1. Anti-picketing ordinance, virtually identical with one
invalidated as violative of equal protection in
Police
Department of Chicago v. Mosley, ante, p.
408 U. S. 92, is
likewise invalid. P.
408 U. S.
107.
2. Anti-noise ordinance prohibiting a person while on grounds
adjacent to a building in which a school is in session from
willfully making a noise or diversion that disturbs or tends to
disturb the peace or good order of the school session is not
unconstitutionally vague or overbroad. The ordinance is not vague,
since, with fair warning, it prohibits only actual or imminent, and
willful, interference with normal school activity, and is not a
broad invitation to discriminatory enforcement.
Cox v.
Louisiana, 379 U. S. 536;
Coates v. Cincinnati, 402 U. S. 611,
distinguished. The ordinance is not overbroad as unduly interfering
with First Amendment rights since expressive activity is prohibited
only if it "materially disrupts classwork."
Tinker v. Des
Moines School District, 393 U. S. 503,
393 U. S. 513.
Pp.
408 U. S.
107-121.
46 Ill. 2d
492,
263 N.E.2d
866, affirmed in part and reversed in part.
MARSHALL, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, STEWART, WHITE, POWELL, and REHNQUIST,
JJ., joined. BLACKMUN, J., filed a statement joining in the
judgment and in Part I of the Court's opinion and concurring in the
result as to Part IL of the opinion,
post, p.
408 U. S. 121.
DOUGLAS, J., filed an opinion dissenting in part and joining in
Part I of the Court's opinion,
post, p.
408 U. S.
121.
Page 408 U. S. 105
MR. JUSTICE MARSHALL delivered the opinion of the Court.
Appellant Richard Grayned was convicted or his part in a
demonstration in front of West Senior High School in Rockford,
Illinois. Negro students at the school had first presented their
grievances to school administrators. When the principal took no
action on crucial complaints, a more public demonstration of
protest was planned. On April 25, 1969, approximately 200 people --
students, their family members, and friends -- gathered next to the
school grounds. Appellant, whose brother and twin sisters were
attending the school, was part of this group. The demonstrators
marched around on a sidewalk about 100 feet from the school
building, which was set back from the street. Many carried signs
which summarized the grievances: "Black cheerleaders to cheer too";
"Black history with black teachers"; "Equal rights, Negro
counselors." Others, without placards, made the "power to the
people" sign with their upraised and clenched fists.
In other respects, the evidence at appellant's trial was sharply
contradictory. Government witnesses reported that the demonstrators
repeatedly cheered, chanted, baited policemen, and made other noise
that was audible in the school; that hundreds of students were
distracted from their school activities and lined the classroom
windows to watch the demonstration; that some demonstrators
successfully yelled to their friends to leave the school building
and join the demonstration; that uncontrolled latenesses after
period changes in the school were far greater than usual, with late
students admitting that they had been watching the demonstration;
and that, in general, orderly school procedure was disrupted.
Defense witnesses claimed that the demonstrators were at all times
quiet and orderly; that they did not seek to violate the law, but
only to "make
Page 408 U. S. 106
a point"; that the only noise was made by policemen using
loudspeakers; that almost no students were noticeable at the
schoolhouse windows; and that orderly school procedure was not
disrupted.
After warning the demonstrators, the police arrested 40 of them,
including appellant. [
Footnote
1] For participating in the demonstration, Grayned was tried
and convicted of violating two Rockford ordinances, hereinafter
referred to as the "anti-picketing" ordinance and the "anti-noise"
ordinance. A $25 fine was imposed for each violation. Since Grayned
challenged the constitutionality of each ordinance, he appealed
directly to the Supreme Court of Illinois. Ill.Sup.Ct.Rule 302. He
claimed that the ordinances were invalid on their face, but did not
urge that, as applied to him, the ordinances had punished
constitutionally protected activity. The Supreme Court of Illinois
held that both ordinances were constitutional on their face.
46 Ill. 2d
492,
263 N.E.2d
866 (1970). We noted probable Jurisdiction, 404 U.S. 820
(1971). We conclude that the anti-picketing ordinance is
unconstitutional, but affirm the court below with respect to the
anti-noise ordinance.
Page 408 U. S. 107
I
At the time of appellant's arrest and conviction, Rockford's
anti-picketing ordinance provided that
"A person commits disorderly conduct when he knowingly:"
"
* * * *"
"(i) Pickets or demonstrates on a public way within 150 feet of
any primary or secondary school building while the school is in
session and one-half hour before the school is in session and
one-half hour after the school session has been concluded, provided
that this subsection does not prohibit the peaceful picketing of
any school involved in a labor dispute. . . ."
Code of Ordinances, c. 28, § 18.1(i). This ordinance is
identical to the Chicago disorderly conduct ordinance we have today
considered in
Police Department of Chicago v. Mosley,
ante, p.
408 U. S. 92. For
the reasons given in
Mosley, we agree with dissenting
Justice Schaefer below, and hold that § 18.1(i) violates the Equal
Protection Clause of the Fourteenth Amendment. Appellant's
conviction under this invalid ordinance must be reversed. [
Footnote 2]
II
The anti-noise ordinance reads, in pertinent part, as
follows:
"[N]o person, while on public or private grounds adjacent to any
building in which a school or any
Page 408 U. S. 108
class thereof is in session, shall willfully make or assist in
the making of any noise or diversion which disturbs or tends to
disturb the peace or good order of such school session or class
thereof. . . ."
