Augustus v. The Board of Public Instruction of Escambia County, Florida Brief for Appellants

    I n the

Supreme (&mvt ui %  MnxUh Butm
October T eem, 1962 

No. 86

James E dwards, Jr., et al.,
Petitioners,

State of South Carolina,
Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF THE STATE OF SOUTH CAROLINA

BRIEF FOR PETITIONERS

J ack Greenberg 
Constance B aker M otley 
J ames M. Nabrit, III 
M ichael Meltsner

10 Columbus Circle 
New York 19, New York

Matthew J. P erry 
L incoln C. Jenkins, Jr.

1107% Washington Street 
Columbia, South Carolina

D onald James Sampson 
1251/2 Falls Street 
Temple Building 
Greenville, South Carolina

Attorneys for Petitioners



I N D E X

PAGE

Opinions Below ................................................................ 1

Jurisdiction ...........................    1

Constitutional Provision Involved .................................  2

Questions Presented..........................................................  2

Statement ...........................................................................  2

A rgument ........    8

I. Petitioners’ Arrest and Conviction on Warrants 
Charging That Their Conduct “ Tended Directly 
to Immediate Violence and Breach of the Peace”
Is Unconstitutional in That It Bests on No Evi­
dence of Violence, Threatened Violence or Dis­
order ......    8

II. The Conviction of the Petitioners of Common 
Law Breach of the Peace Violated Their Rights 
of Free Speech and Assembly Under the Due 
Process Clause of the Fourteenth Amendment 
to the Constitution of the United States............  15

Conclusion .......................................................................  20

T able of Cases:

Cantwell v. Connecticut, 310 U. S. 296 .............. 9,15,18,19
Cole v. Arkansas, 333 U. S. 196 ....................................  9

9,15De Jonge v. Oregon, 299 U. S. 353



11

PAGE

Feiner v. New York, 340 U. S. 315.................................  16

Garner v. Louisiana, 368 U. S. 157 ..........................9,12,18

Hague v. C. I. 0., 307 U. S. 496 ..........................12,15,16,17

Kunz v. New York, 340 U. S. 290 ...............................  15

People v. Feiner, 300 N. Y. 391, 91 N. E. 2d 319, afT’d,
340 U. S. 315 ................................................................ 7

Rockwell v. Morris, 10 N. Y. 2d 721, 176 N. E. 2d 836 
(1961), cert, denied, 368 U. S. 913.............................  16

Schenck v. United States, 249 U. S. 47 ......................  15
Sellers v. Johnson, 163 F. 2d 877 (8th Cir. 1947), cert, 

denied, 332 U. S. 851 ......................................... ....13,16

Taylor v. Louisiana, 370 U. S. 154 ...........................9,12
Terminiello v. Chicago, 337 U. S. 1 ......................... 13,15
Thomas v. Collins, 323 U. S. 516 ................................... 15
Thompson v. Louisville, 362 U. S. 199 ..........................9,12
Thornhill v. Alabama, 310 U. S. 88 .............................  15

United States v. Cruikshank, 92 U. S. 542 ......................  16

Whitney v. California, 274 U. S. 357 .................. 15,17, 20

State Statute:
Code of Laws of South Carolina (Cum. Supp. 1960), 

§1-417 ............................................................................. 19

Other A uthorities: 
8 American Jurisprudence 834, 835-37 . 18



I n  th e

&npvm? ©nurt at tlyr Mnitvb States
October T erm, 1962 

No. 86

J ames E dwards, Jr., et al.,
Petitioners,

State oe South Carolina,

Respondent.

ON WRIT OE CERTIORARI TO THE SUPREME COURT 
OF THE STATE OE SOUTH CAROLINA

BRIEF FOR PETITIONERS

Opinions Below

The opinion of the Supreme Court of South Carolina
(R. 197-201) is reported at ------  S. C. -------, 123 S. E. 2d
247 (1961). The opinion of the Richland County Court is 
not reported and is set out in the printed record (R. 188- 
194).

