delivered the opinion of the Court.
Appellant, the Reverend Mr. B. Elton Cox, the leader of a civil rights demonstration, was arrested and charged
In accordance with Louisiana procedure, the Louisiana Supreme Court reviewed the “disturbing the peace” and “obstructing public passages” convictions on certiorari, and the “courthouse picketing” conviction on appeal. The Louisiana court, in two judgments, affirmed all three convictions.
I.
The Facts.
On December 14, 1961, 23 students from Southern University, a Negro college, were arrested in downtown Baton Rouge, ■ Louisiana, for picketing stores that maintained segregated lunch counters. This picketing, urging a boycott of those stores, was part of a general protest movement against racial segregation, directed by the local chapter of the Congress of Racial Equality, a civil rights
The next morning about 2,000 students left the campus, which was located approximately five miles from downtown Baton Rouge. Most of them had to walk into the city since the drivers of their busses were arrested. Moore was also arrested at the entrance to the campus while parked in a car equipped with a loudspeaker, and charged with violation of an antinoise statute. Because Moore was immediately taken off to jail and the vice president of the CORE chapter was already in jail for picketing, Cox felt it his duty to take over the demonstration and see that it was carried out as planned. He quickly drove to the city "to pick up this leadership and keep things orderly.”
When Cox arrived, 1,500 of the 2,000 students were assembling at the site of the old State Capitol building,. two and one-half blocks from the courthouse. Cox walked up and down cautioning the students to keep to one. side of the sidewalk while getting ready for their. march to the courthouse. The students circled the block in a file two or three abreast occupying about half of the • sidewalk. The police had learned of the proposed demonstration the night before from news media and other sources. Captain Font of the City Police Department and Chief Kling of the Sheriff’s office, two high-ranking subordinate officials, approached the group and spoke to Cox at the northeast corner of the capitol
They walked in an orderly and peaceful file, two or three abreast, one block east, stopping on the way for a red traffic light. In the center of this block they were joined by another group of students. The augmented group now totaling about 2,000 1 turned the corner and proceeded south, coming to a halt in the next block opposite the courthouse.
As Cox, still at the head of the group, approached the vicinity of the courthouse, he was stopped by Captain Font and Inspector Trigg and brought to Police Chief Wingate White, who was standing in the middle of St. Louis Street. The Chief then inquired as to the pur-' pose of the demonstration. Cox, reading from a prepared paper, outlined his program to White, stating that it would include a singing of the Star Spangled Banner
The students were then directed by Cox to the west sidewalk, across the street from the courthouse, 101 feet from its steps. They were lined up on this sidewalk about five deep and spread almost the entire length of the block. The group did not obstruct the street. It was close to noon and, being lunch time, a small crowd of 100 to 300 curious white people, mostly courthouse personnel, gathered on the east sidewalk and courthouse steps, about 100 feet from the demonstrators. Seventy-five to eighty policemen, including city and state patrolmen and members of the Sheriff’s staff, as well as members of the fire department and a fire truck were stationed in the street between the two groups. Rain fell throughout the demonstration.
“He said that in effect that it was a protest against, the illegal arrest of some of their members and that other people were allowed to picket . . . and he said that they were not going to commit any violence, 4 that if anyone spit on them, they would not spit back on the person that didit.” 5
Cox then said:
“All right. It’s lunch time. Let’s go eat. There are twelve stores we are protesting. A number of these stores have twenty counters; they accept your money from nineteen. They won’t accept it from thetwentieth counter. This is an act of racial discrimination". These stores are open to the public. You are members of the public. We pay taxes to the Federal Government .and you who live here pay taxes to the State.” 6
In apparent reaction to these last remarks, there was what state witnesses described as “muttering” and “grumbling” by the white onlookers. 7
The Sheriff, deeming, as he testified, Cox’s appeal to the students to sit in at the lunch counters to be “inflam-matoryj” then took a power microphone and said, “Now, you have been allowed to. demonstrate. Up until now your demonstration has been more or less peaceful, but what you are doing now is a direct violation of the law, a disturbance of the peace, and it has got to be broken up immediately.” The testimony as to what then happened is disputed. Some of the State’s witnesses testified that Cox said, “don’t move”; others stated that he made, a “gesture of defiance.” It is clear from the record, however, that Cox and the demonstrators did not then and there break up the demonstration. Two of the Sheriff’s deputies immediately started across the street and told the group, “You have heard what the Sheriff said, now, do what he said.” A state witness testified that they
Almost immediately thereafter — within a time estimated variously at two to five minutes — one of the policemen exploded a tear gas shell at the crowd. This was followed by several other shells. The demonstrators quickly dispersed, running back towards the State Capitol and the downtown area; Cox tried to calm them as they ran and was himself one of the last to leave.
