GARNER ET AL. v. LOUISIANA
No. 26
Supreme Court of the United States
Argued October 18-19, 1961. Decided December 11, 1961.
368 U.S. 157
*Together with No. 27, Briscoe et al. v. Louisiana, and No. 28, Hoston et al. v. Louisiana, also on certiorari to the same Court.
John F. Ward, Jr. argued the cause for respondent. With him on the briefs were Jack P. F. Gremillion, Attorney General of Louisiana, and N. Cleburn Dalton, Assistant Attorney General.
Briefs of amici curiae, urging reversal, were filed by Solicitor General Cox, Assistant Attorney General Marshall, Bruce J. Terris, Harold H. Greene and Howard A. Glickstein for the United States, and by John R. Fernbach and Murray A. Gordon for the Committee on the Bill of Rights of the Association of the Bar of the City of New York.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
These cases come to us from the Supreme Court of Louisiana and draw in question the constitutionality of the petitioners’ convictions in the 19th Judicial District Court, Parish of East Baton Rouge, Louisiana, for the crime of disturbing the peace. The petitioners1 were brought to trial and convicted on informations charging them with violating Title 14, Article 103 (7), of the Louisiana Criminal Code, 1942, in that “they refused to move from a cafe counter seat . . . after having been ordered to do so by the agent [of the establishment]; said conduct being in such manner as to unreasonably and foreseeably disturb the public . . . .” In accordance with state procedure, petitioners sought post-conviction review in the Supreme Court of Louisiana through writs of certiorari, mandamus and prohibition. They contended that the
In our view of these cases and for our disposition of them, the slight variance in the facts of the three cases is immaterial. Although the alleged offenses did not occur on the same day or in the same establishment, the petitioners were all arrested by the same officers, charged with commission of the same acts, represented by the same counsel, tried and convicted by the same judge, and given identical sentences. Because of this factual similarity and the identical nature of the problems involved in granting certiorari, we ordered the cases consolidated for argument and now deem it sufficient to file one opinion. In addition, as the facts are simple, we think it sufficient to recite but one of the cases in detail, noting whatever slight variations exist in the others.
In No. 28, Hoston et al. v. Louisiana, Jannette Hoston, a student at Southern University, and six of her colleagues took seats at a lunch counter in Kress’ Department Store in Baton Rouge, Louisiana, on March 29, 1960.2 In Kress‘, as in Sitman‘s Drug Store in No. 26
The manager at Kress’ store, who was also seated at the lunch counter, told the waitress to advise the students that they could be served at the counter across the aisle, which she did. The petitioners made no response and remained quietly in their seats. After the manager had finished his lunch, he telephoned the police and told them that “[some Negroes] were seated at the counter reserved for whites.” The police arrived at the store and ordered the students to leave. The arresting officer testified that the petitioners did and said nothing except that one of them stated that she would like a glass of iced tea, but that he believed they were disturbing the peace “by sitting there.” When none of the petitioners showed signs of leaving their seats, they were placed under arrest and taken to the police station. They were then charged with violating Title 14, Article 103 (7), of the Louisiana Criminal Code, a section of the Louisiana disturbance of the peace statute.
Before trial, the petitioners moved for a bill of particulars as to the details of their allegedly disruptive behavior and to quash the informations for failure to state any unlawful acts of which they could be constitutionally convicted. The motions were denied, and the
“Writs refused.
“This court is without jurisdiction to review facts in criminal cases. See
Art. 7, Sec. 10, La. Constitution of 1921 .“The rulings of the district judge on matters of law are not erroneous. See Town of Ponchatoula vs. Bates, 173 La., 824, 138 So., 851.”
- The decision below affirms a criminal conviction based upon no evidence of guilt and, therefore, deprives them of due process of law as defined in Thompson v. City of Louisville, 362 U. S. 199.
- The petitioners were convicted of a crime under the provisions of a state statute which, as applied to their acts, is so vague, indefinite and uncertain as to offend the Due Process Clause of the Fourteenth Amendment.
- The decisions below conflict with the Fourteenth Amendment‘s guarantee of freedom of expression.
