Diamond v. Louisiana Brief for Petitioner

    Isr the

Cllmtrt nf %  l̂ nxUb BUUb
October Term, 1963 

No. 100

D ion T yrone D iamond,
Petitioner,

— v .—

State of L ouisiana.

on writ of certiorari to the supreme court of the
STATE of LOUISIANA

BRIEF FOR PETITIONER

Jack Greenberg 
James M. Nabrit, III 

10 Columbus Circle 
New York 19, New York

W iley A. Bran ton
5 Forsythe Street, N. W. 
Atlanta, Georgia

J ohnnie A. J ones
530 South 13th Street 
Baton Rouge, Louisiana

Attorneys for Petitioner



I N D E X
PAGE

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

Jurisdiction .......      1

Statutory and Constitutional Provisions Involved........  2

Question Presented ....    4

Statement .......      4

Argument ...........................................................................  11

Conclusion.....................................................    24

Table of Cases

Cantwell v. Connecticut, 310 U. S. 296 .............. 12,13,16,17
Cole v. Arkansas, 333 U. S. 196 .................................22, 23
Cramer v. United States, 325 U. S. 1 .............................  18

Edwards v. South Carolina, 372 U. S. 229 .............. 13,17

Garner v. Louisiana, 368 U. S. 157 ...........................16,17

Lanzetta v. New Jersey, 306 U. S. 451.......................  22

NAACP v. Button, 371 U. S. 415  ...........................12,13

Ponchatoula v. Bates, 173 La. 824, 138 So. 851 ..........  17

Bussell v. United States, 369 U. S. 749 ......................22, 23



11
PAGE

Smith v. California, 361 U. S. 147 .............................  12
State v. Morgan, 204 La. 499, 15 So. 2d 866 (1943) ._..... 23
State v. Sanford, 203 La. 961, 14 So. 2d 778 ........... . 17
State v. Verdin, 192 La. 275, 187 So. 668 (1939) ..........  23
Stromberg v. California, 283 U. S. 359 ..........................18,19
Sunkist Growers v. Winckler & Smith Co., 370 U. S. 19 .. 18

Terminiello v. Chicago, 337 U. S. 1 .....................17,18, 21
Thomas v. Collins, 323 U. S. 516 ........................ 12,18,19
Thompson v. Louisville, 362 U. S. 199 .......................... 12
Thornhill v. Alabama, 310 U. S. 88 .............................  17

United States v. National Dairy Prod. Corp., 327 U. S.
29 ....................................................................................  13

Williams v. North Carolina, 317 U. S. 387 ...................... 18
Wright v. Georgia, 373 U. S. 284 .....................................  13

Yates v. United States, 354 U. S. 298 .......................... 18

Statutes

LSA-R.S. 14:63............................................................   5
LSA-R.S. 14:103 .................................................2,4,5,12-23
LSA-R.S. 14:103.1 ..........................................................  5
LSA-R.S. 14:107..............................................................  5

Otheb A uthobities

Amsterdam, Note, The Void-For-Vagueness Doctrine, 
109 U. Pa. L. Rev. 67 (1960) ......................................... 13



In the

!§>upr£m£ (Emtrt ni tip States
October Term, 1963 

No. 100

D ion T yrone D iamond, 

—v.—-
Petitioner,

State oe L ouisiana.

on writ oe certiorari to the supreme court of the
STATE OE LOUISIANA

BRIEF FOR PETITIONER

Opinions Below

The opinions below are not reported. The Nineteenth 
Judicial District Court for the Parish of East Baton Rouge 
filed a series of per curiam opinions ruling upon the peti­
tioner’s bill of exceptions which were dated November 8, 
1962 (R. 27-44).

The Supreme Court of Louisiana entered an order on 
January 3, 1963 denying the applications for writs of certi­
orari, mandamus and prohibition (R. 145).

Jurisdiction

The judgment of the Supreme Court of Louisiana was 
entered January 3, 1963 (R. 145). The petition for certio­
rari was filed April 3, 1963, and granted May 27, 1963 (R.



2

150). The jurisdiction of this Court is invoked pursuant to 
28 U. S. C. §1257(3), petitioner having asserted below and 
here the denial of rights, privileges and immunities secured 
by the Fourteenth Amendment to the Constitution of the 
United States.

Statutory and Constitutional Provisions Involved

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

2. This case also involves Louisiana Statutes Annotated, 
Revised Statutes, Section 14:103, appearing in Volume 9, 
1963 Pocket Supplement, p. 54:

§14:103. Disturbing the peace

A. Disturbing the peace is the doing of any of the 
following in such manner as would foreseeably disturb 
or alarm the public:

(1) Engaging in a fistic encounter; or

(2) Using of any unnecessarily loud, offensive, or 
insulting language; or

(3) Appearing in an intoxicated condition; or

(4) Engaging in any act in a violent and tumultuous 
manner by any three or more persons; or

(5) Holding of an unlawful assembly; or

(6) Interruption of any lawful assembly of people; 
or

(7) Commission of any other act in such a manner 
as to unreasonably disturb or alarm the public.



