McLaurin v. Burnley Jr. Petition for Writ of Certiorari

    Bupnnw ©curt ni tip Inifceft States
October T erm, 1968

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

In the

Charles McL aurin,

—v..
Petitioner,

W illiam C. B urnley, Jr., Custodian 

of the Greenville City Jail,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

Jack Greenberg
Michael Meltsner

Melvyn Zarr
10 Columbus Circle
New York, New York 10019

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

R. Jess Brown
125% North Farish Street 
Jackson, Mississippi 39202

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

Attorneys for Petitioner



I N D E X

PAGE

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

Jurisdiction....................- ...................................-................ - 2

Question Presented ...... ..... ............... ....... -.......... - ..........  2

Constitutional and Statutory Provisions Involved ----  2

Statement ......................... .............. -............ - ............. ........  3

Reasons for Granting the W rit:

Certiorari Should Be Granted to Review the Court 
of Appeals’ Holding That the Mississippi Breach 
of the Peace Statute, Miss. Code Ann. §2089.5 
(1966 Supp.), Is Compatible With the First and 
Fourteenth Amendments. The Case Should Be Set 
for Argument With Gunn v. University Commit­
tee to End the War in Viet Nam, 0. T. 1968, No. 
269, in Which This Court Will Review a Ruling
That the Texas Breach of the Peace Statute Is 
Unconstitutional ..........................................................  15

Conclusion ............................................ -...................—........... 24

A ppendix :

Opinion of the United States Court of Appeals 
for the Fifth Circuit ........................................ —  la

Judgment of the United States Court of Appeals 
for the Fifth Circuit ------------- ---- ----- ------------ 2a



ii

PAGE

Opinion of the United States District Court for 
the Northern District of Mississippi ................... 4a

Opinion of the Supreme Court of Mississippi.......  16a

Table oe Cases

Ashton v. Kentucky, 384 U. S. 195 (1966) ...........16,17,24

Bolton v. City of Greenville, 253 Miss. 656, 178 So. 2d
667 (1965) ........................    4

Bynum v. City of Greenville, 253 Miss. 667, 178 So. 2d 
672 (1965) ........................................................................ 4

Cantwell v. Connecticut, 310 U. S. 296 (1940) .....16,22,24
Carmichael v. Allen, 267 F. Supp. 985 (N. D. Ga.

1967) ................................................................................23,24
Chaplinsky v. New Hampshire, 315 U. S. 568 (1942) .. 20 
Cox v. Louisiana, 379 U. S. 536 (1965) ...........16,17,18, 24

Dombrowski v. Pfister, 380 U. S. 479 (1965) ............... 16

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

Feiner v. New York, 340 U. S. 315 (1951) ...................  20

Gunn v. University Committee to End the War in Viet 
Nam, O. T. 1968, No. 269 .......................... 15, 21, 23, 24, 25

NAACP v. Button, 371 U. S. 415 (1963) ....................... 16
New York Times Co. v. Sullivan, 376 U. S. 254 (1964) 25

Shuttlesworth v. Birmingham, 382 U. S. 87 (1965) ....13,15 
Stromberg v. California, 283 U. S. 359 (1931) ..............  15



PAGE

Terminiello v. Chicago, 337 U. S. 1 (1949) ..........-16, 21, 24
Thomas v. Collins, 323 U. S. 516 (1945) ........-..... -.......15, 21

Williams v. North Carolina, 317 IT. S. 287 (1942) ...... . 15
Wright v. Georgia, 373 U. S. 2S4 (1963) -------- ----------  13

S t a t u t e s  a n d  O r d i n a n c e s

28 U. S. C. §1254(1) .............- ............ ........ .............. -......  2

28 IT. S. C. i2211(c)(3) ..... ...................................- ..... . 2

Miss. Code Ann. §2089.5 (1966 Supp.) .......... ....2, 13,14,15,
18, 21, 22

Code of Ordinances of the City of Greenville, §252 ... 13



Is the

l^uprm? Oluurt nf tljp Imtpft States
October T erm, 1968

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

Charles McL atjrik,
Petitioner,

—v.—

W illiam C. Burnley, J r., Custodian 

of the Greenville City Jail,
Respondent.

PETITION FOR W RIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

Petitioner prays that a writ of certiorari issue to review 
the judgment of the United States Court of Appeals for 
the Fifth Circuit entered October 15, 1968.

Opinions Below

The opinion of the United States District Court for the 
Northern District of Mississippi denying petitioner’s ap­
plication for a writ of habeas corpus is reported at 279 F. 
Supp. 220 (N. D. Miss. 1967) and is set forth in the Ap­
pendix, pp. 4a-15a, infra. The per curiam opinion of the 
United States Court of Appeals for the Fifth Circuit, 
affirming on the District Court’s opinion, is unreported 
and is set forth in the Appendix, p. la, infra.



2

The opinion of the Supreme Court of Mississippi affirm­
ing petitioner’s conviction on direct appeal is reported at
------  Miss. ------ , 187 So. 2d 854 (1966) and is set forth
in the Appendix, pp. 16a-28a, infra.

Jurisdiction

The judgment of the United States Court of Appeals 
for the Fifth Circuit was entered October 15, 1968 (R. 269; 
App., pp. 2a-3a, infra).

Jurisdiction of this Court is invoked pursuant to 28 
U. S. C. '§1254(1) to review the Court of Appeals’ affirm­
ance of a district court order denying a petition for writ 
of habeas corpus brought pursuant to 28 U. S. C. §2241 
(c)(3).

Question Presented

Is the Mississippi breach of the peace statute, Miss. 
Code Ann. §2089.5 (1966 Supp.), unconstitutional on its 
face or as applied to convict petitioner for his conduct in 
making a public speech!

Constitutional and Statutory Provisions Involved

This case involves the First Amendment and Section 1 
of the Fourteenth Amendment to the Constitution of the 
United States.

This case also involves the following statute of the State 
of Mississippi:

Miss. Code Ann. §2089.5 (Supp. 1966)—Disturbance 
of the public peace, or the peace of others.



1. Any person who disturbs the public peace, or the 
peace of others, by violent, or loud, or insulting, or 
profane, or indecent, or offensive, or boisterous con­
duct or language, or by intimidation, or seeking to 
intimidate any other person or persons, or by con­
duct either calculated to provoke a breach of the 
peace, or by conduct which may lead to a breach of 
the peace, or by any other act, shall be guilty of a 
misdemeanor, and upon conviction thereof, shall 
be punished by a fine of not more than five hundred 
dollars ($500.00), or by imprisonment in the county 
jail not more than six (6) months, or both.

Statement

Petitioner Charles McLaurin seeks review of his convic­
tion and sentence of six months’ imprisonment by the State 
of Mississippi for a speech he made in 1963 while a young 
Negro civil rights worker in Greenville, Mississippi.

On July 1, 1963, petitioner attended the trial of two 
Negro girls in the Police Court of the City of Greenville. 
The girls stood charged with disorderly conduct because 
they had refused to leave a traditionally segregated pub­
lic park when the police, fearing violence from a crowd 
of white persons, ordered them to do so. The trial was 
attended by approximately 300 persons, about half of them 
Negroes (R. 37). During the trial, petitioner attempted 
to sit on the side of the courtroom customarily reserved 
for whites, but he was ordered out of that section (R. 
37, 44-46, 48-50, 104-05). He left the courtroom and pro­
tested the segregated seating pattern to Police Chief Wil­
liam C. Burnley, Jr., respondent herein (R. 84-85, 105).



4

His protest was futile, and he was denied readmission to 
the courtroom (R. 105). Petitioner then left the municipal 
building, which housed the municipal court and the police 
station, and stood outside on the sidewalk waiting for the 
trial to end (R. 106). About 50 Negroes were standing out­
side the building, having been denied admission to the court­
room because the Negro side was completely filled (although 
there was some space on the white side) (R. 106).

The girls were convicted by the municipal court.1

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

A. Testimony as to the Content of Petitioner’s Speech.

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

Arresting Officer Willie Carson testified :

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

* * * * *
He said it was wrong—segregation was wrong—what 

we going to do about it. Mostly, he was protesting the 
Judge’s decision (R. 42).

* * * * *

He was on the outside—I said, preaching because my 
experience in the words he was using and waving and

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



5

shouting I said, I told him he couldn’t preach out on 
the streets (R. 52).