- The decision below conflicts with prior decisions of this Court which condemn racially discrim-
With regard to argument (d), the petitioners and the New York Committee on the Bill of Rights contend that the participation of the police and the judiciary to enforce a state custom of segregation resulted in the use of “state action” and was therefore plainly violative of the Fourteenth Amendment. The petitioners also urge that even if these cases contain a relevant component of “private action,” that action is substantially infected with state power and thereby remains state action for purposes of the Fourteenth Amendment.8
In the view we take of the cases we find it unnecessary to reach the broader constitutional questions presented, and in accordance with our practice not to formulate a rule of constitutional law broader than is required by the precise facts presented in the record, for the reasons hereinafter stated, we hold that the convictions in these cases are so totally devoid of evidentiary support as to render them unconstitutional under the Due Process Clause of the Fourteenth Amendment.9 As in Thompson v. City of Louisville, 362 U. S. 199, our inquiry does not turn on a question of sufficiency of evidence to support a conviction, but on whether these convictions rest upon any evidence which would support a finding that the petitioners’
The respondent, in both its brief and its argument to this Court, implied that the evidence proves the elements of a criminal trespass. In oral argument it contended that the real question here “is whether or not a private property owner and proprietor of a private establishment has the right to serve only those whom he chooses and to refuse to serve those whom he desires not to serve for whatever reason he may determine.”11 That this is not a question presented by the records in these cases seems too apparent for debate. Even assuming it were the question, however, which it clearly is not, these convictions could not stand for the reason stated in Cole v. Arkansas, 333 U. S. 196.12
“Disturbing the peace is the doing of any of the following in such a manner as would foreseeably disturb or alarm the public:
“(1) Engaging in a fistic encounter; or
“(2) Using of any unnecessarily loud, offensive, or insulting language; or
“(3) Appearing in an intoxicated condition; or
“(4) Engaging in any act in a violent and tumultuous manner by any three or more persons; or
“(5) Holding of an unlawful assembly; or
“(6) Interruption of any lawful assembly of people; or
“(7) Commission of any other act in such a manner as to unreasonably disturb or alarm the public.”
I.
Our initial inquiry is necessarily to determine the type of conduct proscribed by this statute and the elements of guilt which the evidence must prove to support a criminal conviction thereunder. First, it is evident from a reading of the statute that the accused must conduct himself in a manner that would “foreseeably disturb or alarm the public.” In addition, when a person is charged with a violation of Paragraph 7, an earlier version of which was aptly described by the Supreme Court of Louisiana as “the general portion of the statute which does not define the ‘conduct or acts’ the members of the Legislature had in mind” (State v. Sanford, 203 La. 961, 967, 14 So. 2d
We of course are bound by a State‘s interpretation of its own statute and will not substitute our judgment for that of the State‘s when it becomes necessary to analyze the evidence for the purpose of determining whether that evidence supports the findings of a state court. Hence, we must look to Louisiana for guidance in the meaning of the phrase “foreseeably disturb or alarm the public” in order to determine the type of conduct proscribed by
The Supreme Court of Louisiana has had occasion in the past, in interpreting the predecessor of Article 103,14 to give content to these words, and it is evident from the court‘s prior treatment of them that they were not
The conclusion of the highest Louisiana court that the breach of the peace statute does not reach peaceful and orderly conduct is substantiated by the conclusion drawn from reading the statute as a whole. The catch-all provision under which the petitioners were tried and con-
Further evidence that Article 103 (7) was not designed to encompass the petitioners’ conduct in these cases has been supplied by the Louisiana Legislature. Shortly after the events for which the petitioners were arrested took place, the legislature amended its disturbance of the peace statute in an obvious attempt to reach the type of activity involved in these cases.19 The contrast between the language of the present statute and the one under which the petitioners were convicted confirms the inter-
We are aware that the Louisiana courts have the final authority to interpret and, where they see fit, to reinterpret that State‘s legislation. However, we have seen no indication that the Louisiana Supreme Court has changed its Sanford interpretation of
We think that the above discussion would give ample support to a conclusion that Louisiana law requires a finding of outwardly boisterous or unruly conduct in order to charge a defendant with “foreseeably” disturbing or alarming the public. However, because this case comes to us from a state court and necessitates a delicate involvement in federal-state relations, we are willing to assume with the respondent that the Louisiana courts might construe the statute more broadly to encompass the traditional common-law concept of disturbing the peace. Thus construed, it might permit the police to prevent an imminent public commotion even though caused by peaceful and orderly conduct on the part of the accused. Cf. Cantwell v. Connecticut, 310 U. S. 296, 308. We therefore treat these cases as though evidence of such imminent danger, as well as evidence of a defendant‘s active conduct which is outwardly provocative, could support a finding that the acts might “foreseeably disturb or alarm the public” under the Louisiana statute.
Having determined what evidence is necessary to support a finding of disturbing the peace under Louisiana law, the ultimate question, as in Thompson v. City of Louisville, supra, is whether the records in these cases contain any such evidence. With appropriate notations to the slight differences in testimony in the other two cases, we again turn to the record in No. 28.20 The manager of the department store in which the lunch counter was located testified that after the students had taken their seats at the “white lunch counter” where he was also occupying a seat, he advised the waitress on duty to offer the petitioners service at the counter across the aisle which served Negroes. The petitioners, however, after being “advised that they would be served at the other counter,” remained in their seats, and the manager continued eating his lunch at the same counter. In No. 26, where there were no facilities to serve colored persons, the petitioners were merely told that they couldn‘t be served, but were never even asked to move. In No. 27, a waitress testified that the petitioners were merely told that they would have to go “to the other side to be served.” The petitioners not only made no speeches, they did not even speak to anyone except to order food; they carried no placards, and did nothing, beyond their mere presence at the lunch counter, to attract attention to themselves or to others. In none of the cases was there any testimony that the petitioners were told that their mere presence was causing, or was likely to cause, a disturbance of the peace, nor that the petitioners were ever asked to leave the counters or the establishments by anyone connected with the stores.