3

Whoever commits the crime of disturbing the peace 
shall be fined not more than one hundred dollars or 
imprisoned for not more than ninety days, or both.

B. Any person or persons, providing however noth­
ing herein contained shall apply to a bona fide legiti­
mate labor organization or to any of its legal activities 
such as picketing, lawful assembly or concerted activity 
in the interest of its members for the purpose of ac­
complishing or securing more favorable wage stand­
ards, hours of employment and working conditions, 
while in or on the premises of another, whether that 
of an individual person, a corporation, a partnership, 
or an association, and on which property any store, 
restaurant, drug store, sandwich shop, hotel, motel, 
lunch counter, bowling alley, moving picture theatre 
or drive-in theatre, barber shop or beauty parlor, or 
any other lawful business is operated which engages in 
selling articles of merchandise or services or accom­
modation to members of the public, or engages gen­
erally in business transactions with members of the 
public, who shall:

(1) prevent or seek to prevent, or interfere or seek 
to interfere with the owner or operator of such place 
of business, or his agents or employees, serving or 
selling food and drink, or either, or rendering service 
or accommodation, or selling to or showing merchan­
dise to, or otherwise pursuing his lawful occupation 
or business with customers or prospective customers 
or other members of the public who may then be in 
such building, or

(2) prevent or seek to prevent, or interfere or seek 
to interfere with other persons who are expressly or 
impliedly invited upon said premises, or with prospec­
tive customers coming into or frequenting such premises



4

in the normal course of the operation of the business 
conducted and carried on upon said premises, shall be 
guilty of disorderly conduct and disturbing the peace, 
and upon conviction thereof, shall be punished by a 
fine of not more than five hundred dollars or by im­
prisonment in the parish jail for not more than six 
months, or by both such fine and imprisonment. (As 
amended Acts 1960, No. 70, §1.)

Question Presented

Whether, where petitioner engaged in making speeches 
—an activity within the area of free expression protected 
by the Constitution—he was denied due process under the 
Fourteenth Amendment when convicted under a state law 
containing general and indefinite prohibitions against dis­
turbing the peace which are not narrowly drawn to define 
and prohibit specific conduct?

Statement

Petitioner, Dion T. Diamond, was convicted of the crime 
of “disturbing the peace” (L. R. S. 14:103) in the Nineteenth 
Judicial District Court of Louisiana, Parish of East Baton 
Rouge. Petitioner was charged in that Court by an in­
formation (R. 1) filed March 8, 1962, in case No. 42,917 
which alleged that on January 30 and 31, 1962, he

. . . unlawfully did violate L. R. S. 14:103 in that he, 
not a student of Southern University, did enter upon 
the premises of Southern University and there engage 
in and encourage students of Southern University to 
hold unruly, unauthorized demonstrations on the 
Campus and did lead and encourage said students to 
march through the University buildings while classes 
were being conducted and did encourage said students



5

to boycott and leave the classes in such manner as 
would foreseeably disturb and alarm the public. . . .

Petitioner was arraigned and entered a plea of not guilty 
on March 8, 1962 (E. 45). On March 12, 1962, the trial 
court entered an order over petitioner’s objection, granting 
the State’s motion to consolidate this case with five sepa­
rate charges then pending against petitioner1 (R. 45). At a 
subsequent proceeding, however, case No. 42,917 was tried 
separately (cf. R. 56) and petitioner was convicted only 
on this charge. Review here is sought therefore on the 
conviction of the charge quoted above. Charges of unlaw­
ful assembly and of interrupting lawful assemblies which 
arose out of the same activities of the petitioner during 
the period January 29 through February 1, 1962, were 
pending against the petitioner when this case was tried.2

Before trial petitioner filed an application for a bill of 
particulars (R. 14) and a motion to quash the information 
(R. 4), both of which were overruled (R. 47). Trial was 
held on May 8, 1962, and petitioner was found “guilty as 
charged” (R. 44) by the Court sitting without a jury. A 
motion for new trial (R. 16) was overruled May 24, 1962 
(R. 48). In the motion to quash and the motion for new 
trial petitioner raised federal constitutional objections as­
serting that the statute as applied to him was unconstitu­
tionally vague and that it violated his rights to free speech 
and assembly.

1 In addition to the above charges, five other informations (R. 
7-13) were filed against petitioner. Case No. 42,612 charges peti­
tioner with refusing to leave the premises of Southern University 
after being requested to do so in violation of L. R. S. 14:103.1; 
Case No. 42,615 charges petitioner with holding unlawful assem­
blies, and Case No. 42,616, with interrupting lawful assemblies, 
both constituting a violation of L. R. S. 14 JOS. Petitioner is also 
charged with vagrancy under L. R. S. 14 JOT and with trespass 
under L. R. S. 14:63. See also R. 56.

2 R. 56, and see note 1, supra.



6

Petitioner was sentenced to pay a fine of $100 and costs, 
or in default of the fine, to be confined in the parish jail 
for 30 days, and, in addition, to be confined in the parish 
jail for 60 days (R. 49).

