Edwards v. South Carolina

PETITIONER:Edwards
RESPONDENT:South Carolina
LOCATION:South Carolina State House

DOCKET NO.: 86
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 372 US 229 (1963)
ARGUED: Dec 13, 1962
DECIDED: Feb 25, 1963

Facts of the case

The 187 petitioners in this case, all of whom were black, organized a march to the South Carolina State House grounds in which small groups of fifteen would walk in an open public area protesting the policies of segregation in their state. The march was peaceful, did not block pedestrian or vehicular traffic, and was conducted in an orderly fashion on public property. A group of approximately thirty police officers confronted the group and ordered its members to disperse or to submit to arrest. The marchers did not disperse, and instead began singing religious and patriotic songs like the Star Spangled Banner. They were arrested and later convicted on a charge of breach of the peace.

Question

Did the arrests and convictions of the marchers violate their freedom of speech, assembly, and petition for redress of their grievances as protected by the First and Fourteenth Amendments?

Earl Warren:

Number 86, James Edwards, Jr., et al., versus South Carolina.

Mr. Greenberg.

Jack Greenberg:

May it please the Court.

This case involves the conviction of 187 Negro students in Columbia, South Carolina for a common law breach of the peace for having engaged in a demonstration at and around the Columbia, South Carolina State House.

And here behind me is an aerial photograph of the area in question which is not in the record, but which counsel for respondent have agreed with us would be helpful for the Court’s understanding of what happened in the case, and I may refer to it during the course of the argument.

These demonstrations took place in March of 1960 at the time of the various sit-in and other related demonstrations in the South at that time.

And it would be useful at the outset to read the definition of common law breach of the peace which has been adopted by the Supreme Court of South Carolina, and that appears in its opinion on page 200 of the record — its opinion in turn quotes American jurisprudence.

In general term —

Hugo L. Black:

Page 200?

Jack Greenberg:

200 of the printed record.

In general terms, a breach of the peace is a violation of public order, a disturbance of the public tranquility by any act or conduct inciting to violence.

It includes any violation of any law enacted to preserve peace and good order.

It may consist of an act of violence or an act likely to produce violence, and I stress in that reading the repeated use of the word violence.

Now, the warrant under which the petitioners were charged appears in the record at three places at pages 2 and 3, at page 126, and at page 183.

And it was read into the record by the Court rather than having been copied by the stenographer and there are some slight immaterial variations at each point.

However, for purposes the warrant as read on pages 2 and 3 are adequate and it concludes commencing at the last three words on page 2, on the state capital ground, on adjacent sidewalks and streets, did commit a breach of the peace and that they, together with a large group of people, had assembled and impede the normal traffic, singing and parading with placards, failed to disperse upon lawful orders of police officer, all of which tended directly to immediate violence and breach of the peace in view of the existing condition.

Potter Stewart:

Where else would you say that appears in the record?

Jack Greenberg:

On page 126 and on page 183.

It appears in its fullest form on 183 but the language — on 126, I might indicate here is an obvious stenographic error and that the word violation appears instead of violence.

Again, I stress that the rule of law under which petitioners were convicted, contemplates violence and the warrants with which they were charged contemplate violence.

Now, the Circuit Court opinion, that is the intermediate appellate court opinion, also suggests that there was violence, but not so strongly.

On pages 193 and 194, there is a discussion of the reason why the conviction should be upheld, and at page 194 is the — what I would call suggestion of violence at the end of the first full paragraph.

While it is a constitutional right to assemble in a hall to espouse any cause, no person has the right to organize demonstrations which any ordinary and reasonable thinking citizen know or reasonably should know would stir up passions and create incidence of disorder.

And so, the concept of violence at this stage of the litigation is now being watered down.

And when we reach the State Supreme Court where the conviction finally is affirmed, there is no mention of violence whatsoever in the affirmance, which we — a pertinent portion of which we may find on page 201.

In the large paragraph on that page, the third one at the end, the State Supreme Court opposed the convictions below on these terms.

The orders of the police officers under all of the facts and circumstances were reasonable and motivated solely by a proper concern for the preservation of order and prevention of further interference with traffic upon the public streets and sidewalks.

The appellants not only refused to heed and obey the reasonable orders of the police, but engaged in a 15-minute noisy demonstration in defiance of such orders.

And so the conviction which originally was based on a rule of law, contemplating violence and a warrant charging violence ultimately is upheld on the basis of a State Supreme Court finding of interference with traffic and making noise.

I noticed in your brief [Inaudible]

Jack Greenberg:

That is correct and that’s —

[Inaudible]

Jack Greenberg:

That is quoted in our brief on page 19, I believe, Mr. Justice Harlan, in Footnote 2, it is set forth in terms.

Now, subsequent to the writing of our brief, the Supreme Court of South Carolina has decided another case which refers to and further characterizes its opinion in this, the Edwards case, and that opinion is not yet reported, and that is the City of Sumter versus McAllister.

And in that case, it reverses a conviction for breach of the peace, stating that in the McAllister case, unlike the Edwards case, which is the case now before us, there were neither large numbers of people nor interference with traffic.

And so its characterization of Edwards in the McAllister case is that Edwards was a case involving large numbers of people and interference with traffic, again, nothing about violence.

What’s the citation of that case?

Jack Greenberg:

There is no citation.

It was decided just a short while ago.

I could give you the docket number, but I don’t have it at the moment.

[Inaudible]

Jack Greenberg:

Yes, I do but not with me.

Should I submit a copy to the Court, it would be quite simple to do that?

Earl Warren:

Yes.

Jack Greenberg:

Yes, it will be there tomorrow.

Now, our argument in this case is that first of all, that on this record, there is absolutely no evidence of violence or insipient violence by petitioners or by anyone else that is neither petitioners nor the so-called onlookers who presumably were in opposition group were violent and threaten violence, no indication of violence could’ve occurred.

Consequently, under the decisions of this Court, the most pertinent one would be Taylor versus Louisiana, Garner versus Louisiana, and Thompson versus the City of Louisville.

These convictions must fall as being based upon no evidence of either the charge made or in this case, the rule of law under which the charge was made.

Secondly, that it — in the facts of this case, somehow rather, there can be seen a situation involving actual or imminent or threatened violence and it would be violence in the part of onlookers, not in the part of these petitioners who admittedly were quite peaceful towards everything they did, and we deny this can be found in the conduct of the onlookers, but if it were to be found in there, it was the duty of the police to proceed against the aggressors or the would-be aggressors and not to gratify these aggressors by proceeding against those who were committing no violation of the law.

And in fact, there is a South Carolina statute which we do not have quoted in our brief, which is Section 16-559 which makes it a crime to assault someone for expressing a political opinion.

And so, this further sharpens the notion that it was the duty of the police to proceed against those who would assault the petitioners who were expressing what obviously was a political opinion, and that moreover decisions of this Court, Taylor versus Louisiana, Aaron v. Cooper, Little Rock School case, Buchanan v. Warley, all stand for the proposition that it is the aggressors who must be put down and not those who were engaged constitutionally protected freedom.

Moreover, we have reference in our argument that we will have to the case of Feiner versus New York upon which the court below rested its opinion and upon which the respondent rests.

It’s our position that the Feiner case is quite clearly distinguishable on its facts.

The facts in the Feiner case and the issues in the Feiner case were not the facts and issues here.

However, it would be our position that to any extent, Feiner were pertinent here, we would submit that it was the dissenters in Feiner who were correct and who have been vindicated by subsequent law especially in this area and that the majority opinion no longer is the law.

And finally, it is our contention that if these petitioners could be punished at all, they should not have been punished under a vague, general, common law concept of breach of the peace, and by this, we have — we advert to the opinion of this Court in Cantwell versus Connecticut, and Mr. Justice Harlan’s concurring opinion in the Garner case, but that they should have been punished if at all, they could have been punished under a narrowly drawn precise statute directed to this kind of conduct.

And that in fact, in South Carolina at this time, there were a number of statutes, a disorderly conduct statute, a statute regulating traffic around the State House grounds, an ordinance in Columbia limiting the size of groups that might parade and the ordinance in Columbia directed to blocking the sidewalk.

And that all these statutes and ordinance that might have applied to the situation, but instead not proceeding on any of them which express state policy with regard to this type of conduct.

The State in fact proceeded under its very general notion of breach of the peace.

Now the facts of the case were the 190 Negro college and high school students gathered in a church in Columbia early in March 1960 with the purpose of protesting racial segregation in the State of South Carolina.

