Edwards v. South Carolina Petition for Writ of Certiorari to the Supreme Court of South Carolina

    In' the

§>upt?m ? Glmirt nf tljp
October Term, 1961 

No............

J am es E dwards, J r ., and 186 Others,

Petitioners,
— v .—

S tate op S o u th  Caro lin a .

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF SOUTH CAROLINA

J ack  G reenberg 
C onstance B aker  M otley 
J am es M . N abeit , III 
M ic h ael  M eltsner  

10 Columbus Circle 
New York 19, New York

M a t t h e w  J . P erry  
L in co ln  C. J e n k in s , Jr.

1107% Washington Street 
Columbia 1, South Carolina

D onald J am es S am pson

Greenville, South Carolina
Attorneys for Petitioners



I N D E X
PAGE

Citations to Opinions Below............................................. 1

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

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

Constitutional Provisions Involved ......   2

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

How the Federal Questions Were Raised and Decided .. 8

Reasons for Granting the Writ .....................................  10
I. Petitioners’ conviction on warrants charging that 

their conduct “ tended directly to immediate vio­
lence and breach of the peace” is unconstitu­
tional in that it rests on no evidence of violence 
or threatened violence .........................................  11

II. Petitioners’ convictions were obtained in viola­
tion of their rights to freedom of speech, assem­
bly and petition for redress of grievances in 
that they were convicted because their protected 
expression tended to lead to violence and breach 
of the peace on the part of others ...................... 16

C o n c l u s io n ......................................................................... 20

Appendix ...........................................................................  la

Opinion of the Richland County Court ..........................  la

Opinion of the Supreme Court of South Carolina ....... la

Denial of Petition for Rehearing .................................  16a



11

T able of C ases

page

Beatty v. Gillbanks (1882) L. E. 9 Q, B. Div. 308 .... 19

Cantwell v. Connecticut, 310 U. S. 296...........11,12,15,17,18
Cole v. Arkansas, 333 U. S. 196 ............................ .........  11
Cooper v. Aaron, 358 U. S. 1 ......................................... 19

Be Jonge v. Oregon, 299 U. S. 353 ............................. 11,15

Feiner v. New York, 300 N. Y. 391, 91 N. E. 2d 319.......3,10
Feiner v. New York, 340 U. S. 315 ..............................12,18

Garner v. Louisiana, 7 L. ed. 2d 207 .............. 11,12,14,16
Hague v. C. I. 0., 307 U. S. 496 ......................12,15,16,17,18

Runs v. New York, 340 U. S. 290 .................................  18

Robeson v. Fanelli, 94 F. Supp. 62 (S. D. N. Y. 1950) .... 17 
Rockwell v. Morris, 10 N. Y. 721 (1961) cert, denied 

7 L. ed. 2d 131........................................................15,18,19

Sellers v. Johnson, 163 F. 2d 877 (8th Cir. 1947) cert.
denied 332 U. S. 851 ................................. 12,15,17,18,19

State v. Langston, 195 S. C. 190, 11 S. E. (2d) 1 ........... 14
Strutwear Knitting Co. v. Olsen, 13 F. Supp. 384 (D. C. 

Minn. 1936) ...................................................................  19

Terminiello v. Chicago, 337 U. S. 1 ............................. 12,19
Thompson v. Louisville, 362 U. S. 199......................... 11,16
Thornhill v. Alabama, 310 U. S. 88 .............................  18

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

Whitney v. California, 274 U. S. 357 ............................. 15,16

O th e r  A u th o rity  

8 American Jurisprudence 834 et seq. 14



I n  th e

j§>uprTmT (£mxt of fl?s? H&nxUh ^Utm
October Term, 1961 

No............

J am es E dwards, J r ., and 186 Otters,

Petitioners,
—y.—

S tate oe S o u th  Carolin a .

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF SOUTH CAROLINA

Petitioners pray that a writ of certiorari issue to review 
the judgment of the Supreme Court of South Carolina 
entered in the above entitled case on December 5, 1961, 
rehearing of which was denied on December 27, 1961.

Citation To Opinions Below

The opinion of the Supreme Court of South Carolina, 
which opinion is the final judgment of that Court, is as yet 
unreported and is set forth in the appendix hereto, infra 
pp. 10a-15a. The opinion of the Richland County Court is 
unreported and is set forth in the appendix hereto, infra 
pp. la-9a.

Jurisdiction

The judgment of the Supreme Court of South Carolina 
was entered December 5, 1961, infra pp. 10a-15a. Petition



2

for Rehearing was denied by the Supreme Court of South 
Carolina on December 27, 1961, infra p. 16a.

The Jurisdiction of this Court is invoked pursuant to 
Title 28, United States Code, Section 1257(3), petitioners 
having asserted below and asserting here, deprivation of 
rights, privileges and immunities secured by the Constitu­
tion 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 convicted of charges that their conduct, which 
was an assembly to express opposition to racial segregation 
on the State House grounds, “tended directly to immediate 
violence and breach of the peace” on a record containing no 
evidence of threatened, imminent, or actual violence.

2. When convicted of the common law crime of breach of 
the peace because exercise of their rights of free speech and 
assembly to petition for a redress of grievances allegedly 
“ tended” to result in unlawful conduct on the part of other 
persons opposing petitioners’ views.

Constitutional Provisions Involved

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

Statement

Warrants issued against petitioners charged them with 
common law breach of the peace on March 2, 1961 at the



3

South Carolina State Capitol grounds. The warrants al­
leged inter alia that they:

“ . . . 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 tended directly to immediate 
violence and breach of the peace in view of existing 
conditions” (ft. 3,). (Emphasis supplied.)

The City Manager of Columbia who was supervising the 
police department at the time (R. 18-19) testified that “My 
official reason for dispersing the crowd was to avoid pos­
sible conflict, riot and dangers to the general public. . . . ” 
(R. 16-17).

The Chief of Police testified that he took action “ [t]o 
keep down any type of violence or injury to anyone” (R. 
46; and see R. 53, 100, 101, 106, to the same effect).

The trial court sitting without a jury found petitioners 
guilty of common law breach of the peace. The Court 
imposed 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. 78 f 155; 217-218; 229-230).

The Richland County Court affirmed, principally upon 
authority of People v. Feiner, 300 N. Y. 391, 91 N. E. 2d 
319,»concluding there was a “ dangerous” (R. 238) situation 
and actions which a “ reasonable thinking citizen knows or 
should know would stir up passions and create incidents 
of disorder” (R. 239).