On November 8, 1962, the trial court filed a series of 
per curiams to petitioner’s bill of exceptions (R. 21-44). 
Thereafter, petitioner applied to the Supreme Court of 
Louisiana for writs of certiorari, mandamus and prohibi­
tion seeking to invoke the court’s supervisory powers (R. 
133). The writs were denied January 3, 1963, in an order 
by the Supreme Court of Louisiana stating:

The application is denied. We find no error in the 
rulings complained of (R. 145).

Execution of the judgment was stayed for 90 days on 
January 10, 1963, to allow petitioner to seek review in 
this Court (R. 149).

The events leading to petitioner’s arrest were as follows: 
Southern University in East Baton Rouge Parish, Louisiana 
is a school having about 4400 students (R. 96). The school 
had been the scene of a series of demonstrations and meet­
ings by students from December 15, 1961 until the time of 
petitioner’s arrest on February 1, 1962 (R. 74). Some stu­
dents at Southern were boycotting classes until the situ­
ation of students who had been arrested in anti-segregation 
demonstrations was resolved with the school (R. 97, 99, 
100). Dion T. Diamond, who was not a student at Southern 
University, was first observed on the campus by the State’s 
witnesses (University employees) on January 30,1962. The 
evidence at the trial related to a series of speeches made 
by Diamond to students in a quadrangle on the campus on 
January 30 and 31, 1962. There was also evidence as to 
the circumstances of his arrest on February 1, 1962. There 
was no evidence that petitioner was ever ordered not to



7

enter the campus, or to leave it ; nor was there any evidence 
that he was ever told that he could not make speeches on 
the campus or that he needed permission to do so. The 
University registrar testified that the school was a public 
institution, and that “anyone may come there who wishes” 
(R. 56).

1. Events of January 30, 1962

Between 9 :30 and 10:00 A.M. on this date, Diamond was 
observed by Dean of Students Marvin Harvey. Dean 
Harvey testified that Diamond was addressing three or four 
hundred students in a quadrangle building near the student 
union, and “talking about the importance of demonstrating 
and staying out of classes” (R. 87). Following this meet­
ing, which lasted about fifteen minutes, the students dis­
persed in various directions (R. 88). The Dean stated that 
during the speech the students were listening, clapping 
and indicating “ expressions of approval” (R. 88). Dean 
Harvey further stated that he did not authorize Diamond 
to hold a meeting (R. 89).

That afternoon at about 1 :00, Dean Harvey observed 
about forty students walking around the campus with 
signs (R. 89).

2. Events of January 31, 1962— Morning

Diamond made another speech at the same place between 
9 :15 and 9 :45 a.m. before a group estimated by the school’s 
chief security officer William Pass at two to three hun­
dred (R. 60), and estimated by Dean Harvey at four to 
five hundred (R. 89). Pass stated that this was a regular 
school day, but that students at the time had been boycott­
ing classes on the campus for three or four days (R. 61- 
62; 78). In his speech Diamond told the students not to go 
to classes; that the faculty supported them and had signed



8

some type of petition; and that they should show their 
gratitude by not going to classes (R. 62). Dean Harvey 
said that the tenor of the speech was the same as that of the 
previous day (R. 90); that he had not authorized the meet­
ing (R. 90); that it lasted between twelve and twenty 
minutes (R. 90); and that he started toward Diamond to 
inform him that he did not have permission to hold the 
meeting, but that Diamond ceased speaking and the group 
dispersed before he got there (R. 89-90).

3. Events of January 31, 1962— Afternoon

Diamond spoke to another group of students during 
the noon hour on January 31. Security Officer Pass esti­
mated that there was about the same number or possibly 
more students at this gathering than at the morning speech 
(R. 62); his assistant, Willie Harris, estimated that five 
to six hundred students were assembled (R. 107). Pass 
stated that “ Diamond told the students that we will. go 
through the classrooms and if necessary we will put them 
out of the classrooms” (R. 63). Harris said that Diamond 
was pleading for more followers from the student body (R. 
110) ; that he urged the students to stay out of classes and 
was calling for at least fifty per cent of the students to 
support him (R. 110); and that Diamond told the students 
“ let’s go through the classrooms” (R. 111). Dean Harvey 
described this speech as “ concerned principally [with] the 
boycotting of classes” (R. 90).

According to Dean Harvey, about one hour after this 
speech he observed at least one hundred students beginning 
to go through the classroom building with signs; that this 
was a noisy procession which disturbed people in the build­
ings where classes were being conducted at the time; and 
that this lasted over half an hour (R. 90-91). Mr. Pass 
said that the students were walking on the campus and 
through the classrooms singing and stomping in a very loud



9

manner which caused a disturbance for over an hour (R. 
64-65); that they carried signs (R. 64-67); and that classes 
in progress were disturbed (R. 64-65). His assistant, 
Harris, also recounted this event, saying that the students 
were “pulling on doors, stomping on the halls” (R. 110); 
and that they were disturbing the classes (R. 110). No 
witness testified that anyone was actually “pulled” from 
the classroom. Pass testified that no one was injured and 
that there were no fights (R. 85).