Code of Ordinances, c. 28, § 19.2(a). Appellant claims that, on
its face, this ordinance is both vague and overbroad, and therefore
unconstitutional. We conclude, however, that the ordinance suffers
from neither of these related infirmities.
A. Vagueness
It is a basic principle of due process that an enactment is void
for vagueness if its prohibitions are not clearly defined. Vague
laws offend several important values. First, because we assume that
man is free to steer between lawful and unlawful conduct, we insist
that laws give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act
accordingly. Vague laws may trap the innocent by not providing fair
warning. [
Footnote 3] Second,
if arbitrary and discriminatory enforcement is to be prevented,
laws must provide explicit standards for those who apply them.
[
Footnote 4] A vague law
impermissibly delegates
Page 408 U. S. 109
basic policy matters to policemen, judges, and juries for
resolution on an
ad hoc and subjective basis, with the
attendant dangers of arbitrary and discriminatory application.
[
Footnote 5] Third, but
related, where a vague statute "abut[s] upon sensitive areas of
basic First Amendment freedoms," [
Footnote 6] it "operates to inhibit the exercise of
[those] freedoms." [
Footnote 7]
Uncertain meanings inevitably lead citizens to "
steer far wider
of the unlawful zone' . . . than if the boundaries of the forbidden
areas were clearly marked." [Footnote 8]
Although the question is close, we conclude that the anti-noise
ordinance is not impermissibly vague. The court below rejected
appellant's arguments
"that proscribed conduct was not sufficiently specified and that
police were given too broad a discretion in determining whether
conduct was proscribed."
46 Ill. 2d at 494, 263 N.E.2d at 867. Although it referred to
other, similar statutes it had recently construed and upheld, the
court
Page 408 U. S. 110
below did not elaborate on the meaning of the anti-noise
ordinance. [
Footnote 9] In this
situation, as Mr. Justice Frankfurter put it, we must "extrapolate
its allowable meaning." [
Footnote 10] Here, we are "relegated . . . to the words
of the ordinance itself," [
Footnote 11] to the interpretations the court below has
given to analogous statutes, [
Footnote 12] and, perhaps to some degree, to the
interpretation of the statute given by those charged with enforcing
it. [
Footnote 13]
"Extrapolation," of course, is a delicate task, for it is not
within our power to construe and narrow state laws. [
Footnote 14]
With that warning, we find no unconstitutional vagueness in the
anti-noise ordinance. Condemned to the use of words, we can never
expect mathematical certainty from our language. [
Footnote 15] The words of the Rockford
ordinance are marked by "flexibility and reasonable breadth, rather
than meticulous specificity,"
Esteban v. Central Missouri State
College, 415 F.2d 1077, 1088 (CA8 1969) (Blackmun, J.),
cert. denied, 398 U.S. 965 (1970), but we think it is
clear what the ordinance as a whole prohibits. Designed, according
to its preamble, "for the protection of Schools," the ordinance
forbids deliberately
Page 408 U. S. 111
noisy or diversionary [
Footnote 16] activity that disrupts or is about to
disrupt normal school activities. It forbids this willful activity
at fixed times -- when school is in session -- and at a
sufficiently fixed place -- "adjacent" to the school. [
Footnote 17] Were we left with just
the words of the ordinance, we might be troubled by the imprecision
of the phrase "tends to disturb." [
Footnote 18] However, in
Chicago v.
Meyer, 44 Ill. 2d 1,
4, 23 N.E.2d 400, 402 (1969), and
Chicago v.
Gregory, 39 Ill. 2d
47,
233 N.E.2d
422 (1968),
reversed on other grounds, 394 U. S. 394
U.S. 111 (1969), the Supreme Court of Illinois construed a Chicago
ordinance prohibiting,
inter alia, a "diversion tending to
disturb the peace," and held that it permitted conviction only
where there was "
imminent threat of violence." (Emphasis
supplied.)
See Gregory v. Chicago, 394 U.
S. 111,
394 U. S.
116-117,
394 U. S.
121-122 (1969) (Black, J., concurring). [
Footnote 19] Since
Meyer was
specifically cited in the opinion below, and it in turn drew
heavily on
Gregory, we think it proper to conclude that
the Supreme Court of Illinois would interpret the Rockford
ordinance to prohibit only actual
Page 408 U. S. 112
or imminent interference with the "peace or good order" of the
school. [
Footnote 20]
Although the prohibited quantum of disturbance is not specified
in the ordinance, it is apparent from the statute's announced
purpose that the measure is whether normal school activity has been
or is about to be disrupted. We do not have here a vague, general
"breach of the peace" ordinance, but a statute written specifically
for the school context, where the prohibited disturbances are
easily measured by their impact on the normal activities of the
school. Given this "particular context," the ordinance gives "fair
notice to those to whom [it] is directed." [
Footnote 21] Although the Rockford ordinance may
not be as precise as the statute we upheld in
Cameron v.
Johnson, 390 U. S. 611
(1968) -- which prohibited picketing "in such a manner as to
obstruct or unreasonably interfere with free ingress or egress to
and from" any courthouse -- we think that, as in
Cameron,
the ordinance here clearly "delineates its reach in words of common
understanding."
