Appellant
Reverend B. Elton Cox
Appellee
State of Louisiana
Appellant's Claim
That the convictions under a local breach-of-the-peace law of a minister leading a peaceful protest against segregation policies violated his First Amendment rights of free speech.
Chief Lawyers for Appellant
Nils Douglas (I) and Carl Rachlin (II)
Chief Lawyer for Appellee
Ralph L. Roy
Justices for the Court
Hugo L. Black, William J. Brennan, Jr., Tom C. Clark, William O. Douglas, Arthur Goldberg (writing for the Court), Potter Stewart, Earl Warren
Justices Dissenting
John Marshall Harlan II, Byron R. White
Place
Washington, D.C.
Date of Decision
18 January 1965
Decision
The two rulings were in favor of Cox and reversed two lower court decisions convicting him of illegal speech and assembly.
Significance
The decision effectively struck down as "unconstitutionally vague" state andlocal laws. The statutes were presumably intended to prevent breaches of thepeace, but actually were designed to restrict and punish unpopular speech. The landmark ruling, however, reaffirmed the state and municipal governments' responsibility to regulate the time, place, and manner in which public placesmay be used by individuals exercising their constitutional freedom of expression rights. Such public places include parks, sidewalks, and streets.
When persons choose to exercise their rights of expression in public forums,questions of community peace and order arise. Activities conducted in open public forums have the potential to jeopardize public order, safety, and tranquility. An essential duty of government is to preserve order and protect citizens from violence, destruction of property, and restriction of free movementin public places. The government's commitment to free speech and assembly must be balanced with the obligation to maintain order. At what point is government constitutionally justified in restraining expression in order to preventa breach of the peace?
To deal with expression in public places the justices developed legal guidelines distinct from those they use to deliberate pure speech cases. The Court established that the right to speak and assemble peacefully in public for lawful discussion is a privilege not to be diminished by states or cities, and that time, manner, and place of public speeches can be regulated only if done precisely and in a non-discriminatory fashion. In the 1940s the Court began todefine standards to determine when public speech became menacing in a way causing a breach of peace. In Cantwell v. Connecticut (1940) the Court decided that the speech in question would have had to present a clear and present danger to be considered a menace to public peace. Chaplinsky v. New Hampshire (1942) established the doctrine of "fighting words," expressionsso lewd, obscene, profane, libelous, or unsettling that they would likely incite immediate illegal behavior and should be prohibited.
The 1960s brought a sense of urgency to the issue of public order cases. Thecivil rights and Vietnam War protest movements produced varied forms of public expressions, such as mass demonstrations on college campuses and on publicgrounds, sit-ins, and protest rallies. In 1961 a group of black students marched peacefully onto the grounds of the South Carolina State Capital to protest discriminatory actions against "negroes." The resulting case, Edwards v.South Carolina (1963), built on the standards set in the 1940s by rulingthat the threat of violence or actual violence is required before suppression of speech in a public forum is warranted.
Protests in Baton Rouge
On 14 December 1961, black students from Southern University picketed storeswith racially segregated lunch counter service in Baton Rouge, Louisiana andurged a boycott of those stores as part of a general protest against segregation. The Congress of Racial Equality (CORE) organized the demonstration. Thestudents were arrested and lodged in the parish jail located above the courthouse building. In reaction, a mass student meeting was held on campus and students resolved to demonstrate the next day in front of the courthouse.
The following day about 2,000 students began walking to downtown Baton Rouge.With student leaders of the local CORE chapter already in jail, the ReverendMr. B. Elton Cox, a Field Secretary to CORE and ordained congregational minister, assumed leadership and cautioned the students to remain orderly and towalk to one side of the sidewalk as they marched toward the courthouse. Two high ranking officials of the city police department and sheriffs office approached and talked to Cox. Cox informed them that the students were marching toprotest the student arrests "and also to protest discrimination." Cox told the officers that they would "march by the courthouse, say prayers, sing hymns, display signs, and conduct a peaceful program of protest." Cox declined a request by the officials to disband the group.