None of the witnesses testified that Diamond did any­
thing but make the speeches mentioned above. No witness 
testified that Diamond entered any University building. 
Pass and Harris both stated that they did not see Diamond 
in any of the buildings (R. 75-76; 110-111). No witness 
testified that Diamond carried any signs or participated in 
making them (cf. R. 73). On cross examination Pass was 
asked:

Q. Now, what did the accused do other than to make 
a speech? A. That is all I witnessed him doing. He 
just made a speech (R. 78).

4. Events of January 31, 1962— Evening

At about 6:00 P.M. on January 31, an official meeting 
of the student senate was held in the “ old gymnasium”, 
at which Dean Harvey announced that this was the only 
authorized student meeting, and the president of the student 
senate, Murphy Jackson, spoke, urging the students to go 
to classes. Murphy Jackson testified that Diamond sought 
permission to speak, and, when this was refused, Diamond, 
with several other students, left without disturbing the 
meeting (R. 121). Shortly afterwards, there was an im­
promptu outdoor gathering outside the “new gymnasium” 
at which Diamond and a number of students spoke (R. 94- 
95; 128). Defense witnesses testified that on this occasion



10

Diamond reprimanded the students for reportedly having 
gone through the classroom building that afternoon (R. 125, 
126, 128-129).

5. Events of February 1, 1962

On the morning of February 1, Diamond arrived on the 
campus in a taxicab with several other persons (R. 129- 
130). As soon as he got out of the taxicab he was placed 
under arrest by the assistant security officer, Willie Harris, 
who was also a deputy sheriff (R. 72-73, 84, 104). Harris 
was accompanied by Chief Security Officer Pass who drove 
Diamond and Harris to the Baton Rouge jail. Pass and 
Harris testified that on this occasion they merely observed 
Diamond getting out of the taxicab and that Harris im­
mediately placed Diamond under arrest. Harris had no 
arrest warrant (R. 104-105). Harris stated that he had 
wanted to arrest Diamond on the previous day during the 
noon speech, but had been unable to reach him because 
of the crowd (R. 109). He stated that he arrested Diamond 
for “holding an unlawful assembly” the previous day (R. 
106); and that no one told him to make the arrest (R. 108). 
Pass denied having ordered or requested Harris to make 
the arrest, or having made the arrest himself (R. 83).



11

A R G U M E N T

Petitioner Was Denied Due Process by His Conviction 
for Making a Series of Speeches Under a Statute Too 
Vague and Indefinite to Fairly Describe the Conduct 
Prohibited or to Provide an Ascertainable Standard of 
Guilt.

Louisiana’s case against petitioner is founded upon the 
content of one or more of the speeches he made to students 
on the Southern University campus, and not upon a claim 
that petitioner did anything other than talk. The informa­
tion charges a series of activities, each of which included 
a component of speech. Thus, there wrere allegations that 
he did “ engage in and encourage students . . .  to hold 
unruly, unauthorized demonstrations . . . ” and did “ lead 
and encourage . . . students to march . . . ,” and did lien­
courage . . . students to boycott and leave the classes . . . ” 
(R. 1; emphasis supplied). The trial court’s description 
of the evidence which it found sufficient to sustain the con­
viction referred to petitioner’s speeches, and not to any 
non-verbal conduct (R. 40).3 The State’s Brief in Opposi­

3 In ruling upon Bill of Exception No. 7 relating to overruling 
defendant’s motion for a directed verdict, the court described the 
basis of its finding of guilt as follows (R. 40) :

“ The court overruled the motion for the reason that the 
state, in the opinion of the court, had sustained its burden 
of proving the guilt of the defendant beyond a reasonable 
doubt. Reliable, competent evidence offered by the state 
showed that the defendant, a non-student, was present on the 
campus of Southern University on the dates alleged in the 
bill of information, and while there did, in speeches made 
by him in meetings not authorized by those in charge of such 
matters, encourage and exhort Southern University students 
to boycott classes and to march into the classrooms while 
classes were in session and to disrupt the classes, even to 
the extent of pulling the students from the classrooms, in such 
a manner as would foreseeably disturb and alarm the public.”



12

tion to Certiorari, pp. 5-6, urges that petitioner’s words 
made him liable as an abettor of the acts of other students. 
The conviction could not validly rest on a theory that peti­
tioner did anything other than speak, since clearly there 
was no evidence that he did anything else (R. 78). Cf. 
Thompson v. Louisville, 362 U. S. 199.

Both the information (R. 1) and the trial court’s per 
curiam No. 7 (R. 40) make it clear that a part of the basis 
for petitioner’s conviction was his advocacy of a boycott of 
classes at Southern University. The conviction does not 
rest only on the charge that petitioner urged students to 
march around and disrupt classes. It also rests on his 
advocacy that students voluntarily attending a public Uni­
versity refuse to attend classes to protest the treatment of 
students arrested for taking part in antisegregation demon­
strations (R. 97-99). Such speech on a social issue of public 
importance is within the bounds of lawful advocacy. 
“Abstract discussion is not the only species of communica­
tion which the Constitution protects” . NAACP v. Button, 
371 U. S. 415, 429. There is “ a right to persuade to action, 
not merely to describe facts” . Thomas v. Collins, 323 U. S. 
516, 537. But even if it might validly be prohibited by a 
state, it surely cannot be controlled by a vague and general 
law which does not indicate a legislative determination that 
such speech creates a clear and present danger to some 
legitimate state interest. Cantwell v. Connecticut, 310 U. S. 
296, 311.