Jack Greenberg:

They proceeded to march from the church to the State House in small groups of about 15 to 18, each group being separated from the other by one-third to one-half of a block.

Now the record, I think is complicated but becomes immediately simple if you look at this picture.

They came from this direction down Gervais Street and when they reached — assembled here, some of them entered the State House ground at this point.

And some of them continued down Gervais Street and entered the State House grounds at this point, which is also known as the “horseshoe.”

Now the reason for numbers was that the numbers were a function of the expression in which they were trying to engage.

Their point was and this appears quite clearly in the record, that it is often said that Negroes like segregation in the South, that they’re not dissatisfied with it, and that they don’t want to do anything about it.

And they may very deliberately got together a large number of people to go and make this protest so as to make the point that there was general dissatisfaction with these conditions.

And on page 112 of the record, one of the demonstrators testified, “We were there to protest in order that they might see for themselves that the — we were in number and that we did not and we still do not go along with the principles of segregation.”

And so, this was not a type of protest that could have been made reasonably in any other way other than the way in which it was made.

They carried with them signs and placards such as down with segregation and things of that nature.

They entered the State House grounds, at the two points that I indicated, and on the scene were a number of police officers, the number of which is not clear from the record, the police officers themselves estimate anywhere from 15 to 40 city police officers, a number of the most commonly given number is about 30 however, a number of representatives of the state law enforcement division and two deputy sheriffs.

They were quiet and they were orderly and the record is quite clear in a good many places though you might most particularly refer to page 88 when the chief was asked, “Did any of your men make a report that any of these persons were disorderly in walking around the State House grounds?”

They did not.

Under normal circumstances, your men would report to you when you’re at the scene.

They should.

Is it reasonable to assume then that there was no disorderly conduct on the part of these persons since you receive no report from your officer?

I would take that for granted, yes.

Now there is some testimony that they were singing and otherwise vocal when they first entered the grounds.

However, this was given by State officers who upon cross-examination in each instance retracted this testimony and it’s quite clear that none of the singing occurred until after they were given an order to leave.

After they entered the State House grounds, they proceeded to walk around the State House quietly bearing signs all the while, in fact, all during the time in question in these small groups.

While they were doing this, traffic to some extent slowed down to see what was going on and a police officer was dispatched to the scene to move the traffic along more expeditiously.

At the same time, people coming in and out of the State House during the lunch hour were to some extent interfered with, however, the sidewalk was at all times wide enough to accommodate more than two persons walking abreast, the petitioners were never more than two abreast and there was no real difficulty of anyone from the part of anyone in getting involved.

And pedestrians were freely able to go in and out of the area.

However, the (Voice Overlap) —

Earl Warren:

Excuse me.

Did I understand you to say they were groups of 15 separated about a half a block apart?

Jack Greenberg:

Yes.

And throughout this considerable area, I’m informed that the area from here to here is approximately a thousand feet.

In other words, the blocks are 500 feet each.

Now at this time, a group of onlookers began to gather.

Jack Greenberg:

Approximately 150 people in the horseshoe area here, though it’s not clear whether that also includes the demonstrators but at any rate, there were about 150 people here.

And the estimates of the number of onlookers varies all the way from 200, from the part of some police officers up to 350 which is the outside total, most of them however, being across the street over here, the onlookers were merely curious.

No one uttered any threats.

There was no violence.

There was no effort at violence.

Nobody — nobody said anything.

In some instances, they were blocking traffic and the police asked them to move on and when the police asked them to move on, they did move on.

Now among these onlookers, the people — the police recognized some persons whom they described as the long-haired boys were troublemakers.

This was a very ill-defined term and no particular troublemaker could be identified and no particular troublemaker did anything and no particular so-called troublemaker, I should say, engaged in making any trouble.

When the troublemakers were asked or so-called troublemakers were asked to move on and leave in all instances they did.

There was no disobedience on their part at all.

The 30 to 40 police State officers and sheriffs were in the testimony of the police, ample to handle the situation.

And in fact, the police testified that if they had not been ample, they could have easily summoned more.

I’d like to briefly refer to page — to our brief here where we set forth some of the pertinent testimony which is however in many places repeated throughout the record.

On page 10 of the brief, there is a quotation, the chief said, “We were afraid that trouble might have come.”

Counsel: I see, you were afraid trouble might occur from what source?”

Chief: You can’t always tell.

Counsel: But if you regard it on this occasion, it was sufficiently apparent to require you to arrest them, vertainly, you must have had something in mind.

Chief: It is my duty to try to avoid trouble if I can as a police officer.

Counsel: I fully appreciate that, I certainly do, but I simply ask you where was the trouble?

Chief: Actually, any trouble hadn’t happened but if you can prevent trouble, it’s your duty to do so.

Counsel: I go along with that, are you able to assert to say where the trouble was?

Chief: I don’t know.

Then the City Manager testified, “I’m afraid that curiosity changes and brings forth possible elements which would create difficulty.

Counsel: Did you see any of those possible elements?

“Yes, I did as I have in every occasion when these groups have demonstrated.”

“Speaking of this particular occasion, did you see the possible elements there that day?”

“Yes.”

“Who were those persons?”

“I can’t tell you who they were.

Jack Greenberg:

I can tell you they were present in the group.

They were recognized as possible troublemakers.”

“Did you and your police chief do anything about placing those people under arrest?”

“No, we had no occasion to place them under arrest.”

Potter Stewart:

He’s talking now not about the demonstrators but by the so-called long-haired people (Voice Overlap) —

Jack Greenberg:

That’s right.

Now, “Sir, you’ve stated they were possible troublemakers and your whole testimony has been that as a City Manager, a supervisor of the city police, your object is to preserve the peace and law and order.”

“That’s right.”

“Yet, you took no official action against people who were present and possibly might have done some harm to these people.”

“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.”

“Did you order them off the State House grounds?”

“They were not on the State House grounds that I’ve observed and so in fact, these people were all across the street which is possibly a quarter or fifth adjacent to the block, at least a 100 feet away.”

“Did you order them off the streets adjacent?”

“They were on public sidewalks and we made them clear the sidewalks so that people could get through.”

“You don’t know who these people were but nevertheless, you recognized them as troublemakers?”

“I don’t know them by name, no, but the minute you spotted them, you knew they were troublemakers.”

“I knew there was a possibility of trouble there.”

“Yet, you took no official action against them.”

“The official action I took was to get rid of the cause with the possible difficulty.”

“But you just said that the Negro students weren’t doing anything wrong, that is, in terms of misdemeanor.”

“They were not obeying lawful orders what I consider lawful orders in dispersing.

They were the cause of the group gathering.

The group, the so-called troublemakers would never have appeared had it not been for the demonstration taking place.”

And so, the petitioners were then told to leave and when told to leave, they stood there and sang the Stars Spangled Banner and sang some hymn.

There was a conflict in testimony as to whether they engaged in the singing after being told to leave or after their order of arrest, but it would — at least after the time they were told to leave that they engaged in the singing.

As to the audibility of the singing, the best that the record indicates is that a police officer testified that he guessed it was audible all over the place.

They were found guilty of common law breach of the peace and were sentenced according to the following pattern.

All of those over 21 years of age received $100 fine or 30 days in jail.

Jack Greenberg:

Those between the ages of 17 and 21 received the same sentence which would be cut in half upon the payment of $50.

And those under 17 received a $5 fine or 10 days in jail.

Now, it is our first contention which can be referred to most easily after a recital of the evidence that with a warrant charging violence and a rule of law requiring a showing of violence, and a record showing that there was nothing but a peaceful protest to the State legislature which I neglected to mention was then in session with ample police on the scene that this case is precisely like Taylor versus Louisiana.

In fact, the onlookers in this case are characterized in language identical to the language in the opinion in Taylor which said that at the trial, there was testimony that immediately upon petitioners’ entry into the waiting room; many of the people in there became restless which we don’t even have here, and that’s some — some onlookers climbed on to seats to get a better view.

Nevertheless, respondents and that these persons moved on when ordered to do so by the police.

There was no evidence of violence.

The record shows that the petitioners were quiet, orderly and polite.

The trial court said — who held it, that the mere presence of Negroes in a white waiting room was likely to give rise a breach of the peace.

And we submit the first point of our argument that these two cases were essentially identical in this respect and for this reason, the conviction could be reversed.