. . . [H]e said this, what you going to do about this; 
this is wrong, the white Caucasian, this law is wrong; 
you going to take it; you going to let them get away 
with it. I heard those words there, and then the people 
began to just come in.

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

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

Greenville Police Captain Harvey Tackett testified:

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

.j(.

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

# # # # *
Q. . . . Hid he do anything that would appear to you 

to have been vulgar by his actions? . . .  A. No he 
didn’t (R. 73).

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

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



6

Petitioner testified:

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

. . . And, at that time—the time that I was out there 
Officer Carson took me by the arm then, and I con­
tinued to talk as he carried me in. I was saying dif-



7

ferent things like, this wouldn’t have happened if 
Negroes were registered to vote, that in Washington 
County Negroes are in the majority of the popula­
tion—50 per cent of the population is Negro and that 
they could have used the park or any other tiling had 
they been registered voters (R. 108).

# # # # #
I meant that if they were registered—if the people 

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



8

Q. I take it then, that you did not at any time make 
any statements or of any kind to encourage them to 
attack anybody, did you? Did you tell them to rush 
inside and attack the Judge for his decision! A. No, 
I did not. In fact I never really finished— I was 
dragged away before I could get out what I wanted 
to get out. Each time— as I was carried— as I was 
being carried into the building, I was talking and I 
never really made my point (E. 109-10).

B. Testimony as to the Context of Petitioner’s Speech.

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

Officer Carson testified:

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

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

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

# # *  *  *

Q. Just tell—just describe that situation as best 
you can, Willie. What you saw and what was going on 
in your presence after the defendant began talking 
to those people? A. Well, my experience in my opin­
ion was a very tense situation and had it kept on any­
thing could happen.



9

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

^  ^  'K* •Ji* ^

Q. Did you hear anybody in the crowd hollering? 
A. Oh, you could hear them talking back and hear 
them saying, it ain’t right.

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

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

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

Captain Tackett testified:

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

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

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

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

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

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



10

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

Police Chief Burnley testified:

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

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

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

Petitioner testified:

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

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

* # * * *



11

Q. Now, as they came oat, you tell this jury that 
the Negroes that you observed seemed shocked, is that 
correct? A. Eight.

Q. And, they seemed upset? A. Right.
Q. And, that they were shocked and upset at what 

had taken place in the building, is that correct? A. 
Yes.

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

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

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

-y- -Y-•Jr w

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



12

felt that something should be done. But, then all it 
needed was a leader, and I was going to try to show 
them where they could register their protest with the 
Mayor, and I didn’t feel that they were going to come 
up and attack me (R. 202).

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

Officer Carson told petitioner that he could not continue 
speaking without a permit (R. 42) and, when petitioner 
continued speaking, placed him under arrest (R. 43). Car- 
son started to take petitioner into the municipal building, 
but petitioner tried to pull back (R. 43, 205-06); Carson, 
who outweighed petitioner by 60 pounds (R. 35, 203), 
testified, “ I finally manhandled him on up through the 
door” (R. 43).2

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



13

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

C. Proceedings Below.

Petitioner was charged with breach of the peace, in 
violation of Miss. Code Ann. §2089.5 (1966 Supp.), p. 2 
supra, and with resisting arrest, in violation of §252 of 
the Code of Ordinances of the City of Greenville.3 He was 
tried by a jury in the County Court of Washington County 
on September 16 and 20, 1963; was convicted ;4 and was 
sentenced to pay a fine of $100 and serve a term of 90 days 
in the city jail on each charge (R. 24-25; 145-46). Peti­
tioner’s convictions were affirmed by the Circuit Court of 
Washington County and, on June 13, 1966, by the Supreme
Court of Mississippi,------ Miss.------- , 187 So. 2d 854 (1966),
App. pp. 16a-28a, infra.

On January 9, 1967, this Court denied petitioner’s peti­
tion for writ of certiorari, three Justices dissenting, 385 
U. S. 1011.

Thereafter, on February 14, 1967, petitioner filed a peti­
tion for a writ of habeas corpus in the United States Dis­
trict Court for the Northern District of Mississippi al­
leging, in essence, that his confinement5 by respondent

3 Appellant’s conviction for resisting arrest must fall if his 
breach of the peace conviction falls because the trial court cor­
rectly charged the jury that appellant could not be convicted 
of resisting arrest unless he was found to have committed a breach 
of the peace in the arresting officer’s presence (R. 142-43, 145). 
See 187 So. 2d 860-61; Wright v. Georgia, 373 U. S. 284, 291-92 
(1963); Shuttleswortk v. Birmingham, 382 U. S. 87 (1965).

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

5 Subsequent to the filing of his petition, petitioner was released 
on bond pending decision by the district court (R. 9-10). He re­
mained enlarged on $1500 bond pending appeal to the Court of 
Appeals by order of the district court (R. 264-65). An application



14

punished him for the exercise of his federal constitutional 
rights of free speech, assembly and petition (R. 3-7). The 
case was submitted to the district court on the record 
made in the state court (R. 237-38, 240-41). On Decem­
ber 29,1967, the district court entered a memorandum opin­
ion holding that Miss. Code Ann. §2089.5 (1966 Supp.) was 
not unconstitutional on its face or as applied to convict 
petitioner for his speech (R. 239-53; 279 F. Supp. 220; 
App., pp. 4a-15a, infra). Accordingly, the petition for writ 
of habeas corpus was denied (R. 254-55).6

On October 15, 1968, the Court of Appeals for the Fifth 
Circuit affirmed the district court’s denial of the petition 
for writ of habeas corpus in a summary per curiam opin­
ion (R. 268; App., p. la, infra).

to the Court of Appeals to stay the Court’s mandate pursuant to 
Rule 41(b) of the Federal Rules of Appellate Procedure will be 
filed shortly.

6 The district court issued a certificate of probable cause on 
January 15, 1968 (R. 263-64), and a timely notice of appeal was 
filed January 16, 1968 (R. 265).



15

Reasons for Granting the Writ

Certiorari Should Be Granted to Review the Court o f 
Appeals’ Holding That the Mississippi Breach o f  the 
Peace Statute, Miss. Code Ann. §2089.5 (1966  Supp.), 
Is Compatible With the First and Fourteenth Amend­
ments. The Case Should Be Set for Argument With 
Gunn v. University Committee to End the War in Viet 
Nam, O. T. 1968, No. 269, in Which This Court Will 
Review a Ruling That the Texas Breach o f  the Peace 
Statute Is Unconstitutional.

Petitioner was convicted on a general verdict of the 
charge of “disturb [ing] the public peace by loud or offen­
sive language, or by conduct either calculated to provoke 
a breach of the peace, or by conduct which might reason­
ably have led to a breach of the peace” (R. 18, 24-25). The 
charge and verdict implicate the following three prohibi­
tions of §2089.5, whose constitutionality under the First 
and Fourteenth Amendments petitioner challenged below 
and challenges here :7

1. “ Any person who disturbs the public peace, or 
the peace of others, by . . . loud . . .  or offensive . . . 
language . . . shall be guilty of a misdemeanor. . . . ”

2. “ Any person who disturbs the public peace, or 
the peace of others, . . .  by conduct . . . calculated to

7 Because petitioner was convicted by a general verdict, if any 
of these prohibitions cannot constitutionally be applied to punish 
petitioner’s speech, then his conviction must fall. Stromberg v. 
California., 283 U. S. 359, 367-368 (1931); Williams v. North Caro­
lina, 317 U. S. 287, 291-293 (1942) ; Thomas v. Collins, 323 U. S. 
516, 529 (1945). Cf. Shuttlesworth v. Birmingham, 382 U. S. 87, 
92 (1965).