No Negroes participating in the demonstration were arrested on that day. The only person then arrested was a young white map, not a part of the demonstration, who was arrested “because he was causing a disturbance.” The next day appellant was arrested and charged with the four offenses above described.
II.
The Breach of the Peace Conviction.
Appellant was convicted of violating a Louisiana “disturbing the peace” statute, which provides:
“Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of thé peace may be occasioned thereby . . . crowds or congregates with others ... in or upon ... a public street or public highway, or upon a public sidewalk, or any other public place or building . . . and who fails or refuses to disperse and move on ... . when ordered so to do by any law enforcement officer of any municipality, or parish, in which, such act or acts are committed, or by any law enforcement officer of the state of Louisiana, or any other authorized person ... shall be guilty of disturbing the peace.” La. Rev. Stat. § 14:103.i (Cum. Supp. 1962).
It is clear to us that on the facts of this case, which are strikingly similar to those present in
Edwards
v.
South
The Louisiana courts have held that appellant’s' conduct constituted a breach of the peace under state law, and, as in Edwards, “we may accept their decision as binding upon us to that extent,” Edwards v. South Carolina, supra, at 235; but our independent examination of the record, which we are required to make, 8 shows no conduct which the State had a right to prohibit as a breach of the peace.
Appellant led a group of young college students who wished “to protest segregation” and discrimination against Negroes and the arrest of 23 fellow students, They assembled peaceably at the State Capitol building.
The State argues, however, that while the demonstrators started oút to be orderly, the loud cheering arid clapping by the students in response to the,singing from the jail converted the peaceful assembly into a riotous one.
9
The record, however, does not support this assertion. It is true that the students, in response to the sing
Finally, the State contends that the conviction should be sustained because of fear expressed by some of the state witnesses that “violence was about to erupt” because of the demonstration. It is virtually undisputed, however, that the students themselves were not violent and threatened no violence. The fear of violence seems to have been based upon the reaction of the group of white citizens looking on from across the street. One state witness testified that “he felt the situation was getting out of hand” as on the courthouse side of St. Louis Street “were small knots or groups of white citizens who were muttering words, who seemed a little bit agitated.” A police officer stated that the reaction of the white crowd was not violent, but “was rumblings.” Others felt the atmosphere became “tense” because of “mutterings,” “grumbling,” and “jeering” from the white group. There is no indication, however, that any member of the white group threatened violence. And this small crowd estimated at between 100 and 300 was separated from the students by “seventy-five to eighty” armed policemen, including “every available shift of the City Police,” the “Sheriff's Office in full complement,” and “additional help from the. State Police,” along with a “fire truck and the Fire Department.” As Inspector Trigg testified, they could have handled the crowd.
There is an additional reason why this conviction cannot be sustained. The statute at issue in this case, as authoritatively interpreted by the Louisiana Supreme Court, is unconstitutionally vague in its overly broad scope. The statutory crime consists of two elements: (1) congregating with others “with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned,” and (2) a refusal to move on after having been ordered to do so by a law enforcement officer. While the second part of this offense is narrow and specific, the first element is not. The Louisiana Supreme Court in this case defined the term “breach of the peace” as “to agitate, to arouse from a state of repose, to molest, to interrupt, to hinder, to disquiet.”
For all these reasons we hold that appellant’s freedoms of speech and assembly, secured to him by the First Amendment, as applied to the States by the Fourteenth Amendment, were denied by his conviction for disturbing the peace. The conviction on this charge cannot stand.
The Obstructing Public Passages Conviction.
We now turn to the issue of the validity of appellant’s conviction for violating the Louisiana statute, La. Rev. Stat. § 14:100.1 (Cum. Supp. 1962), which provides:
“Obstructing Public Passages
“No person shall wilfully obstruct the free, convenient and normal use of any public sidewalk, street, highway, bridge, alley, road, or other passageway, or the entrance, corridor or passage of any public building, structure, watercraft or ferry, by impeding, hindering, stifling, retarding or restraining traffic or passage thereon or therein.
“Providing however nothing herein contained shall apply to a bona fide legitimate labor organization or to any of its legal activities such as picketing, lawful assembly or concerted activity in the interest of its members for the purpose of accomplishing or securing more favorable wage standards, hours of employment and working conditions.”
Appellant was convicted under this statute, not for leading the march to the vicinity of the courthouse, which the Louisiana Supreme Court stated to have been “orderly,”
Appellant,- however-, contends that, as so construed and applied in this case, the statute is an unconstitutional
From these decisions certain ‘dear principles emerge. 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. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection. One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech or assembly. Governmental, authorities have
We emphatically reject the notion urged by appellant that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct .such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speech. See the discussion and cases cited in No. 49, post, at 563. We reaffirm the statement of the Court in Giboney v. Empire Storage & Ice Co., supra, at 502, that “it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.”