Although the manager of Kress’ Department Store testified that the only conduct which he considered disruptive was the petitioners’ mere presence at the counter, he did state that he called the police because he “feared that some disturbance might occur.”22 However, his fear is completely unsubstantiated by the record. The manager continued eating his lunch in an apparently leisurely manner at the same counter at which the petitioners were sitting before calling the police. Moreover, not only did he fail to give the petitioners any warning of his alleged
Subsequent to the manager‘s notification, the police arrived at the store and, without consulting the manager or anyone else on the premises, went directly to confront the petitioners. An officer asked the petitioners to leave the counter because “they were disturbing the peace and violating the law by sitting there.” One of the students stated that she wished to get a glass of iced tea, but she and her friends were told, again by the police, that they were disturbing the peace by sitting at a counter reserved for whites and that they would have to leave. When the petitioners continued to occupy the seats, they were arrested, as the officer testified, for disturbing the peace “[b]y sitting there” “because that place was reserved for white people.” The same officer testified that the petitioners had done nothing other than take seats at that particular lunch counter which he considered to be a breach of the peace.25
Thus, having shown that these records contain no evidence to support a finding that petitioners disturbed the peace, either by outwardly boisterous conduct or by pas-
The judgments are reversed.
MR. JUSTICE FRANKFURTER, concurring in the judgment.
Whether state statutes are to be construed one way or another is a question of state law, final decision of which rests, of course, with the courts of the State. When as here those courts have not spelled out the meaning of a statute, this Court must extrapolate its allowable meaning and attribute that to the highest court of the State. We must do so in a manner that affords the widest latitude to state legislative power consistent with the United States Constitution.
Since
The action of the Louisiana Legislature in amending its statutes after the events now under review took place is not a safe or even relevant guide to the scope of the prior statute. Legislatures not uncommonly seek to make prior law more explicit or reiterate a prohibition by more emphatic concreteness. The rule of evidence that excludes proof of post-injury repairs offers a useful analogy here. See II Wigmore, Evidence, § 283 (Third ed. 1940). It is not our province to limit the meaning of a state statute beyond its confinement by reasonably read state-court rulings.
Assuming for present purposes the constitutionality of a statute prohibiting non-violent activity that tends to provoke public alarm or disturbance, such a tendency, as a crucial element of a criminal offense, must be established by evidence disclosed in the record to sustain a conviction. A judge‘s private knowledge, or even “knowledge by notoriety,” to use Dean Wigmore‘s phrase, IX Evidence, § 2569 (Third ed. 1940), not presented as part of the prosecution‘s case capable of being met by a defendant, is not an adequate basis, as a matter of due process, to establish an essential element of what is punished as crime. Thompson v. City of Louisville, 362 U. S. 199.
It may be unnecessary to require formal proof, even as to an issue crucial in determining guilt in a criminal prosecution, of what is incontestably obvious. But some showing cannot be dispensed with when an inference is at all doubtful. And it begs the whole question on the answer to which the validity of these convictions turns to assume that the “public” tended to be alarmed by the conduct of the petitioners here disclosed. See Devlin, L. J., in Dingle v. Associated Newspapers, [1961] 2 Q. B. 162, 198. Conviction under this Louisiana statute cannot be sustained by reliance merely upon likely consequences in the generality of cases. Since particular per-
The records in these cases, whatever variance in unimportant details they may show, contain no evidence of disturbance or alarm in the behavior of the cafe employees or customers or even passers-by, the relevant “public” fairly in contemplation of these charges. What they do show was aptly summarized both in the testimony of the arresting police and in the recitation of the trial judge as the “mere presence” of the petitioners.
Silent persistence in sitting after service is refused could no doubt conceivably exacerbate feelings to the boiling point. It is not fanciful speculation, however, that a proprietor who invites trade in most parts of his establishment and restricts it in another may change his policy when non-violently challenged.* With records as barren as these of evidence from which a tendency to disturb or alarm the public immediately involved can be drawn, there is nothing before us on which to sustain such an inference from what may be hypothetically lodged in the unopened bosom of the local court.
Since the “mere presence” that these records prove has, in any event, not been made a crime by the Louisiana statute under which these petitioners were charged, their convictions must be reversed.
MR. JUSTICE DOUGLAS, concurring.