Id. at
390 U. S.
616.
Page 408 U. S. 113
Cox v. Louisiana, 379 U. S. 536
(1965), and
Coates v. Cincinnati, 402 U.
S. 611 (1971), on which appellant particularly relies,
presented completely different situations. In
Cox, a
general breach of the peace ordinance had been construed by state
courts to mean "to agitate, to arouse from a state of repose, to
molest, to interrupt, to hinder, to disquiet." The Court correctly
concluded that, as construed, the ordinance permitted persons to be
punished for merely expressing unpopular views. [
Footnote 22] In
Coates, the
ordinance punished the sidewalk assembly of three or more persons
who "conduct themselves in a manner annoying to persons passing by.
. . ." We held, in part, that the ordinance was impermissibly vague
because enforcement depended on the completely subjective standard
of "annoyance."
In contrast, Rockford's anti-noise ordinance does not permit
punishment for the expression of an unpopular point of view, and it
contains no broad invitation to subjective or discriminatory
enforcement. Rockford does not claim the broad power to punish all
"noises" and "diversions." [
Footnote 23] The vagueness of these terms, by themselves,
is dispelled by the ordinance's requirements that (1) the "noise or
diversion" be actually incompatible with normal school activity;
(2) there be a demonstrated causality between the disruption that
occurs and the "noise or diversion"; and (3) the acts be
Page 408 U. S. 114
"willfully" done. [
Footnote
24] "Undesirables" or their "annoying" conduct may not be
punished. The ordinance does not permit people to "stand on a
public sidewalk . . . only at the whim of any police officer."
[
Footnote 25] Rather, there
must be demonstrated interference with school activities. As
always, enforcement requires the exercise of some degree of police
judgment, but, as confined, that degree of judgment here is
permissible. The Rockford City Council has made the basic policy
choices, and has given fair warning as to what is prohibited.
"[T]he ordinance defines boundaries sufficiently distinct" for
citizens, policemen, juries, and appellate judges. [
Footnote 26] It is not impermissibly
vague.
B. Overbreadth
A clear and precise enactment may nevertheless be "overbroad"
if, in its reach, it prohibits constitutionally protected conduct.
[
Footnote 27] Although
appellant does not claim that, as applied to him, the anti-noise
ordinance has punished protected expressive activity, he claims
that the ordinance is overbroad on its face. Because overbroad
laws, like vague ones, deter privileged activity, our cases firmly
establish appellant's standing to raise an overbreadth challenge.
[
Footnote 28] The crucial
question, then, is
Page 408 U. S. 115
whether the ordinance sweeps within its prohibitions what may
not be punished under the First and Fourteenth Amendments.
Specifically, appellant contends that the Rockford ordinance unduly
interferes with First and Fourteenth Amendment rights to picket on
a public sidewalk near a school. We disagree.
"In considering the right of a municipality to control the use
of public streets for the expression of religious [or political]
views, we start with the words of Mr. Justice Roberts that"
"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
thought between citizens, and discussing public questions."
"
Hague v. CIO, 307 U. S. 496,
307 U. S.
515 (1939)."
Kunz v. New York, 340 U. S. 290,
340 U. S. 293
(1951).
See Shuttlesworth v. Birmingham, 394 U.
S. 147,
394 U. S. 152
(1969). The right to use a public place for expressive activity may
be restricted only for weighty reasons.
Clearly, government has no power to restrict such activity
because of its message. [
Footnote 29] Our cases make equally clear, however, that
reasonable "time, place and manner" regulations may be necessary to
further significant governmental interests, and are permitted.
[
Footnote 30] For example,
two parades cannot march on the same street simultaneously, and
government may allow only one.
Cox v. New Hampshire,
312 U. S. 569,
312 U. S. 576
(1941). A demonstration or parade on a large street during rush
hour
Page 408 U. S. 116
might put an intolerable burden on the essential flow of
traffic, and for that reason could be prohibited.
Cox v.
Louisiana, 379 U.S. at
379 U. S. 554.
If overamplified loudspeakers assault the citizenry, government may
turn them down.
Kovacs v. Cooper, 336 U. S.
77 (1949);
Saia v. New York, 334 U.
S. 558,
334 U. S. 562
(1948). Subject to such reasonable regulation, however, peaceful
demonstrations in public places are protected by the First
Amendment. [
Footnote 31] Of
course, where demonstrations turn violent, they lose their
protected quality as expression under the First Amendment.
[
Footnote 32]
The nature of a place, "the pattern of its normal activities,
dictate the kinds of regulations of time, place, and manner that
are reasonable." [
Footnote
33] Although a silent vigil may not unduly interfere with a
public library,
Brown v. Louisiana, 383 U.
S. 131 (1966), making a speech in the reading room
almost certainly would. That same speech should be perfectly
appropriate in a park. The crucial question is whether the manner
of expression is basically incompatible with the normal activity of
a particular place at a particular time. Our cases make clear that,
in assessing the reasonableness of a regulation, we must weigh
heavily the fact that communication is involved; [
Footnote 34] the regulation must be
narrowly
Page 408 U. S. 117
tailored to further the State's legitimate interest. [
Footnote 35] Access to the
"streets, sidewalks, parks, and other similar public places . .