We have no occasion in this case to consider the constitutionality of the uniform, consistent, and nondiscriminatory application of a statute forbidding all access to streets and other' public facilities for parades and meetings.
13
Although the statute here involved on its face
The situation is thus the same as if the statute itself expressly provided that there could only be peaceful parades or demonstrations in the unbridled discretion of the local officials. The pervasive restraint on freedom of discussion by the practice of the authorities under the statute is not any less effective than a statute expressly permitting such selective enforcement. A long line of cases in this Court makes it clear that a State or municipality cannot “require all who wish to disseminate ideas to present them first to police authorities for their consideration and approval, with a discretion in the police to say some ideas may, while others may not, be . . . disseminate [d] . . . .” Schneider v. State, supra, at 164. See Lovell v. Griffin, supra; Hague v. CIO, supra; Largent v. Texas, supra; Saia v. New York, supra; Niemotko v. Maryland, supra; Kunz v. New York, supra.
This Court has recognized that the lodging of such broad discretion in a public official allows him to determine which expressions of view will be permitted and which will not. This thus sanctions a device for the suppression of the communication of ideas and permits the official to act as a censor. See
Saia
v.
New York, supra,
at 562. Also inherent in such a system allowing^ parades or meetings only with the prior permission of an official is the obvious danger to the right of a person or group not to be denied equal protection of the laws. See
Niemotko
v.
Maryland, supra,
at 272, 284; cf.
Yick Wo
v.
Hopkins,
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 ....’” Cox v. New Hampshire, supra, at 576. See Poulos v. New Hampshire, supra.
But here it is clear that the practice in Baton Rouge allowing unfettered discretion in local officials in the regulation of the use of the streets for peaceful parades and meetings is an unwarranted abridgment of appellant’s freedom of speech and assembly secured to him by the First Amendment, as applied to the States by the Fourteenth Amendment. It follows, therefore, that appellant’s conviction for violating the statute as so applied and enforced must be reversed.
For the reasons discussed above the judgment of the Supreme Court of Louisiana is reversed.
Reversed.
[For concurring opinion of Mr. Justice Black, see post, p. 575.]
[For concurring opinion of Mr. Justice Clark, see post, p. 585.]
[For opinion of Mr. Justice White, concurring in part and dissenting in part, see post, p. 591.]
Notes
Estimates of the crowd’s size varied' from 1,500 to 3,800. Two thousand seems to have been the consensus and was the figure accepted by the Louisiana Supreme Court,
There were varying versions in the record as to the time the demonstration would take. The State’s version was that Cox asked for seven minutes. Cox’s version was that he said his speech would take seven minutes but that the whole program would take between 17 and 25 minutes.
The “permission” granted the students to demonstrate is discussed at greater length in No. 49, where its legal effect is considered.
A few days before,- Cox had participated with some of the demonstrators in a “direct non-violent clinic” sponsored by CORE and held at St. Mark’s Church.
Sheriff Clemmons had no objection to this part of the speech. He testified on cross-examination as follows:
“Q. Did you have any objection to that part of his talk?
“A. None whatever. If he would have done what he said, there would have been no trouble at all. The whole thing would- have been over and done with.
“Q. Did you have any objection to them being assembled on that side of the street while he was making that speech, sir?
“A. I had no objection to it.”
Sheriff Clemmons objected strongly to these words. He testified on cross-examination as follows:
“Q. Now, what part of his speech became objectionable to him being -assembled there ?
“A. The inflammatory manner in which he addressed that, crowd and told them to go on up town, go to four places on the protest list, sit down and if they don’t feed you, , sit there for one hour.”
The exact sequence of these events is unclear from the record, being described differently not only by the State and the defense, but also by the state witnesses themselves. It seems reasonably certain, however, that the response to the singing from the jail, the end of Cox’s speech, and the “muttering” and “grumbling” of the white onlookers all took place at approximately the same time.
Because a claim of constitutionally protected right is involved, it “remains our duty in a case' such as this to make an independent examination of the whole record.”
Edwards
v.
South Carolina,
The cheering and shouting were described differently by different witnesses, but the most extravagant descriptions were the following: “a jumbled roar like people cheering at, a football game,” “loud cheering and spontaneous clapping and screaming and a great hulla-' baloo,” “a great outburst,” a cheer of “conquest . . . much wilder than a football game,” “a loud reaction, not disorderly, loud,” “a shout, a roar,” and an' emotional response “in jubilaflop/and exhortation.” Appelláht agreed that some of the group “became emotional” and “tears flowed from young ladies’ eyes.”