But, we submit, secondly, even if in this situation, somehow there could be seen and we deny that it rationally can be found, a situation of incipient violence, then the police should have gone after the troublemakers.

If they had any reason to believe that these people were violating the law, were committing a crime, they should have gone after them, and they had a South Carolina statute which I referred to earlier specifically directed against those they would’ve thought persons engaged in expression of political opinion, that they should not have taken action to gratify the aggressors and our authority for that is as I stated earlier, Little Rock case, Cooper versus Aaron, Buchanan versus Warley and [Inaudible].

We come to Feiner versus —

Potter Stewart:

This is in — on March 2nd —

Jack Greenberg:

Yes.

Potter Stewart:

What time of the day — was It day or night?

Jack Greenberg:

Yes, it was day.

It was around noon, around noon, yes sir.

The demonstration ran from roughly 12:00 to 1:00, something like that.

The Senate was sitting at this time, but the Assembly was not, and that was the part of the purpose I would imagine.

I don’t think the record is quite clear that they went there — that they were sitting at that time but their purpose was to direct their dissatisfaction to the members of legislature [Inaudible].

Earl Warren:

There’s nothing in the record to indicate that the proceedings of the Senate were [Inaudible]

Jack Greenberg:

Oh no, no, certainly not.

In fact, everyone admits that they were quite — they were quiet and orderly as they went around these grounds and presumably would have been if they hadn’t interfered with and there’s no evidence that the singing upon they were ordered to leave disturbed anyone, it was just a guess that was audible throughout the [Inaudible].

Now, the court below rest on Feiner versus New York and the respondent’s brief cites only three cases, one of which is Feiner versus New York and so it rests on this entirely on Feiner versus New York.

And we say first of all that this case is completely distinguishable from Feiner on the facts that this case, unlike Feiner, does not involve persons who incited a crowd to rise up in arms or to do anything violent.

These people did nothing of this sort.

They merely carried signs, quietly expressing dissatisfaction with racial segregation.

There was no showing of a threat to the police or the speaker in this case.

In the Feiner case, there was a threat to the speaker.

Someone said, if you don’t get them up there, I will.

Jack Greenberg:

In the Feiner case, there were two policemen and 78 or 80 people out in the street.

Here, there were 30 to 40 policemen and the police officers testified that this was ample police to control the situation that everyone was obedient, but should they need more police, they could get more police.

And finally, and this leads me into the next point of my argument, the Feiner case did not discuss the issue of vagueness when it impinges upon a constitutionally protected right such as freedom of speech.

Feiner involved a breach of the peace ordinance.

This case involves usual common law breach of the peace.

And we submit that the Feiner case, so far as — as that is concerned is not authority for this particular case because it did not fit the particular point.

When you say common law breach of the peace as you referred it, there’s no statute [Inaudible] —

Jack Greenberg:

No, no there is none.

There is a — the State disorderly conduct statute which touches upon some things that in other States might also be breach of the peace but there is no — it is treated entirely by the common law.

We submit, finally, that the Feiner case, that the dissent in the Feiner case was correct and not the majority if the matter of the facts being different and everything else, if we’re not correct so far as that’s concerned.

Now, this leads us into the last portion of our argument, and that is that if petitioners could have been punished at all for anything and we don’t see whether they could have been punished here, certainly, when they were engaged in free expression, it should not have been under a generalized breach of the peace provision which exists in the common law.

Now we think in this respect, Cantwell against Connecticut governs the situation completely.

Cantwell involved common law breach of the peace as it applied Jehovah’s Witnesses.

And the opinion of the Court said, we think that in the absence of a statute narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State, the petitioners’ communication considered in the light of the constitutional guarantees raise no such clear and present menace to public peace and order as to render him liable to conviction of the common law offense in question.

And this essentially is what Mr. Justice Harlan said in his concurring opinion, in Garner case, I would submit, when he said that when a state seeks to subject the criminal sanctions conduct which — except for a demonstrated paramount state interest, would be within the range of freedom of expression as assured by the Fourteenth Amendment it cannot do so by means of a general and all-inclusive breach of the peace prohibition.

It must bring the activity sought to be proscribed within the ambit of a statute or clause narrowly drawn to define and punish specific conduct as constituting a clear and present danger with substantial interest of the state.

Now, in South Carolina at this time, there were at least five pieces of legislation that could have dealt with this situation.

There is first, the statute that appears on page 19 of our brief, which deals with impeding traffic in and around the State House.

[Inaudible]

Jack Greenberg:

The statute dealing — oh, I — I don’t know but it — I —

[Inaudible]

Jack Greenberg:

Yes, it was — I don’t – I wouldn’t suggest it was enacted to deal with this type of situation.

I’m —

[Inaudible]

Jack Greenberg:

I’m just told by counsel it’s a very old statute.

Secondly, there is a disorderly conduct statute which deals with making loud noises in public places —

What’s the reference to that?

Jack Greenberg:

16-558.

Thirdly, there is the statute which deals with persons who would assault those who were expressing political opinion.

In other words, this is the statute which expresses a state policy that is the — it is the aggressor and not the speaker who should be dealt with by the police and that is 16-559.

Jack Greenberg:

And thirdly, we have the two city ordinances of the City of Columbia which are not set forth in terms in the brief but which are referred to by the Chief of Police and appear on the record at page 44.

Chief: As far as you know, is there any ordinance of the City of Columbia regarding groups walking in concert in the public speech of the City of Columbia?

Answer: With a group over 15, you must have a permit and he also says, “We have an ordinance where you cannot walk the sidewalks.”

So there are two other ordinances.

There were five pieces of legislation which may have dealt with the situation.

South Carolina proceeded against these petitioners which are —

Any citations to those city ordinances?

Jack Greenberg:

No.

They are merely — I could get them, but they are merely referred to by the Chief of Police as being inexistent and I understand that they are.

I wonder if these were applied under —

Jack Greenberg:

They are certain — I’m certain they could that, yes sir.

Now, the vice of this kind of a vague, general common law doctrine when dealing with speech is not only that it gives unbridled power of the police to abuse their powers under the cloak of such a general authority.

But it’s also a deterrent to speakers because — whereas, in this case, these speakers were quite fortunate to be able to employ counsel and have counsel who were astute enough on cross-examination to bring out all the facts in the record.

As you notice, all these facts in which we rely were brought out in cross-examination not under Act.

Most people can’t or don’t employ counsel.

These cases are not tried and people generally content themselves with not speaking.

And this, we submit, of course is the real vice of a prosecution of this sort.

And so we submit that for the various reasons given, the judgment below is erroneous.

It violates petitioners’ constitutional rights, and should be reversed.

Earl Warren:

Attorney General McLeod.

Daniel R. McLeod:

Mr. Chief Justice, may it please the Court.

Many of the facts in the record before the Court in this — these cases are not in dispute.

Some emphasis had been given in the counsel’s argument with respect to some facts, some facts that I would give more emphasis to, some facts I think, have been omitted which I think would be of considerable help to the Court to determine these cases.

It’s apparent from the record that up until a certain point, there was no outward manifestation of this order other than the obstruction of sidewalks and traffic lanes.

It’s apparent from the record in its entirety that there was no overt act committed by any onlooker.

And it’s apparent and cleared by the record and I think beyond any dispute that this assemblage was permitted to demonstrate for 30 to 45 minutes and by the testimony of one of the defendants himself for a period of about one hour.

It’s clear therefore that they were permitted to carry on their demonstration at least 30 minutes to 45 minutes unmolested at all.

It’s clear also as to the number of participants in this demonstration and the testimony generally is in agreement as to the manner in which the processions approached the State House and how they acted thereafter although there are some immaterial variances about that.

It’s clear also that these persons were permitted by persons in authority to enter the State House and to conduct a peaceable demonstration when they requested permission to do so.

But beyond that point, there is a difference of interpretation on the facts between myself and counsel.

Daniel R. McLeod:

When the groups approached the State House from assembly street, [Inaudible] rather a few of them going through the State House grounds along this route, some I believe went along the assembly and back on the south end of the State House.

The major group [Inaudible] came up to what is known as referred to here as the horseshoe.

They were in groups generally considered to be between 15 and 30.

Inside the grounds of the State House after they had secured permission or been granted permission to go into the State House.

They followed [Inaudible] throughout the areas where they paraded.

Some of them according to the testimony paraded along the largest streets or sidewalks on the outer limits of the State House property, some on the smaller walkways in here.