16

provoke a breach of the peace . . . shall be guilty of 
a misdemeanor. . . . ”

3. “ Any person who disturbs the public peace, or 
the peace of others, . . .  by conduct which may lead to 
a breach of the peace . . . shall be guilty of a misde­
meanor. . . . ”

Petitioner submits that none of these prohibitions is 
drawn with the narrow specificity required to punish speech 
of the kind which this record reveals. NAACP  v. Button, 
371 U. S. 415, 433 (1963). Here, as in Cantwell v. Con­
necticut, 310 U. S. 296, 308 (1940), we have “ a conviction 
under a statute sweeping in a great variety of conduct 
under a general and indefinite characterization, and leaving 
to the executive and judicial branches too wide a discretion 
in its application.” Consistently and repeatedly this Court 
has held that prohibitions rationally indistinguishable from 
Mississippi’s §2089.5 could not constitutionally be applied 
to forms of speech rationally indistinguishable from peti­
tioner McLaurin’s. Cantwell v. Connecticut, 310 U. S. 296, 
307-11 (1940); Terminiello v. Chicago, 337 U. S. 1, 4-5 
(1949); Edwards v. South Carolina, 372 U. S. 229, 236-38 
(1963); Cox v. Louisiana, 379 U. S. 536, 551-52 (1965); 
Domhrowski v. Pfister, 380 U. S. 479, 486-87 (1965); Ash­
ton v. Kentucky, 384 U. S. 195, 200-201 (1966).

There is a common infirmity running through these pro­
hibitions punishing speech thought to be “ offensive” or 
“ calculated to provoke,”  or “which may lead to,” a breach 
of the peace. It is the subjection of citizens’ freedom of 
speech to censorship under the impressionistic and variable 
standards of a policeman’s calculation of public temper, 
thus “ allow [ing] persons to be punished merely for peace­



17

fully expressing unpopular views” (Cox v. Louisiana, supra, 
379 U. S. at 551). This rationale was developed in Mr. 
Justice Black’s concurring opinion in Cox, in which he con­
demned statutes allowing a policeman to curb a citizen’s 
right of free speech

whenever a policeman makes a decision on his own 
personal judgment that views being expressed on the 
street are provoking or might provoke a breach of the 
peace. Such a statute does not provide for government 
by clearly defined laws, but rather for government by 
the moment-to-moment opinions of a policeman on his 
beat. Compare Yick Wo v. Hopkins, 118 U. S. 356, 
369-370, 20 L ed 220, 226, 6 S Ct 1064. This kind of 
statute provides a perfect device to arrest people whose 
views do not suit the policeman or his superiors, while 
leaving free to talk anyone with whose views the police 
agree (379 U. S. at 579).

We think it hardly necessary to demonstrate that two of 
the three prohibitions of Miss. Code Ann. §2089.5 employed 
against petitioner cannot pass constitutional muster under 
this principle. The points seem settled, if this Court’s re­
cent decisions can settle the law of the Constitution. In 
Ashton v. Kentucky, 384 U. S. 195 (1966), this Court re­
viewed its cases dealing with language virtually identical 
to Mississippi’s proscription of conduct “ calculated to pro­
voke a breach of the peace” :

These decisions [Edwards v. South Carolina; Cox v. 
Louisiana] recognize that to make an offense of con­
duct which is ‘calculated to create disturbances of the 
peace’ leaves wide open the standard of responsibility. 
It involves calculations as to the boiling point of a par­



18

ticular person or a particular group, not an appraisal 
of the nature of the comments per se [and is thus un­
constitutional under the First and Fourteenth Amend­
ments] (384 U. S. at 200).

The proscription of conduct “which may lead to a breach 
of the peace” can fare no better. Cox v. Louisiana, supra, 
voided convictions for speech conduct similar to petitioner’s 
under a Louisiana breach-of-the-peace statute that is iden­
tical in its operative language to §2089.5. The Louisiana 
statute was held facially unconstitutional on reasoning that 
plainly applies to and equally condemns §2089.5. The dis­
trict court below sought to distinguish Cox on the theory 
that the construction of §2089.5 by the Mississippi courts 
differed from the construction by the Louisiana courts of 
the identical Louisiana statutory language (E. 248-49 ; 279 
F. Supp. at 225; App., p. 11a, infra). But the jury charge 
authorized petitioner’s conviction on grounds which are 
precisely those condemned in Cox (R. 20-21); and the Mis­
sissippi Supreme Court, in affirming petitioner’s conviction, 
did not distinguish Cox by purporting to construe its stat­
ute differently from the Louisiana law there struck down. 
It found only that the “ factual situation involved in this 
case is entirely different. . . . ” 187 So. 2d at 860, App., 
p. 28a, infra.

Whatever factual differences there may be— and we sub­
mit that they are inconsiderable—petitioner’s conduct, like 
Cox’s, was entirely peaceful and non-inflammatory. If his 
acts were criminal, they were so because §2089.5 penalized 
incidents of them that were identical to the incidents on 
which Cox’s unconstitutional conviction also rested.

Cox had addressed a group of about 2,000 young Negro 
students on the sidewalks between the State Capitol and



19

the courthouse in Baton Rouge, Louisiana. His was a speech 
of protest (379 U. S. at 542-43):

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

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

Cox then said:

All right. It’s lunch time. Let’s go eat. There are 
twelve stores wTe are protesting. A number of these 
stores have twenty counters; they accept your money 
from nineteen. They won’t accept it from the twen­
tieth counter. This is an act of racial discrimination. 
These stores are open to the public. You are members 
of the public. We pay taxes to the Federal Government 
and you who live here pay taxes to the State.

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

The Sheriff testified that the sole aspect of the pro­
gram to which he objected was “ [t]he inflammatory 
manner in which he [Cox] addressed that crowd and 
told them to go on uptown, go to four places on the 
protest list, sit down and if they don’t feed you, sit 
there for one hour.” Yet this part of Cox’s speech 
obviously did not deprive the demonstration of its pro­



20

tected character under the Constitution as free speech 
and assembly (379 U. S. at 546).

Petitioner McLaurin’s speech was, like the speech pro­
tected in Cox, a stirring and vigorous encouragement to 
his listeners to assert their federal rights; it was no in­
vitation to violence. Even when the record is viewed most 
favorably to the prosecution, it is apparent that petitioner’s 
speech did not amount to the “ fighting words” held con­
stitutionally unprotected in Chaplinsky v. New Hampshire, 
315 U. S. 568 (1942).8 Nor did his speech present a case 
like Feiner v. New York, 340 U. S. 315 (1951), where “ the 
speaker passes the bounds of argument or persuasion and 
undertakes incitement to riot” (340 U. S. at 321).9 In his 
speech of 8 or 9 minutes (R. 244 ; 279 F. Supp. at 223, App. 
p. 8a, infra), even his most forceful statements, viewed in 
their context, were neither an explicit incitement nor a 
subtle invitation to riot. See pp. 4-12, supra. All that 
petitioner urged his listeners to “ do” was to register to 
vote so that illegal segregation would end in Washington 
County. All that his listeners did was to listen.

It is true, as the courts below found, that appellant spoke 
in a “ loud voice” (R. 243; 279 F. Supp. at 223; App. p. 7a, 
infra). But the Mississippi prohibition of “ loud or offen­

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

9 The speaker in Feiner urged Negroes to take up arms against 
whites (340 U. S. at 317). There is little indication what statu­
tory language was there invoked and no indication that the issue 
of a statutory invalidity was raised. See 340 TJ. S. at 318-19.



21

sive language” cannot reasonably be distinguished from 
the proscription of “loud and vociferous language” in the 
Texas breach of the peace statute struck down in University 
Committee to End the War in Viet Nam v. Gunn (W. D. 
Texas, No. 67-63-W, three-judge court, decided April 9, 
1968). On October 14, 1968, this Court noted probable juris­
diction of the State’s appeal in that case. Gunn v. University 
Committee to End the War in Viet Nam, 0. T. 1968, No. 
269. The district court in Gunn considered the Texas stat­
ute against a background of several state court decisions 
attempting to give it a narrowing construction. Neverthe­
less, the court concluded, in language precisely applicable 
here (slip op., p. 9):

It cannot be doubted that the provision regarding 
the use of loud and vociferous language would, on its 
face, prohibit speech which would stir the public to 
anger, would invite dispute, would bring about a condi­
tion of unrest, or would create a disturbance. In so 
doing the statute on its face makes a crime out of what 
is protected First Amendment activity. This is imper­
missible.

