Cox v. Louisiana (379 U.S. 559)/Concurrence Clark

Mr. Justice CLARK, concurring in No. 24 and dissenting in No. 49.

According to the record, the opinions of all of Louisiana's courts and even the majority opinion of this Court, the appellant, in an effort to influence and intimidate the courts and legal officials of Baton Rouge and procure the release of 23 prisoners being held for trial, agitated and led a mob of over 2,000 students in the staging of a modern Donnybrook Fair across from the courthouse and jail. He preferred to resolve the controversy in the streets rather than submit the question to the normal judicial procedures by contacting the judge and attempting to secure bail and an early trial for the prisoners.

Louisiana's statute, § 14:401, under attack here, was taken in haec verba from a bill which became 18 U.S.C. § 1507 (1958 ed.). The federal statute was enacted by the Congress in 1950 to protect federal courts from demonstrations similar to the one involved in this case. It applies to the Supreme court Building where this Court sits. I understand that § 1507 was written by members of this Court after disturbances similar to the one here occurred at buildings housing federal courts. Naturally, the Court could hardly be expected to hold its progeny invalid either on the ground that the use in the statute of the phrase "in or near a building housing a court" was vague or that it violated free speech or assembly. It has been said that an author is always pleased with his own work.

But the Court excuses Cox's brazen defiance of the statute the validity of which the Court upholds-on a much more subtle ground. It seizes upon the acquiescence of the Chief of Police arising from the laudable motive to avoid violence and possible bloodshed to find that he made an on-the-spot administrative determination that a demonstration confined to the west side of St. Louis Street-101 feet from the courthouse steps-would not be "near" enough to the court building to violate the statute. It then holds that the arrest and conviction of appellant for demonstrating there constitutes an "indefensible sort of entrapment," citing Raley v. State of Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959).

With due deference, the record will not support this novel theory. Nor is Raley apposite. This mob of young Negroes led by Cox-2,000 strong-was not only within sight but in hearing distance of the courthouse. The record is replete with evidence that the demonstrators with their singing, cheering, clapping and waving of banners drew the attention of the whole courthouse square as well as the occupants and officials of the court building itself. Indeed, one judge was obliged to leave the building. The 23 students who had been arrested for sit-in demonstrations the day before and who were in custody in the building were also aroused to such an extent that they sang and cheered to the demonstrators from the jail which was i the courthouse and the demonstrators returned the notice with like activity. The law enforcement officials were confronted with a direct obstruction to the orderly administration of their duties as well as an interference with the courts. One hardly needed an on-the-spot administrative decision that the demonstration was "near" the courthouse with the disturbance being conducted before the eyes and ringing in the ears of court officials, police officers and citizens throughout the courthouse.

Moreover, the Chief testified that when Cox and the 2,000 Negroes approached him on the way to the courthouse he was faced with a "situation that was accomplished." From the beginning they had been told not to proceed with their march; twice officers had requested them to turn back to the school;  on each occasion they had refused. Finding that he could not stop them without the use of force the Chief told Cox that he must confine the demonstration to the west side of St. Louis Street across from the courthouse.

All the witnesses, including the appellant, state that the time for the demonstration was expressly limited. The State's witnesses say seven minutes, while Cox claims his speech was to be seven minutes but the program would take from 17 to 25 minutes. Regardless of the amount of time agreed upon, it is a novel construction of the facts to say that the grant of permission to demonstrate for a limited period of time was an administrative determination that the west side of the street was not "near" the courthouse. This implies that the amount of time might somehow be relevant in deciding whether an activity is within the prohibitions of the statute. The inclusion of a time limitation is, to me, entirely inconsistent with the view that an administrative determination was made. The only way the court can support its finding is to ignore the time limitation and hold-as it does sub silentio-that once Cox and the 2,000 demonstrators were permitted to occupy the sidewalk they could remain indefinitely. Once the administrative determination was made that the west side of St. Louis Street was not so close to the courthouse as to violate the statute it could not be later drawn within the prohibited zone by Cox's refusal to leave. Thus the 2,000 demonstrators must be allowed to remain there unless in the meanwhile some other statute empowers the State of eject them. This, I submit, is a complete frustration of the power of the State.

Because I am unable to agree that the word "near," when applied to the facts of this case, required an administrative interpretation, and since I feel that the record refutes the conclusion that it was made, I must respectfully dissent from such a finding.