If these cases had arisen in the Pacific Northwest—the area I know best—I could agree with the opinion of the Court. For while many communities north and south, east and west, at times have racial problems, those areas which have never known segregation would not be
*If it were clear from these records that the proprietors involved had changed their policies and consented to the petitioners’ remaining, we would, of course, have an entirely different case.
This does not mean that the police were justified in making these arrests. For the police are supposed to be on the side of the Constitution, not on the side of discrimination. Yet if all constitutional questions are to be put aside and the problem treated merely in terms of disturbing the peace, I would have difficulty in reversing these judgments. I think, however, the constitutional questions must be reached and that they make reversal necessary.
Restaurants, whether in a drugstore, department store, or bus terminal, are a part of the public life of most of our communities. Though they are private enterprises, they are public facilities in which the States may not enforce a policy of racial segregation.
I.
It is, of course, state action that is prohibited by the
State policy violative of the
It may be expressed through executive action, as where the police or other law enforcement officials act pursuant to, or under color of, state law. See, e. g., Screws v. United States, 325 U. S. 91; Monroe v. Pape, 365 U. S. 167.
It may be expressed through the administrative action of state agencies in leasing public facilities. Burton v. Wilmington Parking Authority, 365 U. S. 715.
It may result from judicial action, as where members of a race are systematically excluded from juries (Hernandez v. Texas, 347 U. S. 475), or where restrictive covenants based on race are enforced by the judiciary (Barrows v. Jackson, 346 U. S. 249), or where a state court fines or imprisons a person for asserting his federal right to use the facilities of an interstate bus terminal, Boynton v. Virginia, 364 U. S. 454.
As noted, Mr. Justice Bradley suggested in the Civil Rights Cases, supra, that state policy may be as effectively
It was indeed held in Baldwin v. Morgan, 287 F. 2d 750, 756, that the “custom, practice and usage” of a city and its police in arresting four Negroes for using “white” waiting rooms was state action in violation of the
There is a deep-seated pattern of segregation of the races in Louisiana,1 going back at least to Plessy v. Ferguson, supra. It was restated in 1960—the year in which petitioners were arrested and charged for sitting in white restaurants—by Act No. 630, which in its preamble states:
“WHEREAS, Louisiana has always maintained a policy of segregation of the races, and
“WHEREAS, it is the intention of the citizens of this sovereign state that such a policy be continued.” La. Acts 1960, p. 1200.
Louisiana requires that all circuses, shows, and tent exhibitions to which the public is invited have one entrance for whites and one for Negroes.
Though there may have been no state law or municipal ordinance that in terms required segregation of the races in restaurants, it is plain that the proprietors in the instant cases were segregating blacks from whites pursuant to Louisiana‘s custom. Segregation is basic to the structure of Louisiana as a community; the custom that maintains it is at least as powerful as any law. If these proprietors also choose segregation, their preference does not make the action “private,” rather than “state,” action. If it did, a miniscule of private prejudice would convert state into private action. Moreover, where the segregation policy is the policy of a State, it matters not that the agency to enforce it is a private enterprise. Baldwin v. Morgan, supra; Boman v. Birmingham Transit Co., 280 F. 2d 531.
II.
It is my view that a State may not constitutionally enforce a policy of segregation in restaurant facilities. Some of the argument assumed that restaurants are “private” property in the sense that one‘s home is “private” property. They are, of course, “private” property for many purposes of the Constitution. Yet so are street railways, power plants, warehouses, and other types of enterprises which have long been held to be affected with a public interest. Where constitutional rights are involved, the proprietary interests of individuals must give way. Towns, though wholly owned by private interests, perform municipal functions and are held to the same constitutional requirements as ordinary municipalities. Marsh v. Alabama, 326 U. S. 501. State regulation of private enterprise falls when it discriminates against interstate commerce. Port Richmond Ferry v. Hudson County, 234 U. S. 317. State regulation of private enterprise that results in impairment of other constitutional
Long before Chief Justice Waite wrote the opinion in Munn v. Illinois, 94 U. S. 113, holding that the prices charged by grain warehouses could be regulated by the State, a long list of businesses had been held to be “affected with a public interest.” Among these were ferries, common carriers, hackmen, bakers, millers, wharfingers, and innkeepers. Id., at 125. The test used in Munn v. Illinois was stated as follows: “Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large.” Id., at 126. In reply to the charge that price regulation deprived the warehousemen of property, Chief Justice Waite stated, “There is no attempt to compel these owners to grant the public an interest in their property, but to declare their obligations, if they use it in this particular manner.” Id., at 133.