Jurisdiction

The judgment of the Supreme Court of South Carolina 
was entered December 5, 1961 (R. 197). The Supreme 
Court of South Carolina denied rehearing December 27, 
1961 (R. 202-204). Petition for writ of certiorari was filed 
in this Court March 27, 1962 and was granted May 14, 
1962. The jurisdiction of this Court rests on 28 U. S. C. 
§1257(3).



2

Constitutional Provision Involved

This case involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States.

Questions Presented

Whether petitioners were denied due process of law as 
secured by the Fourteenth Amendment to the Constitution 
of the United States:

1. When arrested and convicted on warrants charging 
common law breach of the peace in that petitioners’ con­
duct, an assembly on the grounds of the South Carolina 
State House to express opposition to the State’s policy of 
racial segregation, “ tended directly to immediate violence 
and breach of the peace,” on a record containing no evi­
dence of threatened, imminent or actual violence or dis­
order.

2. When arrested and convicted of common law breach 
of the peace on the ground that their conduct, peaceful and 
orderly exercise of their rights of free speech and assembly 
allegedly “ tended” to result in “possible violence” and minor 
interference with traffic.

Statement

Petitioners were charged with the crime of common law 
breach of the peace on warrants alleging that they:

. . .  on March 2, 1961, on the State Capitol grounds, 
on adjacent sidewalks and streets, did commit a breach 
of the peace in that they, together with a large group 
of people, did assemble and impede the normal traffic, 
singing and parading with placards, failed to disperse 
upon lawful orders of police officers, all of which



3

tended direetly to immediate violence and breach of 
the peace in view of existing conditions (R. 2-3).

Petitioners were tried before the Columbia City Magis­
trate in four trials on the 7th (R. 2-62), 13th (R. 66-124), 
16th (R. 126-77), and 27th (R. 178-88) of March, 1961. As 
the facts and applicable law were substantially the same 
in each case, counsel stipulated that the appeals be treated 
as one case as they were by the Supreme Court of South 
Carolina (R. 188, 197).

The genesis of these criminal prosecutions lies in a deci­
sion of various high school and college students in Colum­
bia, South Carolina to protest to the State Legislature and 
government officials against racial segregation:

“ To protest to the citizens of South Carolina, along with 
the Legislative Bodies of South Carolina, our feelings 
and our dissatisfaction with the present condition of 
discriminatory actions against Negroes, in general, and 
to let them know that we were dissatisfied and that 
we would like for the laws which prohibited Negro 
privileges in this State to be removed” (R. 111).

The Police Chief agreed that the demonstration was part 
of “ a widespread student movement which is designed to 
possibly bring about a change in the structure of racial 
segregation laws and custom” (R. 40).

The 187 petitioners, mostly high school and college stu­
dents in the Columbia area, met at the Zion Baptist Church 
on March 2, 1961, divided into groups of 15 to 18 and 
proceeded to the State House grounds (R. 6, 67, 109, 136).

The State House is occupied by the Executive, Judicial 
and Legislative branches of the government of the State 
of South Carolina. The State Legislature was in session 
at the time (R. 30).



4

The State House is in a park approximately two square 
blocks in area (E. 135) bordered by a sidewalk (E. 128). 
In front of the State House is a horseshoe shaped area 
“used primarily for the parking of State official’s cars” 
(E. 99, 128). No vehicle attempted to use this area during 
the demonstration (E. 43, 96). At the perimeter of this 
parking area are sidewalks, serving as entrance and exit 
for those having business in the State House, which lead 
into the State House and park (E. 128).

The students proceeded from the church to the parking 
area in these small groups which were, as one of the stu­
dents put it, about half a block apart, or as the Chief of 
Police put it, about a third of a block apart (E. 110, 86, 
136), although occasionally they moved closer together (E. 
86). But, “ there never was at any time any one grouping 
of all these persons together” (E. 89-90).

As the groups arrived at the front of the State House, 
they were informed by the police “ that they had a right, as 
a citizen, to go through the State House grounds, as any 
other citizen has, as long as they were peaceful” (E. 35, 
38-39, 84, 130-131). Their permission, however, was limited 
to being “allowed to go through the State House grounds 
one time for purposes of observation” (E. 130-131 and see 
E. 156). This took about half an hour to forty-five minutes 
(E. 35, 132). As they went through the park they carried 
signs, such as “ I am proud to be a Negro,” and “Down with 
segregation” (E. 110, 114). The general feeling of the 
group was that segregation in South Carolina was against 
general principles of humanity and should be abolished 
(E. 111). Policemen were stationed throughout the park as 
the groups of students circled the State House (E. 22-23, 
88) .