The students walked orderly to the courthouse where Police Chief Wingate White inquired about the purpose of the demonstration. Cox again outlined the purpose and activities and White instructed Cox that "he must confine" the demonstration "to the west side of the street," 101 feet from the courthouse steps. Approximately 80 police were stationed in the street between the demonstrators and a group of 100 to 300 curious white people, mostly courthouse workers, gathered on the east side of the street. The program began and the 23 jailed students responded by singing.
Cox stated their purpose was to protest the illegal arrest and that they werenot going to commit any violence. In his concluding remarks Cox urged the marchers to go downtown and seek service at the segregated lunch counters. "Muttering" and "grumbling" by the white onlookers began. Perceiving that Cox's speech would cause a disturbance in the city, the sheriff demanded that the demonstration break up immediately. When the demonstrations failed to disperse,police exploded tear gas and the students ran back toward downtown. Cox, trying to calm them, was one of the last to leave. No blacks participating in the demonstration were arrested.
The next day, Reverend Cox was arrested and charged with four offenses underLouisiana law, criminal conspiracy, disturbing the peace, obstructing publicpassages, and picketing before a courthouse. He was later acquitted of criminal conspiracy but convicted of the other three offenses and sentenced to a total of one year and nine months jail time and fined $5,700. In two separate judgements the Louisiana Supreme Court affirmed all three convictions. Both judgements were appealed.
The U.S. Supreme Court granted certiorari to both appeals. Cox I dealtwith the convictions for disturbing the peace and obstructing public passages. Cox II concerned the conviction for picketing before a courthouse.
As in Edwards, the Court in Cox I reversed Reverend Cox's conviction, finding Louisiana's breach of the peace statute unconstitutionally broad. That is, it penalized persons who were legally exercising their rights offree speech and assembly. The Court found the practice of allowing local Baton Rouge officials total discretion in regulating the use of public streets in violation of the First and Fourteenth Amendments. Justice Arthur Goldberg delivered the Court's opinion.
No Breach of Peace
The Court unanimously ruled to set aside the convictions on the breach of thepeace charge. Goldberg discussed five points in this reversal.
1. In considering the testimony of sheriff's officers, apparently the one objectionable part of the entire protest program came at the conclusion of Cox'sspeech when he urged students to go uptown and sit at lunch counters. The Court reasoned that this part of Cox's speech did not deprive the demonstrationof its constitutional protection as free speech and assembly.
2. Although the students cheered, clapped, and sang loudly, they were well behaved throughout. The record does not support Louisiana's contention that thestudents' actions converted a peaceful assembly to a riotous one.
3. Louisiana argued that "violence was about to erupt." This threat of violence seemed to be based on the "mutterings" of the white group of citizens. However, Goldberg found no indication that any member of the white group threatened violence.
4. The Court found no evidence of the use of "fighting words."
5. In considering the Louisiana breach of peace statute, the Louisiana Supreme Court defined breach of peace as "to agitate, to arouse from a state of repose, to molest, to interrupt, to hinder, to disquiet." This definition allowspersons to be prohibited from merely expressing unpopular views. Yet, the purpose of free speech in government is to be "provocative and challenging," inducing unrest, dissatisfaction, and even anger. Goldberg struck down the state law on the grounds that it was too broad within its scope of constitutionally protected speech and assembly.
Public Passages Not Obstructed
On this second charge, the Court voted 7-2 for reversal. Justices Byron R. White and John M. Harlan II dissented. Goldberg wrote that the Louisiana Obstructing Public Passages law as written "precludes all street assemblies and parades, (yet) it has not been so applied and enforced by the Baton Rouge authorities." City officials testified clearly that certain meetings and parades are permitted in Baton Rouge, even though they obstruct traffic, provided priorapproval was obtained. Importantly, Goldberg pointed out that a state or municipality must so regulate city streets or other public facilities to assurethe safe passage and convenience of the people and may, in a non-discriminatory application, regulate time, place, duration, or manner of the use of streets for public assemblies. However, Baton Rouge city authorities permitted orprohibited parades or street meetings at in a very ad hoc manner. Thispractice resulted in an unwarranted restriction of Cox's freedoms of speechand assembly protected under the First Amendment.