There was a long span between Munn v. Illinois and Nebbia v. New York, 291 U. S. 502, which upheld the power of a State to fix the price of milk. A business may have a “public interest” even though it is not a “public utility” in the accepted sense, even though it enjoys no franchise from the State, and even though it enjoys no monopoly. Id., at 534. The examples cover a wide range from price control to prohibition of certain types of business. Id., at 525-529. Various systems or devices designed by States or municipalities to protect the wholesomeness of food in the interests of health are deep-seated as any exercise of the police power. Adams v. Milwaukee, 228 U. S. 572.
Years ago Lord Chief Justice Hale stated in De Portibus Maris, 1 Harg. Law Tracts 78, “... if a man set out a street in new building on his own land, it is now no longer bare private interest, but is affected with a public interest.” Those who run a retail establishment under permit
Under Louisiana law, restaurants are a form of private property affected with a public interest. Local boards of health are given broad powers.
Restaurants, though a species of private property, are in the public domain. Or to paraphrase the opinion in Nebbia v. New York, supra, restaurants in Louisiana have a “public consequence” and “affect the community at large.” 291 U. S. 502, 533.
While the concept of a business “affected with a public interest” normally is used as a measure of a State‘s police power over it, it also has other consequences. A State may not require segregation of the races in conventional public utilities any more than it can segregate them in ordinary public facilities.2 As stated by the court in
One can close the doors of his home to anyone he desires. But one who operates an enterprise under a
MR. JUSTICE HARLAN, concurring in the judgment.
I agree that these convictions are unconstitutional, but not for the reasons given by the Court. Relying on Thompson v. City of Louisville, 362 U. S. 199, the Court strikes down the convictions on the ground that there is no evidence whatever to support them. In my opinion the Thompson doctrine does not fit these cases. However, I believe the convictions are vulnerable under the
The Court‘s reversal for lack of evidence rests on two different views of
I.
Turning to the first holding, it goes without saying that we are not at liberty to determine for ourselves the scope
This Court‘s view of the statute rests primarily, if not entirely, on an earlier Louisiana case, State v. Sanford, 203 La. 961, 14 So. 2d 778, involving a different, but comparable, breach of the peace statute. That case is regarded as establishing that breaches of the peace under Louisiana law are confined to nonpeaceful conduct. While I do not find the Sanford case as “plain” as the Court does (infra, pp. 191-192), that earlier holding cannot in any event be deemed controlling on the significance to be attributed to the action of the State Supreme Court in
More basically, established principles of constitutional adjudication require us to consider that the Louisiana Supreme Court‘s refusal to review these cases signifies a holding that the breach of the peace statute which controls these cases does embrace the conduct of the petitioners, peaceful though it was.
These state judgments come to us armored with a presumption that they are not founded “otherwise than is required by the fundamental law of the land,” Ex parte Royall, 117 U. S. 241, 252 (see also Darr v. Burford, 339 U. S. 200, 205), comparable to the presumption which has always attached to state legislative enactments. See, e. g., Butler v. Pennsylvania, 10 How. 402, 415. That presumption should render impermissible an interpretation of these judgments as resting on the view that the relevant breach of the peace statute reaches only unruly
Moreover, the kind of speculation in which the Court has indulged as to the meaning of the Louisiana statute is surely out of keeping with the principle that federal courts should abstain from constitutional decision involving doubtful state law questions until a clarifying adjudication on them has first been obtained from the state courts. See Railroad Comm‘n v. Pullman Co., 312 U. S. 496, 500; Harrison v. N. A. A. C. P., 360 U. S. 167. Cf. Glenn v. Field Packing Co., 290 U. S. 177; Leiter Minerals, Inc., v. United States, 352 U. S. 220, 228-229; Louisiana Power & Light Co. v. City of Thibodaux, 360 U. S. 25. If there be doubt as to how the statute was construed in this respect, the cases should be returned to the Louisiana Supreme Court for clarification of its judgments. See Herb v. Pitcairn, 324 U. S. 117.
Our recent decision in Thompson v. City of Louisville, 362 U. S. 199, cannot well be taken as justification for considering the judgments under review as other than a holding by Louisiana‘s highest court that breach of the peace under then existing state law may include conduct that in itself is peaceful. In Thompson, the petitioner was convicted of two offenses defined by ordinances of the City of Louisville. One of these ordinances, prohibiting loitering, expressly enumerated three elements of the offense. The prosecution introduced no evidence to establish any of these definitely prescribed components, which were not suggested to have, by virtue of state judicial interpretation, any other than their plain meaning. We held that “Under the words of the ordinance itself,” there was no evidence to support the conviction.
Where, as was true of the disorderly conduct charge in Thompson, application of a generally drawn state statute or municipal ordinance to the conduct of a defendant would require a constitutionally impermissible construction of the enactment, we are not bound by the state court‘s finding that the conduct was criminal. In the cases now before us, however, the Court does not suggest that Louisiana‘s disturbance of the peace statute was too vague to be constitutionally applied to the conduct of the petitioners. I think we are obliged, because of the state courts’ dispositions of these cases, to hold that there was presented at petitioners’ trials evidence of criminal conduct under Louisiana law. Herndon v. Lowry, 301 U. S. 242, 255.