In the present case, the sole attempt at limiting construc­
tion of Miss. Code Ann. §2089.5 consists of the following 
language of the Mississippi Supreme Court affirming peti­
tioner’s conviction on direct appeal (187 So. 2d 854, 859; 
App., pp. 25a-26a, infra) :

Appellant contends that he has been convicted of 
expressing unpopular views, and the construction of 
Mississippi Code Annotated section 2089.5 (Supp. 1964) 
by the trial court comes within the rule announced in 
Terminiello, supra. This directs our attention to the



22

construction placed upon the statute by the trial court. 
This is reflected by the instructions to the jury as re­
quested by the City and by the appellant. The court 
instructed the jury that if appellant was arrested for 
public protest against racial segregation, then they 
could not find the defendant guilty. The trial court 
recognized that section 2089.5 could not be applied to 
restrict appellant’s constitutional right to protest 
against racial segregation, and that this statute could 
not be used to infringe upon the constitutional right of 
appellant or any other person to speak freely within 
the framework of the law. This Court is fully cogni­
zant of our duty to construe our statutes in such a 
manner to be sure that they will not infringe upon the 
constitutional rights of any person. The statute as 
construed by the trial court is not unconstitutional.

The district court below held that this language brought 
the statute within constitutional bounds (E. 248-49; 279 F. 
Supp. at 225; App., p. 11a, infra) :

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



23

vited dispute, brought about a condition of unrest or 
stirred people to anger—a conviction was riot war­
ranted. (Emphasis in original)

But this interpretation—if the Mississippi Supreme 
Court’s defense of the statute can be taken as an “ inter­
pretation” in the sense of limiting the statute’s scope— 
obviously fails by a wide margin to restrict §2089.5 within 
permissible First Amendment bounds. The interpretation 
nods tactfully to the First Amendment but does nothing 
operatively to protect it. On one hand, a speaker can be 
arrested and convicted if the arresting officer and the jury 
think that he has made statements, however unintentionally, 
likely to disturb good order. On the other hand, it is said 
that there can be no conviction of those wrho “ speak freely 
within the framework of the law” (in the words of the 
Mississippi Supreme Court) or of those who are “peace­
fully exercising the right of free speech” (in the words of 
the district court below). The guidance thus provided to 
the arresting officer and the jury is minimal; the statutory 
language simply leaves everything to their discretion. The 
long slope between “ free speech” and “ loud or offensive 
language” remains unmarked by any concrete or even help­
fully approximative boundary. As “ interpreted,” §2089.5 
remains serviceable to justify petitioner’s arrest and con­
viction on the grounds that the arresting officer and the 
jury thought his speech too critical of the Police Court’s 
decision,10 and therefore “ offensive” and “ nonpeaceful” ; or 
on the grounds they thought it simply too loud.

10 The district court found that petitioner, in his speech, “ de­
nounced [the girls’ ] convictions as ‘bad’ ” (R. 243; 279 F. Supp. 
at 223; App., p. 7a, infra). The convictions were bad, but were 
not reversed until two years later. See note 1, supra.



24

Not only Gwnn, but Carmichael v. Allen, 267 F. Supp. 
985, 997-99 (N. D. Gla. 1967), bespeaks the invalidity of this 
Mississippi proscription of offensive language. In Car­
michael, the three-judge court invalidated a prohibition of 
“vulgar” language under the principles of Cantwell v. 
Connecticut, supra, and Cox v. Louisiana, supra, saying 
(267 F. Supp. at 998-99):

Moreover, it takes no elaboration to demonstrate that 
the term ‘vulgar’ in connection with ‘language’ . . . 
leaves ‘to the executive and judicial branches too wide 
a discretion in the application’ of the law. It too 
readily permits them to make a crime out of what is 
protected activity.

CONCLUSION

In sum, petitioner has been convicted in exactly the man­
ner forbidden by this Court’s decisions from Cantwell and 
Terminiello through Cox and Ashton, under a statute writ­
ten and construed in language which is virtually identical 
to that condemned by those decisions. The present case 
thus poses the essential issue whether this Court’s pro­
nouncements will be enforced as viable protections of the 
First Amendment or ignored as unserviceable to suit 
police convenience. On its post-conviction record, it also 
affords additional perspectives on the issue of statutory 
overbreadth and vagueness presently pending before the 
Court in Gunn.

The conduct in petitioner McLaurin’s case was speech, 
pure and simple. Uncomfortable as it may have made the 
arresting officers, it was consistent with our tradition “ that 
debate on public issues should be uninhibited, robust and



25

wide-open, and that it may well include vehement, caustic 
and sometimes unpleasantly sharp attacks on government 
and public officials” (New York Times Co. v. Sullivan, 376 
U. S, 254, 270 (1964)). The protection of that tradition 
cannot be abandoned to the moment-to-moment opinions 
of a policeman on his beat.

For the foregoing reasons, petitioner prays that the 
petition for writ of certiorari be granted and that the 
case be set for argument with Gunn v. University Com­
mittee to End the War in Viet Nam, 0. T. 1968, No. 269.

Respectfully submitted,

J ack Greenberg
Michael Meltsner

Melvyn Zarr

10 Columbus Circle 
New York, New York 10019

R euben V. A nderson

538% North Farish Street 
Jackson, Mississippi 39202

R. Jess Brown

125% North Farish Street 
Jackson, Mississippi 39202

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

Attorneys for Petitioner



A P P E N D I X



APPENDIX

Opinion o f  the United States Court o f  Appeals 
for the Fifth Circuit

In the

UNITED STATES COURT OF APPEALS 
F or the F ifth Circuit

No. 25765

Charles McLaurin, 

versus
Appellant,

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

Appellee.

Appeal from the United States District Court for the 
Northern District of Mississippi

(October 15, 1968)

Before Goldberg and A insworth, Circuit Judges, 
and Spears, District Judge.

Per Curiam : The comprehensive memorandum opinion 
filed in this cause by the District Court and reported in 279 
F. Supp. 220 (N.D. Miss. 1967) is hereby approved, and 
the judgment denying the petition for writ of habeas corpus 
is A ffirmed.



2a

Judgment of the United States Court of Appeals 
for the Fifth Circuit

UNITED STATES COURT OF APPEALS 

F or the F ifth Circuit

October Term, 1968

No. 25765

D. C. Docket No. GC 678

Charles McLaurin, 

versus
Appellant,

W illiam C. Burnley, J r ., Custodian 
of the Greenville City Jail,

Appellee.

A PPE A L FROM  T H E  U N IT E D  STATES DISTRICT COURT FOR T H E  

N O R T H E R N  DISTRICT OF M ISSISSIPPI

Before Goldberg and A insworth, Circuit Judges, 
and Spears, District Judge.



Judgment

This cause came on to be heard on the transcript of the 
record from the United States District Court for the North­
ern District of Mississippi, and was argued by counsel;

On consideration whereof, It is now here ordered and 
adjudged by this Court that the judgment of the said Dis­
trict Court in this cause be, and the same is hereby, 
affirmed;

It is further ordered and adjudged that the appellant, 
Charles McLaurin, be condemned to pay the costs of this 
cause in this Court for which execution may be issued out 
of the said District Court.

October 15, 1968

Issued as Mandate:



4a

Opinion o f  the United States District Court 
for  the Northern District o f  Mississippi

I n  the

UNITED STATES DISTRICT COURT 

F or the Northern D istrict oe Mississippi 

Greenville Division 

N o. GC678

Charles McLaurin,

v.
Petitioner,

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

Respondent.

Memorandum Opinion

After petitioner’s arrest and conviction in the Police 
Court of Greenville, Mississippi, for breach of the peace 
(Miss. Code Ann. §2089.5) and resisting arrest (Code of 
Ordinances, City of Greenville, §252 Rev. Ed. 1938), there 
was an appeal to the County Court of Washington County 
and a de novo separate jury trial on each of these charges 
with verdicts of guilty; an appeal to the Circuit Court of 
Washington County, Mississippi, which affirmed petition­
er’s convictions on the records made in county court; an 
appeal to the State Supreme Court, which also affirmed 
[McLaurin v. Greenville, 187 So.2d 860 (Miss. 1966)]; and,



5a

the filing of a petition for a writ of certiorari with the 
Supreme Court of the United States, which was denied 
[McLaurin v. Greenville, 385 U.S. 1011, 17 L. Ed. 2d 548 
(1967)] (with three judges dissenting). Now in spite of 
pronouncements that a criminal case should some time 
reach a final conclusion,1 petitioner once again has chal­
lenged the validity of his convictions and, apparently, still 
is convinced that he has not been afforded due process of 
law. The federal issues here presented are substantially 
the same as those presented to the United States Supreme 
Court in the petition for writ of certiorari, but the denial 
thereof cannot be interpreted as an expression of that 
court’s opinion on the merits. Brown v. Allen, 344 U.S. 
443, 73 S. Ct. 397, 97 L. Ed. 469 (1953).

