Edwards v. South Carolina (372 U.S. 229)/Dissent Clark

Mr. Justice CLARK, dissenting.

The convictions of the petitioners, Negro high school and college students, for breach of the peace under South Carolina law are accepted by the Court 'as binding upon us to that extent' but are held violative of 'petitioners' constitutionally protected rights of free speech, free assembly, and freedom to petition for redress of their grievances.' Petitioners, of course, had a right to peaceable assembly, to espouse their cause and to petition, but in my view the manner in which they exercised those rights was by no means the passive demonstration which this Court relates; rather, as the City Manager of Columbia testified, 'a dangerous situation was really building up' which South Carolina's courts expressly found had created 'an actual interference with traffic and an imminently threatened disturbance of the peace of the community.' Since the Court does not attack the state courts' findings and accepts the convictions as 'binding' to the extent that the petitioners' conduct constituted a breach of the peace, it is difficult for me to understand its understatement of the facts and reversal of the convictions.

The priceless character of First Amendment freedoms cannot be gainsaid, but it does not follow that they are absolutes immune from necessary state action reasonably designed for the protection of society. See Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940); Schneider v. State, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939). For that reason it is our duty to consider the context in which the arrests here were made. Certainly the city officials would be constitutionally prohibited from refusing petitioners access to the State House grounds merely because they disagreed with their views. See Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 328, 95 L.Ed. 267, 280 (1951). But here South Carolina's courts have found: 'There is no indication whatever in this case that the acts of the police officers were taken as a subterfuge or excuse for the suppression of the appellants' views and opinions.' It is undisputed that the city officials specifically granted petitioners permission to assemble, imposing only the requirement that they be 'peaceful.' Petitioners then gathered on the State House grounds, during a General Assembly session, in a large number of almost 200, marching and carrying placards with slogans such as 'Down with segregation' and 'You may jail our bodies but not our souls.' Some of them were singing.

The activity continued for approximately 45 minutes, during the busy noon-hour period, while a crowd of some 300 persons congregated in front of the State House and around the area directly in front of its entrance, known as the 'horseshoe,' which was used for vehicular as well as pedestrian ingress and egress. During this time there were no efforts made by the city officials to hinder the petitioners in their rights of free speech and assembly; rather, the police directed their efforts to the traffic problems resulting from petitioners' activities. It was only after the large crowd had gathered, among which the City Manager and Chief of Police recognized potential troublemakers, and which together with the students had become masse don and around the 'horseshoe' so closely that vehicular and pedestrian traffic was materially impeded, that any action against the petitioners was taken. Then the City Manager, in what both the state intermediate and Supreme Court found to be the utmost good faith, decided that danger to peace and safety was imminent. Even at this juncture no orders were issued by the City Manager for the police to break up the crowd, now about 500 persons, and no arrests were made. Instead, he approached the recognized leader of the petitioners and requested him to tell the various groups of petitioners to disperse within 15 minutes, failing which they would be arrested. Even though the City Manager might have been honestly mistaken as to the imminence of danger, this was certainly a reasonable request by the city's top executive officer in an effort to avoid a public brawl. But the response of petitioners and their leader was defiance rather than cooperation. The leader immediately moved from group to group among the students, delivering a 'harangue' which, according to testimony in the record, 'aroused (them) to a fever pitch causing this boisterousness, this singing and stomping.'

For the next 15 minutes the petitioners sang 'I Shall Not Be Moved' and various religious songs, stamped their feet, clapped their hands, and conducted what the South Carolina Supreme Court found to be a 'noisy demonstration in defiance of (the dispersal) orders.' 239 S.C. 339, 345, 123 S.E.2d 247, 250. Ultimately, the petitioners were arrested, as they apparently planned from the beginning, and convicted on evidence the sufficiency of which the Court does not challenge. The question thus seems to me whether a State is constitutionally prohibited from enforcing laws to prevent breach of the peace in a situation where city officials in good faith believe, and the record shows, that disorder and violence are imminent, merely because the activities constituting that breach contain claimed elements of constitutionally protected speech and assembly. To me the answer under our cases is clearly in the negative.