Thompson v. City of Louisville should be recognized for what it is, a case involving a situation which, I think it fair to say, was unique in the annals of the Court. The case is bound to lead us into treacherous territory, unless we apply its teaching with the utmost circumspection, and with due sense of the limitations upon our reviewing authority.
Thus, a full reading of Sanford will disclose that there were at least three considerations which led to the result: (1) the likelihood that a contrary holding would violate provisions of the Federal Constitution relating to religion,
The Court now isolates this last factor from this multifaceted opinion, and, using it as an immutable measure of what Louisiana law requires, declares that the present convictions must fall because the standard so unclearly set out in Sanford has not been met. Apart from other considerations already discussed, I am not prepared to rest a constitutional decision on so insecure a foundation.
It is further significant that the State Supreme Court‘s order refusing to review the present cases does not cite State v. Sanford, but rather relies on another earlier case, Town of Ponchatoula v. Bates, 173 La. 824, 138 So. 851. The Bates decision, upholding the constitutionality of an ordinance making it a crime “to engage in a fight or in any manner disturb the Peace,” defined disturbance of the peace as “any act or conduct of a person which molests the inhabitants in the enjoyment of that peace and quiet to which they are entitled, or which throws into confusion things settled, or which causes excitement, unrest, disquietude, or fear among persons of ordinary, normal temperament.” 173 La., at 828, 138 So., at 852. Such a definition would of course bring within the compass of the statute even peaceful activity, so long as it threw “into confusion things settled,” or caused disquietude among ordinary members of the community. I think it was that construction which the Louisiana Supreme Court placed upon the breach of the peace statute involved in the cases now before us.
The alternative holding of the Court in Part II of its opinion also stands on unsolid foundations. Conceding that this breach of the peace statute “might” be construed to cover peaceful conduct carried on “in such a manner as would foreseeably disturb or alarm the public,” the Court holds that there was no evidence that petitioners’ conduct tended to disturb or alarm those who witnessed their activity.
There is, however, more to these cases than what physically appears in the record. It is an undisputed fact that the “sit-in” program, of which petitioners’ demonstrations were a part, had caused considerable racial tension in various States, including Louisiana. Under Louisiana law,
Support for this constitutional proposition is found in Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U. S. 292, 302-303. The Court there held that it was repugnant to the
The situation we have here is quite different. The existence of racial tensions, of which the Louisiana courts must have taken judicial notice in order to find that petitioners’ conduct alarmed or disturbed the public, was notorious throughout the community and, indeed, throughout that part of the United States. The truth of that proposition is not challenged, nor is any particular authority required to confirm it. This kind of generally known condition may be judicially noticed by trial and appellate courts without prior warning to the parties, since it does not require any foundation establishing the accuracy of a specific source of information. See Uniform Rules of Evidence, 9 (2) (c); ALI, Model Code of Evidence, Rule 802 (c); 1 Morgan, Basic Problems of Evidence (1954), 9-10. Cf. Mills v. Denver Tramway Corp., 155 F. 2d 808 (C. A. 10th Cir.). I perceive no reason why that principle should be considered as applying only in civil cases, and I am not aware of any American authority which so holds.
Indeed, the fact of which I think we must consider judicial notice was taken in this instance was so notorious throughout the country that far from its being unconstitutional for a court to take it into consideration, it would be quite amiss for us not to deem that the Louisiana courts did so on their own initiative. See, e. g., Uniform Rules of Evidence, 9 (1); cf. Note, 12 Va. L. Rev. 154 (1925), and cases there cited. It might have been procedurally preferable had the trial judge announced to the parties that he was taking judicial notice, as is suggested in Model Code of Evidence, Rule 804. But we would be exalting the sheerest of technicalities were we to hold that a conviction is constitutionally
Moreover, in this instance, the fact that the trial court had taken judicial notice of the impact of petitioners’ conduct, which indeed had obviously been engaged in for the very purpose of producing an impact on others in this field of racial relations, albeit, I shall assume, with the best of motives, could hardly have failed to cross the minds of petitioners’ counsel before the trial had ended. They however neither sought to introduce countervailing evidence on that issue, nor have they undertaken at any stage of these proceedings, including that in this Court, to question the availability of judicial notice on this aspect of the State‘s case.