Tom C. Clark:

General, when you say they were granted a permission to go to the State House that the testimony was [Inaudible]?

Daniel R. McLeod:

If Your Honor please, it is generally open.

The record discloses that on one occasion, a revivalist, Dr. Billy Graham was refused permission to use the State House grounds for the purposes that – [Inaudible] line formation known to me at that time it does not appear on the record, that was on the basis of the church state relationship.

The record indicates that it was because — it was proposed to be racially integrated meeting.

The record further shows that the Ku Klux Klan was refused permission also and the record shows that it was not refused on the basis that the Ku Klux rally was going to be an integrated event and those two are the only ones that appear in the record.

There is a statute that appears in the respondent’s brief relating to the management of the State House grounds and merely has the effect of saying it in its unlawful use except for public officials and persons having business inside the State House — in the State House and the general regulation of the grounds is in the discretion of an agency designated in the statute, a State agency.

It is used to my knowledge, the record doesn’t show. I think the Court should take judicial notice to the fact that they used for appearances such as Mr. Eisenhower, Mr. Nixon and Mr. Kennedy and [Inaudible] of that nature.

Potter Stewart:

It’s about — it’s a two-fold city blocks, is that right?

Two city blocks, isn’t it?

Daniel R. McLeod:

I beg your pardon Your Honor.

Potter Stewart:

Two city squares, isn’t it?

It’s a big area.

Daniel R. McLeod:

Yes, it’s about four acres in a — four acres within the entire area.

Potter Stewart:

And it’s open generally to the public, to casual —

Daniel R. McLeod:

That’s right.

Along in this area there’s a small railing about a foot high.

Along these walkways up for about — along this area, and perhaps on this area there is a railing, otherwise there are — railings of about a foot in height but they are not blocked off in actuality.

Tom C. Clark:

[Inaudible]

Daniel R. McLeod:

I’m sorry, Your Honor.

Tom C. Clark:

So you have to have a permit if you’re going to have a meeting [Inaudible]

Daniel R. McLeod:

That’s the normal procedure.

The statute that I have referenced to a moment ago prescribes it nothing in the limitations with respect to use of it by persons having business in the State House.

Nothing in the foregoing shall be construed to abridge authority, the Budget and Control Board to grant permission to use State House grounds for educational, electrical decorations and similar purposes.

Hugo L. Black:

Where are you reading from?

Daniel R. McLeod:

I’m reading from Section 1-412 Executive, cited in respondent’s brief, on the latter portion of it that — page 10 in respondent’s brief.

The footnote.

Daniel R. McLeod:

At —

Earl Warren:

Mr. General, may I ask you this does the record show that they attended [Inaudible]

Daniel R. McLeod:

The record shows as I think I’m clear that the demonstration was to be held at the State House grounds.

As counsel stated, I think they brought in the fact that the legislature was in session at that time.

The Senate was the only body in session at that time.

They were to meet at the State House grounds.

I presumed you could conclude from that that there was a demonstration to take place on the State House grounds.

Earl Warren:

[Inaudible]

Daniel R. McLeod:

There’s no evidence whatsoever.

I think it can be fairly concluded that the idea was to parade around and about the State House grounds.

I think that’s the object of it.

I believe that is what — the record shows no more than that.

There was no attempt that in the speech making with exception of one impromptu thing that I will refer to in a moment.

It was clear that the parade in the manner that I’ve outlined a moment ago, but it’s clear moreover that — and the times up fairly well fixed.

The time of arrest, it’s been pointed beyond any question, at 1:15 in the afternoon.

And it’s generally agreed that these proceedings through the State House grounds started about noontime.

Therefore, there was an interval of about one hour before any action was taken by anyone in authority.

Now, after they had paraded around the State House grounds, around the streets that enclosed the entire State House area, for a period of approximately 35 — 30 to 45 minutes.

Then they were requested to disperse.

Now, at that time, at the time that they were requested to disperse, they were obstructing — obstruct — they were obstructing the sidewalks, the traffic ways and the passages leading into the State House grounds and in this area known as the horseshoe area which I would estimate could be approximately 60 feet in width.

That obstruction of traffic is clearly shown by the testimony.

In addition to that, the onlookers were not concentrated upon that point — in the area immediate — across Gervais Street from the ground.

The onlookers were eventually channeled in this area along here in the horseshoe.

The onlookers primarily came at that time from persons who were getting out of their work for the lunch hour.

The onlookers also came from office buildings across the street, across the street here from a hotel building across the street.

This is the part of U.S. Highway 1, a very busy intersection particularly at that time of day.

The estimate of the number of persons who were attracted to this demonstration varied I think from about 200 up to one witness who testified 400.

They generally testified, I believe, the majority of them testified that about 200 to 300 persons were attracted to this demonstration.

Daniel R. McLeod:

Now, I state a moment ago that there was obstruction of the walkways — obstructions of the streets.

Earl Warren:

Mr. General, may I ask —

Daniel R. McLeod:

Yes sir.

Earl Warren:

[Inaudible]

Daniel R. McLeod:

Primarily — primarily in this horseshoe area.

This is a monument here and the general situs of what took place was just in the immediate vicinity of this monument and that is where the largest crowd of onlookers gathered.

The conditions at this time, after having demonstrated for about — up to 45 minutes were described by the City Manager who was there in charge by virtue of his authority as City Manager.

And in response to this question, I’m reading from the record on page 11.

Now, with relation to the sidewalks around the horseshoe and the lane for vehicular traffic, how was the crowd distributed with regard to those sidewalks and roadways.

Well, the conditions varied from time to time but in numerous times, they were blocked almost completely with probably as many as 30 or 40 persons both on the sidewalk and in the street area.

Further along, he stated it was extremely difficult for a pedestrian wanting to get through to get through.

On page 26, he testified, the people that I saw were congregated right around the horseshoe area.

Many backed up into the driveway, into the horseshoe area across the sidewalk on the lawns adjacent to the horseshoe area and across Gervais Street on both corners of Maine and Gervais.

The Chief of Police testified, sidewalks and traffic lanes, I’m interpolating traffic lanes, were right crowded.

And from time to time, we had to ask pedestrians to move on.

Further along he said, we had to place a traffic man at the intersection to handle traffic and pedestrians.

Now, the counsel’s reference a moment ago to the testimony of the police chief wherein he stated that sidewalks were not blocked.

I neglected to mention that his explanation immediately after saying the sidewalks were not blocked, I want to state that in the State House grounds, they were not blocked.

I had reference to these crossways that run throughout the inner portion of the State House grounds and I think that that is borne out by the testimony.

There’s no question except from one witness, Lieutenant Shouter of the constabulary that the crossways were blocked.

Arthur J. Goldberg:

[Inaudible]

Daniel R. McLeod:

Yes it is.

Arthur J. Goldberg:

[Inaudible]

Daniel R. McLeod:

That was after they had entered the State House grounds and they entered generally here.

They walked around and about the State House grounds and there’s no evidence as to the number of times but the evidence is fairly susceptible in the fact that they have walked around and about the State House grounds.

Arthur J. Goldberg:

[Inaudible]

Daniel R. McLeod:

That’s — that’s correct with the exception of one police officer who testified that on the back side of the State House, this area here, he had requested that they go single file rather than two abreast and that they refused to do so and that there was consequently crowding of those sidewalks in that area.

That’s the only evidence with respect to those sidewalks within the area.

Arthur J. Goldberg:

[Inaudible]

Daniel R. McLeod:

That — no vehicle as to the record Your Honor.

Daniel R. McLeod:

No vehicle attempted to get in or get out but the testimony is susceptible in fact that none could have but none did in fact attempt it.

Arthur J. Goldberg:

In fact, did not.

Daniel R. McLeod:

Did not, that’s true.

Arthur J. Goldberg:

[Inaudible]

Daniel R. McLeod:

That’s shown by the testimony of the City Manager who took charge, sir.

His words were these — he precipitated.

Now this did not precipitate there is a very significant factor.

This precipitated his order for the group to disperse and the order for dispersal was because of the gathering of the crowd, because of the fact that side works — sidewalks were being blocked, because there was always in a group like that a chance for violence and rioting to occur that I felt that the students must be dispersed.

Further on, what led — in answer to the question, what led you to believe there might be a riot?

The size of the crowd, the activities of the students, the types of persons, willing, ready and able and eager to create violence whether along — blocking of streets and sidewalks was a factor in — him arriving at the conclusion that these — that the matter should be dispersed.

