379 U.S. 536 (1965), 24, 49., Cox v. State of Louisiana

Docket NºNos. 24, 49.
Citation379 U.S. 536, 85 S.Ct. 466, 13 L.Ed.2d 487
Party NameB. Elton COX v. STATE OF LOUISIANA (two cases).
Case DateJanuary 18, 1965
CourtUnited States Supreme Court

Page 536

379 U.S. 536 (1965)

85 S.Ct. 466, 13 L.Ed.2d 487

B. Elton COX

v.

STATE OF LOUISIANA (two cases).

Nos. 24, 49.

United States Supreme Court.

January 18, 1965

Concurring and dissenting opinions.

For opinions of the Court see 85 S.Ct. 453, 476.

Page 575

Mr. Justice BLACK, concurring in No. 24 and dissenting in No. 49.

I concur in the Court's judgment reversing appellant Cox's convictions for violation of the Louisiana statutes prohibiting breach of the peace and obstructing [85 S.Ct. 467] public passages, but I do so for reasons which differ somewhat from those stated in the Court's opinion. I therefore deem it appropriate to state separately my reasons for voting to hold both these statutes unconstitutional and to reverse the convictions under them. On the other hand, I have no doubt that the State has power to protect judges, jurors, witnesses, and court officers from intimidation by crowds which seek to influence them by picketing, patrolling, or parading in or near the courthouses in which they do their business or the homes in which they live, and I therefore believe that the Louisiana statute which protects the administration of justice by forbidding such interferences is constitutional, both as written and as applied. Since I believe that the evidence showed practically without dispute that appellant violated this statute, I think this conviction should be affirmed.

There was ample evidence for the jury to have found the following to be the facts: On December 14, 1961, 23 persons were arrested and put in jail on a charge of illegal picketing. That night appellant Cox and others made plans to carry on a "demonstration," that is, a parade and march, through parts of Baton Rouge, ending at the courthouse. There purpose was to "protest"

Page 576

against what they called the "illegal arrest" of the 23 picketers. They neither sought nor obtained any permit for such a use of the streets. The next morning, December 15, the plan was carried out. Some 2,000 protesters marched to a point 101 feet across the street from the courthouse, which also contained the jail. State and county police officers, for reasons as to which there was a conflict in the evidence from which different inferences could be drawn, agreed that the picketers might stay there for a few minutes. The group sang songs along with the prisoners in the jail and did other things set out in the Court's opinion. Later state and county officials told Cox, the group's leader, that the crowd had to "move on." Cox told his followers to stay where they were and they did. Officers then used tear gas and the picketers ran away. Cox was later arrested.

I. THE BREACH-OF-PEACE CONVICTION.

I agree with that part of the Court's opinion holding that the Louisiana breach-of-the-peace statute1 on its face and as construed by the State Supreme Court is so broad

Page 577

as to be unconstitutionally vague under the First and Fourteenth Amendments. See Winters v. People of State of New York, 333 U.S. 507, 509-510, 68 S.Ct. 665, 667, 92 L.Ed. 840. The statute does not itself define the conditions upon which people who want to express views may be allowed to use the public streets and highways, but leaves this to be defined by law enforcement officers. The statute therefore neither forbids all crowds to congregate and picket on streets, nor is it narrowly drawn to prohibit congregating or patrolling under certain clearly defined conditions while preserving the freedom to [85 S.Ct. 468] speak of those who are using the streets as streets in the ordinary way that the State permits. A state statute of either of the two types just mentioned, regulating conduct--patrolling and marching--as distinguished from speech, would in my judgment be constitutional, subject only to the condition that if such a law had the effect of indirectly impinging on freedom of speech, press, or religion, it would be unconstitutional if under the circumstances it appeared that the State's interest in suppressing the conduct was not sufficient to outweigh the individual's interest in engaging in conduct closely involving his First Amendment freedoms. As this Court held in Schneider v. State of New Jersey, 308 U.S. 147, 161, 60 S.Ct. 146, 151, 84 L.ed. 155:

"Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions. And so, as cases arise, the delicate and difficult task falls upon the courts to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights."