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

“ The orders of the police officers under all of the 
facts and circumstances were reasonable and motivated



4

solely by a proper concern for the preservation of 
order and prevention of further interference with traf­
fic upon the public streets and sidewalks.”

In fact, the record furnishes no evidence of violence or 
even a threat of violence either by or against petitioners. 
Nor, indeed, does the record demonstrate that the peti­
tioners, who were carrying their placards and walking about 
wholly within the State House grounds, had themselves 
stopped the sidewalks or traffic; only that bystanders were 
attracted who moved on at police request, and that traffic 
was somewhat slowed, a condition which did not presage 
violence. Either after arrest, or after the police order to 
disperse, petitioners sang hymns and patriotic songs in a 
singing, chanting, shouting response, as one might find 
in a religious atmosphere. All of these facts are developed 
at greater length, with appropriate record citations, below, 
r , t ! . ’- j '•
j_ The genesis of this criminal prosecutionslies in a decision 
of various high school and college students in Columbia, 
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 

CL feelings and our dissatisfaction with the present con­
dition 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. h§8).

The State House is occupied by the State Legislature 
which was in session at the time (R.4ST).

The Police Chief recognized 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. 49). f



5

The petitioner who testified to" 'this/James Jerome- Kit- 
ron, a third year student at Benedict College (JR. 142), 
stated that the),petitioners had. met at Zion Baptist Church 
on March 2, 1961, divided into groups of 15 to 18 persons 
(R. 135), and proceeded to the State House grounds which 
occupy two square blocks (R. 168). They are in a horse­
shoe shaped area, bounded by a driveway and parking lot 
which is “used primarily for the parking of State officials’ 
cars” (R. 159). There is some passage in and out of this 
area by vehicular traffic and by people leaving and enter­
ing the State building. In addition, there are main side­
walk areas leading into the State Capitol on either side of 
the horseshoe area (R. 159). The horseshoe area “ is not 
really a thoroughfare” (R. 123). It is an entrance and 
exit for those having business in the State House (R. 123). 
During the time of the demonstration no traffic was blocked 
going in and out of the horseshoe area; no vehicle made any 
effort to enter (R. 119).

The students proceeded from the church to the parking 
area in these small groups which were, as petitioner Kitron 
put it, approximately a half block apart, or as Chief Camp­
bell put it, about a third of a block apart (R. 107), although 
at various times they moved closer together (R. 107, 169). 
But, “ there never was at any time any one grouping of 
all of these persons together” (R. 111).

The police informed petitioners “ 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” (R. 43, 
47, 104, 162). Their permission, however, was limited to 
being “allowed to go through the State House grounds one 
time for purposes of observation” (R. 162). This took 
about half an hour (R. 163). As they went through the 
State House grounds they carried signs, such as “ I am 
proud to be a Negro,” and “ Down with Segregation” (R, 
141). The general feeling of the group was that segrega­



6

tion in South Carolina was against general principles of 
humanity and that it should be abolished (R. 138).

iJEhere is dispute in the record whether it was before 
or after arrest (Compare R. with R. W9) that petition­
ers commenced singing religious songs, the “ Star Spangled 
Banner” and otherwise vocally expressing themselves, but 
there is agreement that none of this occurred until at 
least after the police ordered petitioners to disperse (see 
R. 38) $2). As the City Manager described it, this was 
“a singing, chanting, shouting response, such as one would 
get in a religious atmosphere . . . ” (R. f@).f Thereafter the 
students were lined up and marched to the City Jail and 
the County Jail (R. 18).

The students were at all times well demeaned, well 
dressed, orderly (R. 29). The City Manager disagreed 
with this designation only to the extent that petitioners 
engaged in the religious and patriotic singing described 
above (R. 29).

Nowhere in the record, h*fWsewery--ean any evidence h€
found that violence ..occurred/ 5r that violence was threat-

■ ■ *  1 ; - ’ .1 ...

enech The City Manager testified that among the onlookers 
he “ recognized possible trouble makers” (R. 33), but “ took 
no official action against [the potential trouble makers] 
because 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” (R. 34). When 
onlookers were “ told to move on from the sidewalks” they 
complied (R. 38). None refused (R. 38).

The City Manager stated that thirty to thirty-five officers 
were present (R. 22). The Police Chief of Columbia had 
fifteen men in addition to whom were State Highway Patrol­
men, South Carolina Law Enforcement officers, and three 
Deputy Sheriffs (R. 50). This was, in the City Manager’s



7

words “ ample policemen” (R. 168). 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. 168).

The police had no particular “ trouble makers in mind,” 
merely that “you don’t know what might occur and what is 
in the mind of the people” (R. 50). Asked “ You were afraid 
trouble might occur; from what source?” the Chief replied 
“ You can’t always tell” (R. 54). Asked “Are you able, sir, 
to say where the trouble was?” he replied, “ I don’t know” 
(R. 54). None of the potential “trouble makers” was ar­
rested and pedestrians ordered to “move on at [the Chief’s] 
command” did so (R. 114).

So far as obstruction of the street or sidewalks is con­
cerned, there is a similar absence of evidence. The City 
Manager testified that the onlookers blocked “ the side­
walks, not the streets” (R. 32). But they cleared the side­
walks when so ordered (R. 34). While petitioners “prob­
ably did” (R. 109, 111) slow traffic in crossing the streets on 
the way to the grounds (R. 109), once there, they were 
wholly within,the grounds (R. 188). They did not, as stated 
above, block traffic within the grounds (R. -83), no vehicle 

4tavmgnnademmei¥orb to enter the parking area during this 
period of time. Their singing, however, was said by the 
City Manager to have slowed traffic (R. 92). And the 
noise, he said, was disrespectful to him (R. 99).

Columbia has an ordinance forbidding the blocking of 
sidewalks and petitioners were not charged under this ordi­
nance (R. 54). Pedestrians within the grounds could move 
to their destinations (R. 48, 52,195). Onlookers moved along 
when ordered to by the police (R. 34). There is no evidence 
at all, as stated in the charge that traffic congestion tended 
to any violence at all.



8

How the Federal Questions Were Raised 
and Decided Below

The petitioners were tried before the Columbia City 
Magistrate of Richland County in four separate trials on 
the 7th, 13th, 16th and 27th of March, 1961. At the close 
of the prosecution’s case on the 7th of March, petitioners 
moved to dismiss the case against them:

“ . . . on the ground that the evidence shows that 
by arresting and prosecuting the defendants, the offi­
cers of the State of South Carolina and of the City of 
Columbia were using the police power of the State of 
South Carolina for the purpose of depriving these 
defendants of rights secured them under the First and 
Fourteenth Amendments of the United States Consti­
tution. I particularly make reference to freedom of 
assembly and freedom of speech” (R. 76).