Now, that is as — as I’ve said, a significant step separate from what, from the order of arrest.

And I can state in all frankness to the Court here that at the time that order of dispersal was given after the matter has gone on for about 45 minutes, at the time that order of dispersal was given, there’s an entirely different set of facts that this Court would have faced, had an arrest been made at that time.

This Court would, as I see it, have been faced only with the fact that these groups of students were parading but they were obstructing traffic lanes, obstructing sidewalks on public property on the State House capital ground.

Now, after that dispersal order was given then an entirely different set of facts is presented for the Court’s consideration and that is what led to the arrest of these students.

Here, as evidenced, as I see it as to what took place after the order of dispersal was given, and they said in effect that you’ve demonstrated long enough now, you’ve got 15 minutes in which to break up.

They talked to the recognized leader, Reverend David Carter, and gave him that information.

He in turn went to the various groups involved and in the words of I think each witness, harangued those groups in a religious type approach, I believe the witnesses described it, creating a fervor among them and then after —

Hugo L. Black:

But they — was there anything more definite than that?

Daniel R. McLeod:

Only the word harangue, I believe is as much as I recall Mr. Justice.

The religious type — word in — I think appears in there too, religious type approach.

After that order, Mr. McNayr testified, “the air was full of noises, people were talking and jabbering and carrying on.”

On Page 31, “there was general singing, stomping of feet, trifling, singing in very loud voices.”

The Chief of Police testified, singing was right noisy at times or he further testified that they were hollering in very large voices.

Lieutenant Shouter testified that they were singing, chatting — shouting.

Lieutenant Shouter’s testimony was to the effect that that type of activity was engaged in before the order of dispersal was given.

He is the only one who testified to that —

[Inaudible]

Daniel R. McLeod:

And he was in the back of the State House apparently by himself.

Tom C. Clark:

What page is he on?

Daniel R. McLeod:

It is on page 55.

Daniel R. McLeod:

At approximately 55, Your Honor, I did not — it’s about page 55.

Earl Warren:

Is there any indication Mr. General of as to what kinds songs that they were singing?

Daniel R. McLeod:

The Star Spangled Banner was one and I Shall Not Be Moved was the only other one that comes to my mind at the present time.

I think those were the only —

Tom C. Clark:

What’s the other one?

Daniel R. McLeod:

I Shall Not Be Moved.

Hugo L. Black:

[Inaudible]

Daniel R. McLeod:

That’s a hymn.

I know that must be a — spiritual.

Earl Warren:

[Inaudible]

Daniel R. McLeod:

Those were the only two that I believe were identified in the testimony.

[Inaudible]

Daniel R. McLeod:

I haven’t seen it.

From what I have seen, I have observed the — it’s different, vastly different than the ones that I recall and I don’t think I’ve seen those before around the White House.

One is, it’s not on the ground, two, there is no comparison between the numbers involved.

There’s no comparison between the numbers of onlookers involved.

[Inaudible]

Daniel R. McLeod:

Well —

[Inaudible]

Daniel R. McLeod:

In my experience but I don’t recall one or two instances and then only one or two or three people that I recall were involved around the White House.

Mr. McNayr again testified, there was singing, shouting atmosphere, a loud singing — stomping.

As counsel stated a moment ago, he testified that it was audible throughout the entire area referring to the State House grounds, so much noise and shouting that he couldn’t identify the songs.

They sang the Star Spangled Banner in a loud and boisterous manner, not in a respectful manner, shouting, stomping of feet, raising their hands.

Another police officer testified, they were singing loud, hollering, clapping their hands, stomping their feet.

Mr. McNayr testified that the students began answering back with shouts.

They became boisterous.

They stomp their feet.

They sang in loud voices.

That is where from the time the order of dispersal was given, that is were it ceased being a peaceable and orderly demonstration if it was at that time.

That is when it ceased being peaceable and became unpeaceable and was a disorderly demonstration.

Hugo L. Black:

Is that because of the order or because of what happened?

Daniel R. McLeod:

That was because of the order I presume.

It doesn’t — it does now —

Hugo L. Black:

What I mean is, your argument, is it your argument that because they were ordered to disperse and did not do so that that contributed disorderly conduct —

Daniel R. McLeod:

No.

Hugo L. Black:

Or is it because of the conduct, their conduct after the order?

Daniel R. McLeod:

The conduct in refusing to disperse is what precipitates to bring — what I contend constitutes a breach of the peace.

Hugo L. Black:

The refusal to disperse.

Daniel R. McLeod:

The refusal to disperse and in a manner in which that refusal was expressed and I want to allege that the charge with the singing, parading with placards and refusal to disperse when ordered to by the police officers.

That I think clearly comes within the inclusion of the charge and no point has been made at all with respect to that.

Now, with respect to —

Byron R. White:

[Inaudible]

Daniel R. McLeod:

With respect to — there’s no — no point has been made so far by counsel for appellants that the proof is not in accordance with the charges as laid in the arrest warrant.

No contentions have been made in that respect.

Byron R. White:

How about the — how about the — I thought the point that was made — there was no evidence whatsoever to support the charge with violence [Inaudible] —

Daniel R. McLeod:

That’s true, that’s true Mr. Justice.

But the point that I made a moment ago —

Byron R. White:

Which — what is true, that there was no evidence (Voice Overlap)?

Daniel R. McLeod:

That’s true that they made that contention.

Byron R. White:

Yes.

Daniel R. McLeod:

But the point that you ask me to repeat a moment ago as I recall it was that I had just stated that no contentions has been made by the appellants at any stage of this prosecution that the proof was not responsive to the charges.

And that is the two cases we’ve cited in Cole against Alabama and the other one are on that particular point just on a general elementary principle that you cannot convict a person of something with which he’s not charged.

Tom C. Clark:

But I thought they (Voice Overlap) —

Daniel R. McLeod:

That’s the point I had in mind in making that statement a moment ago.

Byron R. White:

But weren’t they charged with violence?

Daniel R. McLeod:

Sir?

Byron R. White:

Weren’t they charged with violence?

Daniel R. McLeod:

They were charged with the breach of the peace which is —

Byron R. White:

It is an element of violence?

Daniel R. McLeod:

Violence has another — its incitement to violence.

Daniel R. McLeod:

The standard definition of breach of the peace in which as I understand was reaffirmed in Campbell here, is the definition of breach of the peace that is adopted by the State of South Carolina.

And it was correctly read a moment ago.

Byron R. White:

Yes, I remember it but how come (Voice Overlap) —

Daniel R. McLeod:

Incitement arrived at which to serve — disturbs the public peace and tranquility or may lead to violence.

That’s effectively —

Byron R. White:

I thought that the issue [Inaudible] is that they encouraged violence, it was taken from violence under the proof offered, didn’t suppose those charges?

I thought that was their very claim?

Daniel R. McLeod:

They do contend that —

Byron R. White:

Well how do you say that don’t make any point with the evidence [Inaudible]

Daniel R. McLeod:

They have not heretofore made any point except the fact that the proof was not sufficient to convict them.

The point that I was making was in — brought about by — with this in mind, Cole against Alabama where the conviction was had upon a charge other than that with which the defendants are — they were convicted of an offense, other than that with which they were charged.

And that was the point that I had in mind stating what I stated a — I said a moment ago that they — as I know of — and I think just as Mr. Justice Black’s question precipitated my line of thought on that that the —

Byron R. White:

They weren’t — they weren’t convicted from [Inaudible]

Daniel R. McLeod:

I beg your pardon?

Byron R. White:

They were convicted by the breach of the peace, not by impeding the traffic, wasn’t it?

Daniel R. McLeod:

That’s right, that’s right; impeding of traffic those — to the commission of the offense being argued.

Hugo L. Black:

Where is the charge in the record?

Daniel R. McLeod:

I beg your pardon?

Hugo L. Black:

Where is the charge, what pages in the record?

Daniel R. McLeod:

It is not printed except in the testimony at pages that the counsel referred into a moment ago and I do not have precisely the points in which they were set forth on page 2 —

Hugo L. Black:

Was there ever (Voice Overlap) —

Daniel R. McLeod:

— in general terms.

Hugo L. Black:

Was never a written charge?

Daniel R. McLeod:

Oh yes, oh yes.

Each of the defendants were — had the warrant read to them and as I recall, as the record doesn’t show, they just stayed in jail overnight.