As the groups returned to the parking area they were 
met by City Manager MeNayr who ordered them to dis­



5

perse and to leave the State House grounds (E. 13). When 
they did not comply, they were lined up and marched to the 
City and County jails (E. 16).

There is dispute in the record whether it was before or 
after arrest (Compare E. 31-32 with E. 112) that the stu­
dents commenced singing religious songs and the “ Star 
Spangled Banner” and otherwise vocally expressing them­
selves, but there is agreement that none of this occurred 
until after the police ordered the students to end their 
“walk” and leave the grounds (E. 31, 45, 74). At this time, 
as the City Manager described it, there was “ a singing, 
chanting, shouting response, such as one would get in a 
religious atmosphere . . . ” (E. 74).

The students were at all times well demeaned, well 
dressed, orderly and peaceful (E. 24). The City Manager 
disagreed with this designation only to the extent that the 
students engaged in religious and patriotic singing after 
being told to disperse. He found this “flamboyant”, “bois­
terous” , and disrespectful to him personally (E. 24, 80). 
There was no evidence suggesting that the onlookers, who 
were attracted by the demonstration and the presence of 
police (E. 41), were anything but curious (E. 25, 27-29, 31, 
41, 48, 152). Totally absent from this record are instances 
of threatening remarks, hostile gestures, profanity or body 
contact.

There was no evidence that violence occurred or was 
threatened by either students or onlookers. The City Man­
ager, however, testified that among the onlookers he no­
ticed “possible trouble makers” (E. 27), but he “took no 
official action against [the possible trouble makers] be­
cause there was none to be taken. They were not creating 
a disturbance, those particular people were not at the time 
doing anything to make trouble but they could have been.” 
He did not even “talk to the trouble makers” (E. 27-30).



6

When the “trouble makers” were “ told to move on from the 
sidewalks” they complied (R. 31, 41, 92).

The City Manager stated that thirty to thirty-five officers 
were present (R. 19). The Police Chief of Columbia testi­
fied that fifteen of his officers were present in addition to 
whom were State Highway Patrolmen, South Carolina 
Law Enforcement officers, and three Deputy Sheriffs (R. 
40, 41). This was, in the City Manager’s words “ ample 
police protection” (R. 135). But he believed that “ simply 
because we had ample policemen there for their protection 
and the protection of others, is no reason for not placing 
them under arrest when they refused a lawful request to 
move on” (R. 135).

The police had no particular trouble makers in mind. 
They merely thought that “you don’t know what might occur 
and what is in the mind of the people” (R. 41). Asked, 
“you were afraid trouble might occur; from what source?” 
the Chief replied “you can’t always tell” (R. 43). Asked, 
“ are you able, sir, to say where the trouble was?” he re­
plied, “ I don’t know” (R. 44). None of the potential “trouble 
makers” was arrested and pedestrians ordered to “move on 
at [the Chief’s] command” did so (R. 92).

Concerning obstruction of the streets or sidewalks bor­
dering the State House grounds, there is similarly no evi­
dence. The City Manager testified that the onlookers did 
not block traffic on the streets (R. 26). While the students 
“probably did” slow traffic while waiting for traffic signals 
on their way to the State House (R. 88-90), once there, 
they were wholly within the grounds (R. 22-23, 42, 135). 
Their singing, after being told to disperse, slowed traffic 
on a City street across from the State House grounds (R. 
75) but a police officer was dispatched and kept it moving 
(R. 36). The police were in complete control of any traffic 
problems (R. 43, 135). There was no evidence at all, as



7

stated in the warrants, that traffic congestion tended to 
any violence.

The City Manager testified that the onlookers blocked 
the sidewalks bordering the demonstration (R. 26). But 
they cleared the sidewalks when the police so ordered (R. 
27, 42-43 and see R. 39). Pedestrians could move to their 
destinations both on the State House grounds and the 
city streets (R. 42-43).

