Cox v. Louisiana


No. 49 Argued: October 21-22, 1964 --- Decided: January 18, 1965
MR. JUSTICE GOLDBERG delivered the opinion of the Court.

Appellant was convicted of violating a Louisiana statute which provides:

Whoever, with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty pickets or parades in or near a building housing a court of the State of Louisiana . . . shall be fined not more than five thousand dollars or imprisoned not more than one year, or both.

La.Rev.Stat. § 14:401 (Cum.Supp. 1962). This charge was based upon the same set of facts as the "disturbing the peace" and "obstructing a public passage" charges involved and set forth in No. 24, ante, and was tried along with those offenses. Appellant was convicted on this charge also, and was sentenced to the maximum penalty under the statute of one year in jail and a $5,000 fine, which penalty was cumulative with those in No. 24. These convictions were affirmed by the Louisiana Supreme Court, 245 La. 303, 158 So.2d 172. Appellant appealed to this Court, contending that the statute was unconstitutional on its face and as applied to him. We noted probable jurisdiction, 377 U.S. 921.


We shall first consider appellant's contention that this statute must be declared invalid on its face as an unjustified restriction upon freedoms guaranteed by the First and Fourteenth Amendments to the United States Constitution [p561]

This statute was passed by Louisiana in 1950, and was modeled after a bill pertaining to the federal judiciary, which Congress enacted later in 1950, 64 Stat. 1018, 18 U.S.C. § 1507 (1958 ed.). Since that time, Massachusetts and Pennsylvania have passed similar statutes. Mass.Ann.Laws, c. 268, § 13A; Purdon's Pa.Stat.Ann., Tit. 18, § 4327. The federal statute resulted from the picketing of federal courthouses by partisans of the defendants during trials involving leaders of the Communist Party. This picketing prompted an adverse reaction from both the bar and the general public. A number of groups urged legislation to prohibit it. At a special meeting held in March, 1949, the Judicial Conference of the United States passed the following resolution: "Resolved, That we condemn the practice of picketing the courts, and believe that effective means should be taken to prevent it." Report of the Judicial Conference of the United States, 203 (1949). A Special Committee on Proposed Legislation to Prohibit Picketing of the Courts was appointed to make recommendations to the Conference on this subject. Ibid. In its Report to the Judicial Conference, dated September 23, 1949, at p. 3, the Special Committee stated:

The sentiment of bar associations and individual lawyers has been and is practically unanimous in favor of legislation to prohibit picketing of courts.

Upon the recommendation of this Special Committee, the Judicial Conference urged the prompt enactment of the then-pending bill. Report of the Judicial Conference of the United States, 17-18 (1949). Similar recommendations were made by the American Bar Association, numerous state and local bar associations, and individual lawyers and judges. See Joint Hearings before the Subcommittees of the Committees on the Judiciary on S. 1681 and H.R. 3766, 81st Cong., 1st Sess.; H.R.Rep. No. 1281, 81st Cong., 1st Sess.; S.Rep. No. 732, 81st Cong., 1st Sess.; Bills Condemning [p562] Picketing of Courts Before Congress 33 J.Am.Jud.Soc. 53 (1949).

This statute, unlike the two previously considered, is a precise, narrowly drawn regulatory statute which proscribes certain specific behavior. Cf. Edwards v. South Carolina, 372 U.S. 229, 236. It prohibits a particular type of conduct, namely, picketing and parading, in a few specified locations, in or near courthouses.

There can be no question that a State has a legitimate interest in protecting its judicial system from the pressures which picketing near a courthouse might create. Since we are committed to a government of laws, and not of men, it is of the utmost importance that the administration of justice be absolutely fair and orderly. This Court has recognized that the unhindered and untrammeled functioning of our courts is part of the very foundation of our constitutional democracy. See Wood v. Georgia, 370 U.S. 375, 383. The constitutional safeguards relating to the integrity of the criminal process attend every stage of a criminal proceeding, starting with arrest and culminating with a trial "in a courtroom presided over by a judge." Rideau v. Louisiana, 373 U.S. 723, 727. There can be no doubt that they embrace the fundamental conception of a fair trial, and that they exclude influence or domination by either a hostile or friendly mob. There is no room at any stage of judicial proceedings for such intervention; mob law is the very antithesis of due process. See Frank v. Mangum, 237 U.S. 309, 347 (Holmes, J., dissenting). A State may adopt safeguards necessary and appropriate to assure that the administration of justice at all stages is free from outside control and influence. A narrowly drawn statute such as the one under review is obviously a safeguard both necessary and appropriate to vindicate the State's interest in assuring justice under law [p563]