This motion was denied (R. 76). Following judgment 
of conviction petitioners moved for arrest of judgment or 
in the alternative a new trial relying, inter alia, on the 
denial of petitioners’ rights to freedom of speech and as­
sembly guaranteed by the Fourteenth Amendment to the 
Constitution of the United States (R. 79, 80). The motions 
were denied (R. 80).

Similar motions to dismiss and for arrest of judgment 
or in the alternative a new trial all claiming protection of 
petitioners’ rights, under the Constitution of the United 
States, to freedom of speech and assembly in that the evi­
dence showed petitioners “were included in a peaceful and 
lawful assemblage of persons, orderly in every respect 
upon the public streets of the State of South Carolina” 
(R. 134, 201) were made at the trials on the 13th (R. 134, 
152, 155), the 16th (R. 201, 214, 218) and the 27th (R, 228,



9

229, 230). These motions were all denied by the trial Court 
(R. 135, 152, 155, 201, 214, 218, 228, 229, 230).

Petitioners appealed to the Richland County Court where, 
by stipulation, the appeals were treated as one “ since the 
facts and applicable law were substantially the same in 
each case” (R. 232).

The Richland County Court, upon the authority of Feiner 
v. New York, 300 N. Y. 391, 91 N. E. 2d 319 (R. 236, 237, 
238) held:

“While it is a constitutional right to assemble in a hall 
to espouse any cause, no person has a right to organize 
demonstrations which any ordinary and reasonable 
thinking citizen knows or reasonably should know would 
stir up passions and create incidents of disorder.”

Petitioners appealed to the Supreme Court of the State 
of South Carolina, excepting to the judgment below as 
follows:

“4. The Court erred in refusing to hold that the 
evidence shows conclusively that by the arrest and 
prosecution of appellants, the police powers of the 
State of South Carolina are being used to deprive 
appellants of the rights of freedom of assembly and 
freedom of speech, guaranteed them by the First 
Amendment to the United States Constitution, and fur­
ther secured to them under the equal protection and 
due process clauses of the Fourteenth Amendment to 
the Constitution of the United States” (R. 240).

The Supreme Court of South Carolina, in treating peti­
tioners constitutional objections, stated (infra pp. lla-12a):

“While the appellants have argued that their arrest and 
conviction deprived them of their constitutional rights



10

of freedom of speech and assembly . . .  it is conceded 
in argument before us that whether or not any consti­
tutional right was denied to them is dependent upon 
their guilt or innocence of the crime charged under the 
facts presented to the trial Court. If their acts con­
stituted a breach of the peace, the power of the State to 
punish is obvious. Feiner v. New York, 71 S. Ct. 303, 
340 U. S. 315, 95 L. ed. 295.”

The Supreme Court of South Carolina then proceeded to 
define breach of the peace generally and found it to include 
“ an act of violence or an act likely to produce violence” , 
infra p. 14a, and held that “ the orders of the police officers 
under all of the facts and circumstances were reasonable 
and motivated solely by a proper concern for the preserva­
tion of order and prevention of further interference with 
traffic upon the public streets and sidewalks”, infra p. 15a.

Reasons for Granting the Writ

This case raises a question of recurring importance to a 
democratic society—the extent to which a state may limit 
public expression on issues of national importance and 
concern on the ground that such expression may lead to 
violence although none in fact has occurred or even been 
threatened—answered in the Courts below in a manner con­
trary to principles enunciated by this Court.



11

I
Petitioners’ conviction on warrants charging that tiieir 

conduct “ tended directly to immediate violence and 
breach of the peace”  is unconstitutional in that it rests 
on no evidence of violence or threatened violence.

It is settled that this Court cannot be concerned with 
whether this record proves the commission of some crime 
other than that with which petitioners were charged. Con­
viction of an accused for a charge that was never made is a 
violation of due process. Cole v. Arkansas, 333 U. S. 196; 
De Jonge v. Oregon, 299 U. 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, 7 L. ed. 
2d 207, 214; Thompson v. Louisville, 362 U. S. 199, 206.

Petitioners were convicted of common law breach of the 
peace, for expressing their disapproval of the racial policies 
of the State of South Carolina, upon warrants (E. 2, 3, 156, 
157, 225, 226) charging 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 sing­
ing 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” (E. 2, 3, 157, 226). (Emphasis 
added.)

To sustain conviction on such a charge the Constitution 
requires proof of a substantial evil that rises far above 
public inconvenience, annoyance and unrest and a clear 
and present danger that that evil will occur, Cantwell v.



12

Connecticut, 310 U. S. 296, 311. The Supreme Court of 
South Carolina equated this constitutional standard with 
the offense charged, infra pp. 10a, 11a. These warrants 
charge petitioners with conduct which “ tended directly to 
immediate violence and breach of the peace” , and, there­
fore, they cannot be convicted on proof of less.

This record is, however, without proof of violence or 
threatened violence on the part of either the petitioners or 
the onlookers to their demonstration. The very most that 
may be said of petitioners’ conduct is that they sang the 
“ Star Spangled Banner,” “America” and religious hymns 
loudly, though not in a contemptuous manner (R, 39) and 
stomped their feet when told to disperse. There is no 
testimony of any kind that any of the demonstrators or the 
onlookers made any remark or action or, indeed, gesture 
which could be considered a prelude to violence. Those who 
watched the demonstration appear to have been curious 
and nothing more.

When asked why he thought there was a possiblity of 
violence, the City Manager who ordered the arrests, testi­
fied he noticed some “ possible troublemakers” among the 
bystanders (R. 33-36). But these “possible troublemakers” , 
who were not identified, did nothing, said nothing and moved 
on when so requested by the police (R. 33-36, 38, 54, 175). 
Petitioners cannot be convicted on the totally unsubstanti­
ated opinion of the police of possible disorder. Garner v. 
Louisiana, 7 L. ed. 2d 207. Cf. Hague v. C. I. 0., 307 U. S. 
496, 516. Compared to the body contact and threats in 
Feiner v. New York, 340 U. S. 315, 317, 318; the riotous 
circumstances of 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, this record hardly indi­
cates even a remote threat to public order.



