MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioners, 187 in number, were convicted in a magistrate's court in Columbia, South Carolina, of the
There was no substantial conflict in the trial evidence.
Already on the State House grounds when the petitioners arrived were 30 or more law enforcement officers, who had advance knowledge that the petitioners were coming.
During this time a crowd of some 200 to 300 onlookers had collected in the horseshoe area and on the adjacent sidewalks. There was no evidence to suggest that these onlookers were anything but curious, and no evidence at all of any threatening remarks, hostile gestures, or offensive language on the part of any member of the crowd. The City Manager testified that he recognized some of the onlookers, whom he did not identify, as "possible trouble makers," but his subsequent testimony made clear that nobody among the crowd actually caused or threatened any trouble.
In the situation and under the circumstances thus described, the police authorities advised the petitioners that they would be arrested if they did not disperse within 15 minutes.
The petitioners contend that there was a complete absence of any evidence of the commission of this offense, and that they were thus denied one of the most basic elements
It has long been established that these First Amendment freedoms are protected by the Fourteenth Amendment from invasion by the States. Gitlow v. New York, 268 U.S. 652; Whitney v. California, 274 U.S. 357; Stromberg v. California, 283 U.S. 359; De Jonge v. Oregon, 299 U.S. 353; Cantwell v. Connecticut, 310 U.S. 296. The circumstances in this case reflect an exercise of these basic constitutional rights in their most pristine and classic form. The petitioners felt aggrieved by laws of South Carolina which allegedly "prohibited Negro privileges in this State." They peaceably assembled at the site of the State Government
This, therefore, was a far cry from the situation in Feiner v. New York, 340 U.S. 315, where two policemen were faced with a crowd which was "pushing, shoving and milling around," id., at 317, where at least one member of the crowd "threatened violence if the police did not act," id., at 317, where "the crowd was pressing closer around petitioner and the officer," id., at 318, and where "the speaker passes the bounds of argument or persuasion and undertakes incitement to riot." Id., at 321. And the record is barren of any evidence of "fighting words." See Chaplinsky v. New Hampshire, 315 U.S. 568.
We do not review in this case criminal convictions resulting from the evenhanded application of a precise and narrowly drawn regulatory statute evincing a legislative judgment that certain specific conduct be limited or proscribed. If, for example, the petitioners had been convicted upon evidence that they had violated a law regulating traffic, or had disobeyed a law reasonably limiting the periods during which the State House grounds were open to the public, this would be a different case.
The Fourteenth Amendment does not permit a State to make criminal the peaceful expression of unpopular views. "[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech . . . is . . . protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. . . . There is no room under our Constitution for a more restrictive
As Chief Justice Hughes wrote in Stromberg v. California, "The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system. A statute which upon its face, and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of this opportunity is repugnant to the guaranty of liberty contained in the Fourteenth Amendment. . . ." 283 U.S. 359, 369.
For these reasons we conclude that these criminal convictions cannot stand.
MR. JUSTICE CLARK, dissenting.
The convictions of the petitioners, Negro high school and college students, for breach of the peace under South Carolina law are accepted by the Court "as binding upon us to that extent" but are held violative of "petitioners' constitutionally protected rights of free speech, free assembly, and freedom to petition for redress of their grievances." Petitioners, of course, had a right to peaceable assembly, to espouse their cause and to petition, but in my view the manner in which they exercised those rights was by no means the passive demonstration which this Court relates; rather, as the City Manager of Columbia
The priceless character of First Amendment freedoms cannot be gainsaid, but it does not follow that they are absolutes immune from necessary state action reasonably designed for the protection of society. See Cantwell v. Connecticut, 310 U.S. 296, 304 (1940); Schneider v. State, 308 U.S. 147, 160 (1939). For that reason it is our duty to consider the context in which the arrests here were made. Certainly the city officials would be constitutionally prohibited from refusing petitioners access to the State House grounds merely because they disagreed with their views. See Niemotko v. Maryland, 340 U.S. 268 (1951). But here South Carolina's courts have found: "There is no indication whatever in this case that the acts of the police officers were taken as a subterfuge or excuse for the suppression of the appellants' views and opinions."