Given the application of LSA-R.S. 14:103 to conduct 
within the area of free speech and expression, petitioner’s 
due process vagueness claim must be appraised in the light 
of the specially strict standards of statutory specificity 
applicable to laws “having a potentially inhibiting effect on 
speech.” Smith v. California, 361 U. S. 147, 151; NAACP 
v. Button, 371 U. S. 415, 432, and cases cited; cf. United



13

States v. National Dairy Prod. Corp., 327 U. S. 29, 36. 
The application of the vagueness doctrine as a means of 
providing “ clearance space for individual freedoms,” 4 is 
exemplified by the Button case, supra, where the Court said:

Because First Amendment Freedoms need breathing- 
space to survive, government may regulate in the area 
only with narrow specificity. Cantwell v. Connecticut, 
310 U. S. 296, 311 (371 U. S. at 433).

The stifling effect vague laws have on the right of free 
expression has led the Court to say that “Broad prophylac­
tic rules in the area of free expression are suspect” and that 
“Precision of regulation must be the touchstone in an area 
so closely touching our most precious freedoms.” NAACP 
v. Button, 371 U. S. 415, 438. See Edwards v. South Caro­
lina, 372 U. S. 229; Wright v. Georgia, 373 U. S. 28i;,Cant­
well v. Connecticut, 310 U. S. 296.

Petitioner submits that he was tried and convicted under 
subsection A(7) of ^14:103, prohibiting the “ Commission 
of any other act in such a manner as to unreasonably dis­
turb or alarm the public,” and that this provision is too 
vague and indefinite to be applied to conduct within the 
area of free speech. Although neither the prosecutor nor 
the trial court expressly stated in the courts below which 
subsection of the law was relied upon to support the charge 
and conviction, a variety of factors support petitioner’s 
assertion that it was subsection A(7). This is true not­
withstanding the unsubstantiated claim made for the first 
time by the State in this Court that the conviction rests 
upon subsection A (6) prohibiting the “ interruption of any 
lawful assembly of people.” The factors indicating that 
petitioner was tried under subsection A (7) require some 
explanation.

4 See Amsterdam, Note, The Void-For-Vagueness Doctrine, 109 
U. Pa. L. Rev. 67, 75-85 (1960).



14

First, the information itself alleges a series of acts by 
petitioner, none of which, either separately or when read 
together, come within the terms of subsections A (l)  to (6). 
Subsection A (6) now relied on by the State prohibits an 
“ interruption” of a lawful assembly, but no such “ interrup­
tion” is alleged in the information. It alleged that petitioner 
“ did lead and encourage students to march through the 
University building while classes were being conducted,” 
but did not allege that classes were “ interrupted.” The 
natural inference from the fact that none of the acts speci­
fied in subsections A (l)  to (6) are mentioned, is that the 
information was intended to invoke subsection A (7), the 
catch-all provision applying to “ any other act.”

Secondly, petitioner filed a motion for new trial saying 
that he had not engaged “ in any activity that had been de­
nounced as a crime by LSA-R.S. 14:103(7) of 1950, as 
amended, the statute under which the defendant is charged” 
(R. 16). In overruling this motion the trial court said 
nothing to contradict petitioner’s assumption that subsec­
tion 7 was the provision involved (R. 43). And, in ruling 
on petitioner’s vagueness claim (made in the motion to 
quash without mention of subsection 7 (R. 4-5)), the Court’s 
opinion discussed subsection 7 and cited decisions uphold­
ing it as sufficiently definite (R. 28-29). Petitioner also 
argued in the Louisiana Supreme Court that he was con­
victed under subsection 7, but that Court affirmed without 
discussion (R. 134,136,142).

Thirdly, the trial court and the parties were aware of 
the fact that a separate information against petitioner un­
der Section 14:103, which used the words of subsection 6 
(R. 12), was pending at the time of the trial (R. 56-57). 
This charge had not been abandoned by the prosecutor who 
took pains to obtain a stipulation that testimony of a wit­
ness in this trial could be used at any subsequent trial of



15

the charge of interrupting a lawful assembly (Case No. 
42,616) (R. 56-57).

Fourthly, the notion that the trial court conceived the 
case as one under subsection 6, based on a theory that 
petitioner was liable for interrupting classes by counselling 
others who actually did this, is entirely inconsistent with 
statements made by the Court in a long colloquy with coun­
sel during the trial (R. 100-102) and in a per curiam (R. 38- 
39). For example, the Court said, “Whether they were 
responsive to his exhortations makes no difference” (R. 
100), and “ it wouldn’t have to follow that there was actu­
ally boycotting or that there was actual demonstrating as 
long as he urged it .. . .  ”  And, subsequently:

Now what I am saying is whether the doings or the 
actions of the accused did actually create a turmoil 
and disturbance is something else again, it is not neces­
sary to prove that. It is just like if somebody is using 
obscene language or engaging in a fight in public, that 
is calculated to alarm and disturb the peace. Actually 
you might have some hardened souls standing around 
there who wouldn’t be disturbed at all (R. 101-102).