Picketing Before a Courthouse
The appeal on the third charge of picketing before a courthouse was reportedseparately as Cox II. The Court reversed the conviction by a vote of 5-4. Goldberg again wrote for the majority. The conviction was for violations of a Louisiana law which prohibited picketing or parading in or near a state court "with the intent of interfering with, obstructing or impeding the administration of justice, or with the intent of influencing any judge, juror, witness orcourt officer, in the discharge of his duty." Goldberg wrote that the law was appropriately narrowly written to protect the state's judicial system frompressures that demonstrations near a courthouse might create. The restrictiondid not infringe on free speech and assembly and was, therefore, valid. Goldberg also found that, in applying the statute, Louisiana could arrest and convict for the kind of demonstration which occurred near the Baton Rouge courthouse. However, the majority voted to reverse the conviction on the grounds that prior permission was granted by the police to conduct the demonstration onthe far side of the street from the courthouse steps. Goldberg wrote, "to permit him to be convicted for exercising the privilege they told him was available would be to allow a type of entrapment violative of the Due Process Clause."
Impact
In public forums, Cox I affirmed the use of certain prerequisites, such as violence or the threat of violence or fighting words, to establish a true breach of peace. The Court reaffirmed that speech which merely produces discussion, arouses, disquiets, or angers is constitutionally protected. The Court also confirmed the duty of states or municipalities to assure the safety of its public places. Goldberg stated that authorities can "call a halt to a meeting which originally peaceful, becomes violent . . . set reasonable limitsfor assemblies. . . and then order them dispersed." Cox II reiteratedthat a state has a legitimate interest in protecting its judicial system from demonstrations near a courthouse which are designed to influence the administration of justice.
The above standards largely governed public order cases which followed. Nearthe end of the twentieth century, the Court continued to face questions of how far government may restrict the speech, manner, and place of protests. Civil rights, religion, and foreign policy dominated First Amendment litigation.Abortion became a public forum protest issue in the 1990s with free speech claimed by anti-abortion demonstrators. On the other hand, pro-choice proponents were concerned with guaranteeing individuals free access to abortion clinics without undue interference and pressure. In sum, the Cox standard still persisted holding that government can regulate speech in public places. But any restrictions cannot be based on the content of the speech, must be narrowly applied, must serve a significant government interest, and must leave other means available for the speech to occur. A clear message from Coxwas that freedom of speech, though of utmost importance, was not absolute.
Related Cases
Breach of Peace
The term "breach of peace" originated in England when kings reigned supreme.The king had a right to peace in his country and anyone disturbing the king'speace was arrested. Breach of peace law originated in common-law but in manystates is governed by statute, a law passed by a legislative body. A similarterm, "disorderly conduct," is strictly statutory law. Both terms refer to an intentional disruption of public peace, order, or safety of a community. Wide ranging examples include loud noises in a neighborhood, repugnant languagein a public place, resisting arrest, destruction of property, and exhortinga crowd to gather. The behavior must clearly lead to disturbance or violence.
Statutes commonly specify which conduct is considered offensive so the publicwill know what exactly is prohibited. On the other hand, some statutes are so all-encompassing that vagueness becomes a problem, such as those restricting boisterous conduct. Generally, the penalty for breach of peace is either afine or imprisonment, or both.
In the twentieth century, arrests for breach of peace were frequently associated with the civil rights demonstrations of the 1960s. The Court found statutes in South Carolina and Louisiana unconstitutional on grounds of vagueness or lacking a disruption requirement.
Sources
West's Encyclopedia of American Law. Minneapolis/St. Paul, MN: West Publishing, 1998.
Reverend B. Elton Cox
Appellee
State of Louisiana
Appellant's Claim
That the convictions under a local breach-of-the-peace law of a minister leading a peaceful protest against segregation policies violated his First Amendment rights of free speech.