Nor can I follow the Court's logic when it holds that the case is controlled by Raley v. State of Ohio, supra. In Raley the petitioners whose convictions were reversed were told that they had a right to exercise their privilege and refuse to answer questions propounded to them in an orderly way during the conduct of a hearing. The administrative determination upon which this court turns the present case was in actuality made, if at all, in the heat of a racial demonstration in a southern city for the sole purpose of avoiding what had the potentialities of a race riot. In Raley, there was no large crowd of 2,000 demonstrators endangering a tenuous racial peace. Indeed, the petitioners in Raley might well have chosen to waive their privilege and not be subject to prosecution at all but for the advice tendered them by those conducting the hearing. Here the demonstrators were determined to go to the courthouse regardless of what the officials told them regarding the legality of their acts. Here, like the one petitioner in Raley whose conviction was affirmed by an equally divided Court, appellant never relied on the advice or determination of the officer. The demonstration, as I have previously noted, was a fait accompli. In view of these distinctions, I can see no enticement or encouragement by agents of the State sufficient to establish a Raley-type entrapment.

And even though arguendo one admits that the Chief's action was an administrative determination, I cannot see how the Court can hold it binding on the State. It certainly was not made in the free exercise of his discretion.

reading the facts in a way most favorable to the appellant would, in my opinion, establish only that the Chief of Police consented to the demonstration at that location. However, if the Chief's action be consent, I never knew until today that a law enforcement official-city, state or national-could forgive a breach of the criminal laws. I missed that in my law school, in my practice and for the two years while I was head of the Criminal Division of the Department of Justice.

I have always been taught that this Nation was dedicated to freedom under law not under mobs, whether they be integrationists or white supremacists. Our concept of equal justice under law encompasses no such protection as the Court gives Cox today. The contemporary drive for personal liberty can only be successful when conducted within the framework of due process of law. Goals, no matter how laudable, pursued by mobocracy in the end must always lead to further restraints of free expression. To permit, and even condone, the use of such anarchistic devices to influence the administration of justice can but lead us to disaster. For the Court to place its imprimatur upon it is a misfortune that those who love the law will always regret.

I must, therefore, respectfully dissent from this action and join my Brother BLACK on this facet of the case. I also agree with him that the statute prohibiting obstruction of public passages is invalid under the Equal Protection Clause. And, as will be seen, I arrive at the same conclusion for the same reason on the question regarding the breach of the peace statute. However, I cannot agree that the latter Act is unconstitutionally vague.

The statute declares congregating "with intent to provoke a breach of the peace" and refusing to disperse after being ordered so to do by an officer to be an offense. Each of these elements is set out in clear and unequivocal language. Certainly the language in the present statute is no more vague than that in the New York statute which was challenged on vagueness grounds in Feiner v. People of State of New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 267. There the Court upheld Feiner's conviction on a disorderly conduct charge. I concur completely in the Court's statement that the present case is a "far cry from the situation" presented in Feiner:

"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 [2,000] demonstrators and [250]      onlookers.  *  *  *  Perhaps [appellant's]speech was not so      animated but in this setting their actions *  *  * created a      much greater danger of riot and disorder.  It is my belief      that anyone conversant with the almost spontaneous combustion      in some Southern communities in such a situation will agree      that the [Sheriff's] action may well have averted a major      catastrophe." Edwards v. South Carolina, 372 U.S. 229,     243-244, 83 S.Ct. 680, 688, 9 L.Ed.2d 697 (dissenting opinion     of Clark, J.).

Nor can I agree that the instant case is controlled by either Edwards v. South Carolina, supra, or Fields v. South Carolina, 375 U.S. 44, 84 S.Ct. 149, 11 L.Ed.2d 107 (1963). Both went off on their peculiar facts and neither dealt with a situation like the one here before the Court. Moreover, Edwards and fields involved convictions for common law breach of the peace and not violation of a statute.

In any event, I believe the language of the breach of the peace statute is as free from ambiguity or vagueness as is the statute prohibiting picketing of a courthouse which the Court today upholds. There the relevant words are parading "in or near a building housing a court of the State * *  * " with the intent of obstructing justice. Certainly both of the statutes are as clear as the words "below cost" which this Court approved in United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963), and cases there cited.

However, because this statute contains an express exclusion for the activities of labor unions, I would hold the statute unconstitutional on the equal protection ground by Brother BLACK enunciated with regard to the statute condemning obstruction of public passages.

On these grounds I dissent.

Mr. Justice WHITE, with whom Mr. Justice HARLAN joins, concurring in part and dissenting in part.