Edwards v. South Carolina Brief for Respondent

    IN THE

Supreme Court of the United States
October Term, 1962

No. 86

JAMES EDWARDS, JR., ET AL., P etitioners, 

versus

STATE OF SOUTH CAROLINA, R espondent

O n  W rit of Certiorari to the Supreme Court 
of the State of South Carolina

BRIEF FOR RESPONDENT

DANIEL McLEOD,
Attorney General,

State of South Carolina,
J. C. COLEMAN, JR., 
EVERETT N. BRANDON, 

Assistant Attorneys General, 
State of South Carolina, 

Wade Hampton Office Bldg, 
Columbia, South Carolina, 

Attorneys for Respondent.

The R. L. Brytn Company, Legal Printers, Columbia, S. C.



INDEX
P age

Constitutional Provisions Involved................................  1

Questions Presented .........................................................  1

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

Argument ............................................................................ 3

Conclusion ..........................................................................  11

( i )



TABLE OF CASES
P age

Cantwell v. Connecticut, 310 U. S. 296 ............................  11

Feiner v. New York, 340 U. S. 315 ............................ 4, 7, 10

Niemotko v. Maryland, 340 U. S. 268 ...........................7, 10

STATE STATUTES
Section 1-417, Code of Laws of South Carolina, 1952, 

1960 Cumulative Supplement............................ ..........  10

(Hi)



IN THE

Supreme Court of the United States
October T erm, 1962

No. 86

JAMES EDWARDS, JR., ET AL., P etitioners,

versus

STATE OF SOUTH CAROLINA, R espondent

O n  W rit of Certiorari to the Supreme Court 
of the State of South Carolina

BRIEF FOR RESPONDENT

CONSTITUTIONAL PROVISIONS INVOLVED
This case involves the First Amendment and Section 1 

of the Fourteenth Amendment to the Constitution of the 
United States.

QUESTIONS PRESENTED
Whether the convictions of petitioners in the State 

court for the crime of breach of the peace are invalid be­
cause petitioners were denied due process of law or their 
rights to freedom of speech and peaceful assembly were 
violated.



STATEMENT
On March 2, 1961, a group of Negro students, peti­

tioners herein, numbering approximately two hundred, met 
in a church in the City of Columbia with several older 
leaders for the purpose of organizing and carrying out a 
demonstration on the grounds of the South Carolina State 
House located within the City. They knew the General As­
sembly of the State was in session, and the avowed pur­
pose of the demonstration was to protest to the General 
Assembly against all laws of the State relating to segrega­
tion of the races (R. 34, 109, 163).

The students, with their leaders, marched through the 
city streets in groups of twelve to fifteen, arriving at the 
State House grounds shortly before noon. The City Man­
ager of Columbia, with City and State police officers, was 
already on the scene (R. 68). The students were told that 
they could walk in and about the grounds so long as they 
were peaceful (R. 35). At this time there were only a few 
persons present besides the students and police officers (R. 
36). The students then proceeded to put into effect their 
planned course of action, marching in groups in and about 
the grounds, displaying placards, such as “ I am proud to 
be a Negro”, “Down with segregation” , “You may jail our 
bodies but not our souls” , and one placard which referred 
to “ going to jail for freedom” (R. 110, 114, 150). Some of 
the groups proceeded in single file and some two abreast 
in and about the relatively narrow walkways of the grounds 
(R. 101). They were not hindered by police officers or any­
one else until a radical change in the overall situation took 
place (R. 35, 36).

After a period of time estimated at approximately 
forty-five minutes, it became evident to police authorities 
that a large crowd of onlookers, estimated at 300-350 per­
sons, attracted by the students’ activities, had almost filled

2 Edwards et at, Petitioners, v. State of S. C., Respondent



Edwards et a l, Petitioners, v. State of S. C., Respondent 3

the “horseshoe” area of the grounds, blocking vehicular 
traffic lanes, impeding the flow of pedestrian traffic on ad­
jacent sidewalks, and adversely affecting vehicular and 
pedestrian traffic on the adjoining city streets (R. 9, 10, 11, 
36). By that time, also, it had become evident to police au­
thorities that there was imminent danger of further dis­
ruption of the public peace. Known “ troublemakers” were 
recognized in the crowd of onlookers (R. 28, 29, 140). The 
total number of persons in and about the “horseshoe” area 
was increasing steadily, and the resulting situation relat­
ing to the free flow of traffic was growing worse (R. 70, 71).