There is much testimony that the demonstrators were well controlled and basically orderly throughout. G. Dupre Litton, an attorney and witness fot the State, testified, “I would say that it was ah orderly demonstration. It was too large a group, in my opinion, to congregate at that place at that particular time, which is nothing but my opinion . . . but generally ... it was orderly.” Robert Durham, a news photographer for WBRZ, a state witness, testified that although the demonstration was not “quiet and peaceful,” it was basically “orderly.” James Erwin, news director of WIBR, a witness for the State, testified as follows:
“Q. Was the- demonstration generally orderly?
“A. Yes, Reverend Cox had it very well controlled.”
On the other hand, there is some evidence to the contrary: Erwin also stated:
‘Q. Was it orderly up to the point of throwing the tear gas ?
“A. No, there was one minor outburst after he called for the sit-ins, and then a minor reaction, and then a loud reaction, not disorderly, loud .... A loud reaction when the singing occurred upstairs.”
And James Dumigan, a police officer, thought that the demonstrators showed a certain disorder by “hollering loud, clapping their hands.” But this latter evidence is surely not sufficient, particularly in face of the film, to lead us to conclude that the cheering was so disorderly as to be beyond that held constitutionally protected in Edwards v. South Carolina, supra.
Moreover, there are not significantly more demonstrators here than in Fields v. South Carolina, supra, which involved more than 1,000 students.
Witnesses who concluded that a breach of the peace was threatened or had occurred based their conclusions, not upon the shouting or cheering, but upon the fact that the group was demonstrating at all, upon Cox’s suggestion that the group sit in, or upon the reaction of the white onlookers across the street. Rush Biossat, a state witness, testified that while appellant “didn’t say anything of a violent nature,” there was “emotional Upset,” “a feeling of disturbance in the air,” and “agitation”; he thought, however, that all this was caused by Cox’s remarks about “black and white together.” James Erwin, a state witness, and news -director of WIBR, testified that there was “considerable stirring” and a “restiveness,” but among the white group. He also stated that the reaction of the' white group to Cox’s speech “was electrifying.” “You could hear grumbling from the small groups of white people, some total of two hundred fifty, perhaps . . . and there was a definite feeling of ill will that had sprung up.” He was afraid that “violence was about to erupt” but also thought that Cox had his group under control and did not want violence. G. L. Johnston, a police officer and a witness for the State,, felt that the disorderly part of the demonstration was Cox’s suggestion that the group sit in. Vay Carpenter, and Mary O’Brien, legal secretaries and witnesses for the State, thought that the mood of the crowd changed at the time of Cox’s speech and became “tense.” They thought this was because of the sit-in suggestion. Chief Kling of the Sheriff’s office, testifying for
the
State, said that the situation became one “that was explosive and one that had gotten to the point where it had to be handled or it would have gotten out of hand”; however, he based his opinion upon “the mere presence of these people in downtown Baton Rouge ... in such great numbers.” Police Captain Font also testified for the State that the situation was “explosive”; he based this opinion on
A'close reading of the record seems to reveal next to no evidence that anyone thought that the shouting and cheering were what constituted the threatened breach of the peace.
It has been argued that, in the exercise of its regulatory power over streets and other public facilities, a State or municipality could reserve the streets completely for traffic and other facilities for rest and relaxation of the citizenry. See
Kovacs
v.
Cooper, supra,
at 98 (opinion of Mr. Justice Jackson);
Kunz
v.
New York, supra,
at 298 (Mr. Justice Jackson, dissenting). The contrary, however, has been indicated, at least to the point .that some open area must be preserved for outdoor assemblies. See
Hague
v.
CIO, supra,
at 515-516
With the express exception, of course, of labor picketing. This exception points up the fact that the statute reaches beyond mere traffic regulation to restrictions on expression.
Although cited by neither party, research has disclosed the existence of' a local ordinance of Baton Rouge, Baton' Rouge City Code, Tit. 11, §210 (1957), which prohibits “parade[s] . . . along any street except in accordance with a permit issued by the chief of police . . . .” A similar ordinance was in existence in Fields v. South Carolina, supra. As in Fields, this ordinance is irrelevant to the conviction in this case as not only was appellant not charged with its violation but the existence of the ordinance was never referred to by the State in any of the courts involved in the case, including this one, and neither the Louisiana trial court nor the Supreme Court relied on the ordinance in sustaining appellant’s convictions under the three statutes here involved. Moreover, since the ordinance apparently sets forth no standards for the determination of the Chief of Police as to which parades to permit or which to prohibit, obvious constitutional problems would arise if appellant had been convicted for parading in violation of it. See the discussion in text above; Lovell v. Griffin, supra, at 452-453; Hague v. CIO, supra, at 518; Saia v. New York, supra, at 559-560.