Nor does such a statute infringe upon the constitutionally protected rights of free speech and free assembly. The conduct which is the subject of this statute picketing and parading -- is subject to regulation even though intertwined with expression and association. The examples are many of the application by this Court of the principle that certain forms of conduct mixed with speech may be regulated or prohibited. The most classic of these was pointed out long ago by Mr. Justice Holmes: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." Schenck v. United States, 249 U.S. 47, 52. A man may be punished for encouraging the commission of a crime, Fox v. Washington, 236 U.S. 273, or for uttering "fighting words," Chaplinsky v. New Hampshire, 315 U.S. 568. This principle has been applied to picketing and parading in labor disputes. See Hughes v. Superior Court, 339 U.S. 460; Giboney v. Empire Storage & Ice Co., 336 U.S. 490; Building Service Employees v. Gazzam, 339 U.S. 532. But cf. Thornhill v. Alabama, 310 U.S. 88. These authorities make it clear, as the Court said in Giboney, that

it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.

Giboney v. Empire Storage & Ice Co., supra, at 502. Bridges v. California, 314 U.S. 252, and Pennekamp v. Florida, 328 U.S. 331, do not hold to the contrary. Both these cases dealt with the power of a judge to sentence for contempt persons who published or caused to be published writings commenting on judicial proceedings. They involved newspaper editorials, an editorial cartoon, and a telegram sent by a labor leader to the Secretary of Labor. Here we deal not with the contempt power -- [p564] a power which is "based on a common law concept of the most general and undefined nature." Bridges v. California, supra, at 260. Rather, we are reviewing a statute narrowly drawn to punish specific conduct that infringes a substantial state interest in protecting the judicial process. See Cantwell v. Connecticut, 310 U.S. 296, 307-308; Giboney v. Empire Storage & Ice Co., supra. We are not concerned here with such a pure form of expression as newspaper comment or a telegram by a citizen to a public official. We deal in this case not with free speech alone, but with expression mixed with particular conduct. In Giboney, this Court expressly recognized this distinction when it said,

In holding this, we are mindful of the essential importance to our society of a vigilant protection of freedom of speech and press. Bridges v. California, 314 U.S. 252, 263. States cannot consistently with our Constitution abridge those freedoms to obviate slight inconveniences or annoyances. Schneider v. State, 308 U.S. 147, 162. But placards used as an essential and inseparable part of a grave offense against an important public law cannot immunize that unlawful conduct from state control.

336 U.S. at 501-502.

We hold that this statute, on its face, is a valid law dealing with conduct subject to regulation so as to vindicate important interests of society, and that the fact that free speech is intermingled with such conduct does not bring with it constitutional protection.


We now deal with the Louisiana statute as applied to the conduct in this case. The group of 2,000, led by appellant, paraded and demonstrated before the courthouse. Judges and court officers were in attendance to discharge their respective functions. It is undisputed that a major purpose of the demonstration was to protest [p565] what the demonstrators considered an "illegal" arrest of 23 students the previous day. While the students had not been arraigned or their trial set for any day certain, they were charged with violation of the law, and the judges responsible for trying them and passing upon the legality of their arrest were then in the building.

It is, of course, true that most judges will be influenced only by what they see and hear in court. However, judges are human, and the legislature has the right to recognize the danger that some judges, jurors, and other court officials, will be consciously or unconsciously influenced by demonstrations in or near their courtrooms both prior to and at the time of the trial. A State may also properly protect the judicial process from being misjudged in the minds of the public. Suppose demonstrators paraded and picketed for weeks with signs asking that indictments be dismissed, and that a judge, completely uninfluenced by these demonstrations, dismissed the indictments. A State may protect against the possibility of a conclusion by the public under these circumstances that the judge's action was in part a product of intimidation, and did not flow only from the fair and orderly working of the judicial process. See S.Rep. No. 732, 81st Cong., 1st Sess., 4.

Appellant invokes the "clear and present danger" doctrine in support of his argument that the statute cannot constitutionally be applied to the conduct involved here. He says, relying upon Pennekamp and Bridges, that

[n]o reason exists to apply a different standard to the case of a criminal penalty for a peaceful demonstration in front of a courthouse than the standard of clear and present danger applied in the contempt cases.