And again at R. 102:
. . . but when he made speeches advocating the boycott­
ing of classes, he is presumed by law to know that very 
probably that very thing that he is advocating is going 
to follow, and it is a consequence of his actions, but I 
am not saying it is absolutely necessary to show the 
consequences, but it is admissible.

Thus, the Court quite clearly regarded the mere advocacy 
of boycotting, without regard to the effect on others as 
basis for conviction; the per curiam expresses this same 
theory (R. 38-39). This theory is much more likely to have



16

been founded on subsection 7 forbidding “any other act in 
such a manner as to unreasonably disturb or alarm the 
public,” than upon subsection 6 which could apply to mere 
advocacy of a boycott only by a fiat of construction ignoring 
the natural tendency of its words to refer to an actual 
interruption of an assembly.

Thus, all of the things in the record which do tend to 
indicate that any particular part of the law was the basis 
for the charge and conviction point to subsection 7 and not 
to subsection 6. (One possible exception points to subsec­
tion 5, e.g., a statement by the arresting officer that he 
arrested Mr. Diamond for “Holding an unlawful assembly” 
(E. 106). The State does not rely upon subsection 5 in the 
Brief in Opposition to Certiorari).

Assuming that the conviction is based upon subsection 7, 
it is clear that it must fail as a denial of due process, be­
cause this provision is so general and sweeping, and could 
cover such a wide variety of speech, both within and without 
the area of lawful advocacy, that it fails to define any crime, 
leaving the task of definition for the tribunal deciding a 
particular case. This Court had occasion to consider an 
earlier claim that subsection 7 was unconstitutionally vague, 
but did not find it necessary to decide the issue. Garner v. 
Louisiana, 368 U. S. 157, 165, note 13. Mr. Justice Harlan’s 
concurring opinion in Garner, swpra, at 368 U. S. 205-207, 
did view this subsection as unconstitutionally vague as ap­
plied to punish speech or expression, relying upon Cantwell 
v. Connecticut, 310 U. S. 296. Mr. Justice Harlan wrote 
(368 U. S. at 207):

For the statute by its terms appears to be as applicable 
to “incidents fairly within the protection of the guar­
antee of free speech,” Winters v. New York, supra 
(333 IT. S. at 509), as to that which is not within the 
range of such protection. Hence such a law gives no



17

warning as to what may fairly be deemed to be within 
its compass. See Note, 109 U of Pa L Rev 67, 75-76, 
99-104 (1960).

In this case (R. 28-29), as in Garner, supra, the Louisiana 
courts have referred only to the definition of disturbing 
the peace given in an earlier case (.Ponchatoula v. Bates, 
173 La. 824, 827, 138 So. 851, 852) where it was said to 
include “any act or conduct of a person which molests the 
inhabitants in the enjoyment of that peace and quiet to 
which they are entitled, or which throws into confusion 
things settled, or which causes excitement, unrest, dis­
quietude, or fear among persons of ordinary normal tem­
perament.” To support its holding on the vagueness issue, 
the trial court even relied upon the Louisiana Supreme 
Court’s ruling in Garner and its companion cases—-without 
observing that it was reversed here on other grounds (R. 
29). It is obvious, then, that this case does involve a vague 
and generalized conception of “ disturbing the peace” ; that 
the law has not been limited by construction ;5 and that the 
law is applied here as it was in Garner to conduct within 
the area of speech and expression. This Court’s, opinions 
teach that such convictions deny due process. Cantwell v. 
Connecticut, supra; Thornhill v. Alabama, 310 U. S. 88, 
105; Terminiello v. Chicago, 337 U. S. 1; Edwards v. South 
Carolina, 372 U. S. 229.

It has been asserted above that the convictions rest on 
subsection 7. Whatever doubt is cast On this proposition by 
the state’s claim in this Court that the case rests on sub­
section 6 cannot save the conviction. For at best the state’s 
theory cannot entirely remove the possibility that the trial 
court decided the case on the theory that the conviction was

6 The Louisiana Supreme Court itself questioned the validity 
of an earlier general “ disturbing the peace” law applied to religious 
expression in State v. Sanford, 203 La. 961, 14 So. 2d 778.



