397 U.S. 564 (1970), 729, Bachellar v. Maryland

Docket NºNo. 729
Citation397 U.S. 564, 90 S.Ct. 1312, 25 L.Ed.2d 570
Party NameBachellar v. Maryland
Case DateApril 20, 1970
CourtUnited States Supreme Court

Page 564

397 U.S. 564 (1970)

90 S.Ct. 1312, 25 L.Ed.2d 570

Bachellar

v.

Maryland

No. 729

United States Supreme Court

April 20, 1970

Argued March 2, 1970

CERTIORARI TO THE COURT OF SPECIAL APPEALS OF MARYLAND

Syllabus

Petitioners' convictions for violating Maryland's disorderly conduct statute stemming from a demonstration protesting the Vietnam conflict must be set aside, as the jury's general verdict, in light of the trial judge's instructions, could have rested on several grounds, including "the doing or saying . . . of that which offends, disturbs, incites, or tends to incite a number of people gathered in the same area," and a conviction on that ground would violate the constitutional protection for the advocacy of unpopular ideas. Stromberg v. California, 283 U.S. 359. Pp. 565-571.

3 Md.App. 626, 240 A.2d 623, reversed and remanded.

BRENNAN, J., lead opinion

MR. JUSTICE BRENNAN delivered the opinion of the Court.

A jury in Baltimore City Criminal Court convicted petitioners of violating Md.Ann.Code, Art. 27, § 123 (1967 Repl. Vol.),1 which prohibits "acting in a disorderly manner to the disturbance of the public peace, upon any public street . . . in any [Maryland] city. . . ."2 The

Page 565

prosecution arose out of a demonstration protesting the Vietnam war which was [90 S.Ct. 1313] staged between 3 and shortly after 5 o'clock on the afternoon of March 2, 1966, in front of a United States Army recruiting station located on a downtown Baltimore street. The Maryland Court of Special Appeals rejected petitioners' contention that their conduct was constitutionally protected under the First and Fourteenth Amendments, and affirmed their convictions. 3 Md.App. 626, 240 A.2d 623 (1968). The Court of Appeals of Maryland denied certiorari in an unreported order. We granted certiorari, 396 U.S. 816 (1969). We reverse.

The trial judge instructed the jury that there were alternative grounds upon which petitioners might be found guilty of violating § 123. The judge charged, first, that a guilty verdict might be returned if the jury found that petitioners had engaged in "the doing or saying or both of that which offends, disturbs, incites or tends to incite a number of people gathered in the same area." The judge also told the jury that

[a] refusal to obey a policeman's command to move on when not to do so may endanger the public peace, may amount to disorderly conduct.3

So instructed, the jury returned

Page 566

a general verdict of guilty against each of the petitioners.

Since petitioners argue that their conduct was constitutionally protected, we have examined the record for ourselves. When "a claim of constitutionally protected right is involved, it `remains our duty . . . to make an independent examination of the whole record.'" Cox v. Louisiana (I), 379 U.S. 536, 545 n. 8 (1965). We shall discuss first the factual situation that existed until shortly before 5 o'clock on the afternoon of the demonstration, since the pattern of events changed after that time. There is general agreement regarding the nature of the events during the initial period.

Baltimore law enforcement authorities had advance notice of the demonstration, and a dozen or more police officers and some United States marshals were on hand when approximately 15 protesters began peacefully to march in a circle on the sidewalk in front of the station. The marchers carried or wore signs bearing such legends as: "Peasant Emancipation, Not Escalation," "Make Love not [90 S.Ct. 1314] War," "Stop in the Name of Love," and "Why are We in Viet Nam?" The number of protesters increased to between 30 and 40 before the demonstration ended. A crowd of onlookers gathered nearby and across the street. From time to time, some of the petitioners and other marchers left the circle and distributed leaflets

Page 567

among and talked to persons in the crowd. The lieutenant in charge of the police detail testified that he "overheard" some of the marchers debate with members of the crowd about "the Viet Cong situation," and that a few in the crowd resented the protest; "[o]ne particular one objected very much to receiving the circular." However, the lieutenant did not think that the situation constituted a disturbance of the peace. He testified that, "[a]s long as the peace was not disturbed, I wasn't doing anything about it."

Clearly the wording of the placards was not within that small class of "fighting words" that, under Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (1942), are "likely to provoke the average person to retaliation, and thereby cause a breach of the peace," nor is there any evidence that the demonstrators' remarks to the crowd constituted "fighting words." Any shock effect caused by the placards, remarks, and peaceful marching must be attributed to the content of the ideas being expressed, or to the onlookers' dislike of demonstrations as a means of expressing dissent. But

[i]t is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers,

Street v. New York, 394 U.S. 576, 592 (1969); see also Cox v. Louisiana (I), supra; Edwards v. South Carolina, 372 U.S. 229 (1963); Terminiello v. Chicago, 337 U.S. 1 (1949), or simply because bystanders object to peaceful and orderly demonstrations. Plainly, nothing that occurred during this period could constitutionally be the ground for conviction under § 123. Indeed, the State makes no claim that § 123 was violated then.