It was at this point, and not until then, that police 
authorities instructed the students to desist and disperse 
(R. 13, 133). Such instructions were given to all the stu­
dents. They refused to obey the order. Instead, in response 
to what the City Manager described as a “harangue” by 
their recognized leader, the students began to stamp their 
feet, clap their hands, and sing. Their marching continued 
(R. 133, 134). After approximately fifteen minutes of such 
activity, the students were arrested and charged -with 
breach of the peace (R. 36, 134). It appears that the stu­
dents were orderly until they were ordered to disperse, but 
that they were disorderly from that time until they were 
placed under arrest.

ARGUMENT
Petitioners’ Convictions in the State Trial Court of the 

Common Law Crime of Breach of the Peace were Based on 
Sufficient Evidence to Establish Their Guilt, and, There­
fore, No Denial of a Constitutional Right was Involved.

Evidence before the State trial court was sufficient to 
sustain convictions of the petitioners for the common law 
crime of breach of the peace. It follows that no denial of a 
constitutional right was committed. There is no such right 
to commit a crime. There was ample testimony from police



authorities of serious blockage of and hindrance to vehicu­
lar and pedestrian traffic throughout the area caused by 
persons attracted to the scene by petitioners. Among those 
persons were some recognized by experienced police au­
thorities to be “ troublemakers” . There was considerable 
racial tension in the City at this time (R. 143).

This totality of circumstances convinced police authori­
ties that some official action must be taken to restore pub­
lic peace and tranquility, which had been disturbed already, 
and to prevent more serious trouble (R. 143, 144). The sit­
uation with which the police were confronted here was 
more serious than that which was involved in Feiner v. New 
York, 340 U. S. 315. In Feiner, there were only seventy-five 
to eighty persons involved, with relatively minor disruption 
of pedestrian traffic, it being stated that “ some pedestrians 
were forced to walk in the street to avoid the crowd” (p. 
317). By way of contrast, the present case involved an in­
creasing crowd of onlookers estimated as great as 350 per­
sons plus two hundred demonstrating students, making a 
total of perhaps five hundred fifty persons (R. 9, 11). Cer­
tainly blockage of pedestrian traffic was more extensive 
than in Feiner, plus the hindrance to and blockage of ve­
hicular traffic (R. 11, 36), which was not present at all in 
that case.

It is true that one individual in Feiner threatened to 
assault the speaker (p. 317) and that there was testimony 
of some pushing, shoving, and milling around (p. 317), and 
testimony that the speaker had passed “the bounds of argu­
ment or persuasion and had undertaken incitement to riot” 
(p. 321). There is no such testimony in the present case; 
but those additional elements seem insufficient to distin­
guish this from Feiner. One individual, known to police, 
threatening assault on the speaker could have been con­
trolled easily. Milling about, pushing, and shoving in a

4 Edwards et al., Petitioners, v. State of S. C., Respondent



close street crowd is normal. The words of the speaker un­
dertaking “incitement to riot” seem less an actual or threat­
ened breach of the public peace than the boisterous stamp­
ing of feet, shouting, and loud singing of the petitioners 
here when they were instructed to disperse (R. 133, 134).

There is no scintilla of evidence in the record of this 
case to indicate that the police officers involved acted for 
the purpose of suppressing the views expressed by the pe­
titioners, or that they acted for any other reason than to 
preserve the public peace.

Although the petitioners put up very little testimony 
in the trial court, the testimony of two of them strongly 
indicates that they had little or no regard for their duty as 
citizens to assist in the maintenance of the public peace. As 
to the numbers of demonstrators used in the relatively re­
stricted area available in and about the State House 
grounds, Reverend B. J. Glover, a defendant, testified (R. 
168, 169):

Counsel: Do you think that right (to demon­
strate) extends to a large group of two hundred 
people?

Rev. Glover: Yes, as individuals, and I believe 
that the group—at least I acted as an individual be­
cause I chose to follow them.

Counsel: You were acting in concert, were you
not?

Rev. Glover: Yes.
Counsel: If its all right for a group of two hun­

dred, would it be all right for a group of four hundred?
Rev. Glover: It would be all right, if they acted 

under the same circumstances under which we acted.
Counsel: Would it be all right for a group of ten 

thousand?
Rev. Glover: I haven’t ever assembled a group of 

ten thousand.