. for the purpose of exercising [First Amendment rights] cannot
constitutionally be denied broadly. . . . [
Footnote 36]"
Free expression "must not, in the guise of regulation, be
abridged or denied." [
Footnote
37]
In light of these general principles, we do not think that
Rockford's ordinance is an unconstitutional regulation of activity
around a school. Our touchstone is
Tinker v. Des Moines School
District, 393 U. S. 503
(1969), in which we considered the question of how to accommodate
First Amendment rights with the "special characteristics of the
school environment."
Id. at
393 U. S. 506.
Tinker held that the Des Moines School District could not
punish students for wearing black armbands to school in protest of
the Vietnam war. Recognizing that "
wide exposure to . . .
robust exchange of ideas'" is an "important part of the educational
process" and should be nurtured, id. at 393 U. S. 512,
we concluded that free expression could not be barred from the
school campus. We made clear that "undifferentiated fear or
apprehension of disturbance is not enough to overcome the right to
freedom of expression," id. at 393 U. S. 508,
[Footnote 38] and that
particular expressive activity could not be prohibited because of a
"mere desire to avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint," id. at 393 U. S. 509.
But we nowhere suggested that students, teachers, or anyone else
has an absolute constitutional right to use
Page 408 U. S. 118
all parts of a school building or its immediate environs for his
unlimited expressive purposes. Expressive activity could certainly
be restricted, but only if the forbidden conduct "materially
disrupts classwork or involves substantial disorder or invasion of
the rights of others."
Id. at
393 U. S. 513.
The wearing of armbands was protected in
Tinker because
the students
"neither interrupted school activities nor sought to intrude in
the school affairs or the lives of others. They caused discussion
outside of the classrooms, but no interference with work and no
disorder."
Id. at
393 U. S. 514.
Compare Burnside v. Byars, 363 F.2d 744 (CA5 1966),
and Butts v. Dallas Ind. School District, 436 F.2d 728
(CA5 1971),
with Blackwell v. Issaquena County Board of
Education, 363 F.2d 749 (CA5 1966).
Just as
Tinker made clear that school property may not
be declared off limits for expressive activity by students, we
think it clear that the public sidewalk adjacent to school grounds
may not be declared off limits for expressive activity by members
of the public. But in each case, expressive activity may be
prohibited if it "materially disrupts classwork or involves
substantial disorder or invasion of the rights of others."
Tinker v. Des Moines School District, 393 U.S. at
393 U. S. 513.
[
Footnote 39]
We would be ignoring reality if we did not recognize that the
public schools in a community are important institutions, and are
often the focus of significant grievances. [
Footnote 40] Without interfering with normal
school activities,
Page 408 U. S. 119
daytime picketing and handbilling on public grounds near a
school can effectively publicize those grievances to pedestrians,
school visitors, and deliverymen, as well as to teachers,
administrators, and students. Some picketing to that end will be
quiet and peaceful, and will in no way disturb the normal
functioning of the school. For example, it would be highly unusual
if the classic expressive gesture of the solitary picket disrupts
anything related to the school, at least on a public sidewalk open
to pedestrians. [
Footnote
41] On the other hand, schools could hardly tolerate boisterous
demonstrators who drown out classroom conversation, make studying
impossible, block entrances, or incite children to leave the
schoolhouse. [
Footnote
42]
Rockford's anti-noise ordinance goes no further than
Tinker says a municipality may go to prevent interference
with its schools. It is narrowly tailored to further Rockford's
compelling interest in having an undisrupted school session
conducive to the students' learning, and does not unnecessarily
interfere with First Amendment rights. Far from having an
impermissibly broad prophylactic ordinance, [
Footnote 43] Rockford punishes only conduct
which disrupts or is about to disrupt normal school activities.
That decision is made, as it should be, on an individualized basis,
given the particular fact situation. Peaceful picketing which does
not interfere with the ordinary functioning of the school is
permitted.
Page 408 U. S. 120
And the ordinance gives no license to punish anyone because of
what he is saying. [
Footnote
44]
We recognize that the ordinance prohibits some picketing that is
neither violent nor physically obstructive. Noisy demonstrations
that disrupt or are incompatible with normal school activities are
obviously within the ordinance's reach. Such expressive conduct may
be constitutionally protected at other places or other times,
cf. Edwards v. South Carolina, 372 U.
S. 229 (1963);
Cox v. Louisiana, 379 U.
S. 536 (1965), but next to a school, while classes are
in session, it may be prohibited. [
Footnote 45] The anti-noise ordinance imposes no such
restriction on expressive activity before or after the school
session, while the student/faculty "audience" enters and leaves the
school.
In
Cox v. Louisiana, 379 U. S. 559
(1965), this Court indicated that, because of the special nature of
the place, [
Footnote 46]
persons could be constitutionally prohibited from picketing "in or
near" a courthouse "with the intent of interfering with,
obstructing, or impeding the administration of justice." Likewise,
in
Cameron v. Johnson, 390 U. S. 611
(1968), we upheld a statute prohibiting
Page 408 U. S. 121
picketing "in such a manner as to obstruct or unreasonably
interfere with free ingress or egress to and from any . . . county
. . . courthouses." [
Footnote
47] As in those two cases, Rockford's modest restriction on
some peaceful picketing represents a considered and specific
legislative judgment that some kinds of expressive activity should
be restricted at a particular time and place, here in order to
protect the schools. [
Footnote
48] Such a reasonable regulation is not inconsistent with the
First and Fourteenth Amendments. [
Footnote 49] The anti-noise ordinance is not invalid on
its face. [
Footnote 50]
The judgment is
Affirmed in part and reversed in part.