See also, e.g., Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89; NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405; NAACP v. State of Alabama ex rel. Patterson, 357

Page 578

U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313; Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; Lovell v.City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660. As I discussed at length in my dissenting opinion in Barenblatt v. United States, 360 U.S. 109, 141-142, 79 S.Ct. 1081, 1100-1101, 3 L.Ed.2d 1115, when passing on the validity of a regulation of conduct, which may indirectly infringe on free speech, this Court does, and I agree that it should, "weigh the circumstances" in order to protect, not to destroy, freedom of speech, press,and religion.

The First and Fourteenth Amendments, I think, take away from government, state and federal, all power to restrict freedom of speech, press, and assembly where people have a right to be for such purposes. This does not mean however, that these amendments also grant a constitutional right to engage in the conduct of picketing or patrolling, whether on publicly owned streets or on privately owned property. See National Labor Board v. Fruit and Vegetable Packers and Warehousemen, Local 760, 377 U.S. 58, 76, 84 S.Ct. 1063, 1073, 12 L.Ed.2d 129 (concurring opinion). Were the law otherwise, people on the streets, in their homes and anywhere else could be compelled to listen against their will to speakers they did not want to hear. Picketing, though it may be utilized to communicate ideas, is not speech, and therefore is not of itself protected by the First Amendment. Hughes v. Superior Court, 339 U.S. 460, 464-466, 70 S.Ct. 718, 720-722, 94 L.Ed. 985; Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834; Bakery and Pastry Drivers and Helpers Local 802, etc. v. Wohl, 315 U.S. 769, 775-777, 62 S.Ct. 816, 819-820, 86 L.Ed. 1178 (Douglas, J., concurring).

However, because Louisiana's breach-of-peach statute is not narrowly drawn to assure nondiscriminatory application, I think it is constitutionally invalid under our holding in Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697. See also Mussser v. State of Utah, 333 U.S. 95, 96-97, 68 S.Ct. 397, 398, 92 L.Ed. 562. Edwards, however, as I understand it, did not hold [85 S.Ct. 469] that either private property owners or the States are constitutionally required

Page 579

to supply a place for people to exercise freedom of speech or assembly. See Bell v. State of Maryland, 378 U.S. 226, 344-346, 84 S.Ct. 1814, 1878-1879, 12 L.Ed.2d 822 (dissenting opinion). What Edwards as I read it did hold, and correctly I think, was not that the Federal Constitution prohibited South Carolina from making it unlawful for people to congregate, picket, and parade on or near that State's capitol grounds, but rather that in the absence of a clear, narrowly drawn, nondiscriminatory statute prohibiting such gatherings and picketing, South Carolina could not punish people for assembling at the capitol to petition for redress of grievances. In the case before us Louisiana has by a broad, vague statute given policemen an unlimited power to order people off the streets, not to enforce a specific, nondiscriminatory state statute forbidding patrolling and picketing, but rather whenever a policeman makes a decision on his own personal judgment that views being expressed on the street are provoking or might provoke a breach of the peace. Such a statute does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman on his beat. Compare Yick Wo v. Hopkins, 118 U.S. 356, 369-370, 6 S.Ct. 1064, 1070-1071, 30 L.Ed. 220. This kind of statute provides a perfect device to arrest people whose views do not suit the policeman or his superiors, while leaving free to talk anyone with whose views the police agree. See Feiner v. People of State of New York, 340 U.S. 315, 321, 71 S.Ct. 303, 307, 95 L.Ed. 267 (dissenting opinion); cf. Peters v. Hobby, 349 U.S. 331, 349-350, 75 S.Ct. 790, 799-800, 99 L.Ed. 1129 (concurring opinion); Barsky v. Board of Regents, 347 U.S. 442, 463-464, 74 S.Ct. 650, 661-662, 98 L.Ed. 829 (dissenting opinion); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 217-218, 73 S.Ct. 625, 631-632, 97 L.Ed. 956 (dissenting opinion); Ludecke v. Watkins, 335 U.S. 160, 173, 68 S.Ct. 1429, 1436, 92 L.Ed. 1881 (dissenting opinion). In this situation I think Edwards v. South Carolina and other such cases invalidating statutes for vagueness are controlling. Moreover, because the statute makes an exception for labor organizations and therefore tries to limit access to

Page 580

the streets to some views but not others, I believe it is unconstitutional for the reasons discussed in Part II of this opinion, dealing with the street-obstruction statute, infra. For all the reasons stated I concur...