In any event it was not interference with pedestrians or 
automobiles which the police acted to curtail. The City 
Manager who was supervising the police department at the 
time testified that “my official reason for dispersing the 
crowd was to avoid possible conflict, riot and dangers to the 
general public and, of course, included in the general public, 
was danger to these various students themselves” (R. 14). 
The Chief of Police acted “to keep down any type of vio­
lence or injury to anyone” (R. 37 and see R. 43, 81, 82, 85 
to the same effect).

The trial court sitting without a jury found the students 
guilty of common law breach of the peace. The Court im­
posed fines of $100 or 30 days in jail in most cases; in many 
of these cases one-half of the fine was suspended. In a few 
cases the defendants were given $10 fines or five days in 
jail (R. 62-64; 124-25; 175-77; 186-87).

The Richland County Court affirmed, principally upon 
authority of People v. Feiner, 300 N. Y. 391, 91 N. E. 2d 
319, aff’d 340 U. S. 315, concluding there was a “dangerous” 
(R. 193) situation and actions which a “ reasonable think­
ing citizen knows or should know would stir up passions 
and create incidents of disorder” (R. 194).

The Supreme Court of South Carolina affirmed on the 
ground that:



8

“ The orders of the police officers under all of the 
facts and circumstances were reasonable and motivated 
solely by a proper concern for the preservation of order 
and prevention of further interference with traffic upon 
the public streets and sidewalks” (R. 201).

Throughout the proceedings in the South Carolina courts, 
petitioners, by timely exception, raised and preserved fed­
eral constitutional questions. This Court granted Petition 
for Writ of Certiorari on May 14, 1962.

A R G U M E N T

I.
Petitioners’ Arrest and Conviction on Warrants Charg­

ing That Their Conduct “Tended Directly to Immediate 
Violence and Breach of the Peace” Is Unconstitutional 
in That It Rests on No Evidence of Violence, Threatened 
Violence or Disorder.

Petitioners’ arrest and conviction of common law breach 
of the peace followed their publicly expressed disapproval 
of the racial segregation policies of the State of South 
Carolina. Petitioners were charged on warrants alleging 
that:

“ On March 2, 1961, on State Capitol grounds, on 
adjacent sidewalks and streets, did commit a breach of 
the peace in that they, together with a large group of 
people, did assemble and impede normal traffic singing 
and parading with placards, failed to disperse upon 
lawful orders of police officers, all of which tended 
directly to violence and breach of the peace in view of 
existing conditions” (R. 2-3, 126, 183). (Emphasis 
added.)



9

As freedom of expression is involved the Constitution 
requires proof of a substantial evil that rises far above 
public inconvenience, annoyance, and unrest and a clear 
and present danger that this evil will occur. Cantwell v. 
Connecticut, 310 U. S. 296, 311. The Supreme Court of 
South Carolina modified this constitutional standard (R. 
197, 200-01), defining unlawful breach of the peace as “a 
violation of public order, a disturbance of the public tran­
quility, by any act inciting to violence, . . . It may consist 
of an act of violence or an act likely to produce violence 
(R. 200) (emphasis added).

As the warrants charged petitioners with conduct which 
“ tended directly to immediate violence and breach of the 
peace,” they cannot be convicted of some other crime. Con­
viction of an accused for a charge that was never made is 
a violation of due process. Cole v. Arkansas, 333 IT. S. 196; 
De Jonge v. Oregon, 299 IT. S. 353, 362.

It is equally true that an accused cannot be convicted 
“upon a charge for which there is no evidence.” Garner v. 
Louisiana, 368 U. S. 157; Thompson v. Louisville, 362 U. S. 
199, 206; Taylor v. Louisiana, 370 IT. S. 154.

But this record is entirely without proof of violence or 
threatened violence on the part of the petitioners. On the 
contrary, the testimony of the City Manager of the City 
of Columbia, the person in charge of police officers at the 
scene, and the Chief of Police of the City of Columbia 
fails to reveal a single overt act of any kind which could 
be considered violent or to presage violence.