We turn now to the events that occurred shortly before and after 5 o'clock. The petitioners had left the marchers after half past 3 to enter the recruiting station. There they had attempted to persuade the sergeant in

Page 568

charge to permit them to display their anti-war materials in the station or in its window fronting on the sidewalk. The sergeant had told them that Army regulations forbade him to grant such permission. The six thereupon staged a sit-in on chairs and a couch in the station.4 A few minutes before 5 o'clock, the sergeant asked them to leave, as he wanted to close the station for the day. When petitioners refused, the sergeant called on United States marshals who were present in the station to remove them. After deputizing several police officers to help, the marshals undertook to eject the petitioners.5

There is irreconcilable conflict in the evidence as to what next occurred. The prosecution's witnesses testified that the marshals and the police officers "escorted" the petitioners outside, and that the petitioners thereupon sat or lay down, "blocking free passage of the sidewalk." The police lieutenant in charge stated that he then took over, and three times ordered the petitioners to...

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168 practice notes
  • 265 A.2d 207 (Md. 1970), 311, A. S. Abell Co. v. Barnes
    • United States
    • Maryland Court of Appeals of Maryland
    • May 7, 1970
    ...on the field of free expression.' New York Times, 376 U.S. at 285, 84 S.Ct. at 728. See Bachellar et al. v. Page 217 State of Maryland, 397 U.S. 564, 90 S.Ct. 1312, 25 L.Ed. 570 decided 20 April 1970. There was evidence, adduced through the testimony of appellee, that she had received the d......
  • 859 N.W.2d 229 (Mich.App. 2014), 314479, People v. Vandenberg
    • United States
    • Michigan Court of Appeals of Michigan
    • October 2, 2014
    ...to some of their hearers . . . or simply because bystanders object to peaceful and orderly demonstrations." Bachellar v Maryland, 397 U.S. 564, 567; 90 S.Ct. 1312; 25 L.Ed.2d 570 (1970). (quotation marks and citations omitted). Specifically at issue in this case is the constitutionalit......
  • 359 A.2d 748 (Pa. 1976), Ranck v. Bonal Enterprises, Inc.
    • United States
    • Pennsylvania Supreme Court of Pennsylvania
    • July 6, 1976
    ...into breaches of the peace. Cf. Erznoznik v. Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); Bachellar v. Maryland, 397 U.S. 564, 90 S.Ct. 1312, 25 L.Ed.2d 570 (1970); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1......
  • 781 A.2d 851 (Md. 2001), 21, Galloway v. State
    • United States
    • Maryland Court of Appeals of Maryland
    • September 19, 2001
    ...318 Md. at 463, 569 A.2d at 617 (citing Bacheller v. State, 3 Md.App. 626, 634-35, 240 A.2d 623, 628 (1968), rev'd on other grounds, 397 U.S. 564, 90 S.Ct. 1312, 25 L.Ed.2d 570 (1970); see also United States v. Occhino, 629 F.2d 561, 563 (8th Cir. 1980) (per curiam), cert. denied, 450 U.S. ......
  • Request a trial to view additional results
166 cases
  • 265 A.2d 207 (Md. 1970), 311, A. S. Abell Co. v. Barnes
    • United States
    • Maryland Court of Appeals of Maryland
    • May 7, 1970
    ...on the field of free expression.' New York Times, 376 U.S. at 285, 84 S.Ct. at 728. See Bachellar et al. v. Page 217 State of Maryland, 397 U.S. 564, 90 S.Ct. 1312, 25 L.Ed. 570 decided 20 April 1970. There was evidence, adduced through the testimony of appellee, that she had received the d......
  • 859 N.W.2d 229 (Mich.App. 2014), 314479, People v. Vandenberg
    • United States
    • Michigan Court of Appeals of Michigan
    • October 2, 2014
    ...to some of their hearers . . . or simply because bystanders object to peaceful and orderly demonstrations." Bachellar v Maryland, 397 U.S. 564, 567; 90 S.Ct. 1312; 25 L.Ed.2d 570 (1970). (quotation marks and citations omitted). Specifically at issue in this case is the constitutionalit......
  • 359 A.2d 748 (Pa. 1976), Ranck v. Bonal Enterprises, Inc.
    • United States
    • Pennsylvania Supreme Court of Pennsylvania
    • July 6, 1976
    ...into breaches of the peace. Cf. Erznoznik v. Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); Bachellar v. Maryland, 397 U.S. 564, 90 S.Ct. 1312, 25 L.Ed.2d 570 (1970); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1......
  • 781 A.2d 851 (Md. 2001), 21, Galloway v. State
    • United States
    • Maryland Court of Appeals of Maryland
    • September 19, 2001
    ...318 Md. at 463, 569 A.2d at 617 (citing Bacheller v. State, 3 Md.App. 626, 634-35, 240 A.2d 623, 628 (1968), rev'd on other grounds, 397 U.S. 564, 90 S.Ct. 1312, 25 L.Ed.2d 570 (1970); see also United States v. Occhino, 629 F.2d 561, 563 (8th Cir. 1980) (per curiam), cert. denied, 450 U.S. ......
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