13

Although the police testified that petitioners’ demonstra­
tion was stopped because the situation had become “poten­
tially dangerous” and not because of traffic problems (R. 
16-17, 46, 53, 100-101, 186), and petitioners were charged 
with conduct which “ tended directly to immediate violence 
and breach of the peace” , the Supreme Court of South Caro­
lina considered interference with traffic as an element of 
petitioners’ offense, infra p. 15a. Even if causing inter­
ference with traffic alone could uphold these convictions, the 
conclusory language of the Supreme Court of South Caro­
lina concerning “impeding traffic” does not bear analysis.

The City Manager and various police officers testified 
that vehicular traffic was slowed on the city street in front 
of the State House Building by those attracted by the dem­
onstration; that the lanes leading to the dead-end parking 
area directly in front of the legislative building were occa­
sionally obstructed; that the sidewalk near the horseshoe 
area (and part of the State House grounds) where the 
demonstration took place was crowded; and that the side­
walk on the other side of the city street from the horseshoe 
was crowded with onlookers. On the uncontradicted testi­
mony of the City Manager and the police officers, however, 
no one attempted to use the lanes leading to the parking 
area (R. 119, 123) ; while vehicular traffic on the city street 
was slowed, a police officer was dispatched and kept it mov­
ing (R. 45, 48); and the curious who had congregated to 
watch the demonstration moved on promptly when re­
quested by the police (R. 38). Passage of pedestrians was 
not blocked on any sidewalk (R. 48, 52, 195). The police 
were in complete control of any traffic problems (R. 34, 48, 
168, 22).

These facts do not permit an inference of violence or 
threatened violence. Petitioners were not charged with 
obstructing traffic (although there is a specific South Caro-



14

lina statute prohibiting obstruction of traffic on the State 
House Grounds, §1-417, Cumulative Supplement, 1952 Code 
of Laws, see infra p. 12a (E. 54)) but rather with conduct 
which “tended directly to immediate violence and breach 
of the peace.” Without evidence of verbal threats, dis­
obedience of police orders to move on, surging and milling 
or body contact, any conclusion that a group of bystanders, 
observing a demonstration in front of the State House 
would turn immediately violent, while at least 30 policemen 
were in attendance, is purely speculative.

Nor can a conclusion that petitioners’ demonstration 
caused some slowing of vehicular and pedestrian traffic in 
and of itself be used to uphold these convictions. Peti­
tioners were charged with the broad offense of common 
law breach of the peace. The Supreme Court of South 
Carolina adopted the general definition of breach of the 
peace found in 8 Am. Jur. 834, infra p. 14a, which definition 
extends to an act “ of violence or an act likely to produce 
violence.” Neither the general definition quoted by the 
Supreme Court of South Carolina or the remainder of the 
section on Breach of the Peace, 8 Am. Jur. 835, 836, 837, 
delineates as breach of the peace, the holding of a non­
violent 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 situation.1 In this regard, Mr. 
Justice Harlan’s words in Garner v. Louisiana, supra at 
p. 236, are here relevant:

1 Compare the South Carolina cases cited by the Supreme Court 
of South Carolina, infra p. 14a, 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 con­
viction of a Jehovah’s Witness who played phonograph records on 
the porches of private homes and used a soundtruek.



15

“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 he 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 because a byproduct of their expres­
sion was interference with traffic would be to open South 
Carolina’s use of common law breach of the peace to the 
vice of vagueness. Cantwell v. Connecticut, 310 U. S. 296, 
307, 308. ;

One of the purposes of rights of freedom of speech, as­
sembly and petition for redress of grievances is to influence 
public opinion and persuade others to one’s own point of 
view. De Jonge v. Oregon, 299 U. S. 353, 365; Sellers v. 
Johnson, 163 F. 2d 877, 881 (8th Cir. 1947) cert, denied 
332 U. S. 851; Cantwell v. Connecticut, 310 U. S. 296, 310; 
Whitney v. California, 274 U. S. 357, 375 (Mr. Justice 
Brandeis concurring). Cf. Rockwell v. Morris, 10 N. Y. 721 
(1960) cert, denied 7 L. ed. 2d 131. The exercise of these 
rights on controversial issues will inevitably lead to situa­
tions where numbers of persons hostile to the views ex­
pressed are in attendance. If it were otherwise, the salutory 
function of these rights would be lost and, ironically, suc­
cessful attraction of others to hear and see your views 
would result in the denial of the right to express those 
views. To allow the police to use the very fact that there 
are other persons besides the demonstrators in attendance 
as the basis for a conclusion as to the likelihood of violence 
would be to subject these rights “ to arbitrary suppression 
of free expression.” Hague v. C. I. O., supra at 516.



16

II

Petitioners’ convictions were obtained in violation o f 
their rights to freedom o f speech, assembly and peti­
tion for redress o f grievances in that they were con­
victed because their protected expression allegedly 
tended to lead to violence and breach o f the peace on 
the part o f others.

Mr. Justice Brandeis has written, Whitney v. California, 
274 U. S. 357, 378, concurring opinion, that:

“ • . . the fact that speech is likely to result in some 
violence or in destruction of property is not enough 
to justify its suppression. There must be the prob­
ability of serious injury to the State. Among free men, 
the deterrents ordinarily to be applied to prevent crime 
are education and punishment for violations of the 
law, not abridgement of the rights of free speech and 
assembly.”

Petitioners demonstrated their desire for reform of the 
racially discriminatory policies of the State of South Oarer- 
lina on the .gtoundsu3Lthe_Sj^te^egMatiWBHiiattignvMle- 
the Legislature of the State of South Carolina was in ses­
sion. It would be difficult to conceive of a more appro­
priate time and place to exercise the rights of freedom of 
expression. Cf. Hague v. C. I. 0., 307 U. S. 496, 515; United 
States v. Cruikshank, 92 U. S. 542.

Petitioners have argued that this record is barren of any 
evidence of conduct which was violent or threatened dis­
order. But even if this Court should hold that the evidence 
is adequate to avoid the rule of Thompson v. Louisville, 
supra, and Garner v. Louisiana, supra, such a determination 
still does not overcome the flaw in the convictions here. 
For these convictions were sustained below on the ground



17

that petitioners’ conduct threatened violence and breach of 
the peace on the part of those who observed the demonstra­
tion, In the circumstances of this case, however, the duty 
of the police was to protect petitioners from the unlawful 
conduct of others, not to silence freedom of expression. 
This is especially true when the disorder is not actual and 
imminent but (as testified by the officers) “possible”, and 
where, as here, large numbers of policemen are present 
and in control of the situation. Hague v. C. I. 0., 307 U. S. 
at 516; Sellers v. Johnson, 163 F. 2d 877, 881 cert, denied 
332 U. S. 851. Cf. Robeson v. Fanelli, 94 F. Supp. 62, 69, 
70 (S. D. N. Y. 1950).