(Appellant's Br., p. 22.) He defines the standard to be applied to both situations to be whether the expression of opinion presents a clear and present danger to the administration of justice. [p566]

We have already pointed out the important differences between the contempt cases and the present one, supra at 563-564. Here, we deal not with the contempt power, but with a narrowly drafted statute, and not with speech in its pristine form, but with conduct of a totally different character. Even assuming the applicability of a general clear and present danger test, it is one thing to conclude that the mere publication of a newspaper editorial or a telegram to a Secretary of Labor, however critical of a court, presents no clear and present danger to the administration of justice, and quite another thing to conclude that crowds, such as this, demonstrating before a courthouse, may not be prohibited by a legislative determination based on experience that such conduct inherently threatens the judicial process. We therefore reject the clear and present danger argument of appellant.


Appellant additionally argues that his conviction violated due process as there was no evidence of intent to obstruct justice or influence any judicial official, as required by the statute. Thompson v. Louisville, 362 U.S. 199. We cannot agree that there was no evidence within the "due process" rule enunciated in Thompson v. Louisville. We have already noted that various witnesses and Cox himself stated that a major purpose of the demonstration was to protest what was considered to be an illegal arrest of 23 students. Thus, the very subject matter of the demonstration was an arrest, which is normally the first step in a series of legal proceedings. The demonstration was held in the vicinity of the courthouse where the students' trials would take place. The courthouse contained the judges who, in normal course, would be called upon to try the students' cases just as they tried appellant. Ronnie Moore, the student leader of the demonstration, a defense witness, stated, as we understand [p567] his testimony, that the demonstration was, in part, to protest injustice; he felt it was a form of "moral persuasion," and hoped it would have its effects. The fact that the students were not then on trial and had not been arraigned is not controlling in the face of this affirmative evidence manifesting the plain intent of the demonstrators to condemn the arrest and ensuing judicial proceedings against the prisoners as unfair and unwarranted. The fact that, by their lights appellant and the 2,000 students were seeking justice, and not its obstruction, is as irrelevant as would be the motives of the mob condemned by Justice Holmes in Frank v. Mangum, supra. Louisiana, as we have pointed out supra, has the right to construe its statute to prevent parading and picketing from unduly influencing the administration of justice at any point or time in its process, regardless of whether the motives of the demonstrators are good or bad.

While this case contains direct evidence taking it out of the Thompson v. Louisville doctrine, even without this evidence, we would be compelled to reject the contention that there was no proof of intent. Louisiana surely has the right to infer the appropriate intent from circumstantial evidence. At the very least, a group of demonstrators parading and picketing before a courthouse where a criminal charge is pending, in protest against the arrest of those charged may be presumed to intend to influence judges, jurors, witnesses or court officials. Cf. Screws v. United States, 325 U.S. 91, 107 (opinion of MR. JUSTICE DOUGLAS).

Absent an appropriately drawn and applicable statute, entirely different considerations would apply if, for example, the demonstrators were picketing to protest the actions of a mayor or other official of a city completely unrelated to any judicial proceedings, who just happened to have an office located in the courthouse building. Cf. In re Brinn, 305 N.Y. 887, 114 N.E.2d 430; Joint Hearings, supra, at 20 [p568]


There are, however, more substantial constitutional objections arising from appellant's conviction on the particular facts of this case. Appellant was convicted for demonstrating not "in," but "near," the courthouse. It is undisputed that the demonstration took place on the west sidewalk, the far side of the street, exactly 101 feet from the courthouse steps and, Judging from the pictures in the record, approximately 125 feet from the courthouse itself. The question is raised as to whether the failure of the statute to define the word "near" renders it unconstitutionally vague. See Lanzetta v. New Jersey, 306 U.S. 451. Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67. It is clear that there is some lack of specificity in a word such as "near." [n1] While this lack of specificity may not render the statute unconstitutionally vague, at least as applied to a demonstration within the sight and hearing of those in the courthouse, [n2] it is clear that the statute, with respect to the determination of how near the courthouse a particular demonstration can be, foresees a degree of on-the-spot administrative interpretation by officials charged with responsibility for administering and enforcing it. It is apparent that demonstrators, such as those involved [p569] here, would justifiably tend to rely on this administrative interpretation of how "near" the courthouse a particular demonstration might take place. Louisiana's statutory policy of preserving order around the courthouse would counsel encouragement of just such reliance. This administrative discretion to construe the term "near" concerns a limited control of the streets and other areas in the immediate vicinity of the courthouse, and is the type of narrow discretion which this Court has recognized as the proper role of responsible officials in making determinations concerning the time, place, duration, and manner of demonstrations. See Cox v. New Hampshire, 312 U.S. 569; Poulos v. New Hampshire, 345 U.S. 395. See generally the discussion on this point in No. 24, pp. 553-558, ante. It is not the type of unbridled discretion which would allow an official to pick and choose among expressions of view the ones he will permit to use the streets and other public facilities, which we have invalidated in the obstruction of public passages statute as applied in No. 24, ante. Nor does this limited administrative regulation of traffic which the Court has consistently recognized as necessary and permissible, constitute a waiver of law which is beyond the power of the police. Obviously, telling demonstrators how far from the courthouse steps is "near" the courthouse for purposes of a permissible peaceful demonstration is a far cry from allowing one to commit, for example, murder, or robbery. [n3]