Equally true, there was no evidence of violence or 
threatened violence by onlookers. The City Manager de­
scribed them as curious (R. 25). The most that can be 
said is that the City Manager spotted unnamed people in 
the crowd who were recognized as “ possible trouble­
makers” (R. 27), or “potential trouble” (R. 29). Yet none



10

of these “trouble makers” refused to move on when told to 
by the police. None complained or made threatening re­
marks or gestures or did anything at all to distinguish 
themselves (R. 31). None gave any cause for arrest (R. 27, 
81-82, 148). At one point the Chief of Police even refused 
to characterize any of the onlookers as trouble makers, 
testifying that it was difficult to know what was in the 
minds of the onlookers (R. 41).

A  few direct quotations serve to illustrate that there 
was no actual or threatened violence. On cross-examination, 
the Chief testified (R. 43, 44):

Chief: We were afraid that trouble might have 
come.

Counsel: I see. You were afraid trouble might 
occur; from what source ?

Chief: You can’t always tell.
Counsel: But, if you regarded on this occasion it 

was sufficiently apparent to require you to arrest them, 
certainly you must have had something in mind?

Chief: It is my duty to try to avoid trouble if I can, 
as a police officer.

Counsel: I fully appreciate that. I certainly do, but 
I simply asked you, where was the trouble?

Chief: Actually any trouble hadn’t happened but if 
you can prevent trouble, it is your duty to do so.

Counsel: I go along with that. Are you able, sir, 
to say where the trouble was ?

Chief: I don’t know.

The City Manager, McNayr, testified (R. 27, 28):

McNayr: I ’m afraid that curiosity changes and 
brings forth possible elements which could create 
difficulty.



11

Counsel: Did you see any of those possible elements ?
McNayr: Yes, I did, as I have on every occasion 

when these groups have demonstrated.
Counsel: Speaking of this particular occasion, did 

you see the possible elements there that day?
McNayr: Yes.
Counsel: Who were those persons?
McNayr: I can’t tell you who they were. I can tell 

you they were present in the group. They were recog­
nized as possible trouble makers.

Counsel: Did you and your police chief do anything 
about placing those people under arrest?

McNayr: No, we had no occasion to place them under 
arrest.

Counsel: Now, sir, you have stated that there were 
possible trouble makers and your whole testimony has 
been that, as City Manager, as supervisor of the City 
Police, your object is to preserve the peace and law 
and order?

McNayr: That’s right.
Counsel: Yet you took no official action against peo­

ple who were present and possibly might have done 
some harm to these people?

McNayr: We took no official action because there 
was none to be taken. They were not creating a dis­
turbance, those particular people were not at that time 
doing anything to make trouble but they could have 
been.

Counsel: Did you order them off the State House 
grounds ?

McNayr: They were not on the State House grounds, 
those that I observed.

Counsel: Did you order them off the streets
adjacent?



12

McNayr: They were on public sidewalks and we 
made them clear the sidewalks so that people could 
get through.

Counsel: You don’t know who these people were but 
nevertheless you recognized them as trouble makers?

McNayr: I don’t know them by name—no.
Counsel: But the minute you spotted them, you knew 

they were trouble makers ?
McNayr: I knew there was a possibility of trouble 

there.
Counsel: Yet you took no official action against them ?
McNayr: The official action I took was to get rid of 

the cause of the possible difficulties.
Counsel: But you just said the Negro students 

weren’t doing anything wrong, that is, in terms of mis­
demeanor?

McNayr: They were not obeying lawful orders, what 
I consider lawful orders in dispersing. They were the 
cause of the group gathering. The group, the so-called 
trouble makers, would never have appeared had it not 
been for the demonstration taking place.

(R. 135):

Counsel: You also stated that, in your judgment, 
you had ample police protection to handle the situation.

McNayr: That’s correct.

The presence of the onlookers alone does not permit an 
inference of violence or threatened violence. This Court 
has rejected the contention that the unsubstantiated opinion 
of police officers as to possible disorder is sufficient to sus­
tain criminal conviction. Garner v. Louisiana, 368 U. S. 
157; Taylor v. Louisiana, 370 U. S. 154; Thompson v. 
Louisville, 362 U. S. 199. Cf. Hague v. C. I. 0., 307 U. S. 
496, 516. Compared with the riotous circumstances of



13

Terminiello v. Chicago, 337 U. S. 1, 3 and the mob action 
in Sellers v. Johnson, 163 F. 2d 877 (8th Cir. 1947), cert, 
denied, 332 U. S. 851, the conduct shown by this record 
does not indicate even a remote threat to public order.