Were we to follow the reasoning of the majority opinion where it would logically lead, this Court would be violating due process every time it noticed a generally known fact without first calling in the parties to apprise them of its intention. Yet without any such notification this Court has many times taken judicial notice of well-known economic and social facts, e. g., Atchison, Topeka & S. F. R. Co. v. United States, 284 U. S. 248, 260; West Coast Hotel Co. v. Parrish, 300 U. S. 379, 398-400; Hoyt v. Florida, ante, p. 57, at p. 62, and even of the tendency of
It is no answer to say in these cases that while it was permissible for the Louisiana courts to take judicial notice of racial conditions generally, they could not take notice of the particular conditions on the premises involved in these prosecutions. In the absence of contrary evidence, it was certainly not constitutionally impermissible for the Louisiana courts to consider that the racial conditions in Baton Rouge and in the establishments where petitioners sat were not dissimilar to those existing throughout the State. Judicial notice of racial conditions in a State has sufficient probative value in determining what were the racial conditions at a particular location within the State to withstand constitutional attack. Reversing these convictions for want of evidence of racial tension would in effect be putting this Court into the realm of reviewing the sufficiency of the evidence to support these convictions, something which both Thompson v. City of Louisville, supra, at 199, and the Court‘s opinion in the present cases, ante, p. 163, recognize is not properly within our purview.
In my opinion, skimpy though these records are, the convictions do not fall for want of evidence, in the constitutional sense.
III.
Were there no more to these cases, I should have to vote to affirm. But in light of principles established by Cantwell v. Connecticut, 310 U. S. 296, and consistently since recognized, I think the convictions are subject to other constitutional infirmities.
At the outset it is important to focus on the precise factual situation in each of these cases. Common to all three are the circumstances that petitioners were given the invitation extended to the public at large to patronize
Nor do I think that any such request is fairly to be implied from the fact that petitioners were told by the management that they could not be served food at such counters. The premises in both instances housed merchandising establishments, a drugstore in Garner, a department store in Hoston, which solicited business from all comers to the stores. I think the reasonable inference is that the management did not want to risk losing Negro patronage in the stores by requesting these petitioners to leave the “white” lunch counters, preferring to rely on the hope that the irritations of white customers or the4
In short, I believe that in the Garner and Hoston cases the records should be taken as indicating that the petitioners remained at the “white” lunch counters with the
In the Cantwell case a Jehovah‘s Witness had been convicted for breach of the peace under a Connecticut statute embracing what was considered to be the common-law concept of that offense.8 “The facts which were held
Accepting the determination of the state courts that although the defendant himself had not been disorderly or provocative, his conduct under Connecticut law nonetheless constituted a breach of the peace because of its tendency to inflame others, this Court reversed. Starting from the premise that the “fundamental concept of liberty embodied in [the
“Although the contents of the [phonograph] record not unnaturally aroused animosity, we think that, in
the absence of a statute narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State, the petitioner‘s communication, considered in the light of the constitutional guarantees, raised no such clear and present menace to public peace and order as to render him liable to conviction of the common law offense in question.” [Citing to such cases as Schenck v. United States, 249 U.S. 47.] 310 U.S., at 311.
I think these principles control the Garner and Hoston cases. There was more to the conduct of those petitioners than a bare desire to remain at the “white” lunch counter and their refusal of a police request to move from the counter. We would surely have to be blind not to recognize that petitioners were sitting at these counters, where they knew they would not be served, in order to demonstrate that their race was being segregated in dining facilities in this part of the country.
Such a demonstration, in the circumstances of these two cases, is as much a part of the “free trade in ideas,” Abrams v. United States, 250 U.S. 616, 630 (Holmes, J., dissenting), as is verbal expression, more commonly thought of as “speech.” It, like speech, appeals to good sense and to “the power of reason as applied through public discussion,” Whitney v. California, 274 U.S. 357, 375 (Brandeis, J., concurring), just as much as, if not more than, a public oration delivered from a soapbox at a street corner. This Court has never limited the right to speak, a protected “liberty” under the
No one can deny the interest that a State has in preserving peace and harmony within its borders. Pursuant to this interest, a state legislature may enact a trespass statute, or a disturbance of the peace statute which either lists in detail the acts condemned by legitimate state policy or proscribes breaches of the peace generally, thus relating the offense to the already developed body of common law defining that crime. Or it may, as Louisiana has done, append to a specific enumeration in a breach of the peace statute a “catch-all” clause to provide for unforeseen but obviously disruptive and offensive behavior which cannot be justified, and which is not within the range of constitutional protection.
But when a State seeks to subject to criminal sanctions conduct which, except for a demonstrated paramount state interest, would be within the range of freedom of expression as assured by the
These limitations exist not because control of such activity is beyond the power of the State, but because sound constitutional principles demand of the state legislature that it focus on the nature of the otherwise “protected” conduct it is prohibiting, and that it then make a legislative judgment as to whether that conduct presents so clear and present a danger to the welfare of the community that it may legitimately be criminally proscribed.10
IV.