They were —

Hugo L. Black:

And that —

Daniel R. McLeod:

There was a —

Hugo L. Black:

And that does not appear in the record, that written charge?

Daniel R. McLeod:

It does not except by the reading of the warrant by the — by the magistrate.

Daniel R. McLeod:

I should call the Court’s attention to the fact that this proceeding took place in the Court of magistrate justice of the peace limited jurisdiction, $100 and 30 days appointed by the Government and that the record — in the record of the lower court, it appears.

It does not appear in this record except by where the magistrate read it into the record or stated the effect of it.

Byron R. White:

[Inaudible]

Daniel R. McLeod:

I believe that was the —

[Inaudible]

Potter Stewart:

183, I think.

Byron R. White:

183.

Potter Stewart:

And 146.

Daniel R. McLeod:

Yes sir.

Byron R. White:

182 and page 183.

Daniel R. McLeod:

They had assembled — yes sir.

They assembled, impede the normal traffic, singing, parading with placards and failed to disperse upon lawful orders of police officers.

That is a reading of it by the magistrate and that’s a matter in which the charge appears here.

William J. Brennan, Jr.:

But Mr. Attorney General, that is literally the way it read, is it not?

Daniel R. McLeod:

That’s true.

William J. Brennan, Jr.:

Yes.

Daniel R. McLeod:

That’s true.

That’s exactly true.

Arthur J. Goldberg:

General may I ask you, is this in the record?

You’re arguing [Inaudible]?

Then the police fear what may happen [Inaudible] and at that time, [Inaudible] and made loud noises against it, did the violation had taken place then?

Daniel R. McLeod:

Exactly.

Arthur J. Goldberg:

[Inaudible]

Daniel R. McLeod:

Exactly.

And that was — and significant to the point that I made a moment ago but there was a significant interval of time with respect to the order of dispersal.

I make that with this reservation.

I do not concede that there was no breach of peace — breach of the peace prior to the time this order of dispersal was given, but if there’s any doubt about it, whatsoever it was — this is certainly removed by the actions that took place after the order of dispersal was given.

Earl Warren:

What was the breach of the peace before the order was given?

Daniel R. McLeod:

Obstructing traffic ways and passageways of vehicles —

Earl Warren:

The pass —

Daniel R. McLeod:

Depriving (Inaudible) —

Earl Warren:

Is that disorderly conduct?

Daniel R. McLeod:

Depriving the public of the use of the — in these circumstances.

Now at that time, there were these onlookers of 250 and 300 people in that background.

That is —

Potter Stewart:

But they’re the ones who were blocking the sidewalks, the onlookers, weren’t they?

Daniel R. McLeod:

The onlookers?

Potter Stewart:

It was the onlookers who were blocking the sidewalks.

Daniel R. McLeod:

No, not completely.

Potter Stewart:

Because the demonstrators were in on the State House —

Daniel R. McLeod:

No.

Potter Stewart:

House grounds, weren’t they?

Daniel R. McLeod:

No, the record doesn’t that, Your Honor.

Potter Stewart:

It does not.

Daniel R. McLeod:

No.

There is testimony that the onlookers and the demonstrators blocked it and that both of them were asked to move.

There’s this — testimony that were complaints from passersby complaining of the fact that it was blocked, that the passageways were blocked.

But there’s evidence in the record that the blocking of the sidewalk took place not only by the persons who were attracted to the scene or happened to be there but by the demonstrators themselves.

Byron R. White:

Well, at the time — at the time they were ordered to leave, were the groups of 15 all assembled there in the horseshoe or were they still scattered out around?

Daniel R. McLeod:

They were not scattered as much.

I think the testimony is susceptible of the inference that they’ve gathered together and congregated in the horseshoe area.

There may have been some that were about, but generally, there was a tendency and the majority of them, I think, were congregated in the horseshoe area.

Byron R. White:

And the onlookers were also close at hand in the horseshoe?

Daniel R. McLeod:

Yes, sir.

Byron R. White:

Then you’d say both the onlookers and the demonstrators were actually moved on?

Daniel R. McLeod:

Yes, sir.

Byron R. White:

And did the onlookers move on?

Daniel R. McLeod:

Yes, sir.

There’s no evidence that anybody refused to move along when they were told to.

They all moved along.

Byron R. White:

Onlookers?

Daniel R. McLeod:

Yes, sir —

Byron R. White:

Not —

Daniel R. McLeod:

Both.

Yes sir.

Byron R. White:

But where was the — where was the violence, the — the onlookers [Inaudible] where does the — where does the threat of violence took place?

Daniel R. McLeod:

There wasn’t any at that time.

There was not any.

Byron R. White:

Were the —

Daniel R. McLeod:

That was a disorderly conduct, that’s impeding of traffic ways that are normally reserved for the use of the public.

The public was deprived of the use of those and under the definition of breach of the peace; that would be the only basis on which finding at that time could have been made that the peace had been breached.

Byron R. White:

So you’d think the breach of the peace — that kind of law, breach of the peace in your state that can’t be made out of a traffic — traffic without —

Daniel R. McLeod:

In —

Byron R. White:

— not any type of violence.

Daniel R. McLeod:

In that degree; in that degree and under those conditions, I do.

Now, I don’t want to emphasize that —

William J. Brennan, Jr.:

Excuse me Mr. General, I don’t quite follow that.

The charge is that all of these things tended directly to immediate violence.

Now as I understood what you just said to Mr. Justice White, even before these things happened, the impeding of traffic itself would constitute a breach of the peace?

Daniel R. McLeod:

That would have been the only basis for the charge.

William J. Brennan, Jr.:

But how would that — what I don’t follow is how does that tend directly to immediate violence?

Daniel R. McLeod:

I don’t think it would except under the conditions that were existing at that time.

Byron R. White:

So even if —

Daniel R. McLeod:

Now that —

Byron R. White:

Even if — even if impeding traffic along with the breach of the peace, nevertheless this charge — didn’t charge them with that.

This charge charged them with only — it was this conduct which led to violence.

Daniel R. McLeod:

That’s right.

That’s true.

Byron R. White:

And the only conduct which led the violence that you apparently say now, appeared after the order to disperse.

Daniel R. McLeod:

That’s true, that’s true.

Daniel R. McLeod:

Well, that’s true.

I could —

Hugo L. Black:

I don’t quite under —

Daniel R. McLeod:

— face —

Hugo L. Black:

I don’t quite understand that because the charge did say that they impeded the normal traffic; that was one of the charges.

Daniel R. McLeod:

That’s true.

I think that the impeding of traffic under the circumstances here, and I may have stated or answered improperly or in contradiction of what I am saying now.

Under the circumstances here, the impeding of traffic with the crowd that was gathered there, with the attention and so forth, officers testified — with the persons that the officers testified with that.

Now, under those conditions there was enough to lay a charge of breach of the peace here.

And if that included incitement on the potential bring about of violence then that would be sufficient to make the charge.

But that again urge — I again urge that the fact, a different set of circumstances that occurred subsequent to the time the dispersal was given and that is what led to the arrest.

Earl Warren:

Mr. General, do you have the statute on the disrupting of traffic?

Daniel R. McLeod:

Municipal ordinance and the state statute, I presume, would control with respect to this area in this thoroughfare here and by a statute it may have been enacted subsequently to these occurrences which I have in 1961 rather than 1960, as was stated a moment ago.

The statute, I think, would specifically govern it, and that is in full is a traffic statute, making traffic statutes applicable to public areas around the State House enacted for the parking problem rather than anything else.

Tom C. Clark:

Well, that’s after the — this occurrence.

Daniel R. McLeod:

I am sorry.

Tom C. Clark:

That was subsequent to this occurrence?

Daniel R. McLeod:

I think it was.

It has no effect whatsoever on because it appear as a traffic statute and does not — and I’m fairly certain it was enacted after this.

The statute that was referred to here was not enacted after these events took place however.

Hugo L. Black:

I do not know what you’ve said about your general statutes.

Do you have one such as Congress passed with reference to this Court that it should be unlawful to raise, stand or move in sessions or assembly within the Supreme Court buildings or grounds, do you have one that gets decided (Voice Overlap) —

Daniel R. McLeod:

I do not other than what I read a moment ago, we do not.

I did read one a moment ago that [Inaudible] — it merely makes it unlawful to use the State House grounds except for those persons who have business in the State House and for State officers and employees.