18

proper, at least in part, under subsection 7. Stromberg v. 
California, 283 U. S. 359, makes it clear that where the pos­
sibility that a conviction rests on an unconstitutionally 
vague portion of a law cannot be excluded, the conviction 
cannot be allowed to stand on the theory that it might rest 
on another portion of the law not subject to the same in­
firmity. In Stromberg a conviction under a general ver­
dict, which failed to specify which of three statutory clauses 
supported it, was reversed where one of those clauses was 
unconstitutionally vague. The Court said that “ if any of 
the clauses in question is invalid under the Federal Con­
stitution, the conviction cannot be upheld” (283 U. S. at 
368). The principle has been frequently applied in other 
cases. Terminiello v. Chicago, 337 U. S. 1, 5, rests on this 
doctrine. So do Williams v. North Carolina, 317 U. S. 387, 
292, and Thomas v. Collins, 323 U. S. 516, 528-529. See 
also Cramer v. United States, 325 U. S. 1, 36, note 45; 
Yates v. United States, 354 U. S. 298, 312. Cf. Sunkist 
Growers v. WincMer <& Smith Co., 370 U. S. 19, 29-30, 
applying an analogous principle in a civil case. Thomas v. 
Collins, 323 U. S. 516, was a non-jury criminal contempt 
case, demonstrating that the absence of a jury does not 
affect the vitality of the Stromberg principle. In Thomas, 
the court held that where a defendant had been convicted 
of contempt on a general finding of guilt that made no 
distinction between a charge that he solicited a specific in­
dividual to join a union and a charge that he urged that 
an entire audience join the union, the judgment “must be 
affirmed as to both or as to neither” (323 U. S. at 528-529). 
In Terminiello, supra (337 TJ. S. at 5), one instruction to 
the jury (to which no specific objection was made) em­
braced an unconstitutional theory which might have been 
the basis of the jury’s verdict; Stromberg was held to be 
controlling. Stromberg, should control this case as well 
since it is plainly possible, and indeed it is very probable,



19

that the unconstitutionally vague subsection 7, was con­
sidered by the trial court in whole or in part to justify the 
conviction.

The state’s arguments that the several subsections of 
the statute are severable is quite beside the point. Sever­
ability would be relevant if petitioner complained of several 
separate convictions, each under a different portion of the 
law. But, it has no bearing on the application of the Strom- 
berg principle to this case.

Indeed, Stromberg and Thomas v. Collins, 323 U. S. 516, 
furnish a rule that compels reversal of the petitioner’s 
conviction even if complete acceptance is given to the 
state’s position that the conviction rests only upon sub­
section 6 (relating to interruption of a lawful assembly) 
and subsection 7 is disregarded entirely. This is true be­
cause the conviction rests upon several alleged acts, at 
least one of which this statute plainly fails to warn against.6 
If the information does, as the state contends, charge a 
crime under the clause prohibiting “ interruption of any 
lawful assembly” , that charge embraces each of the acts 
mentioned in the information, i.e. (1) engaging in and en­
couraging students to hold unruly, unauthorized demon­
strations, and (2) leading and encouraging students to 
march through University buildings while classes were be­
ing conducted, and (3) encouraging students to boycott 
and leave the classes; all “ in such manner as would fore- 
seeably disturb and alarm the public” . The trial court made 
clear that the evidence that petitioner engaged in encour­
aging students to boycott and leave classes formed a part 
of the basis for the conviction in addition to the evidence 
which the court held proved that petitioner urged students 
---------------1

6 In Thomas v. Collins, 323 U. S. 516, the court held that where 
a single conviction rested on two acts, and one act was consti­
tutionally protected, the conviction must fall.



20

to march into the classroom buildings and disrupt the 
classes. This finding appears at E. 40:

Reliable, competent evidence offered by the state 
showed that the defendant, a non-student, was pres­
ent on the campus of Southern University on the dates 
alleged in the bill of information, and while there did, 
in speeches made by him in meetings not authorized 
by those in charge of such matters, encourage and 
exhort Southern students to boycott classes and to 
march into the classrooms while classes were in ses­
sion and to disrupt the classes, even to the extent 
of pulling the students from the classrooms, in such 
a manner as would foreseeably disturb or alarm the 
public (emphasis added).

That encouragement of a boycott was at least a part 
of the basis of petitioner’s conviction is further reinforced 
by the fact that such encouragement was the only act 
charged common to both days cited in the information.

The conviction must fail because nothing in subsection 6 
(or any other part of §14:103)7 warns that encouraging 
students to boycott classes is punishable as disturbing the 
peace. It is no answer to say, as Louisiana does, that peti­
tioner was convicted for counseling others to commit a 
crime, for his conviction also rests on his mere advocacy 
of a boycott. Certainly nothing in §14:103A(6) evinces any 
legislative determination that for a person to urge state 
college students voluntarily attending school to boycott 
classes is a type of speech that the state cannot and will 
not tolerate. Such a law, expressly prohibiting this ad­
vocacy would in petitioner’s view represent the type of 
state imposition of orthodoxy in speech and thought which 
the First Amendment strikes down. Whatever the resolu­