On February 14, 1967, the petitioner, Charles McLaurin, 
filed a petition for a writ of habeas corpus in this court 
and named as respondent thereto the custodian of the 
Greenville City Jail, located in Greenville, Mississippi.2 
On that same date, the respondent was ordered to show 
cause why the relief prayed for in said petition should not 
be granted. The respondent seasonably filed its response, 
and the issues presented by the petition are now before the 
court on the record made in the state trial court, the briefs 
submitted in the United States Supreme Court on peti­
tioner’s application for a writ of certiorari, additional 
briefs submitted in this court and a stipulation which was 
filed on September 7, 1967. An evidentiary hearing was 
initially sought bv the petitioner, but later, when such a 
hearing was set, that request was withdrawn, and the case

1 E.g., Allison v. Holmon, 326 F.2d 294 (5 Cir. 1963).
2 Who is the Chief of Police.



6a

was submitted on the record made in state court, in lieu 
of any further evidentiary hearing in this court.

The entire record aforementioned has been carefully 
considered. It is clear that the merits of the factual dispute 
were adequately developed and resolved in the state court, 
and the conclusions therefrom are supported by the record; 
that the state employed an adequate fact-finding procedure; 
that no allegation of newly discovered evidence has been 
presented and that no reason here exists which indicates 
that the petitioner did not have a full and fair factual 
hearing throughout his state litigation. This court now 
independently so finds. Consequently, no further eviden­
tiary hearing under the standards set forth in Townsend v. 
Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), 
is indicated—a fact which is admitted by petitioner.

In the Supreme Court of Mississippi, by assignment of 
error, the petitioner alleged: that the state breach-of-the- 
peace statute (Miss. Code Ann. § 2089.5) is unconstitu­
tional, that his convictions of the subject offenses consti­
tuted punishment for the exercise of free speech and that 
his convictions were founded upon no evidence of guilt.3 
These precise contentions are again presented here, and 
though they were expressly rejected by the State Supreme 
Court, it is this court’s duty, in considering the present 
petition for a writ of habeas corpus, to independently 
apply applicable federal law to the state court findings of 
fact, if those fact findings were there “ reliably found” . 
Townsend v. Sain, supra, 9 L. Ed. 2d at 789. No “vital 
flaw having been found in the process of ascertaining such 
facts in the state courts” [Brown v. Allen, supra, 97 L. Ed.

3 Other assignments of error presented to the State Supreme 
Court have not here been seriously urged and are considered aban­
doned.



7a

at 514 (opinion of Frankfurter, J .)], this court is author­
ized to and does place much reliance upon that court’s 
factual determinations. Ibid. Such facts are fully reported
at ------  Miss. ------ , 187 So.2d 854, and are only repeated
where necessary here.

Immediately following the trial and convictions4 of two 
Negro girls in the Police Court of Greenville, McLaurin 
began exhorting a crowd of about 200 people, predomi­
nately Negro, which had gathered outside the courthouse. 
In his speech, which was described as being in a “ loud 
voice” , he denounced these convictions as “bad” and chal­
lenged the crowd with “ what they intended to do about it” . 
Obviously, many of those present disagreed with these con­
victions. The crowd was described as “ getting disturbed” 
and as engaged in “mumbling and muttering” . The situa­
tion was said to be “ tense” .

One Negro police officer testified that “ in my opinion [it] 
was a very tense situation and had it kept on anything 
could have happened” . Another officer testified that during 
petitioner’s talk the crowd “ seemed to be crowding more 
and more around the door of the building and the mum­
bling began to get louder” . It seemed as though they were 
“ going to try to take the situation in their own hands” . 
The Chief of Police of Greenville, Mississippi, testified that 
in his opinion “ at any moment we could have had a riot 
or some violence” , because the crowd was “answering him 
[the petitioner] and becoming emotional” .5 The petitioner, 
on cross-examination, conceded that when he began to ad­
dress the crowd they were “ sort of upset” and seemed 
“ shocked and confused”  at the aforementioned convictions.

4 These convictions were later set aside on appeal.
5 All the police officers who testified were experienced law en­

forcement officials who had on previous occasions had experience 
in dealing with mobs.



8a

The testimony further shows that after some eight or 
nine minutes of talking, the petitioner was told that he 
would have to stop speaking unless he obtained a permit. 
Petitioner purportedly ignored this warning, kept talking 
and was placed under arrest. When the police officers 
started taking petitioner inside the building, he “kept pull­
ing back” , and the arresting officers were forced to man­
handle him to get him into custody. One arresting officer 
testified that it required ail his strength to remove the 
petitioner from the scene. There is also testimony that 
petitioner during the course of his being arrested went 
“ limp” .

Following the arrest of the petitioner, the crowd alleg­
edly remained in attendance in the immediate area of the 
municipal building and was later dispersed by a number 
of police officers described by one witness as a “ riot squad” .

In county court on the aforementioned jury trials, with 
testimony of this nature presented and being instructed 
by the court that “ if you find that the defendant was ar­
rested for peaceful protest against racial segregation, then 
you cannot find the defendant guilty”, a trial jury found 
the petitioner guilty of violating § 2089.5, Miss. Code Ann. 
(1966 Supp.). Another trial jury also found him guilty of 
resisting arrest under § 252, Code of Ordinances, City of 
Greenville, Eev. Ed. 1938.6

I.

It is initially asserted as the basis for the present habeas 
petition that the petitioner was convicted under an uncon­
stitutional state statute. The applicable statute provides:

6 This ordinance provides, in part, that:
Any person who knowingly and wilfully opposes or resists 
any officer of the city in executing, or attempting to make any 
lawful arrest, . . . shall be guilty of a misdemeanor.



Any person wlio disturbs the public peace, or the peace 
of others, by violent, or loud, or insulting, or profane, 
or indecent, or offensive, or boisterous conduct or lan­
guage, or by the intimidation, or seeking to intimidate 
any other person or persons, or by conduct either cal­
culated to provoke a breach of the peace, or by conduct 
which may lead to a breach of the peace, or by any 
other act, shall be guilty of a misdemeanor . . . .

Miss. Code Ann. § 2089.5.

If this position is well taken, the foundation of the whole 
proceedings are affected, for “ an unconstitutional law is 
void, and is as no law. An offense created by it is not a 
crime. A  conviction under it is not merely erroneous, but 
is illegal and void, and cannot be a legal cause of imprison­
ment.” Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 
837 (1963).

It is now settled that “ only a compelling state interest 
in the regulation of a subject within the state’s constitu­
tional power to regulate can justify limiting First Amend­
ment freedoms” . NAACP  v. Button, 371 U.S. 415, 83 S. Ct. 
328, 9 L. Ed. 2d 405. The State of Mississippi has an ob­
vious interest in the preservation and protection of peace 
and good order within her borders. The Supreme Court 
has stated that:

This court respects, as it must, the interest of the com­
munity in maintaining peace and order on its streets.

Feiner v. New York, 340 U.S. 315, 95 L. Ed. 297 
(1951).

The statute now under attack evinces a legislative judg­
ment that speech which is either calculated to lead to a 
breach of the peace or which may lead to a breach of the



10a

peace should be regulated. “ Such a declaration of the 
state’s policy [if narrowly drawn to prevent the supposed 
evil] would weigh heavily in any challenge of the law as 
infringing constitutional limitations.” Cantwell v. Con­
necticut, 310 U.S. 296, 84 L. Ed. 1213 (1940). It has been 
stated that:

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 
violent acts but acts and words likely to produce vio­
lence in others. No one would have the hardihood to 
suggest that the principle of freedom of speech sanc­
tions incitement to riot . . . .  When clear and present 
danger of riot, disorder, interference with traffic upon 
the public streets, or other immediate threat to pub­
lic safety, peace, or order, appears, the power of the 
state to prevent or punish is obvious. (Emphasis 
added.)

Cantwell v. Connecticut, supra, 84 L. Ed. at 1220.