The record here clearly shows that the officials present gave permission for the demonstration to take place across the street from the courthouse. Cox testified that they gave him permission to conduct the demonstration [p570] on the far side of the street. This testimony is not only uncontradicted, but is corroborated by the State's witnesses who were present. Police Chief White testified that he told Cox "he must confine" the demonstration "to the west side of the street." [n4] James Erwin, news director of radio station WIBR, agreed that Cox was given permission for the assembly as long as it remained within a designated time. When Sheriff Clemmons sought to break up the demonstration, he first announced, "now, you have been allowed to demonstrate." [n5] The Sheriff testified that he had "no objection" to the students "being assembled on that side of the street." Finally, in its brief before this Court, the State did not contend that permission was not granted. Rather, in its statement of the facts and argument, it conceded that the officials gave Cox and his group some time to demonstrate across the street from the courthouse. This agreement by the State that, in fact, permission had been granted to demonstrate across the street from the courthouse at least for a limited period of time, which the State contends was set at seven minutes -- was confirmed by counsel for the State in oral argument before this Court.

The record shows that at no time did the police recommend, or even suggest, that the demonstration be held further from the courthouse than it actually was. The police admittedly had prior notice that the demonstration was planned to be held in the vicinity of the courthouse. They were prepared for it at that point, and so stationed themselves and their equipment as to keep the demonstrators on the far side of the street. As Cox approached [p571] the vicinity of the courthouse, he was met by the Chief of Police and other officials. At this point, not only was it not suggested that they hold their assembly elsewhere or disband, but they were affirmatively told that they could hold the demonstration on the sidewalk of the far side of the street, 101 feet from the courthouse steps. This area was effectively blocked off by the police, and traffic rerouted.

Thus, the highest police officials of the city, in the presence of the Sheriff and Mayor, in effect told the demonstrators that they could meet where they did, 101 feet from the courthouse steps, but could not meet closer to the courthouse. In effect, appellant was advised that a demonstration at the place it was held would not be one "near" the courthouse within the terms of the statute.

In Raley v. Ohio, 360 U.S. 423, this Court held that the Due Process Clause prevented conviction of persons for refusing to answer questions of a state investigating commission when they relied upon assurances of the commission, either express or implied, that they had a privilege under state law to refuse to answer, though, in fact, this privilege was not available to them. The situation presented here is analogous to that in Raley, which we deem to be controlling. As in Raley, under all the circumstances of this case, after the public officials acted as they did, to sustain appellant's later conviction for demonstrating where they told him he could

would be to sanction an indefensible sort of entrapment by the State -- convicting a citizen for exercising a privilege which the State had clearly told him was available to him.

Id. at 426. The Due Process Clause does not permit convictions to be obtained under such circumstances.

This is not to say that had the appellant, entirely on his own, held the demonstration across the street from the courthouse within the sight and hearing of those [p572] inside, or a fortiori, had he defied an order of the police requiring him to hold this demonstration at some point further away out of the sight and hearing of those inside the courthouse, we would reverse the conviction as in this case. In such cases, a state interpretation of the statute to apply to the demonstration as being "near" the courthouse would be subject to quite different considerations. See p. 568 supra.

There remains just one final point: the effect of the Sheriff's order to disperse. The State in effect argues that this order somehow removed the prior grant of permission and reliance on the officials' construction that the demonstration on the far side of the street was not illegal as being "near" the courthouse. This, however, we cannot accept. Appellant was led to believe that his demonstration on the far side of the street violated no statute. He was expressly ordered to leave not because he was peacefully demonstrating too near the courthouse, nor because a time limit originally set had expired, but because officials erroneously concluded that what he said threatened a breach of the peace. This is apparent from the face of the Sheriff's statement when he ordered the meeting dispersed:

Now, you have been allowed to demonstrate. Up until now, your demonstration has been more or less peaceful, but what you are doing now is a direct violation of the law, a disturbance of the peace, and it has got to be broken up immediately.