If this is the duty of the police when there are potential 
threats of violence it must a fortiori be the duty of the 
police when traffic adjustment is involved. The minor in­
conveniences necessitated by traffic control and asking by­
standers to move on cannot be enlarged into a justification 
for abridging the freedoms of expression so fundamental 
to the health of the democratic process. Petitioners have 
not been convicted pursuant to a statute evincing a legisla­
tive judgment that their expression should he limited in 
the interests of some other societal value, but under a 
generalized conception of common law breach of the peace. 
Cantwell v. Connecticut, 310 U. S. at 307. Here as in the 
Cantwell case, there has been no such specific declaration 
of state policy which “would weigh heavily in any challenge 
of the law as infringing constitutional limitations” (310 
U. S. at 308). Petitioners were not charged with violating 
§1-417, Cum. Supp. 1952 Code of Laws of South Carolina, 
in which the Legislature did address itself to the problem 
of traffic control in the State House area.2 In the absence

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

1. Except State officers and employees and persons having 
lawful business in the buildings, to use any of the driveways,



18

of a state statute, narrowly drawn, South Carolina cannot 
punish expression which only leads to minor interference 
with traffic. Petitioners’ “ communication, 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 conviction of the common law offense in 
question” Cantwell v. Connecticut, 310 U. S. 296, 311; cf. 
Thornhill v. Alabama, 310 U. S. 88,105,106. See Statement, 
supra, p. 7.

This Court has found the interests of the State insuffi­
cient to justify restriction of freedom of speech and assem­
bly in circumstances far more incendiary than these. Ter- 
miniello v. Chicago, 337 U. S. 1; Hague v. C. I. 0., 307 U. S. 
496; Runs v. New York, 340 U. S. 290. Cf. Sellers v. John­
son, 163 F. 2d 877 (8th Cir. 1947) cert, denied 332 U. S. 
851; Rockwell v. Morris, 10 N. Y. 721 (1961) cert, denied 
7 L. ed. 2d 131. In this case there is no indication of immi­
nent violence as in Feiner v. New York, 340 U. S. 315, 318, 
where a “pushing, milling and shoving crowd” was “moving 
forward.”

The right to assemble peacefully to express views on 
issues of public importance must encompass security 
against being assaulted for having exercised it. Otherwise, 
the exercise of First and Fourteenth Amendment freedoms 
would be contingent upon the unlawful conduct of those * 2

alleys or parking spaces upon any of the property of the 
State, bounded by Assembly, Gervais, Bull and Pendleton 
Streets in Columbia upon any regular weekday, Saturdays and 
holidays excepted, between the hours of 8 :30 A.M., and 5 :30 
P.M., whenever 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 Control Board, in 
cooperation with the Highway Department, or to block or 
impede traffic through the alleys and driveways.”



19

opposed to the views expressed.3 Such a result would only 
serve to provoke threats of unlawful and violent opposition 
as a convenient method to silence minority expression. Such 
a result should not be sanctioned when important consti­
tutional rights are at stake. Cooper v. Aaron, 358 U. S. 
1, 14; Termmiello v. Chicago, 337 U. S. 1; Sellers v. John­
son, supra; Rockwell v. Morris, supra. “ Carried to its 
logical conclusion, th[is] rule would result in civil authori­
ties suppressing lawlessness by compelling the surrender 
of the intended victims of lawlessness. The banks could 
be closed and emptied of their cash to prevent bank rob­
beries; the post office locked to prevent the mails being 
robbed; the citizens kept off the streets to prevent holdups; 
and a person accused of murder could be properly sur­
rendered to the mob which threatened to attack the jail in 
which he was confined.” Strutwear Knitting Co. v. Olsen, 
13 F. Supp. 384, 391 (D. C. Minn. 1936).

3 See Beatty v. Gillhanks (1882) L. R. 9 Q. B. Div. (Eng) 
holding street paraders not guilty of breach of the peace for 
parade they knew would cause violent opposition.



20

CONCLUSION

W herefore , f o r  the fo re g o in g  reason s, it is  re sp e ctfu lly  
subm itted  that the p e tition  f o r  w r it  o f  ce r t io ra r i sh ou ld  he 
gran ted .

R e sp e c tfu lly  subm itted ,

J ack  G reenberg 
Constance B ak er  M otley 
J am es M . N abrit , I I I  
M ic h ael  M eltsner  

10 Columbus Circle 
New York 19, New York

M a t t h e w  J . P erry 
L in co ln  C. J e n k in s , J r .

1107% Washington Street 
Columbia 1, South Carolina 

D onald J am es S am pson

Greenville, South Carolina

Attorneys for Petitioners



APPENDIX



APPENDIX

I n  t h e  R ich lan d  Co u n ty  C ourt

T h e  S tate

-v.-

J am es .E dwards, Jr., et at.

ORDER

This is an appeal from conviction in magistrate’s court 
of the common law crime of breach of the peace. There 
are almost 200 appellants, who were convicted by the 
^magistrate, City of Columbia, Richland County, in four 
trials, trial by jury having been waived by the appellants 
in each case. By stipulation between counsel for the ap­
pellants and the counsel for the State, the appeals will be 
treated here as one since the facts and applicable law 
were substantially the same in each case. The trial Magis­
trate imposed fines upon each of the appellants ranging 
from $10.00 to $100.00. Due and timely notice of appeal 
from conviction was served and oral arguments were heard 
before me in open court. At mv suggestion and with the 
agreement of counsel for both sides, written briefs were 
filed.

The appellants except to the finding of the Magis­
trate’s Court and the fines imposed as a result of such 
finding of guilt upon the grounds that the State by the 
evidence failed to establish the corpus delicti, that the 
State failed to prove a prima facie ease, that the evidence 
showed that the police powers of the State of South Caro­
lina were used against the appellants to deprive them of



2a

the right of freedom of speech guaranteed by the Consti­
tution of the United States and the Constitution of South 
Carolina, and that the evidence presented before the Magis­
trate showed only that the appellants at the time of their 
arrests were engaged in a peaceful and lawful assemblage 
of persons, orderly in every respect upon the public streets 
of the State of South Carolina.