The activity continued for approximately 45 minutes, during the busy noon-hour period, while a crowd of some 300 persons congregated in front of the State House and around the area directly in front of its entrance, known as the "horseshoe," which was used for vehicular as well as pedestrian ingress and egress. During this time there were no efforts made by the city officials to hinder the petitioners in their rights of free speech and assembly; rather, the police directed their efforts to the traffic problems resulting from petitioners' activities. It was only after the large crowd had gathered, among which the City Manager and Chief of Police recognized potential trouble-makers, and which together with the students had become massed on and around the "horseshoe" so closely that vehicular and pedestrian traffic was materially impeded,
For the next 15 minutes the petitioners sang "I Shall Not Be Moved" and various religious songs, stamped their feet, clapped their hands, and conducted what the South Carolina Supreme Court found to be a "noisy demonstration in defiance of [the dispersal] orders." 239 S.C. 339, 345, 123 S.E.2d 247, 250. Ultimately, the petitioners were arrested, as they apparently planned from the beginning, and convicted on evidence the sufficiency of which the Court does not challenge. The question thus seems to me whether a State is constitutionally prohibited from enforcing laws to prevent breach of the peace in a situation where city officials in good faith believe, and the record shows, that disorder and violence are imminent, merely because the activities constituting that breach contain claimed elements of constitutionally protected speech
Beginning, as did the South Carolina courts, with the premise that the petitioners were entitled to assemble and voice their dissatisfaction with segregation, the enlargement of constitutional protection for the conduct here is as fallacious as would be the conclusion that free speech necessarily includes the right to broadcast from a sound truck in the public streets. Kovacs v. Cooper, 336 U.S. 77 (1949). This Court said in Thornhill v. Alabama, 310 U.S. 88, 105 (1940), that "[t]he power and the duty of the State to take adequate steps to preserve the peace and to protect the privacy, the lives, and the property of its residents cannot be doubted." Significantly, in holding that the petitioner's picketing was constitutionally protected in that case the Court took pains to differentiate it from "picketing en masse or otherwise conducted which might occasion . . . imminent and aggravated danger . . . ." Ibid. Here the petitioners were permitted without hindrance to exercise their rights of free speech and assembly. Their arrests occurred only after a situation arose in which the law-enforcement officials on the scene considered that a dangerous disturbance was imminent.
In Cantwell v. Connecticut, supra, at 308, this Court recognized that "[w]hen 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." And in Feiner v. New York, 340 U.S. 315 (1951), we upheld a conviction for breach of the peace in a situation no more dangerous than that found here. There the demonstration was conducted by only one person and the crowd was limited to approximately 80, as compared with the present lineup of some 200 demonstrators and 300 onlookers. There the petitioner was "endeavoring to arouse the Negro people against the whites, urging that they rise up in arms and fight for equal rights." Id., at 317. Only one person—in a city having an entirely different
The gravity of the danger here surely needs no further explication. The imminence of that danger has been emphasized at every stage of this proceeding, from the complaints charging that the demonstrations "tended directly to immediate violence" to the State Supreme Court's affirmance on the authority of Feiner, supra. This record, then, shows no steps backward from a standard of "clear and present danger." But to say that the police may not intervene until the riot has occurred is like keeping out the doctor until the patient dies. I cannot subscribe to such a doctrine. In the words of my Brother Frankfurter:
I would affirm the convictions.
"Q. Did you, Chief, walk around the State House Building with any of these persons?
"A. I did not. I stayed at the horseshoe. I placed men over the grounds.
"Q. Did any of your men make a report that any of these persons were disorderly in walking around the State House Grounds?
"A. They did not.
"Q. Under normal circumstances your men would report to you when you are at the scene?
"A. They should.
"Q. Is it reasonable to assume then that there was no disorderly conduct on the part of these persons, since you received no report from your officers?
"A. I would take that for granted, yes."
The City Manager testified:
"Q. Were the Negro college students or other students well demeaned? Were they well dressed and were they orderly?
"A. Yes, they were."
"A. I can't tell you who they were. I can tell you they were present in the group. They were recognized as possible trouble makers.
"Q. Did you and your police chief do anything about placing those people under arrest?
"A. No, we had no occasion to place them under arrest.