See discussion in No. 24, ante at 545-551. Appellant correctly conceived, as we have held in No. 24, ante, that this was not a valid reason for the dispersal order. He therefore was still justified in his continued belief that, because of the original official grant of permission, he had a right to stay where he was for the few additional minutes required to conclude the meeting. In addition, even if we were to accept the State's version that the sole reason for terminating the demonstration [p573] was that appellant exceeded the narrow time limits [n6] set by the police, his conviction could not be sustained. Assuming the place of the meeting was appropriate -- as appellant justifiably concluded from the official grant of permission -- nothing in this courthouse statute, nor in the breach of the peace or obstruction of public passages statutes, with their broad sweep and application that we have condemned in No. 24, ante, at 553-558, authorizes the police to draw the narrow time line, unrelated to any policy of these statutes, that would be approved if we were to sustain appellant's conviction on this ground. Indeed, the allowance of such unfettered discretion in the police would itself constitute a procedure such as that condemned in No. 24, ante at 553-558. In any event, as we have stated, it is our conclusion from the record that the dispersal order had nothing to do with any time or place limitation, and thus, on this ground alone, it is clear that the dispersal order did not remove the protection accorded appellant by the original grant of permission.

Of course, this does not mean that the police cannot call a halt to a meeting which though originally peaceful, becomes violent. Nor does it mean that, under properly drafted and administered statutes and ordinances, the authorities cannot set reasonable time limits for assemblies related to the policies of such laws and then order them dispersed when these time limits are exceeded. See the discussion in No. 24, ante, at 553-558. We merely hold that, under circumstances such as those present in this case, appellant's conviction cannot be sustained on the basis of the dispersal order [p574]

Nothing we have said here or in No. 24, ante, is to be interpreted as sanctioning riotous conduct in any form or demonstrations, however peaceful their conduct or commendable their motives, which conflict with properly drawn statutes and ordinances designed to promote law and order, protect the community against disorder, regulate traffic, safeguard legitimate interests in private and public property, or protect the administration of justice and other essential governmental functions.

Liberty can only be exercised in a system of law which safeguards order. We reaffirm the repeated holdings of this Court that our constitutional command of free speech and assembly is basic and fundamental, and encompasses peaceful social protest, so important to the preservation of the freedoms treasured in a democratic society. We also reaffirm the repeated decisions of this Court that there is no place for violence in a democratic society dedicated to liberty under law, and that the right of peaceful protest does not mean that everyone with opinions or beliefs to express may do so at any time and at any place. There is a proper time and place for even the most peaceful protest, and a plain duty and responsibility on the part of all citizens to obey all valid laws and regulations. There is an equally plain requirement for laws and regulations to be drawn so as to give citizens fair warning as to what is illegal; for regulation of conduct that involves freedom of speech and assembly not to be so broad in scope as to stifle First Amendment freedoms, which "need breathing space to survive," NAACP v. Button, 371 U.S. 415, 433; for appropriate limitations on the discretion of public officials where speech and assembly are intertwined with regulated conduct, and for all such laws and regulations to be applied with an equal hand. We believe that all of these requirements can be met in an ordered society dedicated to liberty. We reaffirm our conviction that "[f]reedom and viable government [p575] are . . . indivisible concepts." Gibson v. Florida Legislative Comm., 372 U.S. 539, 546.

The application of these principles requires us to reverse the judgment of the Supreme Court of Louisiana.


1. This is to be contrasted, for example, with the express limitation proscribing certain acts within 500 feet of foreign embassies, legations, or consulates within the District of Columbia. 52 Stat. 30 (1938); D.C.Code, 1961, § 22-1115. See also McKinney's N.Y.Laws, Penal Law § 600 (prohibiting certain activities within 200 feet of a courthouse).

2. Cf. United States v. National Dairy Products Corp., 372 U.S. 29; Note, 109 U.Pa.L.Rev. 67. Cf. Cole v. Arkansas, 333 U.S. 196 (holding constitutional a statute making certain types of action unlawful if done "at or near" any place where a labor dispute exists, though the issue of the possible vagueness of the word "near" in the context of that case was not expressly faced).

3. See American Law Institute, Model Penal Code § 2.04(3)(b) and comment thereon, Tentative Draft No. 4, pp. 17-18, 138-139; Hall and Seligman, Mistake of Law and Men Rea, 8 U.Chi.L.Rev. 641, 675-677 (1941); People v. Ferguson, 134 Cal.App. 41, 24 P.2d 965.

4. It is true that the Police Chief testified that he did not subjectively intend to grant permission, but there is no evidence at all that this subjective state of mind was ever communicated to appellant, or, in fact, to anyone else present.

5. See p. 572, infra for the Sheriff's full statement at this time.

6. As we have pointed out in No. 24, ante at 541, n. 2, the evidence is conflicting as to whether appellant and his group were given only a limited time to hold their meeting and whether, if so, such a time limit was exceeded.