7 This reasoning applies equally to subsection 7. See page 12, 
supra.



21

tion of that issue might be, it seems clear that a vague 
criminal law cannot be used to suppress and punish the 
expression of such views. The unfairness resulting from 
the failure of subsection 6 to warn that the advocacy of a 
boycott is prohibited, is accentuated by the possibility that 
the trial judge based his judgment upon the theory which 
he expressed orally during the trial (R. 101-102), and in an 
opinion written later (R. 39), e.g. that mere advocacy 
of such a boycott (without regard to the consequence of 
the advocacy) was punishable under the statute. The 
Court’s expressed indifference on the question of whether 
petitioner’s advocacy caused. the student march (which 
occurred about an hour after his speech), is further indi­
cated by the fact that the Court did not mention causation 
in describing the evidence thought to sustain the charge (R. 
40). Of course, subsection 6 gives no warning at all that 
it is subject to such an interpretation which would require 
it to punish advocacy of interruptions of lawful assemblies 
whether the interruptions actually take place or not. Each 
of the subsections of §14:103A relates back to prefatory 
language concerning “doing any of the following in such 
manner as would foreseeably disturb or alarm the public” . 
It is, of course, very strange indeed to speak of the fore­
seeability of that which never happened; but the trial 
court’s construction of the statute would require such a 
concept. The direct effect of the ruling was to deny peti­
tioner an opportunity to show that his speech did not cause 
the student demonstrations (R. 38-39; 100-102).

The language in the prefatory clause of §14:103A, re­
quiring that all the acts be done “ in such a manner as 
would foreseeably disturb or alarm the public” , does nothing 
to make any of the subsections clearer. Indeed the notion 
of punishing disturbing or alarming speech runs contrary 
to the First Amendment. Terminiello v. Chicago, 337 U. S. 
1, 4-5.



22

Petitioner’s submission then is that the unfair vagueness 
of the statute under which he was charged and convicted 
is demonstrable whatever view is taken on the issue as 
to which provision of §14:103 was the basis of the convic­
tion. This vague law is not only unfair to petitioner be­
cause its inexplicit command threatens his right of free 
speech in advance. It also works unfairly against him after 
he has spoken; he cannot know how to defend himself 
against a charge of violating §14:103 because the statute 
contains nothing to indicate what he might prove or what 
allegations he might disprove in order to escape the pro­
hibitions of the law. The fact that the information did 
allege certain acts alleged to constitute the crime cannot 
cure the vagueness of the statute. As the Court observed 
in Lametta v. New Jersey, 306 U. S. 451, 453:

If on its face the challenged provision is repugnant 
to the due process clause, specification of details of 
the offense intended to be charged would not serve 
to validate it. Cf. United States v. Eeese, 92 U. S. 
214, 221; Czarra v. Medical Supers., 25 App. D. C. 
443, 453. It is the statute, not the accusation under it, 
that prescribes the rule to govern conduct and warns 
against transgression. See Stromberg v. California, 
283 U. S. 359, 368; Lovell v. Griffin, 303 U. S. 444. (Em­
phasis added.)

Indeed, the vagueness of §14:103 subjects petitioner 
to substantially the same evils denounced in Russell v. 
United States, 369 U. S. 749 (where the Court reversed 
convictions based upon a vague indictment), and in Cole 
v. Arkansas, 333 U. S. 196 (where the court reversed con­
victions under a statute the accused was not charged with, 
or tried for, violating). In Russell, supra, the Court noted 
that a vague indictment “ requires the defendant to go to 
trial with the chief issue undefined”, “ enables his con­



23

viction to rest on one point and the affirmance . . .  on an­
other” , and “ gives the prosecution free hand on appeal 
to fill in the gaps of proof by surmise or conjecture” . The 
resemblance between the present case and the Russell case 
is strengthened by the fact that the accusation against 
petitioner failed to indicate which of the many different 
crimes embraced by §14:103 was charged.8 But, the vices 
of this vague law, similar to those noted in Russell, would 
be present even if the subsection invoked by the state had 
been mentioned in the indictment. Cole v. Arkansas, 333 
U. S. 196, 201, rests on the fundamental proposition “ that 
notice of the specific charge, and a chance to be heard in a 
trial of the issues raised by that charge, if desired, are 
among the constitutional rights of every accused in a 
criminal proceeding in all courts, state or federal.” Peti­
tioner Diamond, was as much deprived of notice of the 
charge against him—both because of the vagueness of 
§14:103 and because he was not told which subsection was 
invoked against him—as Cole was when he was convicted 
of a charge on which he was never tried. Indeed, Diamond 
cannot even know whether or not he was convicted of the 
charge on which he was tried, or what that charge was.

8 Recognizing that §14:103 includes many different offenses, 
gathered together from various parts of earlier codes,_ the Louisiana 
Supreme Court has held that indictments failing to indicate which 
offense is charged are defective. State v. Morgan, 204 La. 499, 
15 So. 2d 866 (1943); cf. State v. Verdin, 192 La. 275, 187 So. 668 
(1939).



24

CONCLUSION

It is respectfully submitted that for the foregoing 
reasons the judgment below should be reversed.

Respectfully submitted,

Jack Greenberg 
J ames M. Nabrit, III 

10 Columbus Circle 
New York 19, New York

W iley A. B ranton
5 Forsythe Street, N. W. 
Atlanta, Georgia

J ohnnie A. J ones
530 South 13th Street 
Baton Rouge, Louisiana

Attorneys for Petitioner



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