MR. JUSTICE BLACKMUN joins in the judgment and in Part I of the
opinion of the Court. He concurs in the result as to Part II of the
opinion.
[
Footnote 1]
Police officers testified that "there was no way of picking out
anyone in particular" while making arrests. Report of Proceedings
in Circuit Court, 17th Judicial Circuit, Winnebago County 66.
However, apparently only males were arrested.
Id. at 65,
135, 147. Since appellant's sole claim in this appeal is that he
was convicted under facially unconstitutional ordinances, there is
no occasion for us to evaluate either the propriety of these
selective arrests or the sufficiency of evidence that appellant
himself actually engaged in conduct within the terms of the
ordinances. MR. JUSTICE DOUGLAS, in concluding that appellant's
particular behavior was protected by the First Amendment, reaches a
question not presented by the parties here or in the court below.
See Tr. of Oral Arg. 16-17; Jurisdictional Statement 3;
City of Rockford v. Grayned, 46 Ill. 2d
492, 494,
263 N.E.2d
866, 867 (1970).
[
Footnote 2]
In November, 1971, the anti-picketing ordinance was amended to
delete the labor picketing proviso. As Rockford notes, "This
amendment and deletion has, of course, no effect on Appellant's
personal situation." Brief 2. Necessarily, we must consider the
facial constitutionality of the ordinance in effect when appellant
was arrested and convicted.
[
Footnote 3]
E.g., Papachristou v. City of Jacksonville,
405 U. S. 156,
405 U. S. 162
(1972);
Cramp v. Board of Public Instruction, 368 U.
S. 278,
368 U. S. 287
(1961);
United States v. Harriss, 347 U.
S. 612,
347 U. S. 617
(1954);
Jordan v. De George, 341 U.
S. 223,
341 U. S.
230-232 (1951);
Lanzetta v. New Jersey,
306 U. S. 451,
306 U. S. 453
(1939);
Connally v. General Construction Co., 269 U.
S. 385,
269 U. S. 391
(1926);
United States v. Cohen Grocery Co., 255 U. S.
81,
255 U. S. 89
(1921);
International Harvester Co. v. Kentucky,
234 U. S. 216,
234 U. S.
223-224 (1914).
[
Footnote 4]
E.g., Papachristou v. City of Jacksonville, supra; Coates v.
Cincinnati, 402 U. S. 611,
402 U. S. 614
(1971);
Gregory v. Chicago, 394 U.
S. 111,
394 U. S. 120
(1969) (Black, J., concurring);
Interstate Circuit v.
Dallas, 390 U. S. 676,
390 U. S.
684-685 (1968);
Ashton v. Kentucky,
384 U. S. 195,
384 U. S. 200
(1966);
Giaccio v. Pennsylvania, 382 U.
S. 399 (1966);
Shuttlesworth v. Birmingham,
382 U. S. 87,
382 U. S. 90-91
(1965);
Kunz v. New York, 340 U.
S. 290 (1951);
Saia v. New York, 334 U.
S. 558,
334 U. S.
559-560 (1948);
Thornhill v. Alabama,
310 U. S. 88,
310 U. S. 97-98
(1940);
Herndon v. Lowry, 301 U.
S. 242,
301 U. S.
261-264 (1937).
[
Footnote 5]
Where First Amendment interests are affected, a precise statute
"evincing a legislative judgment that certain specific conduct be .
. . proscribed,"
Edwards v. South Carolina, 372 U.
S. 229,
372 U. S. 236
(1963), assures us that the legislature has focused on the First
Amendment interests and determined that other governmental policies
compel regulation.
See Kalven, The Concept of the Public
Forum:
Cox v. Louisiana, 1965 Sup.Ct.Rev. 1, 32;
Garner v. Louisiana, 368 U. S. 157,
200,
368 U. S. 202
(1961) (Harlan, J., concurring in judgment).
[
Footnote 6]
Baggett v. Bullitt, 377 U. S. 360,
377 U. S. 372
(1964).
[
Footnote 7]
Cramp v. Board of Public Instruction, 368 U.S. at
368 U. S.
287.
[
Footnote 8]
Baggett v. Bullitt, supra, at
377 U. S. 372,
quoting
Speiser v. Randall, 357 U.
S. 513,
357 U. S. 526
(1958).
See Interstate Circuit v. Dallas, supra, at
390 U. S. 684;
Ashton v. Kentucky, supra, at
384 U. S. 195,
384 U. S.
200-201;
Dombrowski v. Pfister, 380 U.
S. 479,
380 U. S. 486
(1965);
Smith v. California, 361 U.
S. 147,
361 U. S.
150-152 (1959);
Winters v. New York,
333 U. S. 507
(1948);
Stromberg v. California, 283 U.
S. 359,
283 U. S. 369
(1931).
[
Footnote 9]
The trial magistrate simply charged the jury in the words of the
ordinance. The complaint and verdict form used slightly different
language.
See n 24,
infra.
[
Footnote 10]
Garner v. Louisiana, 368 U.S. at
368 U. S. 174
(concurring in judgment).