The warrants also charged that the students did “ impede 
the normal traffic . . . which tended directly to immediate 
violence and breach of the peace” (R, 3, 126, 183). But 
clearly no violence occurred or was threatened. It is equally 
clear that there was no impediment to traffic sufficient to 
sustain these convictions, nor was it shown that traffic prob­
lems “ tended directly to immediate violence.”

The Supreme Court of South Carolina concluded that the 
adverse effect on traffic was a factor justifying their arrests 
and convictions although the City Manager and Chief of 
Police testified that the students were not arrested for this 
reason (R. 14, 37, 43, 81-82, 85, 135). But neither in the 
conduct of the petitioners nor the onlookers can one find 
in the record that the students impeded traffic.

The state’s witnesses testified that the students ap­
proached the State House grounds in distinct small groups, 
about one-third or one half of a block apart walking in 
pairs or single file (R. 7, 8, 19, 39, 78). The only time there 
was any closer grouping was when the students were 
stopped by the State’s officials (R. 86, 136, 137, 166) or 
when the students stopped to obey traffic regulations (R. 
88-89).

There was no obstruction of pedestrian or vehicular traf­
fic within the State House grounds. The Chief of Police 
testified that pedestrians could use the sidewalks on the 
State House grounds with no difficulty (R. 39, 42-43). The 
City Manager supported this view (R. 78-79). The horse­
shoe area in front of the State Capitol, a limited parking 
area used by members of the State House of Representa­



14

tives and other officials, was where the groups were told to 
disperse and later arrested. No car attempted to get in 
or out of the area during the time the students were pres­
ent (R. 11). The City Manager and Police Chief agreed 
that ample police protection was available to meet any 
problems which might arise (R. 134, 135).

There was no blocking of the streets outside the State 
House grounds (R. 26). The students themselves obeyed 
all traffic regulations (R. 88, 89). The most that can be 
said is that the vehicular traffic was slowed (R. 76). How­
ever, traffic signals were working (R. 154) and an officer 
was dispatched to keep traffic moving (R. 36). The need 
for policemen to help with the traffic cannot justify these 
arrests. If anything is a common occurrence in American 
life, it is the dispatching of a police officer to direct traffic 
when some event has occurred which attracts the curious.

The testimony shows that there were a number of on­
lookers on the sidewalks bordering the State House 
grounds (R. 25, 26, 41, 152). Yet the City Manager and 
the police related that anyone blocking a sidewalk moved 
when asked and that passage was unimpeded (R. 27, 42, 43).

Absent some overt act of violence or actual interference 
with traffic, the police opinion of possible disorder, on 
which the Supreme Court of South Carolina rested its 
affirmance of these convictions, finds no support in the rec­
ord.



15

II.

The Conviction o f the Petitioners o f Common Law 
Breach o f the Peace Violated Their Eights o f Free Speech 
and Assembly Under the Due Process Clause o f the 
Fourteenth Amendment to the Constitution o f the 
United States.

This Court has stated that the right of peaceful assembly 
is a right cognate to those of free speech and free press 
and equally fundamental. De Jonge v. Oregon, 299 U. S. 
353, 364. Consequently, this Court has held that freedom 
of assembly can be abridged only when it is shown that 
there exists a clear and present danger to public safety. 
Schenck v. United States, 249 U. S. 47, 52; Whitney v. 
California, 274 U. S. 357, 376; Cantwell v. Connecticut, 310 
U. S. 296, 308; Thomas v. Collins, 323 U. S. 516, 530.

Nowhere in the record is there any evidence of violence, 
actual or threatened. At most there are references to “pos­
sible troublemakers” among the onlookers, but not among 
the petitioners. These “ troublemakers” were never identi­
fied and so slight was the possibility of danger from them, 
that the police failed to arrest even one. Petitioners’ “ com­
munication considered in the light of the constitutional 
guarantees, raised no such clear and present menace to 
public peace and order as to render [them] liable to con­
viction of the common law offense in question.” Cantwell 
v. Connecticut, 310 U. 8. 296, 311; cf. Thornhill v. Alabama, 
310 U. S. 88, 105-106.

Under the circumstances the interests of the State were 
insufficient to justify restriction of freedom of speech and 
assembly. This Court has upheld the right to free speech 
in circumstances far more incendiary. Terminiello v. Chi­
cago, 337 U. S. 1; Hague v. C. I. 0., 307 IJ. S. 496; Kunz v.



16

New York, 340 XT. S. 290. Cf. Sellers v. Johnson, 163 F. 2d 
877 (8th Cir. 1947) cert, denied 332 U. S. 851; Rockwell v. 
Morris, 10 N. Y. 2d 721, 176 N. E. 2d 836 (1961) cert, 
denied, 368 U. S. 913.

Petitioners assembled to express their dissatisfaction 
with the racially discriminatory policies of the State of 
South Carolina on the grounds of the State Legislative 
Building while the Legislature was in session. It is difficult 
to conceive of a more appropriate and effective time and 
place to exercise the rights of freedom of speech and as­
sembly. Cf. Hague v. C. I. 0., 307 U. S. 496, 515; United 
States v. Cruikshank, 92 U. S. 542, 552.

Feiner v. New York, 340 U. S. 315, does not support these 
convictions. In that case, there was at least one threat of 
violence from onlookers (at p. 317). “ [P]edestrians were 
forced to walk in the street to avoid the crowd. . . . The 
crowd was restless and there was some pushing, shoving 
and milling around” (p. 317). The “crowd was pressing 
closer around petitioner and the officer” (p. 318). The 
speaker had passed “the bounds of argument or persuasion 
and [had undertaken] incitement to riot” (p. 321).

In this case, however, there was no indication of threats 
from onlookers, traffic was not seriously hampered, the 
crowd was “curious,” and there was no overt sign of hostil­
ity toward the petitioners. Moreover, according to the City 
Manager himself, enough peace officers were present to 
cope with the onlookers should trouble have occurred (R. 
135).

If freedom of speech and of assembly are to be abridged, 
some overriding state interest, not merely a possibility of 
violence or slowdown of traffic, must be shown. The true 
interest and, indeed, duty of the State was to protect the 
petitioners in their peaceful expression, not arrest them on



17

account of the actions of others. Instead, there is even 
some evidence that state officials had decided to limit the 
assembly even before it was begun. The students were in­
structed by a public official that although permission was 
granted to go through the State House grounds once, “walk­
ing around and around is a breach of the peace. You have 
no right to go on these grounds for demonstration”  (R. 
156, 130-131). As this Court said in Hague v. C. I. 0., 307 
U. S. 496, 516, “ . . . uncontrolled official suppression of the 
privilege [of free speech] cannot be made a substitute for 
the duty to maintain order in connection with the exercise 
of the right.”  Surely if the police felt there was danger 
from “ troublemakers” it was their duty to remove them, 
not petitioners. “ Among free men, the deterrents ordina­
rily to be applied to prevent crime are education and pun­
ishment for violations of the law, not abridgment of the 
rights of free speech and assembly.” Whitney v. California, 
274 U. S. 357, 378, Mr. Justice Brandeis concurring.

Without an obligation on the part of the police to take 
all reasonable measures to protect persons asserting their 
First Amendment rights, the freedoms guaranteed by the 
First Amendment will be largely lost. Those holding mi­
nority views will be subject to the arbitrary action of state 
authorities who fear “ possible” violence. Expression will 
be dependent on the intensity of the opposition. Para­
doxically, if the authorities have no dut}7 to control tenden­
cies to violence or impediments to traffic, the guarantees of 
freedom of expression will protect only the majority view 
or the popular view which needs no protection.

Moreover, if some slowing of vehicular and pedestrian 
traffic can uphold these convictions, South Carolina’s use 
of common law breach of the peace is infected with the 
vice of vagueness. Petitioners were charged with the broad 
offense of common law breach of the peace. The Supreme



18

Court of South Carolina adopted the general definition 
found in 8 Am. Jur. 834 which extends to an act “ of vio­
lence or an act likely to produce violence.”  Neither the 
general definition quoted by the Supreme Court of South 
Carolina nor the remainder of the section on Breach of the 
Peace, 8 Am. Jur. 835-37, delineates as breach of the peace, 
the holding of a nonviolent demonstration which causes 
slower traffic on streets and sidewalks. Petitioners have 
been unable to locate any South Carolina decision applying 
breach of the peace to any such situation or related situa­
tion.1 11 As freedom of expression is involved, Mr. Justice 
Harlan’s warning as to all-inclusive breach of the peace 
provisions is relevant, Garner v. Louisiana, 368 U. S. 
157,202:

“ But when a State seeks to subject to criminal sanc­
tions conduct which, except for a demonstrated para­
mount state interest, would be within the range of 
freedom of expression as assured by the Fourteenth 
Amendment, it cannot do so by means of a general and 
all-inclusive breach of the peace prohibition. It must 
bring the activity sought to be proscribed within the 
ambit of a statute or clause ‘narrowly drawn to define 
and punish specific conduct as constituting a clear and 
present danger to a substantial interest of the State.’ ”

To convict petitioners on the ground that their expres­
sion interfered with traffic would be to make this case like 
Cantwell v. Connecticut, 310 U. S. 296, 307-308. There, con­
viction was set aside on the ground that it Avas not pur­

1 Compare the South Carolina cases cited by the Supreme Court 
of South Carolina, all but one of which deal with repossessing goods 
sold on the installment plan. State v. Langston, 195 S. C. 190,
11 S. E. 2d 1, the other case, upheld the conviction of a Jehovah’s 
Witness who played phonograph records on the porches of private 
homes and used a sound truck.



19

suant to a narrowly drawn statute “ evincing a legislative 
judgment that street discussion of religious affairs . . . 
should be regulated” (p. 308). Here, as in Cantwell, the 
situation is analogous “ to a conviction 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 applica­
tion” (Ibid.).

The vagueness of common law breach of the peace so 
applied is highlighted by the fact that petitioners were not 
charged with violating §1-417, of the 1952 Code of Laws 
of South Carolina (Cum. Supp. 1960), in which the legis­
lature specifically addressed itself to the problem of traffic 
control in the State House area,* 1 2 Even if interference with 
traffic could uphold these convictions, the record fails to 
reveal the kind of significant traffic problems sufficient to 
justify abridging freedom of speech and assembly. Cant­
well v. Connecticut, supra, at p. 308.

Without more of a showing of an imminent and serious 
danger to the public than is found in this record, South 
Carolina may not abridge freedom of speech and assembly. 
“ The fact that speech is likely to result in some violence or

2 §1-417 provides as follows:
“ It shall be unlawful for any person:

(1) Except State officers and employees and persons hav­
ing lawful business in the buildings, to use any of the 
driveways, alleys or parking spaces upon any of the 
property of the State, bounded by Assembly, Gervais, 
Bull and Pendleton Streets in Columbia upon any reg­
ular weekday, Saturdays and holidays excepted, be­
tween the hours of 8 :30 a. in., and 5 :30 p. m., when­
ever the buildings are open for business; or

(2) To park any vehicle except in spaces and manner 
marked and designated by the State Budget and Con­
trol Board, in cooperation with the Highway Depart­
ment, or to block or impede traffic through the alleys 
and driveways.”



20

in destruction of property is not enough to justify its sup­
pression.” Mr. Justice Brandeis, concurring, Whitney v. 
California, 274 U. S. 357, 378. And here we have no evi­
dence of any disturbance which rises to such dignity.

CONCLUSION

W herefore, fo r  the foregoing reasons, petitioners pray 
the judgment below be reversed.

Respectfully submitted,

J ack Greenberg 
Constance B aker M otley 
J ames M. Nabrit, III 
M ichael Meltsner

10 Columbus Circle 
New York 19, New York

Matthew J. P erry 
L incoln C. Jenkins, J r.

1107% Washington Street 
Columbia, South Carolina

D onald James Sampson 
125% Falls Street 
Temple Building 
Greenville, South Carolina

Attorneys for Petitioners



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