Chief Lawyers for Appellant
Nils Douglas (I) and Carl Rachlin (II)
Chief Lawyer for Appellee
Ralph L. Roy
Justices for the Court
Hugo L. Black, William J. Brennan, Jr., Tom C. Clark, William O. Douglas, Arthur Goldberg (writing for the Court), Potter Stewart, Earl Warren
Justices Dissenting
John Marshall Harlan II, Byron R. White
Place
Washington, D.C.
Date of Decision
18 January 1965
Decision
The two rulings were in favor of Cox and reversed two lower court decisions convicting him of illegal speech and assembly.
Significance
The decision effectively struck down as "unconstitutionally vague" state andlocal laws. The statutes were presumably intended to prevent breaches of thepeace, but actually were designed to restrict and punish unpopular speech. The landmark ruling, however, reaffirmed the state and municipal governments' responsibility to regulate the time, place, and manner in which public placesmay be used by individuals exercising their constitutional freedom of expression rights. Such public places include parks, sidewalks, and streets.
When persons choose to exercise their rights of expression in public forums,questions of community peace and order arise. Activities conducted in open public forums have the potential to jeopardize public order, safety, and tranquility. An essential duty of government is to preserve order and protect citizens from violence, destruction of property, and restriction of free movementin public places. The government's commitment to free speech and assembly must be balanced with the obligation to maintain order. At what point is government constitutionally justified in restraining expression in order to preventa breach of the peace?
To deal with expression in public places the justices developed legal guidelines distinct from those they use to deliberate pure speech cases. The Court established that the right to speak and assemble peacefully in public for lawful discussion is a privilege not to be diminished by states or cities, and that time, manner, and place of public speeches can be regulated only if done precisely and in a non-discriminatory fashion. In the 1940s the Court began todefine standards to determine when public speech became menacing in a way causing a breach of peace. In Cantwell v. Connecticut (1940) the Court decided that the speech in question would have had to present a clear and present danger to be considered a menace to public peace. Chaplinsky v. New Hampshire (1942) established the doctrine of "fighting words," expressionsso lewd, obscene, profane, libelous, or unsettling that they would likely incite immediate illegal behavior and should be prohibited.
The 1960s brought a sense of urgency to the issue of public order cases. Thecivil rights and Vietnam War protest movements produced varied forms of public expressions, such as mass demonstrations on college campuses and on publicgrounds, sit-ins, and protest rallies. In 1961 a group of black students marched peacefully onto the grounds of the South Carolina State Capital to protest discriminatory actions against "negroes." The resulting case, Edwards v.South Carolina (1963), built on the standards set in the 1940s by rulingthat the threat of violence or actual violence is required before suppression of speech in a public forum is warranted.
Protests in Baton Rouge
On 14 December 1961, black students from Southern University picketed storeswith racially segregated lunch counter service in Baton Rouge, Louisiana andurged a boycott of those stores as part of a general protest against segregation. The Congress of Racial Equality (CORE) organized the demonstration. Thestudents were arrested and lodged in the parish jail located above the courthouse building. In reaction, a mass student meeting was held on campus and students resolved to demonstrate the next day in front of the courthouse.
The following day about 2,000 students began walking to downtown Baton Rouge.With student leaders of the local CORE chapter already in jail, the ReverendMr. B. Elton Cox, a Field Secretary to CORE and ordained congregational minister, assumed leadership and cautioned the students to remain orderly and towalk to one side of the sidewalk as they marched toward the courthouse. Two high ranking officials of the city police department and sheriffs office approached and talked to Cox. Cox informed them that the students were marching toprotest the student arrests "and also to protest discrimination." Cox told the officers that they would "march by the courthouse, say prayers, sing hymns, display signs, and conduct a peaceful program of protest." Cox declined a request by the officials to disband the group.
The students walked orderly to the courthouse where Police Chief Wingate White inquired about the purpose of the demonstration. Cox again outlined the purpose and activities and White instructed Cox that "he must confine" the demonstration "to the west side of the street," 101 feet from the courthouse steps. Approximately 80 police were stationed in the street between the demonstrators and a group of 100 to 300 curious white people, mostly courthouse workers, gathered on the east side of the street. The program began and the 23 jailed students responded by singing.
Cox stated their purpose was to protest the illegal arrest and that they werenot going to commit any violence. In his concluding remarks Cox urged the marchers to go downtown and seek service at the segregated lunch counters. "Muttering" and "grumbling" by the white onlookers began. Perceiving that Cox's speech would cause a disturbance in the city, the sheriff demanded that the demonstration break up immediately. When the demonstrations failed to disperse,police exploded tear gas and the students ran back toward downtown. Cox, trying to calm them, was one of the last to leave. No blacks participating in the demonstration were arrested.
The next day, Reverend Cox was arrested and charged with four offenses underLouisiana law, criminal conspiracy, disturbing the peace, obstructing publicpassages, and picketing before a courthouse. He was later acquitted of criminal conspiracy but convicted of the other three offenses and sentenced to a total of one year and nine months jail time and fined $5,700. In two separate judgements the Louisiana Supreme Court affirmed all three convictions. Both judgements were appealed.
The U.S. Supreme Court granted certiorari to both appeals. Cox I dealtwith the convictions for disturbing the peace and obstructing public passages. Cox II concerned the conviction for picketing before a courthouse.
As in Edwards, the Court in Cox I reversed Reverend Cox's conviction, finding Louisiana's breach of the peace statute unconstitutionally broad. That is, it penalized persons who were legally exercising their rights offree speech and assembly. The Court found the practice of allowing local Baton Rouge officials total discretion in regulating the use of public streets in violation of the First and Fourteenth Amendments. Justice Arthur Goldberg delivered the Court's opinion.
No Breach of Peace
The Court unanimously ruled to set aside the convictions on the breach of thepeace charge. Goldberg discussed five points in this reversal.
1. In considering the testimony of sheriff's officers, apparently the one objectionable part of the entire protest program came at the conclusion of Cox'sspeech when he urged students to go uptown and sit at lunch counters. The Court reasoned that this part of Cox's speech did not deprive the demonstrationof its constitutional protection as free speech and assembly.
2. Although the students cheered, clapped, and sang loudly, they were well behaved throughout. The record does not support Louisiana's contention that thestudents' actions converted a peaceful assembly to a riotous one.
3. Louisiana argued that "violence was about to erupt." This threat of violence seemed to be based on the "mutterings" of the white group of citizens. However, Goldberg found no indication that any member of the white group threatened violence.
4. The Court found no evidence of the use of "fighting words."
5. In considering the Louisiana breach of peace statute, the Louisiana Supreme Court defined breach of peace as "to agitate, to arouse from a state of repose, to molest, to interrupt, to hinder, to disquiet." This definition allowspersons to be prohibited from merely expressing unpopular views. Yet, the purpose of free speech in government is to be "provocative and challenging," inducing unrest, dissatisfaction, and even anger. Goldberg struck down the state law on the grounds that it was too broad within its scope of constitutionally protected speech and assembly.
Public Passages Not Obstructed
On this second charge, the Court voted 7-2 for reversal. Justices Byron R. White and John M. Harlan II dissented. Goldberg wrote that the Louisiana Obstructing Public Passages law as written "precludes all street assemblies and parades, (yet) it has not been so applied and enforced by the Baton Rouge authorities." City officials testified clearly that certain meetings and parades are permitted in Baton Rouge, even though they obstruct traffic, provided priorapproval was obtained. Importantly, Goldberg pointed out that a state or municipality must so regulate city streets or other public facilities to assurethe safe passage and convenience of the people and may, in a non-discriminatory application, regulate time, place, duration, or manner of the use of streets for public assemblies. However, Baton Rouge city authorities permitted orprohibited parades or street meetings at in a very ad hoc manner. Thispractice resulted in an unwarranted restriction of Cox's freedoms of speechand assembly protected under the First Amendment.
Picketing Before a Courthouse
The appeal on the third charge of picketing before a courthouse was reportedseparately as Cox II. The Court reversed the conviction by a vote of 5-4. Goldberg again wrote for the majority. The conviction was for violations of a Louisiana law which prohibited picketing or parading in or near a state court "with the intent of interfering with, obstructing or impeding the administration of justice, or with the intent of influencing any judge, juror, witness orcourt officer, in the discharge of his duty." Goldberg wrote that the law was appropriately narrowly written to protect the state's judicial system frompressures that demonstrations near a courthouse might create. The restrictiondid not infringe on free speech and assembly and was, therefore, valid. Goldberg also found that, in applying the statute, Louisiana could arrest and convict for the kind of demonstration which occurred near the Baton Rouge courthouse. However, the majority voted to reverse the conviction on the grounds that prior permission was granted by the police to conduct the demonstration onthe far side of the street from the courthouse steps. Goldberg wrote, "to permit him to be convicted for exercising the privilege they told him was available would be to allow a type of entrapment violative of the Due Process Clause."
Impact
In public forums, Cox I affirmed the use of certain prerequisites, such as violence or the threat of violence or fighting words, to establish a true breach of peace. The Court reaffirmed that speech which merely produces discussion, arouses, disquiets, or angers is constitutionally protected. The Court also confirmed the duty of states or municipalities to assure the safety of its public places. Goldberg stated that authorities can "call a halt to a meeting which originally peaceful, becomes violent . . . set reasonable limitsfor assemblies. . . and then order them dispersed." Cox II reiteratedthat a state has a legitimate interest in protecting its judicial system from demonstrations near a courthouse which are designed to influence the administration of justice.
The above standards largely governed public order cases which followed. Nearthe end of the twentieth century, the Court continued to face questions of how far government may restrict the speech, manner, and place of protests. Civil rights, religion, and foreign policy dominated First Amendment litigation.Abortion became a public forum protest issue in the 1990s with free speech claimed by anti-abortion demonstrators. On the other hand, pro-choice proponents were concerned with guaranteeing individuals free access to abortion clinics without undue interference and pressure. In sum, the Cox standard still persisted holding that government can regulate speech in public places. But any restrictions cannot be based on the content of the speech, must be narrowly applied, must serve a significant government interest, and must leave other means available for the speech to occur. A clear message from Coxwas that freedom of speech, though of utmost importance, was not absolute.
Related Cases
- Cantwell v. Connecticut, 310 U.S. 296 (1940).
- Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
- Edwards v. South Carolina, 372 U.S. 229 (1963).
- Adderley v. Florida, 385 U.S. 39 (1966).
Breach of Peace
The term "breach of peace" originated in England when kings reigned supreme.The king had a right to peace in his country and anyone disturbing the king'speace was arrested. Breach of peace law originated in common-law but in manystates is governed by statute, a law passed by a legislative body. A similarterm, "disorderly conduct," is strictly statutory law. Both terms refer to an intentional disruption of public peace, order, or safety of a community. Wide ranging examples include loud noises in a neighborhood, repugnant languagein a public place, resisting arrest, destruction of property, and exhortinga crowd to gather. The behavior must clearly lead to disturbance or violence.
Statutes commonly specify which conduct is considered offensive so the publicwill know what exactly is prohibited. On the other hand, some statutes are so all-encompassing that vagueness becomes a problem, such as those restricting boisterous conduct. Generally, the penalty for breach of peace is either afine or imprisonment, or both.
In the twentieth century, arrests for breach of peace were frequently associated with the civil rights demonstrations of the 1960s. The Court found statutes in South Carolina and Louisiana unconstitutional on grounds of vagueness or lacking a disruption requirement.
Sources
West's Encyclopedia of American Law. Minneapolis/St. Paul, MN: West Publishing, 1998.
User Comments Add a comment…
9 months ago
I am not a lawyer. My background is in criminal justice. I was reading this section because I noticed in the Federal Register that the Nuclear Reg Commission has specified in advance of a meeting what public attendees can say, do, or present such as posters or wearing t-shirts. Inasmuch as conduct during these meetings must show some violent or overtly disruptive behavior how can a federal agency beforehand specify what the public can or cannot do in what seems to me to be a violation of constitutional priciple.