[
Footnote 11]
Coates v. Cincinnati, 402 U.S. at
402 U. S.
614.
[
Footnote 12]
E.g., Gooding v. Wilson, 405 U.
S. 518 (1972).
[
Footnote 13]
E.g., Lake Carriers Assn. v. MacMullan, 406 U.
S. 498,
406 U. S.
506-508 (1972);
Cole v. Richardson,
405 U. S. 676
(1972);
Ehlert v. United States, 402 U. S.
99,
402 U. S. 105,
402 U. S. 107
(1971);
cf. Poe v. Ullman, 367 U.
S. 497 (1961).
[
Footnote 14]
United States v. 37 Photographs, 402 U.
S. 363,
402 U. S. 369
(1971).
[
Footnote 15]
It will always be true that the fertile legal "imagination can
conjure up hypothetical cases in which the meaning of [disputed]
terms will be in nice question."
American Communications Assn.
v. Douds, 339 U. S. 382,
339 U. S. 412
(1950).
[
Footnote 16]
"Diversion" is defined by Webster's Third New International
Dictionary as
"the act or an instance of diverting from one course or use to
another . . . : the act or an instance of diverting (as the mind or
attention) from some activity or concern . . . : a turning aside .
. . : something that turns the mind from serious concerns or
ordinary matters and relaxes or amuses."
[
Footnote 17]
Cf. Cox v. Louisiana, 379 U. S. 559,
379 U. S.
568-569 (1965)("near" the courthouse not impermissibly
vague).
[
Footnote 18]
See Gregory v. Chicago, 394 U.S. at
394 U. S.
119-120 (Black, J., concurring);
Gooding v.
Wilson, 405 U.S. at
405 U. S.
525-527;
Craig v. Harney, 331 U.
S. 367,
331 U. S. 372
(1947);
cf. Chaplinsky v. New Hampshire, 315 U.
S. 568 (1942) (statute punishing "fighting words," that
have a "direct tendency to cause acts of violence," upheld);
Street v. New York, 394 U. S. 576,
394 U. S. 592
(1969).
[
Footnote 19]
Cf. Chicago v. Terminiello, 400 Ill. 23, 79 N.E.2d 39
(1948),
reversed on other grounds, 337 U. S.
1,
337 U. S. 6
(1949).
[
Footnote 20]
Some intermediate appellate courts in Illinois appear to have
interpreted the phrase "tending to" out of the Chicago ordinance
entirely, at least in some contexts.
Chicago v. Hansen,
337 Ill.App. 663, 86 N.E.2d 415 (1949);
Chicago v. Holmes,
339 Ill.App. 146, 88 N.E.2d 744 (1949);
Chicago v.
Nesbitt, 19 Ill.App.2d 220, 153 N.E.2d 259 (1958);
but cf.
Chicago v. Williams, 45 Ill.App.2d 327, 195 N.E.2d 425
(1963).
In its brief, the city of Rockford indicates that its sole
concern is with
actual disruption.
"[A] court and jury [are] charged with the duty of determining
whether or not . . . a school
has been disrupted, and that
the defendant's conduct, [no matter what it was,] caused or
contributed to cause the disruption."
Brief for Appellee 16 (emphasis supplied). This was the theory
on which the city tried appellant's case to the jury, Report,
supra, n 1, at 12-13,
although the jury was instructed in the words of the ordinance. As
already noted,
supra, n 1, no challenge is made here to the Rockford ordinance
as applied in this case.
[
Footnote 21]
American Communications Assn. v. Douds, 339 U.S. at
339 U. S.
412.
[
Footnote 22]
Cf. Edwards v. South Carolina, 372 U.
S. 229 (1963);
Cantwell v. Connecticut,
310 U. S. 296,
310 U. S. 308
(1940). Similarly, in numerous other cases, we have condemned
broadly worded licensing ordinances which grant such standardless
discretion to public officials that they are free to censor ideas
and enforce their own personal preferences.
Shuttlesworth v.
Birmingham, 394 U. S. 147
(1969);
Staub v. City of Baxley, 355 U.
S. 313 (1958);
Saia v. New York, 334 U.
S. 558 (1948);
Schneider v. State, 308 U.
S. 147,
308 U. S.
163-164 (1939);
Lovell v. Griffin, 303 U.
S. 444 (1938);
Hague v. CIO, 307 U.
S. 496 (1939).
[
Footnote 23]
Cf. Cox v. Louisiana, 379 U. S. 536,
379 U. S.
546-550 (1965);
Edwards v. South Carolina, 372
U.S. at
372 U. S.
234-237.
[
Footnote 24]
Tracking the complaint, the jury verdict found Grayned guilty
of
"[w]illfully causing diversion of good order of public school in
session, in that, while on school grounds and while school was in
session, did wilfully make and assist in the making of a diversion
which tended to disturb the peace and good order of the school
session and class thereof."
[
Footnote 25]
Shuttlesworth v. Birmingham, 382 U.S. at
382 U. S.
90.
[
Footnote 26]
Chicago v. Fort, 46 Ill. 2d
12, 16,
262 N.E.2d
473, 476 (1970), a case cited in the opinion below.
[
Footnote 27]
See Zwickler v. Koota, 389 U.
S. 241,
389 U. S.
249-250 (1967), and cases cited.