It’s unlawful for any person except State officers and employees and persons having lawful business in the buildings to use any of the driveways, alleys or parking spaces on the State House grounds.

It’s not analogous to the federal statute that prohibits harangues and orations on the state — on the federal capital for instance.

Tom C. Clark:

They were not using the driveways, were they?

Daniel R. McLeod:

Sir?

Tom C. Clark:

I thought they were using the sidewalks.

Daniel R. McLeod:

They were in the streets also, in the traffic lanes, on either side of the areas surrounding the horseshoe [Inaudible] just about space for another vehicle to move through there.

Tom C. Clark:

That would be —

Daniel R. McLeod:

There’s no evidence as to the number of vehicles that where in there at the time this demonstration took place.

The evidence is — of these traffic lanes, the inside, the area there, set aside for vehicle use, were obstructed.

Tom C. Clark:

That’s the driveway.

Daniel R. McLeod:

Sir?

Tom C. Clark:

That’d be a driveway?

Daniel R. McLeod:

That is a driveway.

Tom C. Clark:

Why didn’t you bring the charge under that Act?

Daniel R. McLeod:

I don’t know whether this Acts — I don’t know — I don’t know.

Breach of the peace, I think was more fitting for that, and as a matter of fact, this charge was made not only in connection with the traffic ways there but on the sidewalks and other places too.

And the charge there — comes out of stamping your feet, singing, clapping hands, shouting in loud voices and things of that nature.

That could’ve taken place on the sidewalk, could’ve taken place in the traffic areas, I think it probably took place in both of them.

That’s the fact that gave rise to this charge being made and I assume that the charge was referring to — or the mere fact that other charges could’ve been brought and shouldn’t militate against the fact that this charge is a common law hence recognized in this State, recognized so far as I’m aware throughout the entire United States.

And I’m sure that it couldn’t be contended that any of these statutory offenses that they referred to here, abrogate the common law offence — of breach of the peace in South Carolina.

Mr. General, what you said of its — his argument that as this statute ended up in the construction by the Supreme — by your Supreme Court, the element of violence was omitted as an ingredient even though in terms of its common law definition that element had been included.

Daniel R. McLeod:

I think — I think that’s the reason I took the position I did a moment ago that the Supreme Court has construed it that way.

It has construed it as not —

Daniel R. McLeod:

I think so — I think that the —

— as not requiring violence.

Daniel R. McLeod:

I don’t think they’ve ruled out violence.

I think that they’ve said that violence maybe or incitement to violence.

What do you say about the last paragraph of the Supreme Court’s opinion which is the essence it seems to me of what they ended up in finding here?

The paragraph beginning the parade was conducted upon the State House grounds etcetera.

I don’t find any reference in that paragraph to violence or a tendency to incite violence but that the essence of the offense as construed by your court as the common law offense was applied here is the defiance under these circumstances of the order to disperse.

Daniel R. McLeod:

That may be —

Is that fair?

Daniel R. McLeod:

That may be correct.

As I read it, I see that — I feel that they have construed obstruction of traffic in the proper circumstances to relate to violence.

Now whether that’s right or wrong, I’m not prepared to say it.

That is a construction given by my Supreme Court.

Daniel R. McLeod:

That is the position I take here.

Yes.

Daniel R. McLeod:

And I think that —

Well, that’s the construction that binds us or you have to start from — that’s a construction that binds us of your state of the breach of the peace.

Daniel R. McLeod:

[Inaudible] — in connection with that, I might say with respect to this Taylor case, that was a the sit-in demonstrations, we had perhaps 10 or 12 decided by the Supreme Court for the last two years, numerous cases came up during 1960.

The decision of this Court entailed was followed precisely by the City Supreme Court of South Carolina where they said no evidence of a breach of the peace had occurred down there.

Merely because some people were sitting on a place, customarily used by white persons only and there was no unusual action, resulted in violence or both or anything of that nature that this must be charged.

Arthur J. Goldberg:

[Inaudible]

Daniel R. McLeod:

That plus the fact that they adopt statutory definition of [Inaudible] public order.

Arthur J. Goldberg:

[Inaudible]

Daniel R. McLeod:

I think it’s the same thing.

In the Feiner case, I differ with the conclusions that has been expressed by that — in that case, 75 or 80 people makes the ratio, they filled the sidewalks, spread into the street, loudspeaker was used, some pedestrians supposed to use the sidewalk.

The crowd grew restless, some pushing, some shoving, some milling around, that’s almost precisely a recital of the evidence in this case.

The only difference that in Feiner, you had one person to make some obscene or profane remarks, you do not have that here.

That’s the only difference.

As I read the Court’s opinion, they – [Inaudible] in emphasis to the fact that the speaker had talked for an hour or half an hour in that — in that case.

And, I submit, that this case comes clearly within the scope and the ambit of the Feiner decision.

And I read also Cantwell as reaffirming the common law statutory definition of breach of the peace and on page 308 of that decision I believe, it is set out almost verbatim the same definition of breach of the peace that the Supreme Court of South Carolina set out in this case.

The clear and present danger was recognized or referred to in Cantwell.

That had already occurred by the time the arrest took place in this — in these cases.

The fact of a disturbance, the fact of breach of the peace consisting of singing, shouting, clapping hands, stomping feet, matters of that nature had already occurred leading to the arrest.

And we submit that the evidence clearly requires that these convictions be affirmed.

[Inaudible]

Daniel R. McLeod:

Yes sir.

Hugo L. Black:

You have no clause to make it illegal to have a parade without — in the capital grounds.

Suppose you have no law that makes it illegal to get off the sidewalk in the dis — the capital grounds, is that right, or to come in without permission?

Daniel R. McLeod:

No.

I believe you — my — this statute has never been construed.

I assume — I think the statute means that is unlawful for anyone to use the area ways, the alley ways on the State House grounds wherein except vehicular use and only by those persons having business in the State House building, only by those employed in the State House building.

Now, I say that because prior to that —

Hugo L. Black:

But that was —

Daniel R. McLeod:

— there was a statute.

Hugo L. Black:

Now — now, I think that ordinarily, a State House is open to the public —

Daniel R. McLeod:

That is true.

Hugo L. Black:

I think it’s not problem of this —

Daniel R. McLeod:

There’s nothing —

Hugo L. Black:

Both with reference to this Court and the capital by making it illegal to parade in the grounds or to get on there — to any part of the ground except sidewalks and the driveways, you have no law like that as I understand it.

Daniel R. McLeod:

None except this — nothing in this Act should be construed to breach of authority in the agency in the state name there to grant permission to use the grounds for educational, electrical decorations and similar postages.

So I would assume from that that permission for anything relating to educational and electrical decorations and similar purposes must be obtained from the Budget and Control Board.

There is no other authority for the granting of permits for any other use.

I would say that it would have to come under the Budget and Control Board and get permission in order to demonstrate —

Hugo L. Black:

Would you — they have not been convicted on a charge of that kind.

Daniel R. McLeod:

They are not.

Earl Warren:

Well, I suppose that [Inaudible] —

Daniel R. McLeod:

I would — well, I do know and groups customarily come in there for that purpose in large numbers, textile operators for instance have been there to my knowledge, not in the manner in which these demonstrators in these cases were involved but nevertheless with the same exercise of the same fundamental right.

It’s customarily used for that purpose and that to my mind, there is one indication that there’s no set pattern customarily followed with respect to secure information, but in some instances, permission has been sought, permission has been granted.

In other instances, permission has been sought and denied.

Jack Greenberg:

May it please the Court.

As I read the charge in this record, looking at it on page 2 and 3, the impeding of normal traffic and singing and parading with placards and failing to disperse upon lawful orders of the police are presented in a causal connection with tending directly to immediate violence and breach of the peace.

In other words, these are not set forth in the disjunctive that they committed a crime in that they sang and paraded (a), failed to disperse (b), impeded traffic (c), intended to lead the violence (d) these first three things are suppose to have led to the violence, and I think any plain reading of the charge indicates that.

And so, we have a charge as well as a common law rule requiring a showing of violence.

And we have, I think, now a concession that no violence or anything approximating it occurred.

But even if these were to be read under disjunctive, that is if petitioners could be found guilty of impeding traffic in the moment, I hope to demonstrate the record as quite clear on that.

We’d like to refer briefly to Stromberg against California, 283 U.S. at page 368 at which a very analogous situation is dealt with.

I’d like to read just a couple of sentences.

The verdict against the appellant was a general one as here.