While Cantwell was not explicitly founded on that premise, it seems to me implicit in the opinion that a statute which leaves the courts in uncertainty as to whether it was intended to reach otherwise constitutionally protected conduct must by the same token be deemed inadequate warning to a defendant that his conduct has
This conclusion finds added support in the cases requiring of state legislatures more specificity in statutes impinging on freedom of expression than might suffice for other criminal enactments. See Winters v. New York, supra, at 509-510; Smith v. California, supra, at 151; cf. Herndon v. Lowry, 301 U.S. 242, 261-264. To the extent that this Louisiana statute is explicit on the subject of expression it prohibits only that which is “unnecessarily loud, offensive, or insulting” or activity carried on “in a violent or tumultuous manner by any three or more persons” (note 1, supra). No charge was made or proved that petitioners’ conduct met any of those criteria. Nor has the statute been elucidated in this respect before, or since, petitioners’ conviction, by any decision of the Louisiana courts of which we have been advised. Cf. Winters v. New York, supra, at 514; Terminiello v. Chicago, 337 U.S. 1, 4. Lastly, it is worth observing that in State v. Sanford the Louisiana Supreme Court seriously questioned on the score of vagueness the validity of that earlier breach of the peace statute under the State Constitution, as there applied to conduct within the same range of constitutional protection.14
In the absence of any Louisiana statute purporting to express the State‘s overriding interest in prohibiting peti-
For the foregoing reasons I dissent from the opinion of the Court, but join in the judgment.
Notes
Article 135 of Louisiana‘s 1868 Constitution forbade segregation of the races in public schools. But that prohibition was dropped from Louisiana‘s 1879 Constitution. The latter by Article 231 authorized the establishment of a university for Negroes.
Woodward, Strange Career of Jim Crow (1955), pp. 7-8:
“... In bulk and detail as well as in effectiveness of enforcement the segregation codes were comparable with the black codes of the old regime, though the laxity that mitigated the harshness of the black codes was replaced by a rigidity that was more typical of the segregation code. That code lent the sanction of law to a racial ostracism that extended to churches and schools, to housing and jobs, to eating and drinking. Whether by law or by custom, that ostracism eventually extended to virtually all forms of public transportation, to sports and recreations, to hospitals, orphanages, prisons, and asylums, and ultimately to funeral homes, morgues, and cemeteries.”
The Louisiana statute,
“Disturbing the peace is the doing of any of the following in such a manner as would foreseeably disturb or alarm the public:
“(1) Engaging in a fistic encounter; or
“(2) Using of any unnecessarily loud, offensive, or insulting language; or
“(3) Appearing in an intoxicated condition; or
“(4) Engaging in any act in a violent and tumultuous manner by any three or more persons; or
“(5) Holding of an unlawful assembly; or
“(6) Interruption of any lawful assembly of people; or
“(7) Commission of any other act in such a manner as to unreasonably disturb or alarm the public.
“Whoever commits the crime of disturbing the peace shall be fined not more than one hundred dollars, or imprisoned for not more than ninety days, or both.”
We have held on numerous occasions that the States may not use their powers to enforce racial segregation in public facilities. Mayor and City Council of Baltimore City v. Dawson, 350 U. S. 877 (1955) (public beaches and bathhouses); Holmes v. City of Atlanta, 350 U. S. 879 (1955) (municipal golf courses); Gayle v. Browder, 352 U. S. 903 (1956) (buses operated on city streets); New Orleans City Park Improvement Association v. Detiege, 358 U. S. 54 (1958) (golf course and city parks). For decisions of the lower federal courts holding racial segregation unconstitutional as applied to facilities open to public enjoyment and patronage, see Department of Conservation & Development, Division of Parks, of Virginia, v. Tate, 231 F. 2d 615 (state park); City of St. Petersburg v. Alsup, 238 F. 2d 830 (municipal beach and swimming pool); Morrison v. Davis, 252 F. 2d 102 (public transportation facilities).
As Mr. Justice Jackson put it in Gryger v. Burke, 334 U. S. 728, 731:
“We are not at liberty to conjecture that the trial court acted under an interpretation of the state law different from that which we might adopt and then set up our own interpretation as a basis for declaring that due process has been denied. We cannot treat a mere error of state law, if one occurred, as a denial of due process; otherwise, every erroneous decision by a state court on state law would come here as a federal constitutional question.”
There Mr. Justice Holmes said of a claim that a state court was constitutionally obliged to follow its own precedents: “Even if it be true, as the plaintiff in error says, that the Supreme Court of Colorado departed from earlier and well-established precedents to meet the exigencies of this case, whatever might be thought of the justice or wisdom of such a step, the Constitution of the United States is not infringed. It is unnecessary to lay down an absolute rule beyond the possibility of exception. Exceptions have been held to exist. But in general the decision of a court upon a question of law, however wrong and however contrary to previous decisions, is not an infraction of the Fourteenth Amendment merely because it is wrong or because earlier decisions are reversed.”