"Q. Now, sir, you have stated that there were possible trouble makers and your whole testimony has been that, as City Manager, as supervisor of the City Police, your object is to preserve the peace and law and order?
"A. That's right.
"Q. Yet you took no official action against people who were present and possibly might have done some harm to these people?
"A. We took no official action because there was none to be taken. They were not creating a disturbance, those particular people were not at that time doing anything to make trouble but they could have been."
"Q. Each group of students walked along in column of twos?
"A. Sometimes two and I did see some in single-file.
"Q. There was ample room for other persons going in the same direction or the opposite direction to pass on the same sidewalk?
"A. I wouldn't say they were blocking the sidewalk; now, that was through the State House grounds."
"A. At times they blocked the sidewalk and we asked them to move over and they did.
"Q. They obeyed your commands on that?
"Q. So that nobody complained that he wanted to use the sidewalk and he could not do it?
"A. I didn't have any complaints on that."
"Q. You had ample time, didn't you, to get ample police protection, if you thought such was needed on the State House grounds, didn't you?
"A. Yes, we did.
"Q. So, if there were not ample police protection there, it was the fault of those persons in charge of the Police Department, wasn't it?
"A. There was ample police protection there."
"Q. Mr. McNayr, what action did you take?
"A. I instructed Dave Carter to tell each of these groups, to call them up and tell each of the groups and the group leaders that they must disperse, they must disperse in the manner which I have already described, that I would give them fifteen minutes from the time of my conversation with him to have them dispersed and, if they were not dispersed, I would direct my Chief of Police to place them under arrest."
"Q. You have already testified, Mr. McNayr, I believe, that you did order these students dispersed within fifteen minutes?
"Q. Did they disperse in accordance with your order?
"A. They did not.
"Q. What then occurred?
"A. I then asked Chief of Police Campbell to direct his men to line up the students and march them or place them under arrest and march them to the City Jail and the County Jail.
"Q. They were placed under arrest?
"A. They were placed under arrest."
"It shall be unlawful for any person:
"(1) Except State officers and employees and persons having lawful business in the buildings, to use any of the driveways, alleys or parking spaces upon any of the property of the State, bounded by Assembly, Gervais, Bull and Pendleton Streets in Columbia upon any regular weekday, Saturdays and holidays excepted, between the hours of 8:30 a. m. and 5:30 p. m., whenever the buildings are open for business; or
"(2) To park any vehicle except in the spaces and manner marked and designated by the State Budget and Control Board, in cooperation with the Highway Department, or to block or impede traffic through the alleys and driveways."
The petitioners were not charged with violating this statute, and the record contains no evidence whatever that any police official had this statute in mind when ordering the petitioners to disperse on pain of arrest, or indeed that a charge under this statute could have been sustained by what occurred.
"Q. Now, with relation, Mr. McNayr, to the sidewalks around the horseshoe and the lane for vehicular traffic, how was the crowd distributed, with regard to those sidewalks and roadways?
"A. Well, the conditions varied from time to time, but at numerous times they were blocked almost completely with probably as many as thirty or forty persons, both on the sidewalks and in the street area. . . .
"Q. Did you observe the pedestrian traffic on the walkway?
"A. Yes, I did.
"Q. What was the condition there?
"A. The condition there was that it was extremely difficult for a pedestrian wanting to get through, to get through. Many of them took to the street area, even to get through the street area or the sidewalk."
The Chief of Police testified as follows:
"Q. Was the street blocked?
"A. We had to place a traffic man at the intersection of Gervais and Main to handle traffic and pedestrians.
"Q. Was a vehicular traffic lane blocked?
"A. It was, that was in the horseshoe."
"Q. Did you hear any singing, chanting or anything of that nature from the student group?
"Q. Describe that as best you can.
"A. With the harangues, which I have just described, witnessed frankly by everyone present and in this area, the students began answering back with shouts. They became boisterous. They stomped their feet. They sang in loud voices to the point where, again, in my judgment, a dangerous situation was really building up."
The Police Chief testified as follows:
"Q. Chief, you were questioned on cross examination at length about the appearance and orderliness of the student group. Were they orderly at all times?
"A. Not at the last.
"Q. Would you describe the activities at the last?
"A. As I have stated, they were singing and, also, when they were getting certain instructions, they were very loud and boisterous."