[
Footnote 28]
E.g., Gooding v. Wilson, 405 U.
S. 518 (1972);
Coates v. Cincinnati, 402 U.S.
at
402 U. S. 616;
Dombrowski v. Pfister, 380 U.S. at
380 U. S. 486,
and cases cited;
Kunz v. New York, 340 U.
S. 290 (1951).
[
Footnote 29]
Police Department of Chicago v. Mosley, ante, p.
408 U. S. 92.
[
Footnote 30]
Cox v. New Hampshire, 312 U. S. 569,
312 U. S.
575-576 (1941);
Kunz v. New York, 340 U.S. at
340 U. S.
293-294;
Poulos v. New Hampshire, 345 U.
S. 395,
345 U. S. 398
(1953);
Cox v. Louisiana, 379 U.S. at.
379 U. S.
554-555;
Cox v. Louisiana, 379 U.
S. 559 (1965);
Adderley v. Florida,
385 U. S. 39,
385 U. S. 46-48
(1966);
Food Employees v. Logan Valley Plaza, 391 U.
S. 308,
391 U. S.
320-321 (1968);
Shuttlesworth v. Birmingham,
394 U. S. 147
(1969).
[
Footnote 31]
Police Department of Chicago v. Mosley, ante at
408 U. S. 95-96,
and cases cited.
[
Footnote 32]
See generally T. Emerson, The System of Freedom of
Expression 328-345 (1970).
[
Footnote 33]
Wright, The Constitution on the Campus, 22 Vand.L.Rev. 1027,
1042 (1969).
Cf. Cox v. Louisiana, 379 U.
S. 559 (1965);
Adderley v. Florida,
385 U. S. 39
(1966);
Food Employees v. Logan Valley Plaza, 391 U.
S. 308 (1968);
Tinker v. Des Moines School
District, 393 U. S. 503
(1969).
[
Footnote 34]
E.g., Schneider v. State, 308 U.
S. 147 (1939);
Talley v. California,
362 U. S. 60
(1960);
Saia v. New York, 334 U.S. at
334 U. S. 562;
Cox v. New Hampshire, 312 U.S. at
312 U. S. 574;
Hague v. CIO, 307 U.S. at
307 U. S. 516.
See generally Kalven, The Concept of the Public Forum:
Cox v. Louisiana, 1965 Sup.Ct.Rev. 1.
[
Footnote 35]
De Jonge v. Oregon, 299 U. S. 353,
299 U. S.
364-365 (1937);
Lovell v. Griffin, 303 U.S. at
303 U. S. 451;
Schneider v. State, 308 U.S. at
308 U. S. 164;
Cantwell v. Connecticut, 310 U.S. at
310 U. S. 307;
Cox v. Louisiana, 379 U.S. at
379 U. S.
562-564;
Davis v. Francois, 395 F.2d 730 (CA5
1968).
Cf. Shelton v. Tucker, 364 U.
S. 479,
364 U. S. 488
(1960);
NAACP v. Button, 371 U. S. 415,
371 U. S. 438
(1963).
[
Footnote 36]
Food Employees v. Logan Valley Plaza, 391 U.S. at
391 U. S.
315.
[
Footnote 37]
Hague v. CIO, 307 U.S. at
307 U. S.
516.
[
Footnote 38]
Cf. Hague v. CIO, supra, at
307 U. S.
516.
[
Footnote 39]
In
Tinker, we recognized that the principle of that
case was not limited to expressive activity within the school
building itself.
Id. at
393 U. S. 512
n. 6,
393 U. S.
513-514.
See Esteban v. Central Missouri State
College, 415 F.2d 1077 (CA8 1969) (Blackmun, J.),
cert.
denied, 398 U.S. 965 (1970);
Jones v. Board of
Regents, 436 F.2d 618 (CA9 1970);
Hammond v. South
Carolina State College, 272 F.
Supp. 947 (SC 1967), cited in
Tinker.
[
Footnote 40]
Cf. Thornhill v. Alabama, 310 U.S. at
310 U. S. 102.
It goes without saying that
"one is not to have the exercise of his liberty of expression in
appropriate places abridged on the plea that it may be exercised in
some other place."
Schneider v. State, 308 U.S. at
308 U. S.
163.
[
Footnote 41]
Cf. Jones v. Board of Regents, supra.
[
Footnote 42]
Cf. Barker v. Hardway, 283 F.
Supp. 228 (SD W.Va.),
aff'd, 399 F.2d 638 (CA4 1968),
cert. denied, 394 U.S. 905 (1969) (Fortas, J.,
concurring).
[
Footnote 43]
See Jones v. Board of Regents, supra; Hammond v. South
Carolina State College, supra.
[
Footnote 44]
Compare Scoville v. Board of Education, 425 F.2d 10
(CA7),
cert. denied, 400 U.S. 826 (1970);
Dickey v.
Alabama State Board of Education, 273 F.
Supp. 613 (MD Ala. 1967) (cited in
Tinker).
[
Footnote 45]
Different considerations, of course, apply in different
circumstances. For example, restrictions appropriate to a
single-building high school during class hours would be
inappropriate in many open areas on a college campus, just as an
assembly that is permitted outside a dormitory would be
inappropriate in the middle of a mathematics class.