Edwards et at, Petitioners, v. State of S. C., Respondent 5



The only other defendant placed on the stand, James 
Jerome Kirton, indicated a total disregard for any reason­
able control of mass demonstrations by testifying (R. 118):

Counsel: Don’t you think, if the only purpose of 
your demonstration that day was to call attention to 
the various members of the Legislature and any other 
officials who may have been in or about the State 
House, that two hundred, or approximately two hun­
dred, Negro students marching in and about the 
grounds with placards would have had time in an 
hour to sufficiently demonstrate to any of them, by 
person, their views or whatever views they were ex­
pressing by demonstration or call attention to them­
selves?

Kirton: Are you asking that we could easily have 
expressed our view to one person instead of—

Counsel: No. I ’m asking if you don’t think an hour 
was long enough for that purpose.

Kirton: I don’t.
Counsel: How long did you intend to demonstrate?
Kirton: Until conscience told me that the demon­

stration had lasted long enough.
It is not intended by the emphasis placed on the testi­

mony of Reverend Glover and Mr. Kirton to argue that a 
limit of time or numbers may be placed upon the right of 
freedom of speech and assembly. Their testimony does in­
dicate, however, that the petitioners took no thought of the 
disruption of the normal use of the public sidewalks and 
streets in the area, and that it was not unreasonable for 
police authorities to act to relieve the situation created by 
such an extended demonstration by so large a group of 
persons.

It is argued by the petitioners that their loud singing, 
shouting, and stamping of feet did not occur until after 
they were ordered to disperse (p. 5). Orders by the police 
to cease their demonstration did not justify such activity. 
If they thought that the police had overstepped their au­

6 Edwards et al., Petitioners, v . State of S. C., Respondent



Edwards et al., Petitioners, v. State op S. C., Respondent 7

thority, they could have refused to comply in an orderly 
and peaceful manner. An order by constituted authority, 
if unlawful, may be refused, but the fact that the order is 
unlawful does not justify a public disturbance by the one 
who receives the order. They were not resisting an unlaw­
ful arrest because no attempt at arrest had been made at 
this time.VTheir boisterous conduct at this time only added 
to the breach of public peace which had occurred already, 7i 

Petitioners place much emphasis upon the fact that 
they did not commit any act specifically prohibited by law 
and that there were no threats or acts of violence by any 
of the onlookers (p. 15). The problem faced by the police 
authorities in this case is succinctly stated in a concurring 
opinion in Niemotko v. Maryland, 340 IT. S. 268, at p. 275:

“ Adjustment of the inevitable conflict between free 
speech and other interests is a problem as persistent 
as it is perplexing. It is important to bear in mind 
that this Court can only hope to set limits and point 
the way. It falls to the lot of legislative bodies and 
administrative officials to find practical solutions with­
in the framework of our decisions.”
Speaking of such framework, the opinion states at p.

282:
“What is the interest deemed to require the regu­

lation of speech? The State cannot, of course, forbid 
public proselyting or religious argument merely be­
cause public officials disapprove the speaker’s views. 
It must act in patent good faith to maintain the public 
peace, to assure the availability of the streets for their 
primary purposes of passenger and vehicular traffic 
and for equally indispensible ends of modern com­
munity life.”
The Court said in Feiner (p. 320):

“ This Court respects, as it must, the interest of 
the community in maintaining peace and order on its 
streets.”



The following short quotations from the testimony 
serve to show the traffic situation as it appeared to police 
officers before they gave the order to disperse. City Man­
ager McNayr testified (R. 10, 11):

Counsel: Can you estimate the number of persons 
who did gather in and around this horseshoe by the 
time that it became apparent to you that some further 
official action on your part would be necessary?

McNayr: I would estimate the number of persons, 
in addition to the student groups, to be in the neighbor­
hood of 250 to 300 people.

Counsel: Now, with relation, Mr. McNayr, to the 
sidewalks around the horseshoe and the lane for ve­
hicular traffic, how was the crowd distributed, with 
regard to those sidewalks and roadways?

McNayr: Well, the conditions varied from time 
to time, but at numerous times they were blocked al­
most completely with probably as many as thirty or 
forty persons, both on the sidewalks and in the street 
area.

Counsel: Would you say or state whether or not, 
in your opinion, this crowd did impede both vehicular 
and pedestrian traffic along the horseshoe?

McNayr: To the best of my kowledge, I can’t re­
call a single vehicle trying to get in or out of the 
horseshoe. If one had attempted it, it would have im­
peded the entrance and exit to the horseshoe.

Counsel: Did you observe the pedestrian traffic on 
the walkway?