Testimony before the Magistrate sets out the following 
series of events which culminated in the arrest of the 
appellants and the issuance of warrants charging them 
with breach of the peace. Shortly before noon on the third 
day of March, 1961, the appellants, acting in concert and 
with what appeared to be a preconceived and definite plan, 
proceeded on foot along public sidewalks from Zion Baptist 
Church in the City of Columbia to the State House grounds, 
a distance of approximately six city blocks. They wrnlked 
in groups of twelve to fifteen each, the groups being sepa­
rated by a few feet, Testimony shows that the purpose of 
this assemblage and movement of students was to walk 
in and about the grounds of the State House protesting, 
partly by the use of numerous placards, against the segre­
gation laws of this State. The General Assembly was in 
session at the time.

Upon their approach to an area in front of and im­
mediately adjacent to the State House building, known 
as the “horseshoe” , the Negro students were met by police 
authorities of the State and the City of Columbia. After 
brief conversation between the leader of the students and 
police officers, the students proceeded to walk in and about 
the State House grounds displaying placards, some of 
which, at least, might be termed inflammatory in nature. 
There is some evidence also that a few groups of students 
were singing during this period. Such activity continued

Order



3a

for approximately 45 minutes during which the students 
met with no interference from anyone. Testimony from 
city and state authorities wras to the effect that during 
this period of time, while the students were marching in 
and about the grounds without hindrance from officers, 
large numbers of onlookers, evidently attracted by the 
activity of the students, had gathered in the “horseshoe” 
area, entirely blocking the vehicular traffic lane and inter­
fering materially with the movement of pedestrian traffic 
on the sidewalks in the area and on city sidewalks im­
mediately adjacent. Testimony of city and state authorities 
was that vehicular traffic on the busy downtown streets of 
Gervais and Main, one running alongside the grounds and 
the other “dead-ending” at the State House, was noticeably 
and adversely affected by the large assemblage of students 
and onlookers which had filled the “horseshoe” area and 
overflowed into Gervais and Main Streets. Some testi­
mony disclosed that in and about the “horseshoe” area it 
was necessary for the police to issue increasingly frequent 
orders to keep pedestrian traffic moving, even at a slow 
rate.

The Chief of Police of the City of Columbia and the 
City Manager of the City of Columbia testified that they 
recognized in the crowd of onlookers persons whom they 
knew to be potential troublemakers. It was at this time 
that the police authorities decided that the situation had 
become potentially dangerous and that the activities of 
the students should be stopped. The recognized and ad­
mitted leader of the students was approached by city au­
thorities and informed that the activities of the students 
had created a situation which in the opinion of the officers 
was potentially dangerous and that such activities should 
cease in the interest of the public peace and safety. The

Order



4a

students were told through their leader that they must 
disperse in 15 minutes. The leader of the students, ac­
companied by the City Manager of Columbia, went from 
one group of students to the other, informing them of the 
decision and orders of the police authorities.

The City Manager testified that the leader of the students 
refused to instruct or advise them to desist and disperse 
but that instead he “harangued” the students, whipping 
them into what was described by the City Manager as a 
semi-religious fervor. He testified that the students, in 
response to the so-called harangue by their leader, began 
to sing, clap their hands and stamp their feet, refusing to 
stop the activity in which they were engaged and refusing 
to disperse. After 15 minutes of this activity the students 
were arrested by state and city officers and were charged 
with the crime of breach of the peace.

With regard to the position taken by the appellants 
that their activities in the circumstances set forth did 
not constitute a crime, the attention of the Court has been 
directed to several of our South Carolina eases upon this 
point, one of them being the case of State v. Langston, 
195 S. C. 190, 11 S. E. (2d) 1. The defendant in that case 
was a member of a religious sect known as Jehovah’s Wit­
nesses. He, with others, went on a Sunday to the homes of 
other persons in the community and played records on 
the porches announcing his religious beliefs to anyone who 
would listen. He also employed a loud speaker mounted on 
a motor vehicle to go about the streets for the same pur­
pose. Crowds of persons were attracted by this activity. 
No violence of any kind occurred. Upon his refusal to 
obey orders of police officers to cease such activity, the 
defendant was arrested and convicted for breach of the 
peace. The Court in upholding the conviction said:

Order



5a

“It certainly cannot be said that there is not in this 
State an absolute freedom of religion. A man may 
believe what kind of religion he pleases or no religion, 
and as long as he practices his belief without a breach 
of the peace, he will not be disturbed.

“ In general terms, a breach of the peace is a viola­
tion of public order, the disturbance of public tran­
quility, by any act or conduct inciting to violence.

“It is not necessary that the peace be actually 
broken to lay the foundation of prosecution for this 
offense. If what is done is unjustifiable, tending with 
sufficient directness to break the peace, no more is 
required.”

With further reference to the argument advanced by the 
appellants that they had a constitutional right to engage 
in the activities for which they were eventually charged 
with the crime of breach of the peace, regardless of the situ­
ation which was apparently created as a result of such 
activities, this Court takes notice of the New York State 
case of People v. Feiner, 300 N. Y. 391, 91 N. E. (2d) 319. 
In that case the Court of Appeals of the State of New York 
wrote an exhaustive opinion in a case which arose in that 
State in 1950, the factual situation being similar in many 
respects to the cases presently before this Court upon ap­
peal.

Feiner, a University student, stationed himself upon one 
of the city streets of the City of Syracuse and proceeded 
to address his remarks to all those who would listen. The 
general tenor of his talk was designed to arouse Negro 
people to fight for equal rights, which he told them they 
did not have. Crowds attracted by Feiner began to fill up 
the sidewalks and overflow into the street. There was no

Order



6a

disorder, but in the opinion of police authorities there was 
real danger of a disturbance of public order or breach of 
the peace. Feiner was requested by police to desist. He 
refused. The arrest was then made and Feiner was charged 
and convicted of disorderly conduct.

In upholding the conviction, the New York Court quoting 
from Cantwell v. State of Connecticut, 310 TJ. S. 296, 60 
S. Ct. 900, 84 L. Ed. 1213, 128 A. L. B. 1352, said:

“ 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 suggest 
that the principle of freedom of speech sanctions incite­
ment to riot or that religious liberty connotes the privi­
lege to exhort others to physical attack upon those be­
longing to another sect. When clear and present danger 
of 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.”

The appellants in the present case have emphasized re­
peatedly in the trials and in their arguments before the 
Court and in their Brief that no one of them individually 
committed any single act which was a violation of law. 
It is their contention that they had a right to assemble and 
act as they did so long as they did no other act which was 
in itself unlawful. Apparently they reject the proposition 
that an act which is lawful in some circumstances might be 
unlawful in others. The New York Court in answering a 
similar contention made by the defendant in the Feiner 
case said:

Order



7a

“W e are well aware of the caution with which the 
courts should proceed in these matters. The intolerance 
of a hostile audience may not in the name of order be 
permitted to silence unpopular opinions. The Consti­
tution does not discriminate between those whose ideas 
are popular and those whose beliefs arouse opposition 
or dislike or hatred—guaranteeing the right of free­
dom of speech to the former and withholding it from 
the latter. We recognize, however, that the State must 
protect and preserve its existence and unfortunate 
as it may be, the hostility and intolerance of street 
audiences and the substantive evils which may follow 
therefrom are practical facts of which the Courts and 
the law enforcement officers of the State must take 
notice. Where, as here, we have a combination of an 
aroused audience divided into hostile camps, an inter­
ference with traffic and a speaker who is deliberately 
agitating and goading the crowd and the police officers 
to action, we think a proper case has been made out 
under our State and Federal Constitutions for punish­
ment.”

In the present case the appellants were not prevented 
from engaging in their demonstration for a period of ap­
proximately an hour, nor were they hindered in any way. 
After such activity had gone on for approximately 45 
minutes, police officers saw that streets and sidewalks had 
been blocked by a combination of students and a crowd of 
200 or 300 onlookers which had been attracted by their 
activities. They recognized potential troublemakers in the 
crowd of onlookers which was increasing by the minute. 
State and city authorities testified that in their opinions 
the situation which had been created by the students had

Order



8a

reached a point where it was potentially dangerous to the 
peace of the community. Instead of taking precipitous 
action even at this point, police authorities ordered the 
students to cease their activities and disperse, giving them 
the reasons for such order. The students were told that 
they must cease their activities in 15 minutes. The students 
refused to desist or to disperse. There is no indication 
whatever in this ease that the acts of the police officers 
were taken as a subterfuge or excuse for the suppression 
of the appellants’ views and opinions. The evidence is clear 
that the officers were motivated solely by a proper concern 
for the preservation of order and the protection of the 
general welfare in the face of an actual interference with 
traffic and an imminently threatened disturbance of the 
peace of the community.

Petitioning through the orderly procedures of the Courts 
for the protection of any rights, either invaded or denied, 
has been followed by the American people for many years. 
It is the proper and the correct course to pursue if one is 
sincerely seeking relief from oppression or denial of rights. 
While it is a constitutional right to assemble in a hall to 
espouse any cause, no person has a right to organize demon­
strations which any ordinary and reasonable thinking citi­
zen knows or reasonably should know would stir up passions 
and create incidents of disorder.

The State of South Carolina, the City of Columbia, and 
the County of Richland in the exercise of their general 
police powers of necessity have the authority to act in 
situations such as are detailed in the evidence in these cases 
and if the conduct of their duly appointed officers of the 
law is not arbitrary, capricious and the result of prejudice 
but is founded upon clear, convincing and common sense 
reasoning, there is no denial of any right.

Order



9a

All exceptions of tlie appellants are overruled and the 
convictions and sentences are affirmed.

/ s /  L egare B ates,
Senior Judge, Richland County 

Court.

Order|

Columbia, South Carolina, 
July 10th, 1961.



10a

Opinion of the Supreme Court of South Carolina

THE STATE OF SOUTH CAROLINA 

I n  T h e  S u prem e  C ourt

T h e  S tate ,

—v.—

J am es E dwards, J r ., et al.,

Respondent,

Appellants.

A P PE A L  P R O M  R IC H L A N D  C O U N T Y , LEGARE B ATES, C O U N T Y  JU D G E

A ffirm ed

L ew is , A.J.:

The appellants, one hundred eighty seven in number, 
were convicted in the Magistrate’s Court of the common 
law crime of breach of the peace. The charges arose out 
of certain activities in which the appellants were engaged 
in and about the State House grounds in the City of 
Columbia on March 2, 1961. The only question involved 
in their appeal to this Court is whether or not the evidence 
presented to the trial Court was sufficient to sustain their 
conviction. Conviction was sustained by the Richland 
County Court, from which this appeal comes. While the 
appellants have argued that their arrest and conviction 
deprived them of their constitutional rights of freedom of 
speech and assembly, guaranteed to them by both the 
State and Federal Constitutions, it is conceded in argu­
ment before us that whether or not any constitutional right 
was denied to them is dependent upon their guilt or in­
nocence of the crime charged under the facts presented



11a

to the trial Court. If their acts constituted a breach of the 
peace, the power of the State to punish is obvious. Feiner 
v. New York, 71 S. Ct. 303, 340 IT. S. 315, 95 L. Ed. 295.

It is well settled that the trial Court must be affirmed 
if there is any competent evidence to sustain the charges 
and, in determining such question, the evidence and the 
reasonable inferences to be drawn therefrom must be 
viewed in the light most favorable to the State.

The testimony discloses the following events which re­
sulted in the arrest of the appellants and the issuance of 
warrants charging them with breach of the peace.

Shortly before noon on March 2, 1961, a group of ap­
proximately 200 Negro students, after attending a meet­
ing at the Zion Baptist Church in the City of Columbia, 
walked in groups of approximately fifteen each from the 
church along public sidewalks to the State House grounds, 
a distance of approximately six blocks. The purpose of 
the movement of the group to the State House was to 
parade about the grounds in protest to the General As­
sembly and the general public against the laws and cus­
toms of the State relative to segregation of the races, 
such demonstration to continue until, as the testimony 
shows, their conscience told them that the demonstration 
had lasted long enough. The General Assembly was in 
session at the time.

As they reached the State House grounds, the group 
was met by police authorities of the State and the City 
of Columbia. After a brief conference between their leader 
and police officers, the group proceeded to parade about 
the State House grounds. They continued to parade around 
the State House for approximately forty-five minutes 
during which time they met with no interference. Dur­
ing this forty-five minute period a crowd, evidently at-

Opinion of the Supreme Court of South Carolina



12a

tracted by the activities of the paraders, began gathering 
in the area in front of the State House, known as the 
“horseshoe”, blocking the lanes for vehicular traffic through 
such area and materially interfering with the movement of 
pedestrian traffic on the sidewalks in the area and on side­
walks immediately adjacent. Vehicular traffic on the ad­
jacent city streets was noticeably and adversely affected by 
the large assemblage of paraders and the crowd which had 
overflowed the horseshoe area into the adjacent streets.

The traffic situation can best be understood in relation 
to the area involved. Columbia is the State Capitol. Main 
and Gervais Streets in Columbia intersect in front of the 
State House. Gervais Street runs in an east-west direc­
tion, along the northern side of the State House grounds. 
Main Street, running north and south, intersects Gervais 
Street in front of the State House, where it dead-ends. The 
area referred to as the “horseshoe” is in effect a continua­
tion of Main Street into the State House grounds. It is 
about % block in length and about the width of Main 
Street. Situated at the center of the entrance to the “horse­
shoe” is a monument, with space on each side for vehicular 
traffic to enter and leave the area. It is reserved for park­
ing of vehicles and, on the occasion in question, was filled 
with automobiles. It is a violation of law to block or im­
pede traffic in the area. Section 1-417, Cumulative Supple­
ment, 1952 Code of Laws. Sidewalks are located around 
the area for use by pedestrians.

The intersection of Main and Gervais Streets in front 
of the State House in Columbia is, by common knowledge, 
one of the busiest intersections in the State of South Caro­
lina, both from the standpoint of vehicular and pedestrian 
traffic.

Opinion of the Supreme Court of South Carolina



13a

On the occasion in question, in addition to the approxi­
mately 200 paraders in the area, there had gathered ap­
proximately 350 onlookers and the crowd was increasing. 
With the paraders and the increasingly large number of 
onlookers congregated in the above area seriously affect­
ing the flow of pedestrian and vehicular traffic, the officers 
approached the admitted leader of the paraders and in­
formed him that the situation had reached the point where 
the activities of the group should cease. They were told 
through their leader that they must disperse within fifteen 
minutes. The parade leader, accompanied by the police 
authorities, went among the paraders and informed them 
of the decision and orders of the police. The leader of the 
group refused to instruct or advise them to disperse but 
instead began a fervent speech to the group and in re­
sponse they began to sing, shout, clap their hands and 
stamp their feet, refusing to disperse. After about fifteen 
minutes of this noisy demonstration, the appellants, who 
were engaging in the demonstration, were arrested by 
State and City officers and charged with the crime of 
breach of the peace. Upon the trial, all of the appellants 
were identified as participants in the parade and activities 
out of which the charge arose.

The warrants issued against appellants charge that they 
“ on March 2, 1961, on the State Capitol grounds, on ad­
jacent 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 tended directly to 
immediate violence and breach of the peace in view of 
existing conditions.”

Opinion of the Supreme Court of South Carolina



14a

“ Breach of the peace is a common law offense which is 
not susceptible to exact definition. It is a generic term, 
embracing ‘a great variety of conduct destroying or men­
acing public order and tranquility’. Cantwell v. State of 
Connecticut, 310 U. S. 296, 60 S. Ct. 900, 905, 84 L. Ed. 1213, 
128 A. L. R. 1352.” State v. Randolph, 239 S. C. 79, 121 
S. E. (2d) 349.

The general definition of the offense of breach of the 
peace approved in our decisions is that found in 8 Am. Jur. 
834, Section 3 as follows: “ In general terms, a breach of 
the peace is a violation of public order, a disturbance of 
the public tranquillity, by any act or conduct inciting to 
violence . . . , it includes any violation of any law enacted 
to preserve peace and good order. It may consist of an 
act of violence or an act likely to produce violence. It 
is not necessary that the peace be actually broken to lay 
the foundation for a prosecution for this offense. If what 
is done is unjustifiable and unlawful, tending with suffi­
cient directness to break the peace, no more is required. 
Nor is actual personal violence an essential element in 
the offense. . . .

“By ‘peace,’ as used in the law in this connection, is 
meant the tranquillity enjoyed by citizens of a municipality 
or community where good order reigns among its mem­
bers, which is the natural right of all persons in political 
society.”

See: Soulios v. Mills Novelty Co., 198 S. C. 355, 17 S. E. 
(2d) 869; State v. Langston, 195 S. C. 190, 11 S. E. (2d) 
1; Childers v. Judson Mills Store, 189 S. C. 224, 200 S. E. 
770; Webber v. Farmers Chevrolet Co., 186 S. C. I l l ,  195 
S. E. 139; Lyda v. Cooper, 169 S. C. 451, 169 S. E. 236.

In determining whether the acts of the appellants con­
stituted a breach of the peace, we must keep in mind that

Opinion of the Supreme Court of South Carolina



the right of the appellants to hold a parade to give expres­
sion to their views is not in question. They were not ar­
rested for merely holding a parade, nor were they arrested 
for the views which they held and were giving expression. 
Eather, appellants were arrested because the police au­
thorities concluded that a breach of the peace had been 
committed.

The parade was conducted upon the State House grounds 
for approximately forty-five minutes. It was not until 
the appellants and the crowd, attracted by their activities, 
were impeding vehicular and pedestrian traffic upon the ad­
jacent streets and sidewalks that the officers intervened in 
the interest of public order to stop the activities of the ap­
pellants at the time and place. Notice was given to appel­
lants by the officers that the situation had reached the point 
where they must cease their demonstration. They were 
given fifteen minutes in which to disperse. 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 side­
walks. The appellants not only refused to heed and obey 
the reasonable orders of the police, but engaged in a fiftten 
minute noisy demonstration in defiance of such orders.

The acts of the appellants under all the facts and circum­
stances clearly constituted a breach of the peace.

Affirmed.
T aylor , C . J O xn eb , L egge and Moss, JJ., concur.

Opinion of the Supreme Court of South Carolina



16a

Denial of Petition for Rehearing

IN THE SUPREME COURT OF SOUTH CAROLINA

T h e  S tate , 

—against—
Respondent,

J am es E dwards, J r ., et al.,
Appellants.

CERTIFICATE

I, Harold R. Boulware, hereby certify that I am a prac­
ticing attorney of this Court and am in no way connected 
with the within case. I further certify that I am familiar 
with the record of this case and have read the opinion of 
this Court which was filed December 5, 1961, and in my 
opinion there is merit in the Petition for Rehearing.

/&/ H arold R. B oulw are 
Harold R. Boulware

Columbia, South Carolina 
December 13,1961

(Indorsed on back of this document):

Petition denied.

s /  C. A. T aylor 

s /  G. D ew ey  O xner  

s /  L ionel  K . L egge 

s /  J oseph  R . M oss 

s /  J . W oodrow L ew is



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