Petitioner contends that this statute is unconstitutional 
in its overly broad scope. During this litigation, the state 
trial court instructed the jury, in effect, that this statute 
could not be utilized to punish the petitioner for peace­
fully protesting racial segregation. The Supreme Court 
of Mississippi has, on at least two occasions, expressly 
recognized its duty to construe state statutes in such a 
manner so as to insure that they will not infringe upon 
any person’s constitutional rights. McLaurin v. Greenville,
supra; Bolton v. Greenville, ------  Miss. ------ , 178 So.2d
667 (1965). This court “ can only take the statute [here 
challenged] as the state courts read it” [Terminiello v, 
Chicago, 337 U.S. 4, 93 L. Ed 1131 (1949)]; the interpre­



11a

tation of this statute and policy pronouncement by the 
state court distinguish this case from the cases of Cox v. 
Louisiana, 379 U.S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471 
(1965) and Edwards v. South Carolina, 372 U.S. 229, 83 
S. Ct. 680, 9 L. Ed. 2d 697 (1963), cited by petitioner as 
supporting his position.

In Cox and Edwards, the state courts defined “ an of­
fense so as to permit convictions of the petitioners if 
their speech stirred people to anger, invited public dis­
pute, or brought about a condition of unrest” . 9 L. Ed. 2d 
at 697. “A condition resting on any of these grounds,” 
said the court, “ cannot stand.” Ibid; see also Terminiello 
v. Chicago, supra.

In the case here, the statute, as interpreted by the state 
court, permits a conviction for speech only if that speech 
was calculated to lead to a breach of the peace or was of 
such a nature as ultimately led to a breach of the peace. 
There can be no conviction for peacefully exercising the 
right of free speech. This is consistent with the principle 
that one may be found guilty of breach of the peace if he 
commits acts or makes statements likely to provoke vio­
lence and disturbance of good order, even though no such 
eventuality be intended. Cantwell v. Connecticut, supra. 
Under the statute here in question, so long as the speech 
was peaceful—regardless of whether it invited dispute, 
brought about a condition of unrest or stirred people to 
anger—a conviction was not warranted.

By this statute, the State of Mississippi proscribes 
only nonpeaceful speech, speech calculated to cause or 
likely to cause a shattering of peace and order, which the 
state has a right to do. This limitation on speech is within 
the state’s constitutional power. As interpreted by the 
state courts in this case, Miss. Code Ann. §2089.5 (1966 
Supp.) is not unconstitutional.



12a

II.

The petitioner also contends that his state convictions, 
based upon the actions taken by him, constitute punish­
ment for the exercise of free speech and that, therefore, 
these convictions should be invalidated. In Feiner v. New 
York, supra, a similar contention was presented to and 
rejected by the Supreme Court. In Feiner, the petitioner 
urged in a loud, high-pitched voice that Negro citizens 
rise up in arms and fight for civil rights. The crowd in 
Feiner was described as restless and was said to have 
been pushing, shoving and milling around. At least one 
member of the crowd threatened violence. The Supreme 
Court in affirming the petitioner’s conviction said:

The findings of the [state] courts as to the condition 
of the crowd and refusal of the petitioner to obey 
the police requests, supported as they are by the 
record of this case, are persuasive that the conviction 
of the petitioner . . . does not exceed the bounds of 
proper police action.

95 L. Ed. at 300.

The court further said that it was well aware that the 
ordinary murmurings and objections of a hostile audience 
cannot be allowed to silence a speaker or to break up an 
otherwise lawful, public meeting. But, where, said the 
court, the speaker “passes the bounds of argument and 
persuasion and undertakes incitement to riot, the police 
are not, in the name of free speech, powerless to prevent 
a breach of the peace” .

In Edward v. South Carolina, supra, and Cox v. Louis­
iana, supra, the court noted that the factual situation 
in those two cases was a “ far cry” from the situation 
presented in Feiner, for in Edwards and Cox, there was



13a

no violence or threat of violence on the part of any mem­
ber of the crowd there involved. In the present case, as 
in Feiner, there is ample evidence to support a jury con­
clusion that the crowd was restless and potentially dan­
gerous ; there is testimony that it was tense—the petitioner 
admits that the people making up the crowd seemed 
shocked at the outcome of the trial which they were at­
tending—there is testimony from three experienced police 
officers that in their opinion mob violence was imminent; 
there is testimony of some pushing and crowding in and 
around the entrance to the building.7 In spite of these 
similarities, the petitioner urges that Feiner is not ap­
plicable, but that Edwards and Cox control. With this 
contention, this court does not agree.

The state court concluded, at least inferentially, that 
the petitioner’s conduct in light of the surrounding cir­
cumstances, exceeded the bounds of argument and per­
suasion and was calculated to or could have led to a 
breach of the peace. This court cannot say that such a 
conclusion is wrong. The evidence was sufficient to war­
rant the jury verdicts. Therefore, this court holds that 
petitioner was not convicted of conduct protected by the 
First and Fourteenth Amendments, and his arrest and 
conviction did not exceed the bounds of proper state police 
action.

III.

Finally, petitioner argues that there is no evidence to 
support his convictions. From what has already been said,

7 Which also housed the city jail. It has recently been held that 
First Amendment freedoms were not violated by the arrest and 
conviction of civil rights demonstrators for trespassing upon the
curtilage of the county jail. Adderly v. Florida, ------  U .S .------ ,
17 L. Ed. 2d 149 (1966).



14a

it is apparent that there is no merit in this contention, 
and this court now so finds.

This court judicially knows that over almost all the 
length and breadth of this country, speeches cast in strik­
ingly similar language, protesting police action in what 
petitioner here calls “ a vigorous and stirring nature” , 
have preceded barbaric savagery, bloodshed, death, loot­
ing and the wanton destruction of millions of dollars of 
property. The roll of the places where peace and order 
were not maintained—where the thin veneer of civiliza­
tion was torn asunder—where the faceless mob ran ram­
pant, unchecked by the forces of law and civilization—is 
a long and disgraceful one: Watts, Hough, Rochester, 
Trenton,. . . .

In Greenville prompt and efficient police work, which 
went directly to the source of trouble and then estab­
lished unquestioned control, which was promptly followed 
by dispersal of what petitioner’s counsel describes as a 
“mob” , probably averted what could have been another 
such tragic occurrence in that community.

More, much more, than the simple arrest of a “ civil 
rights worker” is involved here. At stake, is the right of 
a community to preserve the peace and to protect itself 
from riots and disorder.

The petitioner has been afforded every protection of 
the law. He has had his day in the Police Court of Green­
ville, in the County Court, in the Circuit Court, in the 
Supreme Court of Mississippi, and his petition to the 
Supreme Court of the United States for review of his 
convictions has been considered and denied. He now has 
had his day in this court. The record here is unchanged. 
He offered no new evidence. The time has come, in fact 
the time is long overdue, for this litigation to come to



15a

an end. It is right, it is constitutional (sometimes ap­
parently not the same) for this book to be closed. Insofar 
as this court is concerned, it is.

An order will be entered to deny the Great Writ to 
this petitioner, since the record shows that he is not en­
titled to the extra-ordinary protection which it affords.

This the 29th day of December, 1967.

Claude F. Clayton 
Claude F. Clayton 
United States Circuit J udge 
Sitting by Special Designation 
as District Judge



16a

Opinion of the Supreme Court of Mississippi
In the

SUPREME COURT OF MISSISSIPPI 

No. 43,429

Charles MoL aurin,

City of Greenville.

I nzer, Justice:

Appellant, Charles McLaurin, was convicted on a 
charge of disturbance of the public peace in violation of 
Mississippi Code Annotated section 2089.5 (Supp. 1964) 
in the Municipal Court of the City of Greenville. He ap­
pealed to the County Court of Washington County, where 
he was tried de novo before a jury. This trial resulted in 
a conviction, and he was sentenced to pay a fine of $100 
and serve a term of ninety days in the city jail. From this 
conviction, he appealed to the circuit court, wherein the 
conviction was affirmed. The circuit judge allowed an 
appeal to this Court because of the constitutional question 
involved.

When this case reached this Court, it was consolidated 
with three other cases for the purposes of argument 
and submission to the Court. They are Cause No. 43,436,



17a
which is a similar charge against Charles Cobb; Cause No.
43.497, which is a charge against this same appellant, 
Charles McLaurin, for resisting arrest; and Cause No.
43.498, which is a similar charge against Charles Cobb. 
The cases will be disposed of by separate orders. After 
the cases were submitted, it was discovered that the affi­
davits upon which these charges were based were not a 
part of the record; although they had been so designated 
by appellants in their notice of designation of record. The 
attention of counsel for the City and appellants was 
directed to this defect. The City suggested a diminution 
of the record, which suggestion was sustained. The affi­
davits are now a part of the records in all four cases.

