial.