McLaurin v. Burnley Jr. Brief for Appellant

    4  ( *, 7 As

I n  t h e

States ©curt of Appeals
F ob the F ifth Circuit 

No. 25765

Charles McLaurin,

— v.-
Appellant,

W illiam C. B urnley, Jr., Custodian of the 
Greenville City Jail,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
NORTHERN DISTRICT OF MISSISSIPPI

BRIEF FOR APPELLANT

Jack Greenberg
Melvyn Z.VRf.

10 Columbus Circle 
New York, New York 10019

Reuben Y. A nderson
538% North Farish Street 
Jackson, Mississippi 39202

R. Jess B rown
125% North Farish Street 
Jackson, Mississippi 39201

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

Attorneys for Appellant



I N D E X

PAGE

Statement of the C ase........................................................  1

Specification of Error ......................................................  12

A rgument

Appellant’s Speech Is Protected From Punishment 
Under Mississippi’s Vague and Overbroad Breach 
of the Peace Statute, Miss. Code Ann. §2089.5 
(1966 Supp.), by the First and Fourteenth Amend­
ments to the Constitution of the United States .... 13

Conclusion .............................................   23

Table op Cases

Ashton v. Kentucky, 384 U. S. 195 (1966) ...................  18

Bolton v. City of Greenville, 253 Miss. 656, 178 So. 2d
667 (1965) .......................................................................... 3

Bynum v. City of Greenville, 253 Miss. 667, 178 So, 2d 
672 (1965) ........................................................................ 3

Cantwell v. Connecticut, 310 U. S. 296 (1940) .......13,14,18
Carmichael v. Allen, 267 F. Supp. 985 (N. D, Ga. 1967) 20 
Chaplin sky v. New Hampshire, 315 U. S. 568 (1942) .. 15 
Cox v. Louisiana, 379 U. S. 536 (1965) ..14,15,17,18, 21, 22

Dombrowski v. Pfister, 380 IT. S. 479 (1965) .............. 18



ii

PAGE

Edwards v. South Carolina, 372 U. S. 229 (1963) ....15,16,
17,18

Feiner v. New York, 340 U. S. 315 (1951) ................... 15

NAACP v. Button, 371 IT. S. 415 (1963) ....................... 18
New York Times Co. v. Sullivan, 376 IT. S. 254 (1964) 22

Shuttlesworth v. Birmingham, 382 IT. S. 87 (1965) .... 18 
Stromberg v. California, 283 IT. S. 359 (1931) ........... 18

Terminiello v. Chicago, 337 IT. S. 1 (1949) ................... 20
Thomas v. Collins, 323 IT. S. 516 (1945) ....................... 18

Williams v. North Carolina, 317 IT. S. 287 (1942) .......  18
Wright v. Georgia, 373 U. S. 284 (1963) ....................... 18

Statutes Involved

Miss. Code Ann. §2089.5 (1966 Supp.) ........ .......... 12,13,20

Section 252, Code of Ordinances, City of Greenville, 
Mississippi ........................................................................ 12



In the

Imleii GImirt of Kpprais
F or the F ifth Circuit

No. 25765

Charles McL aurin,

Appellant,

W illiam C. B urnley, Jr., Custodian of the 
Greenville City Jail,

Appellee.

BRIEF FOR APPELLANT

Statement of the Case

This is an appeal from an order of the United States 
District Court for the Northern District of Mississippi 
denying appellant’s petition for writ of habeas corpus.1 
Appellant’s petition was filed February 14, 1967 and al­

1 The order appealed from was dated December 29, 1967 and 
entered January 2, 1968 (R. 254-55). The district court issued a 
certificate of probable cause on January 15, 1968 (R. 263-64) and 
a timely notice of appeal was filed January 16, 1968 (R. 265). The 
district court’s opinion is reported at 279 F. Supp. 220.



2

leged, in essence, that his confinement2 by appellee pun­
ished him for the exercise of his federal constitutional 
rights of free speech, assembly and petition (R. 3-7).

The case was submitted to the district court on the record 
made in the state court (R. 237-38, 240-41; 279 F. Supp. 
220, 222). That record, viewed as a whole, reveals the 
following.

On July 1, 1963, appellant, a young Negro civil rights 
worker (R. 112-16), attended the trial of two Negro girls 
in the Police Court of the City of Greenville, Mississippi. 
The girls stood charged with disorderly conduct because 
they refused to leave a traditionally segregated public park 
when the police, fearing that the crowd of white persons 
that was gathering around them would become violent, or­
dered them to do so. The trial was attended by approxi­
mately 300 persons, approximately half of them Negroes 
(R. 37). During the trial, appellant attempted to sit on 
the side of the courtroom customarily reserved for whites, 
but he was ordered out of that section (R. 37, 44-46, 48-50, 
104-05). Appellant left the courtroom and protested the 
segregated seating pattern to Police Chief William C. Burn­
ley, Jr., appellee herein (R. 84-85, 105). His protest was 
futile, and he was then denied readmission to the courtroom 
(R. 105). Appellant then left the municipal building, which 
housed the municipal court and the police station, and 
stood outside on the sidewalk, waiting for the trial to end 
(R. 106). About 50 Negroes were standing outside the 
building, having been denied admission to the courtroom

2 Subsequent to the filing of his petition, appellant was released 
on bond pending decision by the district court (R. 9-10). He re­
mains enlarged on $1,500 bond pending this appeal by order of the 
district court (R. 264-65).



3

because the Negro side was completely filled (although 
there was some space on the white side) (E. 106).

The girls were convicted by the municipal court.3

As the spectators left the municipal building, appellant 
began to address them.

What appellant said was the subject of testimony by 
three Greenville police officers and appellant.

Arresting Officer Willie Carson testified:

McLaurin began to talk protesting the Court’s de­
cision in words like, what are you going to do about 
it; you going to take this; it ain’t right . . . (R. 39). 

 ̂  ̂ ^

He said it was wrong— segregation was wrong— 
what we going to do about it. Mostly, he was protest­
ing the Judge’s decision (R. 42).

* * * # #

He was on the outside—I said, preaching because 
my experience in the words he was using and waving 
and shouting I said, I told him he couldn’t preach out 
on the streets (R. 52).

 ̂  ̂ ^

. . . [H]e said this, what you people going to do 
about this; this is wrong, the white Caucasian, this law 
is wrong; you going to take it; you going to let them

3 In 1965, their convictions were reversed by the Mississippi 
Supreme Court. Bolton v. City of Greenville, 253 Miss. 656, 178 
So. 2d 667 (1965) and Bynum v. City of Greenville, 253 Miss. 667, 
178 So. 2d 672 (1965).



4

get away with it. I  heard those words there, and then 
the people began to just come in.

Q. Now, was the defendant cursing? A. No, I 
didn’t hear him curse.

Q. He didn’t use any profane language, if he did you 
didn’t hear him? A. No (R. 53).

Greenville Police Captain Harvey Tackett testified:

He started waving his hands, shouting real loud to 
the people that were walking on. And, they, most of 
them, immediately turned and came back around him. 
He then left the sidewalk and jumped up on the steps 
of the Police Station and continued to shout and 
holler, ask people, you see what’s happening, what you 
going to do about it, and such phrases as that (R. 64).

-v. -y. .v.w w w w

Q. Now, did you hear the defendant use any kind of 
vulgar language of any kind? A. I did not.

jfc JJ, -sfe Jfc MiV " A *  'A* "A' ^

Q. . . . Did he do anything that would appear to you 
to have been vulgar by his actions? . . .  A. No he 
didn’t (R. 73).

Greenville Police Chief William C. Burnley, Jr. testified:

Q. What was he saying? A. What are you going 
to do? Are you going to let this happen? Statements 
of that type (R. 77).

Appellant testified:

. . .  I moved out in front of the Municipal building. 
As the people was coming out of the building—well,



5

they was coming out just looking as if, you k n o w - 
some of the people seemed to be kinda shocked as to 
the conviction of the people, as if they thought they 
wasn’t going to be convicted, and so, people were 
standing around out there. And so, at that time I felt 
that they didn’t really know what had happened and 
what was going on. Some people had had to stand on 
the outside that could have gone into the Courtroom 
and taken a seat had it not been for the system they 
were using to seat people, others that "were there didn’t 
really know why these kids had been convicted. So, 
at this time I felt that the 1st Amendment of the 
United States Constitution gives the right of freedom 
of speech and peaceful assembly. The people wTere 
peacefully assembled out there, and so, I made a few 
statements. My job is voter registration, to get Ne­
groes registered to vote. And so, then, I started try­
ing to get the attention of the people to tell them 
that by registering and voting this couldn’t have hap­
pened. And, at this time, Officer Carson, as I started to 
talk, came up and—well, he caught me by the shoulder, 
took me by my arm, and he said, you can’t make a 
public speech without a permit, you cannot make a 
public speech in front of the building without a per­
mit (It. 107).

#  #  *  *  *

. . . And, at that time—the time that I was out there 
Officer Carson took me by the arm then, and I con­
tinued to talk as he carried me in. I was saying dif­
ferent things like, this wouldn’t have happened if 
Negroes were registered to vote, that in Washington 
County Negroes are in the majority of the popula­
tion— 50 per cent of the population is Negro and that



6

they could have used the park or any other thing had 
they been registered voters (R. 108).

■u> -v* .y. -v.w w w w w

I meant that if they were registered—if the people 
would register to vote, were to get in line and exer­
cise their duties and responsibilities as citizens, as 
Negro citizens, and as citizens of the United States, 
they could change some of these things. They could 
change the policy of being arrested in a park that 
they paid for as well as any other people and that 
there wouldn’t be such parks that was designated for 
Whites and for Negroes. This was my intentions 
and that being arrested there, I felt that they was in­
citing a riot then, if the people—if the policemen-— 
there were policemen out there, and if at any time 
they felt that the crowd was going to get unruly, 
it was their job to move the crowd—there was no 
attempt made to dispurse the crowd. Instead, I was 
arrested for making—for saying what I was saying, 
you know, I was arrested not—I don’t think there 
was any question as to whether, thought whether the 
crowd—what would they do, tear down the building, 
you know. Surely, I didn’t think they were going to 
attack me or attack the policemen there, because we 
have advocated non-violence, not violence—non-vio­
lence is our way of doing things. And, the only thing 
that I had in mind was to get them to register to vote 
and to realize what was happening, and I felt that I 
had a right to do this under the 1st Amendment.

Q. I take it then, that you did not at any time make 
any statements or of any kind to encourage them to 
attack anybody, did you? Did you tell them to rush 
inside and attack the Judge for his decision? A. No,



7

I did not. In fact I never really finished—I was 
dragged away before I could get out what I wanted 
to get out. Each time—as I was carried—as I was 
being carried into the building, I was talking and I 
never really made my point (R. 109-10).

The three police officers and appellant also testified as 
to the reaction of the crowd to Appellant’s speech.

Officer Carson testified:

Q. And, what was the crowd doing! A. They were 
talking. Everybody seemed interested in what he was 
saying.

Q. What was the tempo of that crowd! A. Well, 
at the time as I could judge, everybody was getting 
disturbed.

Q. And, what do you mean by disturbed, Willie! 
A. They didn’t like the decision— of what he was 
talking—what he was telling them (II. 40).

# * # # #
Q. Just tell—just describe that situation as best 

you can, Willie. What you saw and what was going on 
in your presence after the defendant began talking 
to those people! A. Well, my experience in my opin­
ion was a very tense situation and had it kept on any­
thing could happen.

Q. How do you know it was tense! A. We could 
tell the crowd and mumbling in the crowd . . .  (R. 41- 
42).

* * # * *
Q. Did you hear anybody in the crowd hollering! 

A. Oh, you could hear them talking back and hear 
them saying, it ain’t right.



8

Q. How’s that? A. You could hear voices—it ain’t 
right, you know.

Q. But, you didn’t hear any oral threats made by 
anybody in the crowd, did you— on anybody’s life? 
A. No, I didn’t.

Q. Or property, you didn’t hear that, did you? A. 
No I didn’t (R. 60-61).

Captain Tackett testified:

They seemed to be crowding more and more around 
the door of the Police Station and the mumbling and 
all began to get louder. It seemed as though they 
were going to try to take the situation in their own 
hands (R. 66).

Q. I believe you said that you heard some sort of 
muttering among the various people in the crowd, is 
that correct? A. That’s right.

Q. And, I believe you told the Court you couldn’t 
understand what they were saying? A. I could not.

Q. So you couldn’t tell the crowd was saying, let’s 
get them? A. No I couldn’t.

Q. Or let’s go get that judge? A. I could not. I 
could say what I heard the defendant McLaurin say.

Q. . . . [D] id you observe or make any observation 
of anybody in the crowd was armed at the time? A. 
I didn’t see anyone.

Q. Was the crowd hooping, hollering and yelling 
when they were in that vicinity? Were the crowd 
themselves doing a lot of hooping and yelling? A. 
No they wasn’t (R. 71-72).



9

Police Chief Burnley testified:

Q. Did you hear what the crowd was saying? A. 
No, it was a general mumbling, utterance. I couldn’t 
distinguish anything they were particularly saying.

Q. So then, you couldn’t tell the Court, then, that 
there were people in the crowd making any threaten­
ing statements or anything like that? A. Well, the 
general demeanor of the crowd, the appearance of the 
crowd at a tense situation like that would automat­
ically inform me that it was a tense and sticky situa­
tion.

Q. But you didn’t hear any verbal threats? A. No 
I did not (R. 81).

Appellant testified:

Q. Did the crowd appear to be angry and in a tense, 
angry mood? A. I feel that the crowd was sorta up­
set as to the out come of the trial, but certainly the 
words that I was using wouldn’t have caused them to 
jump—to go in there and try to beat up the Judge. 
Negroes know they can’t go beat up the Judge and 
be justified, and tear down the building and be justi­
fied, or jump on a policeman in the State of Mississippi 
and be justified.

Q. Well, it wouldn’t be justified in any— A. Any 
place—but they know better—there are certain things 
that they know (R. 110-11).

# # * # *
Q. Now, as they came out, you tell this jury that 

the Negroes that you observed seemed shocked, is that 
correct? A. Right.

Q. And, they seemed upset? A. Right.



10

Q. And, that they were shocked and upset at what 
had taken place in the building, is that correct? A. 
Yes.

Q. And, that’s what you were talking to them about, 
is it not ? A . That’s right.

Q. And, that’s what you ask them, what are you 
going to do about it, is that correct? A. Not in the 
way you say it, no.

Q. Well, that’s what you told them, isn’t it? A. I 
wanted to know what would they do to get to try to 
change—what would they do to register to vote. I 
would have brought these things out had I been given 
the opportunity (R. 120).

# # * # *

I was the one that was standing up there doing 
the talking and I at no time felt that these people 
were going to attack me. These were people that I had 
talked with before, people that I know as well as my 
own people. I didn’t feel that they were going to come 
up and beat me up, you know, do me any harm, and 
I didn’t feel the words that I was saying, I never 
directed them to go in and get anybody else. I felt 
that if it was a tense situation out there that these 
people would—first of all they knew, some of them, 
that the kids had tried to use the park. They needed 
some kind of idea as to what steps to take. They 
were up-set; they were restless. The expressions on 
their faces characterized by restless energy, that they 
felt that something should be done. But, then all it 
needed was a leader, and I was going to try to show 
them where they could register their protest with the



11

Mayor, and I didn’t feel that they were going to come 
up and attack me (R. 202).

#  #  #  *  #

Q. State whether or not the statement you were 
making was for the purpose of releaving the tense 
situation, if any ! A. Certainly if they knew what was 
going—I always felt that if people know what is going 
on, then they will know what steps to take, so I was 
telling them what had happened, and I felt that this 
was leading them, and one of the things I would have 
advocated was that they all come together in a meet­
ing later, a mass meeting of some type at church 
or some hall here and we discuss plans to go out 
and talk with the City officials, I feel that this would 
have relieved the tension there, and we would have 
all gotten together and left the area (R. 203).

Officer Carson told appellant that he could not continue 
speaking without a permit (R. 42) and, when appellant 
■continued talking, placed him under arrest (R. 43). Car- 
son started to take appellant into the municipal building, 
but appellant tried to pull back (R. 43, 205-06); Carson, 
who outweighed appellant by 60 pounds (R. 35, 203), 
testified, “ I finally manhandled him on up through the 
door” (R. 43).4

After appellant’s arrest, the crowd was easily dispersed 
(R. 68,78).

4 Once inside the police station, appellant fell to the floor and lay 
there motionless (B. 207); he was picked up and carried to the 
Sergeant’s desk for booking, after which he voluntarily got up (R. 
207).



12

Appellant was charged with breach of the peace, in vio­
lation of Miss. Code Ann. §2089.5 (1966 Snpp.), and with 
resisting arrest, in violation of §252 of the Code of Ordi­
nances of the City of Greenville. He was tried by a jury- 
in the County Court of Washington County on September 
16 and 20, 1963 and convicted.5 Appellant was sentenced 
to pay a fine of $100 and serve a term of 90 days in the 
city jail on each charge (R. 24-25; 145-46). Appellant’s 
convictions were affirmed by the Circuit Court of Wash­
ington County and, on June 13, 1966, by the Supreme 
Court of Mississippi, 187 So. 2d 854.

On January 9, 1967, the Supreme Court of the United 
States denied appellant’s petition for writ of certiorari, 
three Justices dissenting, 385 U. S. 1011. Thereupon, ap­
pellant filed the instant petition for writ of habeas corpus.

Specification of Error

The court below erred in holding that appellant’s speech 
could be punished as a breach of the peace under Miss. 
Code Ann. §2089.5 (1966 Supp.), consistent with the First 
and Fourteenth Amendments to the Constitution of the 
United States.

5 Earlier, on July 3, 1963, appellant was tried and convicted on 
these charges in the Municipal Court of the City of Greenville.



13

A R G U M E N T

Appellant’s Speech Is Protected From Punishment 
Under Mississippi’s Vague and Overbroad Breach of the 
Peace Statute, Miss. Code Ann. §2089.5 (1966 Supp.), 
by the First and Fourteenth Amendments to the Con­
stitution of the United States.

Appellant was convicted on a general verdict of the 
charge of “ disturb [ing] the public peace by loud or offen­
sive language, or by conduct either calculated to provoke 
a breach of the peace, or by conduct which might reason­
ably have led to a breach of the peace” (R. 18, 24-25).

The court below held that the statute under which appel­
lant was convicted, Miss. Code Ann. §2089.5 (1966 Supp.), 
“proscribes only nonpeaceful speech, speech calculated to 
cause or likely to cause a shattering of peace and order” 
and accepted what it considered to be the state court’s 
conclusion that appellant’s speech “ exceeded the bounds 
of argument and persuasion and was calculated to or could 
have led to a breach of the peace” (R. 249, 251; 279 F. 
Supp. at 225-226).

The court below stated the principle enunciated by the 
Supreme Court of the United States in Cantwell v. Con­
necticut, 310 U. S. 296, 308 (1940):

The offense known as breach of the peace embraces 
a great variety of conduct destroying or menacing 
public order and tranquility. It includes not only vio­
lent acts, but acts and words likely to produce violence 
in others. No one would have the hardihood to sug­
gest that the principle of free speech sanctions incite­
ment to riot . . .  When clear and present danger of



14

riot, disorder, interference with traffic upon the public 
streets or other immediate threat to public safety, 
peace or order, appears, the power of the state to 
prevent or punish is obvious.

Appellant does not question the validity of this prin­
ciple, but only its application by the court below.

Appellant contends that his speech was no incitement to 
riot and that he was convicted under a statute “ sweeping in 
a great variety of conduct under a general and indefinite 
characterization, and leaving to the executive and judicial 
branches too wide a discretion in its application” (Cantwell 
v. Connecticut, supra, 310 U. S. at 308).

Appellant’s speech was no incitement to riot.6 It is true, 
as the court below found, that appellant spoke in a “ loud 
voice” (R. 243; 279 F. Supp. at 223). His speech was 
directed to a crowd of about 200 people, most of whom had 
been witnesses at the trial. His speech was critical of the 
girls’ convictions; in effect, it “ denounced these convic­
tions as ‘bad’ ” (R. 243; 279 F. Supp. at 223). The con­
victions were bad. See note 3, supra. But the court be­
low incorrectly found that appellant’s speech was “non- 
peaceful.” Reliance for this conclusion was placed upon 
certain of appellant’s statements which were characterized 
by the court below as challenging the crowd with “what 
they intended to do about it” (R. 243; 279 F. Supp. at 223). 
In appellant’s speech of 8 or 9 minutes (R. 244; 279 F. 
Supp. at 223), these statements were taken out of context; 
viewed in its entirety, appellant’s speech was neither an

6 Because appellant is raising a claim of constitutional right in 
the area of First Amendment freedoms, it is the duty of this Court 
to make an independent examination of the whole record. Cox v. 
Louisiana, 379 U.S. 536, 545, n. 8, and cases cited (1965).



15

explicit incitement—-nor a subtle invitation—to riot. See 
pp. 3-7, supra. All that appellant urged his listeners to 
“ do” was to register to vote so that illegal segregation 
would end in Washington County.

In context, it is apparent that appellant’s speech did 
not amount to the “ fighting words” condemned in Chap- 
Unsky v. New Hampshire, 315 U. S. 568 (1942).7 Nor did 
appellant’s speech amount to a case like Fein-er v. New 
York, 340 U. S. 315 (1951), where “ the speaker passes the 
bounds of argument or persuasion and undertakes incite­
ment to riot” (340 U. S. at 321).8

The cases that are apposite are Edwards v. South Caro­
lina, 372 U. S. 229 (1963); and Cox v. Louisiana, 379 U. S. 
536 (1965). There, as here, the speaker intended to stir 
persons in the crowd to action, viz., assertion of their 
federal rights. Analysis of these cases reveals that ap­
pellant’s speech merits no less federal protection than 
that afforded the speech delivered in Edwards and Cox.

In Edwards,

the petitioners engaged in what the City Manager 
described as “boisterous” , “ loud” , and “flamboyant” 
conduct, which, as his later testimony made clear, con­
sisted of listening to a “ religious harangue” by one of

7 The speaker in Chaplinsky met the following test developed by 
the New Hampshire Supreme Court: “ The test is what men of 
common intelligence would understand would be wrords likely to 
cause an average addressee to fight. . . . The English language has 
a number of words and expressions which by general consent are 
‘fighting words’ when said without a disarming smile” (315 U.S. at 
573).

8 The speaker in Feiner urged Negroes to take up arms against 
whites (340 U.S. at 317).



16

their leaders, and loudly singing “ The Star Spangled 
Banner” and other patriotic and religious songs, while 
stamping their feet and clapping their hands (372 
U. S. at 233).

The speaker in Edwards had “harangued” approximately 
200 of his followers and at least an equal number of by­
standers on the State House grounds in Columbia, South 
Carolina. His and his followers’ breach of the peace con­
victions were reversed by the Supreme Court, which held 
that their constitutionally protected rights of free speech, 
assembly and petition had been exercised “in their most 
pristine and classic form” (372 U. S. at 235).

Cox had addressed a group of about 2,000 young Negro 
students on the sidewalks between the State Capitol and the 
courthouse in Baton Rouge, Louisiana. His was a speech of 
protest (379 IJ. S. at 542-43):

[Cox] gave a speech, described by a State’s witness 
as follows:

He said that in effect it was a protest against the 
illegal arrest of some of their members and that other 
people were allowed to picket . . . and he said that 
they were not going to commit any violence, that if 
anyone spit on them, they would not spit back on the 
person that did it.

Cox then said:

All right. It’s lunch time. Let’s go eat. There are 
twelve stores we are protesting. A number of these 
stores have twenty counters; they accept your money 
from nineteen. They won’t accept it from the twenti­
eth counter. This is an act of racial discrimination.



17

These stores are open to the public. You are members 
of the public. We pay taxes to the Federal Govern­
ment and you who live here pay taxes to the State.

The Sheriff testified that, in his opinion, constitutional 
protection for the speech ceased “when Cox, concluding his 
speech, urged the students to go uptown and sit in at lunch 
counters” (379 U. S. at 546), but the Supreme Court dis­
agreed :

The Sheriff testified that the sole aspect of the pro­
gram to which he objected was “ [t]he inflammatory 
manner in which he [Cox] addressed that crowd and 
told them to go on uptown, go to four places on the 
protest list, sit down and if they don’t feed you, sit 
there for one hour.” Yet this part of Cox’s speech obvi­
ously did not deprive the demonstration of its pro­
tected character under the Constitution as free speech 
and assembly (379 U. S. at 546).

Appellant’s speech was, therefore, like the speeches pro­
tected in Edwards and Cox a stirring and vigorous en­
couragement to his listeners to assert their federal rights; 
it was no invitation to violence.

Because appellant was convicted by a general verdict, 
he may now stand convicted under one or more of the 
following independent elements of the trial court’s charge 
(R. 20-21):

1. “Disturb [ing] the public peace by loud or offensive 
language” ;

2. “ Conduct . . . calculated to provoke a breach of the 
peace” ;



18

3. “ Conduct which might reasonably have led to a breach 
of the peace.”

Under settled principles, if any of these charges cannot 
constitutionally be applied to punish appellant’s speech, 
then his convictions9 must fall. Stromberg v. California, 
283 U. S. 359, 367-368 (1931); Williams v. North Carolina, 
317 U. S. 287, 291-293 (1942); Thomas v. Collins, 323 U. S. 
516, 529 (1945). Cf. Shuttlesworth v. Birmingham, 382 
U. S. 87, 92 (1965).

Appellant submits that none of these prohibitions is 
drawn with the narrow specificity required to punish speech 
of the kind which this record reveals. See Cantwell v. 
Connecticut, supra, 310 U. S. at 307-11; NAACP  v. Button, 
371 U. S. 415, 432 (1963) and cases cited; Edwards v. South 
Carolina, supra, 372 U. S. at 236-38; Cox v. Louisiana, 
supra, 379 U. S. at 551-52; Dombrowski v. Pfister, 380 U. S. 
479, 486-87 (1965); Ashton v. Kentucky, 384 U. S. 195, 200- 
201 (1966).

There is a common infirmity running through these pro­
hibitions punishing speech thought to be “ offensive”  or 
“ calculated to provoke”, or “which might reasonably have 
lead to” , a breach of the peace. It is the conditioning of 
the citizen’s freedom of speech upon the moment-to-moment 
opinions of a policeman on his beat, thus “ allow [ing] per­
sons to be punished merely for peacefully expressing un­
popular views” (Cox v. Louisiana, supra, 379 U. S. at 551).

9 Appellant’s conviction for resisting arrest must fall with his 
breach of the peace conviction because the trial court correctly 
charged the jury that appellant could not be convicted unless he 
was found to have committed a breach o f the peace in the arresting 
officer’s presence (R. 142-43, 145). See Wright v. Georgia, 373 
U.S. 284, 291-92 (1963); Shuttlesworth v. Birmingham, 382 U.S 
87 (1965).



19

This rationale was developed in Mr. Justice Black’s con­
curring opinion in Cox, in which he condemned statutes 
allowing a policeman to curb a citizen’s right of free speech

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 IT. S. 356, 
369-370, 30 L ed 220, 226, 6 S Ct 1064. 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.

The court below did not agree that Miss. §2089.5 allows 
punishment of the peaceful expression of unpopular views 
(R. 248-49, 279 F. Supp. at 225):

In the case here, the statute, as interpreted by the 
state court, permits a conviction for speech only if 
that speech was calculated to lead to a breach of the 
peace or was of such a nature as ultimately led to a 
breach of the peace. There can be no conviction for 
peacefully exercising the right of free speech. This is 
consistent with the principle that one may be found 
guilty of breach of the peace if he commits acts or 
make statements likely to provoke violence and dis­
turbance of good order, even though no such eventual­
ity be intended. Cantwell v. State of Connecticut, 
supra. Under the statute here in question, so long as 
the speech was peaceful—regardless of whether it in­



20

vited dispute, brought about a condition of unrest or 
stirred people to anger—a conviction was not war­
ranted. (Emphasis in original)10

With deference, appellant submits that there can be a 
conviction under §2089.5 for the peaceful expression of 
unpopular views and that this is just such a case.

Appellant could have been arrested and convicted be­
cause the arresting officer and the jury thought appellant’s 
speech was “ loud or offensive,” even though “peaceful.” 11

Appellant could have been arrested and convicted be­
cause the arresting officer and the jury thought appellant’s 
speech was “ calculated to provoke a breach of the peace,”

10 The court below attempted to read §2089.5 consistently with 
Terminiello v. Chicago, 337 U.S. 1, 4-5 (1949) :

[A] function of free speech under our system of government is 
to invite dispute. It may indeed best serve its high purpose 
when it induces a condition of unrest, creates dissatisfaction 
with conditions as they are, or even stirs people to anger. 
Speech is often provocative and challenging. It may strike 
at prejudices and preconceptions and have profound unsettling 
effects as it presses for acceptance of an idea. That is why 
freedom of speech . . . is . . . protected against censorship or 
punishment . . . .  There is no room under our Constitution for a 
more restrictive view. For the alternative would lead to stand­
ardization of ideas either by legislatures, courts, or dominant 
political or community groups.

In Terminiello, convictions were reversed “ because the trial judge 
charged that speech of the defendants could be punished as a breach 
of the peace ‘if it stirs the public to anger, invites dispute, brings 
about a condition of unrest, or creates a disturbance, or if  it molests 
the inhabitants in the enjoyment of peace and quiet by arousing 
alarm’ ” (337 U.S. at 3).

See also Carmichael v. Allen, 267 F. Supp. 985, 997-99 (N.D. 
Ga. 1967) (Three-judge court).

11 Appellant’s speech was no louder than necessary to reach a 
large outdoor audience. A t any event, his speech could have been 
punished as “ offensive”  if  the arresting officer and jury thought 
it was too critical of the court’s decision. This alone would render 
appellant’s convictions unconstitutional, see note 10, supra.



21

even though it is uncontroverted that appellant meant no 
such thing (see pp. 4-7, swpra, and li. 109-10, 125, 202-03, 
218).

Appellant could have been arrested and convicted be­
cause the arresting officer and the jury thought appellant’s 
speech “might reasonably have led to a breach of the 
peace,” even though, under all the objective evidence,12 
appellant did nothing more than invite dispute, bring about 
a condition of unrest or stir people to anger—if that (see 
pp. 7-11, supra).

Thus, this case is indistinguishable from and squarely 
controlled by Cox v. Louisiana, 379 U. S. 536, 551 (1965). 
Cox voided convictions for speech conduct similar to ap­
pellant’s under a Louisiana breach-of-the-peace statute that 
is identical in its operative language to Miss. Code Ann. 
§2089.5. The Louisiana statute was held facially uncon­
stitutional on reasoning that plainly applies to and equally 
condemns §2089.5. The District Court below sought to dis­
tinguish Cox on the theory that the construction of §2089.5 
by the Mississippi courts differed from the construction 
by the Louisiana courts of the identical Louisiana statu­
tory language (E. 248-249; 279 F. Supp. at 225). But, as 
we have shown, the jury charge in the County Court au­
thorized appellant’s conviction on grounds which are pre­
cisely those condemned in Cox (see pp. 17-18, supra). The 
Mississippi Supreme Court, in affirming appellant’s con­

12 Appellant does not overlook the police officer’s testimony that, 
in their opinion, violence could have erupted. But the federal 
courts have not permitted speakers to be criminally punished simply 
on the basis of hunches of police officers— however experienced. 
See, e.g., Cox v. Louisiana, supra, 379 U.S. at 550. In fact, the 
arresting officer testified that he arrested appellant because he didn’t 
have a permit to speak (R. 42).



22

viction, did not distinguish Cox by purporting to construe 
its statute differently from the Louisiana law there struck 
down, but found only that the “ factual situation involved in 
this case is entirely different . . . . • ’ 187 So. 2d at 860. 
Whatever factual differences there may be— and we submit 
that they are inconsiderable—appellant’s conduct, like 
Cox’s, was entirely peaceful and non-inflammatory. If his 
acts were criminal, they were so because Miss. Code Ann. 
§2089.5 penalized incidents of them that were identical to 
the incidents on which Cox’s unconstitutional conviction 
also rested. This appellant has therefore been punished 
in exactly the manner forbidden by Cox, under a statute 
written, construed and applied in exactly the manner for­
bidden by Cox. This conviction is illegal and must be va­
cated.

From what has been said, it is obvious that appellant in 
no way questions “ the right of a community to preserve 
the peace and to protect itself from riots and disorder” 
(R. 253; 279 F. Supp. at 226). But the City of Greenville, 
no less than appellant, must heed President Johnson’s ad­
monition upon signing the Civil Rights Act of 1968 that “ the 
only real road to progress for a free people is through the 
process of law and that is the road that Americans will 
travel” (New York Times, April 12, 1968). Uncomfortable 
as it may sometimes make police officers on their beat, we 
cannot retreat from our “ profound national commitment to 
the principle that debate on public issues should be unin­
hibited, robust, and wide-open, and that it may well include 
vehement, caustic, and sometimes unpleasantly sharp at­
tacks on government and public officials” (New York Times 
Co. v. Sullivan, 376 U. S. 254, 270 (1964)).



23

CONCLUSION

For the foregoing reasons, appellant prays that the 
order of the district court denying appellant’s petition 
for writ of habeas corpus be reversed and the case re­
manded with directions that the writ be granted and ap­
pellant discharged.

Respectfully submitted,

Jack G-reenberg
Melvyn Zarr

10 Columbus Circle 
New York, New York 10019

R euben V. A nderson

538% North Farish Street 
Jackson, Mississippi 39202

R. Jess Brown

125% North Farish Street 
Jackson, Mississippi 39201

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

Attorneys for Appellant



24

Certificate of Service

I hereby certify that on April 1968, I served a copy 
of the annexed Brief for Appellant npon J. Bobertshaw, 
Esq., attorney for appellee, P. 0. Box 99, Greenville, Mis­
sissippi 38701, by United States air mail, postage prepaid.

Melvyn Zarr 
Attorney for Appellant



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