The appellant’s assignment of errors is as follows:

I. The court below erred in affirming a judgment 
of conviction which punishes conduct in the exercise 
of the right of free speech guaranteed by the Four­
teenth Amendment to the Constitution of the United 
States.

II. The court below erred in approving the refusal 
of the trial court to give appellant’s instruction that 
the jury could not find appellant guilty of breach of 
the peace if the police officers had made no reasonable 
effort to calm or disperse appellant’s audience.

III. The court below erred in affirming a judgment 
of conviction based upon no evidence of guilt.

IV. The court below erred in affirming a judgment 
of conviction under a statute so vague and indefinite 
as to permit the punishment of the exercise of the right



of free speech guaranteed by the Fourteenth Amend­
ment to the Constitution of the United States.

V. The court below erred in approving the denial 
by the trial court of appellant’s motion to quash the 
jury panel on the ground of systematic exclusion of 
Negroes therefrom through prosecutorial abuse of 
peremptory challenges.

The proof on behalf of the City is sufficient to show 
that on July 1, 1963, a large crowd of people were 
present at the Municipal Court in the City of Greenville 
where two Negro girls were being tried on a charge of 
disorderly conduct. The courtroom which is in the munic­
ipal building seats about 300 people, and it was filled 
to capacity. About one-half of the people in the court­
room were Negroes, and one-half were white. There was 
also a large crowd, consisting of mostly Negroes, on the 
outside of the courtroom. Appellant was present at the 
trial, but was not in the courtroom. He had gone into 
the courtroom prior to the trial and was directed to a seat 
by Officer Willie Carson; however, he did not sit where 
Officer Carson directed him to sit, and when Carson spoke 
to him about it, McLaurin protested that the courtroom 
was segregated. He then went out of the courtroom and 
protested to the chief of police about the courtroom being 
segregated. When he returned to enter the courtroom, 
it was filled to capacity, and he was not allowed to enter 
again.

The trial resulted in the conviction of the two girls 
being tried, and most of the people then departed from 
the courtroom. Thereafter, although court was still in

18a



19a
session, MeLaurin went outside the building and after 
talking with some of the people who were present at the 
trial, he began to shout in a loud voice, attracting the 
attention of the people who were leaving, and many turned 
and came back. He backed up on the steps of the building, 
and in a loud voice began exhorting the crowd of about 200 
people, mostly Negroes, which had gathered around him in 
front of the building. The crowd blocked the sidewalk all 
the way to the street • and the entrances to the build­
ing. Officer Carson was on the outside of the building 
after the trial, and he testified that the crowd around 
MeLaurin appeared to be upset over the outcome of the 
trial. Officer Carson is a Negro and had been employed 
on the jjolice force in the City of Greenville for over 
thirteen years prior to the trial. He holds the rank of 
detective and has had experience as a military police­
man in the armed forces. He said that MeLaurin said in 
a loud voice, “ What you people going to do about this; 
this is wrong, the White Caucasian, this law is wrong; 
you going to take it; you going to let them get away with 
it.” The crowd began to mutter and say that it wasn’t 
right. It appeared to Officer Carson that the situation 
was very tense and anything could happen. It was his 
opinion that MeLaurin was exciting the crowd in order 
to get them to do something about the court’s decision. 
Carson made his way through the crowd to where MeLaurin 
was standing and told him he would have to stop, and that 
he could not block the sidewalk. MeLaurin continued to 
talk, and once again Carson told him to stop. MeLaurin 
refused, and Carson placed him under arrest. After he 
was arrested, MeLaurin kept pulling back and talking over



Carson’s shoulder to the crowd, saying, “ He’s arresting 
me, what are you going to do about it.” In order for Car- 
son to get McLaurin into the building and out of the crowd, 
it was necessary for him to use all of his strength.

Captain Harvey Tackett, also a member of the City Police 
Force, was in front of the police station after the trial. 
He said that the first time he saw McLaurin, he was in 
the middle of the sidewalk in front of the station, and Mc­
Laurin started waving his arms and shouting in a loud 
voice to the people that were leaving. Most of the people 
immediately came back and gathered around McLaurin who 
then “ jumped” upon the steps of the building and contin­
ued to shout and holler, asking the people what they were 
going to do about what had happened. The crowd started 
mumbling and saying something that he could not under­
stand, but they appeared to be agreeing with McLaurin. It 
was his opinion that the crowd was about to take the situa­
tion into their own hands, and he thought that a breach of 
peace was imminent. He had had long experience in police 
work, and it was his opinion that McLaurin would have 
to be removed or there would likely be a riot. He started 
over to where McLaurin was standing, but before he reached 
him, Officer Carson reached McLaurin and said something 
to him, which Captain Tackett could not hear. McLaurin 
kept shouting and hollering and waving his arms, and Car- 
son said something else to him; however, McLaurin con­
tinued shouting. Then he saw Carson take McLaurin by 
the arm and forcibly carry him inside the building. Dur­
ing this time McLaurin was still shouting to the crowd.

Chief of Police W. C. Burnley was also present at the 
scene and saw and heard what transpired. He had been

20a



21a
on the police force in Greenville for seventeen years and 
was a graduate of the FBI National Academy. He had re­
ceived special training in methods relative to dealing with 
crowds. It was his opinion that the situation on the outside 
of the building was very tense. He saw McLaurin “ jump” 
to the steps of the building and begin to shout and wave 
his arms in an emotional manner. He saw the people gather 
around him and many that were leaving turned and came 
back. He heard McLaurin shout, “ Are you going to take 
this; what are you going to do about it,” repeating these 
words over and over and other statements that he could 
not remember. It was his opinion that the speech of Mc­
Laurin was having an emotional effect upon the already 
tense crowd, and that any moment a riot or some other 
violence could take pace.

Charles Cobb who was a Field Secretary employed by 
the Student Non-violent Co-ordinating Committee testified 
in behalf of appellant. It was his testimony that he saw 
McLaurin when he entered the courtroom and saw Officer 
Carson go up to him and say something. McLaurin then 
left, and Cobb went out to ascertain why McLaurin had 
left. He went with McLaurin to protest to Chief Burnley 
relative to segregation in the courtroom, and when they re­
turned, they were not allowed to enter the courtroom. When 
the trial was over, he left McLaurin and wTent outside. 
When he next saw McLaurin he was standing on the side­
walk saying something to the people gathered there. He 
estimated that there were about 100 Negroes on the side­
walk in front of the municipal building. As McLaurin was 
talking he backed up the steps of the building, and although



he was only twenty to thirty feet from McLaurin, he said 
he could not hear what McLaurin was saying. He saw one 
of two police officers say something to McLaurin, who con­
tinued talking. The officers then carried McLaurin into 
the municipal building. It was his opinion that the crowd 
did not appear to be so upset that they would do anything 
violent; he thought that they were mostly curious.

Appellant testified in his own behalf and said that he 
had been in Greenville off and on for about nine and one- 
half months. He was a Field Secretary for the Student 
Non-violent Co-ordinating Committee, and had been en­
gaged in voter registration work during the time he had 
been in Greenville. He was also affiliated with other groups 
engaged in civil rights work, including a group of which 
the two Negro girls being tried were members. When he 
first went into the courtroom, he was directed to take a 
seat on the right side of the room, but he saw a vacant 
seat on the left side and sat there. He assumed that since 
he was directed to the right side where the Negroes were 
sitting that the left side was reserved for whites. After he 
sat down, Officer Carson told him he could not sit there. He 
asked Carson whether the courtroom was segregated, and 
Carson told him to come to the back of the room with him. 
He followed Carson out of the courtroom, but Carson didn’t 
say anything else to him. He and Charles Cobb went to 
talk with Chief Burnley about the courtroom being segre­
gated, and Burnley told them that they were in the room 
once, and turned and walked away from them. He was not 
allowed to re-enter the courtroom, and stayed outside dur­
ing the trial. After the trial, he then walked outside of the

22a



23a

municipal building and began talking with some of the 
people who were present at the trial. He moved to the 
front of the building, and it appeared to him that the people 
coming out were shocked by the conviction of the girls. 
He said he started trying to get the attention of the crowd 
to tell them about registering and voting so that this kind 
of thing could not happen. Officer Carson then came up 
and told him that he could not make a speech without a 
permit, and when he continued to talk, Carson arrested him 
and carried him inside the building. He said, “ I was saying- 
different things like, this wouldn’t have happened if Ne­
groes were registered to vote, that in Washington County 
Negroes are in the majority of the population—50 per cent 
of the population is Negro and that they could have used 
the park or anyother (sic) thing had they been registered 
voters.” He was asked whether the crowd appeared angry 
and in a tense and angry mood, and he replied, “ I feel that 
the crowd was sorta upset as to the out come (sic) of the 
trial, but certainly the words that I was using wouldn’t 
have caused them to jump—to go in there and try to beat 
up the Judge. Negroes know they can’t go beat up the 
Judge and be justified, and tear down the building and be 
justified, or jump on a policeman in the State of Mississippi 
and be justified.” On cross-examination, he admitted that 
during the entire time he had been in Greenville he had 
not been interfered with in any way in his voter registra­
tion work. He said Negroes were allowed to register with­
out interference, although some did not pass the test. Most 
of his work had been with groups under the voting age, and 
he had not been interfered with in any way in this work.