[
Footnote 46]
Noting the need "to assure that the administration of justice at
all stages is free from outside control and influence," we
emphasized that
"[a] State may protect against the possibility of a conclusion
by the public . . . [that a] judge's action was in part a product
of intimidation, and did not flow only from the fair and orderly
working of the judicial process."
379 U.S. at
370 U. S. 562,
379 U. S.
565.
[
Footnote 47]
Quoting
Schneider v. State, 308 U.S. at
308 U. S. 161,
we noted that "
such activity bears no necessary relationship to
the freedom to . . . distribute information or opinion.'" 390 U.S.
at 390 U. S.
617.
[
Footnote 48]
Cf. Garner v. Louisiana, 368 U.S. at
368 U. S.
202-203 (Harlan, J., concurring in judgment).
[
Footnote 49]
Cf. Adderley v. Florida, 385 U. S.
39 (1966). In
Adderley, the Court held that
demonstrators could be barred from jailhouse grounds not ordinarily
open to the public, at least where the demonstration obstructed the
jail driveway and interfered with the functioning of the jail. In
Tinker, we noted that "a school is not like a hospital or
a jail enclosure." 393 U.S. at
393 U. S. 512
n. 6.
[
Footnote 50]
It is possible, of course, that there will be unconstitutional
applications; but that is not a matter which presently concerns us.
See Shuttlesworth v. Birmingham, 382 U.S. at
382 U. S. 91,
and
n 1,
supra.
MR. JUSTICE DOUGLAS, dissenting in part.
While I join Part I of the Court's opinion, I would also reverse
the appellant's conviction under the anti-noise ordinance.
Page 408 U. S. 122
The municipal ordinance on which this case turns is c. 28, §
19.2(a) which provides in relevant part:
"That no person, while on public or private grounds adjacent to
any building in which a school or any class thereof is in session,
shall willfully make or assist in the making of any noise or
diversion which disturbs or tends to disturb the peace or good
order of such school session or class thereof."
Appellant was one of 200 people picketing a school and carrying
signs promoting a black cause -- "Black cheerleaders to cheer too,"
"Black history with black teachers," "We want our rights," and the
like. Appellant, however, did not himself carry a picket sign.
There was no evidence that he yelled or made any noise whatsoever.
Indeed, the evidence reveals that appellant simply marched quietly
and on one occasion raised his arm in the "power to the people"
salute.
The pickets were mostly students; but they included former
students, parents of students, and concerned citizens. They had
made proposals to the school board on their demands, and were
turned down. Hence the picketing. The picketing was mostly by black
students who were counseled and advised by a faculty member of the
school. The school contained 1,800 students. Those counseling the
students advised they must be quiet, walk hand in hand, no
whispering, no talking.
Twenty-five policemen were stationed nearby. There was noise,
but most of it was produced by the police who used loudspeakers to
explain the local ordinance and to announce that arrests might be
made. The picketing did not stop, and some 40 demonstrators,
including appellant, were arrested.
The picketing lasted 20 to 30, minutes and some students went to
the windows of the classrooms to observe it. It is not clear how
many there were. The picketing
Page 408 U. S. 123
was, however, orderly or, as one officer testified, "very
orderly." There was no violence. And appellant made no noise
whatever.
What Mr. Justice Roberts said in
Hague v. CIO,
307 U. S. 496,
307 U. S.
515-516, has never been questioned:
"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."
We held in
Cox v. Louisiana, 379 U.
S. 536,
379 U. S.
544-545, that a State could not infringe the right of
free speech and free assembly by convicting demonstrators under a
"disturbing the peace" ordinance where all that the students in
that case did was to protest segregation and discrimination against
blacks by peaceably assembling and marching to the courthouse where
they sang, prayed, and listened to a speech, but where there was no
violence, no rioting, no boisterous conduct.
The school where the present picketing occurred was the center
of a racial conflict. Most of the pickets were indeed students in
the school. The dispute doubtless disturbed the school; and the
blaring of the loudspeakers of the police was certainly a "noise or
diversion" in the
Page 408 U. S. 124
meaning of the ordinance. But there was no evidence that
appellant was noisy or boisterous or rowdy. He walked quietly and
in an orderly manner. As I read this record, the disruptive force
loosed at this school was an issue dealing with race -- an issue
that is preeminently one for solution by First Amendment means.
* That is all that
was done here; and the entire picketing, including appellant's part
in it, was done in the best First Amendment tradition.
* The majority asserts that "appellant's sole claim . . . is
that he was convicted under facially unconstitutional ordinances,"
and that there is, therefore, no occasion to consider whether his
activities were protected by the First Amendment.
Ante at
408 U. S. 106
n. 1. Appellant argues, however, that the ordinance is overly broad
in that it punishes constitutionally protected activity. A statute
may withstand an overbreadth attack
"only if, as authoritatively construed . . . , it is not
susceptible of application to speech . . . that is protected by the
First and Fourteenth Amendments."
Gooding v. Wilson, 405 U. S. 518,
405 U. S. 520
(1972). If the ordinance applies to appellant's activities and if
appellant's activities are constitutionally protected, then the
ordinance is overly broad and, thus, unconstitutional. There is no
merit, therefore, to the Court's suggestion that the question
whether "appellant's particular behavior was protected by the First
Amendment,"
ante at
408 U. S. 106
n. 1, is not presented.