McNayr: Yes, I did.
Counsel: What was the condition there?
McNayr: The condition there was that it was ex­

tremely difficult for a pedestrian wanting to get 
through. Many of them took to the street area, even 
to get through the street area or the sidewalk.
City Manager McNayr testified further (R. 132):

Counsel: State whether or not you noticed or saw 
any change in the size of the number of persons who

8 Edwards et al., Petitioners, v. State op S. C., Respondent



Edwards et al., Petitioners, v. State of S. C., Respondent 9

might or might not have been within the horseshoe 
area?

McNayr: Yes. Soon after the Negro students ar­
rived at the entrance to the horseshoe, crowds began 
to gather. This was in the neighborhood of twelve 
o’clock, noon, just prior to twelve o’clock, noon, and 
more and more people gathered within that area to 
the point where they were blocking both of the drive­
way entrances and the sidewalk area. They had to be 
told to move along, not to impede the sidewalk traffic, 
and it was necessary to station a policeman in the 
intersection of Gervais and Main Streets in order to 
keep traffic moving, because, again, a large group of 
persons attracted the passers-by in automobiles.

Counsel: Did you note the traffic, if any, which 
was on Gervais Street, immediately adjacent to the 
horseshoe?

McNayr: Yes, I did.
Counsel: Are you familiar with the normal flow 

of traffic on that street?
McNayr: Yes, I ’m quite familiar with it.
Counsel: Was the traffic flow at that time normal?
McNayr: It was not normal—no, it was greatly 

slowed up. It had to be kept moving by a police officer. 
It was greatly slowed up, again, being attracted by 
the large group on the State House grounds. Normally, 
the lights control the traffic quite well.
Speaking of the activities of petitioners after they were 

told to disperse but before any attempt at arrest was made, 
McNayr testified (R. 133, 134):

Counsel: Did you hear any singing, chanting or 
anything of that nature from the student group?

McNayr: Yes.
Counsel: Describe that as best you can.
McNayr: With the harangues, which I have just 

described, witnessed frankly by everyone present and 
in this area, the students began answering back with 
shouts. They became boisterous. They stomped their 
feet. They sang in loud voices to the point where, again,



10 Edwards et al., Petitioners, v . State op S. C., Respondent

in my judgment, a dangerous situation was really
building up.
Petitioners complain of the vagueness of common law 

breach of the peace and point out the fact that the peti­
tioners were not charged with violation of Section 1-417, 
1952 Code of Laws of South Carolina (p. 19).* This statute 
involves only the use of driveways, alleys, or parking spaces 
on the State House grounds, and prohibits parking of ve­
hicles by unauthorized personnel in certain parking areas, 
on the grounds. There was no evidence that petitioners vio-1 
lated this Section. The defendant in Feiner was charged 
with disorderly conduct, which was nothing more than a 
statutory enactment of the common law crime of breach of 
the peace, Niemotko v. Marylandr 340 U. S. 268 (p. 287). It 
is pointed out in the concurring opinion of Justice Frank­
furter in Niemotko (p. 289), that breach of peace statutes 
may be misused, but that the possibility of misuse alone is 
not enough to deny their practical existence.

* §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, alleys or parking spaces upon 
any of the property of the State, bounded by As­
sembly, 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.”



Edwards et al., Petitioners, v. State of S. C., Respondent 11

In the present ease, police authorities were stationed 
in and about the State House grounds before petitioners 
arrived (R. 18, 19), presumedly for the maintenance of the 
public peace. There is no evidence to the contrary. The pe­
titioners were not hindered in any way in expressing their 
views in the manner in which they chose (R. 8, 9). Police 
authorities remained upon the scene observing the overall 
situation. It was not until it became apparent to them after 
approximately forty-five minutes of such activity by the 
petitioners that a dangerous situation was developing that 
they took any action relative to petitioners. There was 
serious blockage and hindrance to traffic and a large 
crowd containing unpredictable troublesome elements had 
gathered. In addition, after they were told to disperse, pe­
titioners became extremely disorderly.

Such circumstances were of such nature as to create 
the clear and present danger of the substantive evils a state 
has a right to prevent, as that rule is set out by this Court 
in Cantwell v. Connecticut, 310 U. S. 296 (p. 308).

CONCLUSION
Wherefore, for the foregoing reasons, respondent 

prays that the judgment below be affirmed.
Respectfully submitted,

DANIEL R. MeLEOD,
Attorney General,

State of South Carolina,
J. C. COLEMAN, JR., 
EVERETT N. BRANDON, 

Assistant Attorneys General, 
State of South Carolina, 

Wade Hampton Office Bldg. 
Columbia, South Carolina, 

Attorneys for Respondent.