24a
We will first address ourselves to the question of whether 

the circuit court was in error in affirming the action of the 
trial court, in overruling a motion of appellant to quash 
the jury panel on the ground of systematic exclusion of 
Negroes therefrom through prosecutorial abuse of peremp­
tory challenges. Appellant contends that the trial court 
refused to allow him to show a pattern or practice of sys­
tematic exclusion by peremptory challenges by the City. 
This contention is not supported by the record in this case. 
The record reflects that the trial judge did at first deny 
appellant’s motion to be allowed to show that the City had 
peremptorily challenged two Negroes, but immediately 
thereafter, she rescinded that ruling and granted appellant’s 
motion. Appellant offered no further evidence in support 
of the motion to show that the City had followed the prac­
tice of systematically excluding Negroes by means of per­
emptory challenges. After the jury was selected, appellant 
made a motion to quash the panel because of systematic 
exclusion of Negroes therefrom because of race and color. 
He does not contend that the evidence in the record is suffi­
cient to show a prosecutorial abuse of the peremptory chal­
lenges, but contends that this case should be remanded to 
give the appellant an opportunity to explore this matter 
further. There is no merit in this contention. In this con­
nection, it is interesting to note that in Cause No. 43,498, 
which involves an appeal from McLaurin from a conviction 
on a charge of resisting arrest, wherein the City did not 
exercise its peremptory challenges to excuse Negroes from 
the jury panel, appellant made a motion to quash the panel 
because of systematic inclusion of Negroes. This position



taken by appellant is without merit and deserves no further 
discussion. Swain v. Alabama, 380 U. S. 202, 85 Sup. Ct. 
824,13 L. Ed. 2d 759 (1965).

The question of whether appellant’s conduct in this case 
is protected by the First and Fourteenth Amendments to 
the Constitution of the United States presents the impor­
tant question. It is appellant’s contention that his speech 
was merely a protest against segregated conditions in 
Greenville and the fact that it made the crowd restive and 
angry does not support a conviction for a breach of public 
peace. In support of this condition, he cites and relies upon 
the case of Terminiello v. Chicago, 337 U. S. 1, 69 Sup. Ct. 
894, 93 L. Ed. 1131 (1949). Terminiello was convicted of a 
violation of a city ordinance forbidding any breach of 
peace. The decision turned on the construction placed upon 
the ordinance by the trial court as reflected by the instruc­
tions to the jury. The court held that the construction was 
as binding upon it as though the precise words had been 
written into the ordinance. The conviction was reversed 
because the ordinance as construed by the Illinois court was 
at least partly unconstitutional. Appellant contends that 
he has been convicted of expressing unpopular views, and 
the construction of Mississippi Code Annotated section 
2089.5 (Supp. 1964) by the trial court comes within the rule 
announced in Terminiello, supra. This directs our atten­
tion to the construction placed upon the statute by the 
trial court. This is reflected by the instructions to the jury 
as requested by the City and by the appellant. The court 
instructed the jury that if appellant was arrested for public 
protest against racial segregation, then they could not find

25a



26a

the defendant guilty. The trial court recognized that sec­
tion 2089.5 could not be applied to restrict appellant’s con­
stitutional right to protest against racial segregation, and 
that this statute could not be used to infringe upon the 
constitutional right of appellant or any other person to 
speak freely within the framework of the law. This Court 
is fully cognizant of our duty to construe our statutes in 
such a manner to be sure that they will not infringe upon 
the constitutional rights of any person. The statute as con­
strued by the trial court is not unconstitutional.

Appellant also urges that section 2089.5 is so vague and 
indefinite as to permit the punishment of the exercise of 
the right of free speech guaranteed by the Fourteenth 
Amendment to the Constitution of the United States. His 
argument is based upon the contention that as applied 
here the term “breach of peace” reaches federally pro­
tected activities that create unrest in others. The stat­
ute as drawn is in broad terms, but it is not unconstitu­
tional upon its face. It is true that it could be construed 
in such a manner that it would reach federally protected 
activities, but we are well aware of the fact that neither 
this statute nor any other statute may be constructed 
so as to infringe upon the state or federally protected 
constitutional rights of appellant or any other person. 
This is evidenced by many decisions of this Court, includ­
ing our decision in the case relative to the two girls whose 
conviction resulted in this action. Bolton v. City of Green­
ville, 253 Miss. 656, 178 So. 2d 667 (1965); Bynum v. City 
of Greenville, 253 Miss. 667, 178 So. 2d 672 (1965).



27a

We find no merit in the assignment of error relative 
to the refusal of the trial court to grant appellant an in­
struction to the effect that the jury could not find appellant 
guilty of a breach of peace if the police officer made no 
reasonable effort to calm or disperse the crowd. We do not 
understand the law to be that when an officer is faced 
with a situation such as Officer Carson was confronted with 
in this case, where there was a clear and present danger 
of a riot or disturbance' of court then in session, that such 
officer must, before arresting the person who is creating the 
danger, attempt to disperse the crowd. Such an attempt 
might well trigger the imminent danger, and in such cases, 
the officer must use his best judgment in determining the 
means or manner in which to prevent the threatened dan­
ger. The arrest of appellant and the subsequent arrest of 
Charles Cobb enabled the officers to control the situation 
that otherwise might have created a riot beyond control. 
The factual situation in this case is somewhat similar to 
the facts in the case of Feiner v. New York, 340 U. S. 315, 
71 Sup. Ct. 303, 95 L. Ed. 295 (1951), wherein the court 
quoted from Cantwell v. Connecticut, 310 U. S. 296, 60 Sup. 
Ct. 900, 84 L. Ed. 1213 (1940), where it is said:

The language of Cantwell v. Connecticut, 310 U. S. 
296 (1940), is appropriate here. ‘The offense known as 
breach of the peace embraces a great variety of con­
duct destroying or menacing public order and tran­
quility. It includes not only violent acts but acts and 
words likely to produce violence in others. No one 
would have hardihood to suggest that the principle of



28a
freedom of speech sanctions incitement to riot or that 
religious liberty connotes the privilege to exhort 
others to physical attack upon those belonging to an­
other 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.’ 310 TJ. S. at 308. . . . 
(340 U. S. at 320, 71 Sup. Ct. at 306, 95 L. Ed. at 300.)

The factual situation involved in this case is entirely 
different from the situation involved in the cases of Cox 
v. Louisiana, 379 U. S. 85 Sup. Ct. 453, 13 L. Ed. 2d 471 
(1965), and Wright v. Georgia, 373 U. S. 284, 83 Sup. Ct. 
1240, 10 L. Ed. 2d 349 (1963), and these cases do not 
control.

Appellant’s contention that there was no evidence of 
appellant’s guilt of the charge is without merit. This con­
tention is based solely upon the proposition that appellant’s 
acts were constitutionally protected, and we hold that they 
were not for the reasons heretofore stated.

We have carefully considered all the questions raised by 
the appellant in this case, and we are of the opinion that 
there was ample evidence from which the jury could find 
that appellant was guilty of the offense charged. The con­
stitutional rights of the appellant were fully protected, 
and this conviction must be affirmed.

Affirmed.

All justices concur.



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