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38 practice notes
  • 749 F.Supp. 38 (D.R.I. 1990), Civ. A. 90-0471, Atlantic Beach Casino, Inc. v. Morenzoni
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Rhode Island
    • September 28, 1990
    ...Toward a Gayer Bicentennial, 417 F.Supp. at 638, see Shuttlesworth, 394 U.S. at 153, 89 S.Ct. at 940, Cox, 379 U.S. at 558, 85 S.Ct. at 466. The Westerly licensing ordinances do not even approach the necessary level of specificity constitutionally mandated. Given the complete lack of standa......
  • 987 F.2d 188 (3rd Cir. 1993), 92-1358, Holder v. City of Allentown
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Third Circuit
    • March 4, 1993
    ...equivalent of such a system by selective enforcement of an extremely broad prohibitory statute. Cox v. Louisiana, 379 U.S. at 557-58, 85 S.Ct. at 466. (emphasis In the present case, the Allentown residency ordinance provided that any employee who violates the residency requirement "sha......
  • 149 Misc.2d 36, People v. Pennisi
    • United States
    • November 16, 1990
    ...themselves without limitation at any time or at any place, even in certain public places. (Cox v. Louisiana, supra, 379 U.S. at 559, 85 S.Ct. at 466; Adderley v. Florida, supra, 385 U.S. at 54, 87 S.Ct. at 250 [Douglas J. dissenting]; Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9......
  • 69 A.3d 658 (Pa.Super. 2013), Commonwealth v. McCoy
    • United States
    • Pennsylvania Superior Court of Pennsylvania
    • May 23, 2013
    ...rights may not be denied simply because of hostility to their assertion or exercise.’ " Cox v. Louisiana, 379 U.S. 536, 551, 85 S.Ct. 466, 13 L.Ed.2d 487 (1965) (quoting Watson v. City of Memphis, 373 U.S. 526, 535, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963)) See also Zamecnik v. Indian Prai......
  • Request a trial to view additional results
38 cases
  • 749 F.Supp. 38 (D.R.I. 1990), Civ. A. 90-0471, Atlantic Beach Casino, Inc. v. Morenzoni
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Rhode Island
    • September 28, 1990
    ...Toward a Gayer Bicentennial, 417 F.Supp. at 638, see Shuttlesworth, 394 U.S. at 153, 89 S.Ct. at 940, Cox, 379 U.S. at 558, 85 S.Ct. at 466. The Westerly licensing ordinances do not even approach the necessary level of specificity constitutionally mandated. Given the complete lack of standa......
  • 987 F.2d 188 (3rd Cir. 1993), 92-1358, Holder v. City of Allentown
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Third Circuit
    • March 4, 1993
    ...equivalent of such a system by selective enforcement of an extremely broad prohibitory statute. Cox v. Louisiana, 379 U.S. at 557-58, 85 S.Ct. at 466. (emphasis In the present case, the Allentown residency ordinance provided that any employee who violates the residency requirement "sha......
  • 149 Misc.2d 36, People v. Pennisi
    • United States
    • November 16, 1990
    ...themselves without limitation at any time or at any place, even in certain public places. (Cox v. Louisiana, supra, 379 U.S. at 559, 85 S.Ct. at 466; Adderley v. Florida, supra, 385 U.S. at 54, 87 S.Ct. at 250 [Douglas J. dissenting]; Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9......
  • 69 A.3d 658 (Pa.Super. 2013), Commonwealth v. McCoy
    • United States
    • Pennsylvania Superior Court of Pennsylvania
    • May 23, 2013
    ...rights may not be denied simply because of hostility to their assertion or exercise.’ " Cox v. Louisiana, 379 U.S. 536, 551, 85 S.Ct. 466, 13 L.Ed.2d 487 (1965) (quoting Watson v. City of Memphis, 373 U.S. 526, 535, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963)) See also Zamecnik v. Indian Prai......
  • Request a trial to view additional results