It did not specify the ground upon which it rested.

As there were three purposes set forth in the statute and the jury was instructed that their verdict might be given with respect to anyone of them independently considered it is impossible to say under which clause of the statute the conviction was obtained.

If anyone of these clauses which the state court has held to be separable was invalid, it cannot be determined upon this record that the appellant was not convicted under that clause, just as here, it cannot be contended that appellant was not convicted because of the charge of violence made against him on a record which shows that absolutely no violence occurred.

Now, there have been some references to the record and the one — one reference has been to whether or not the sidewalks were clear.

Jack Greenberg:

And a good many places in the record, it is quite clear that when persons were obstructing the sidewalk were asked to move, they did and I refer to pages 27, 41, 48, and 92.

Moreover, the record is quite clear that no car at any point made any effort to enter the State House and I refer to page 43.

There has been some discussion of the number of persons who were in the horseshoe area.

There’s only one place in the record in which the crowd is divided up into numbers as to how many were in the horseshoe area and how many were outside of the horseshoe area and on page 75 of the record, it is said, that 150 persons were in the horseshoe area and that would mean that the balance were across the street.

Potter Stewart:

Now the horseshoe area, is that a circular driveway or what is it?

Jack Greenberg:

It looks like a horseshoe, that’s the area right here.

Potter Stewart:

Well, is that a monument that’s in the way that’s blocking the building?

Jack Greenberg:

Yes, that’s a monument, [Inaudible]

Potter Stewart:

But it’s a driveway (Voice Overlap) —

Jack Greenberg:

Yes, it’s a driveway and parking area.

It is not a thoroughfare and the record is quite clear on that that it is not a thoroughfare, it’s merely a parking area.

And that record is quite clear and it appears on page 43 among other places that during this period of time, no automobile made any effort to go in and out of that driveway.

Moreover, there is no suggestion as to again getting to the question of traffic, impeding traffic.

What time of the day was this?

Jack Greenberg:

During the noon hour, during the lunch hours, between 12:00 and 1:00.

Arthur J. Goldberg:

Mr. Greenberg, does the record show that the [Inaudible]?

Jack Greenberg:

Well — yes — well, I’m glad you brought that out because they all circulated around and then they would stop here as they came around and stopped at the horseshoe and here they began to bunch together.

Arthur J. Goldberg:

Stopped by the —

Jack Greenberg:

By the police officers and the City Manager.

Arthur J. Goldberg:

This were — they ordered dispersal (Voice Overlap) —

Jack Greenberg:

That’s right.

They were [Inaudible] of a group of 15 to 18, the half of the third [Inaudible], very scattered all over this area, but as they came around it, again backing up at this point where the —

Arthur J. Goldberg:

That — that congregation at that point was merely to [Inaudible]?

Jack Greenberg:

That’s correct.

Arthur J. Goldberg:

Is that correct?

Jack Greenberg:

Yes but —

Potter Stewart:

Well, you could put it in another way.

It was due to their refusing to —

Jack Greenberg:

Disperse.

Potter Stewart:

— disperse at —

Jack Greenberg:

Yes.

Potter Stewart:

— at the orders of the police.

Jack Greenberg:

Well —

Potter Stewart:

If each group of 15 and 18 had dispersed, there would have been no backing up because that was a logical place for them to leave the grounds, wasn’t it?

Jack Greenberg:

Well, they would have been for a moment or two because the police, I gather, waited for all of them to assemble before —

Potter Stewart:

I see.

Jack Greenberg:

I say if we were to say then they would’ve dispersed.

The police did not order them to assemble but the police stopped them as they got all the way around there until they began backing up.

Tom C. Clark:

Well, is there (Voice Overlap) —

Jack Greenberg:

Oh, that is.

Tom C. Clark:

Where is that on the record?

I looked through that last night and I didn’t see where the police talked to them.

I thought they’ve come around to the horseshoe and they got — the police seemed to think that there were going to be violence so ordered them to disperse and that’s when they became somewhat boisterous.

You can get it later, maybe your partner could find it for you.

You go ahead with your argument.

Jack Greenberg:

Well, that is the conclusion of my rebuttal except to say that the reference to these other statutes and ordinances and the recharacterization of the crime if it has been recharacterized and the Supreme Court of South Carolina points up even more forcefully the vice of inhibiting speech under this kind of general common law breach of the peace doctrine and why such a conviction under such a doctrine violates the Fourteenth Amendment.

Byron R. White:

Mr. Greenberg, I didn’t understand — I didn’t hear any contention [Inaudible] are you not that there being no evidence of violence or any type of crime.

Jack Greenberg:

Well, I don’t want to — I understood the Attorney General to say that there was no violence.

Now, I took that — I don’t know — I would leave it up to him to say what he —

Byron R. White:

There’s no actual — no actual —

Jack Greenberg:

No actual violence and I did not understand him to say that there was any indication of any violence about to occur.

But I think he did say that there was no violence and that there was no breach of the peace up until the time they began singing.

I don’t know what violence describe —

[Inaudible]

Jack Greenberg:

Yes, I think it would, imminent violence.

Tom C. Clark:

I thought he said that there might be incitement to violence [Inaudible]

Jack Greenberg:

Imminent violence or incitement to violence, they adopt the [Inaudible] definition.

Tom C. Clark:

Even the Supreme Court didn’t know that there was any violence.

They seemed to suppose that there was a breach of the peace and they [Inaudible] breach of the peace under these circumstances in the last paragraph.

Jack Greenberg:

That’s correct.

Jack Greenberg:

On the preceding page, however, they — in defining breach of the peace on three or four occasion, appears to have an ingredient of violence in the definition of which it’s not alternative there, in the definition on the previous page.

On the next page however, they don’t refer to violence.

I might say that the —

Now, that’s not —

Jack Greenberg:

— that all the opinions of the Supreme Court of South Carolina —

Do you think that’s so — do you think that’s so clear?

Jack Greenberg:

Well, the only thing that could possibly refer to violence is this —

Preservation of order.

Jack Greenberg:

— preservation of order and prevention of further interference of traffic on the public — violence, I admit, would conceivably be read into that but I would imagine it could be said more clearly than that.

All prior opinions of the Supreme Court of South Carolina, four of which appear in the opinion of the Court and two others of which we were able to find, mentioned violence in one way or another.

Four of them appear on page 200 of the record, the two other cases we found were State v. Feiner which is 100 South Carolina — Burns, I’m sorry, 100 South Carolina 230 and then the State v. Garlington, 56 South Carolina 413, they all mentioned violence.

Byron R. White:

Well then, do I understand that the case is clear upon the — whether or not the state was [Inaudible]

Jack Greenberg:

That was the charge and we submit that unless there was some evidence of that.

Byron R. White:

Then — even if the statute — let’s assume that the statute was [Inaudible] would the evidence be enough to sustain the charge?

Jack Greenberg:

Well, I don’t think — we would then among other things run into the Stromberg situation, but we don’t have the statute here.

We just have this breach of the peace doctrine which apparently develops very amorphously or — and that maybe very well but we’re dealing with freedom of speech, we submit, that’s something that can’t be done.

Byron R. White:

[Inaudible] — the fundamental core of your argument I gather that this would be a charge of violence and they didn’t prove violence and —

Jack Greenberg:

That’s our first argument, yes.

Byron R. White:

The failure of the Supreme Court of the State as mentioned by [Inaudible], was it?

Jack Greenberg:

Right.

And then our next arguments are, of course, that if there were — if there were any aggression, it’s the aggressors who should have been arrested and not these petitioners because certainly, none of the violence was coming from them. I think that’s quite clear if there were any violence it had to be somebody else.

And then our final argument is the Cantwell argument, Cantwell versus Connecticut.

I might — one of my associates has pointed out to me the portion in the record which answered Mr. Justice Clark’s question, that’s on page 86.

Tom C. Clark:

Thank you.

Jack Greenberg:

“You were present, I believe, at the horseshoe when the group was stopped, the individual groups?”

“That’s right.”

“Now when these groups were stopped, that tends to make the second group move closer to the first group.”

“It did.”

“And perhaps lose its identity as a separate group from the first group, is that correct?”

“That’s correct.”

Jack Greenberg:

And that shows how they began to —

Tom C. Clark:

[Inaudible] — that’s right.

Jack Greenberg:

We submit that the judgment below —

Tom C. Clark:

Thank you.

Jack Greenberg:

— should be reversed.