Beginning, as did the South Carolina courts, with the premise that the petitioners were entitled to assemble and voice their dissatisfaction with segregation, the enlargement of constitutional protection for the conduct here is as fallacious as would be the conclusion that free speech necessarily includes the right to broadcast from a sound truck in the public streets. Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949). This Court said in Thornhill v. Alabama, 310 U.S. 88, 105, 60 S.Ct. 736, 745, 84 L.Ed. 1093 (1940), that '(t)he power and the duty of the State to take adequate steps to preserve the peace and to protect the privacy, the lives, and the property of its residents cannot be doubted.' Significantly, in holding that the petitioner's picketing was constitutionally protected in that case the Court took pains to differentiate it from 'picketing en masse or otherwise conducted which might occasion * *  * imminent and aggravated danger *  *  * .' Ibid. Here the petitioners were permitted without hindrance to exercise their rights of free speech and assembly. Their arrests occurred only after a situation arose in which the law-enforcement officials on the scene considered that a dangerous disturbance was imminent. The County Court found that '(t)he evidence is clear that the officers were motivated solely by a proper concern for the preservation of order and the protection of the general welfare in the face of an actual interference with traffic and an imminently threatened disturbance of the peace of the community.' In affirming, the South Carolina Supreme Court said the action of the police was '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.' 239 S.C. 339, at 345, 123 S.E.2d, at 249-250.

In Cantwell v. Connecticut, supra, 310 U.S. at 308, 60 S.Ct. at 905, this Court recognized that '(w)hen clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the state to prevent or punish is obvious.' And in Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 267 (1951), we upheld a conviction for breach of the peace in a situation no more dangerous than that found here. There the demonstration was conducted by only one person and the crowd was limited to approximately 80, as compared with the present lineup of some 200 demonstrators and 300 onlookers. There the petitioner was 'endeavoring to arouse the Negro people against the whites, urging that they rise up in arms and fight for equal rights.' Id., at 317, 71 S.Ct. at 305. Only one person-in a city having an entirely different historical background-was exhorting adults. Here 200 youthful Negro demonstrators were being aroused to a 'fever pitch' before a crowd of some 300 people who undoubtedly were hostile. Perhaps their speech was not so animated but in this setting their actions, their placards reading 'You may jail our bodies but not our souls' and their chanting of 'I Shall Not Be Moved,' accompanied by stamping feet and clapping hands, 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 City Manager's action may well have averted a major catastrophe.

The gravity of the danger here surely needs no furthre explication. The imminence of that danger has been emphasized at every stage of this proceeding, from the complaints charging that the demonstrations 'tended directly to immediate violence' to the State Supreme Court's affirmance on the authority of Feiner, supra. This record, then, shows no steps backward from a standard of 'clear and present danger.' But to say that the police may not intervene until the riot has occurred is like keeping out the doctor until the patient dies. I cannot subscribe to such a doctrine. In the words of my Brother Frankfurter:

'This Court has often emphasized that in the exercise of our     authority over state court decisions the Due Process Clause      must not be construed in an abstract and doctrinaire way by      disregarding local conditions. * *  * It is pertinent,      therefore, to note that all members of the New York Court      accepted the finding that Feiner was stopped not because the      listeners or police officers disagreed with his views but      because these officers were honestly concerned with      preventing a breach of the peace. * *  * 'As was said in Hague v. C.I.O. (307 U.S. 496, 59 S.Ct.   954, 83 L.Ed. 1423), supra, uncontrolled official   suppression of the speaker 'cannot be made a substitute   for the duty to maintain order'. 307 U.S. at 516, 59  S.Ct. at page 964, 83 L.Ed. 1423. Where conduct is  within the allowable limits of free speech, the police   are peace officers for the speaker as well as for his   hearers. But the power effectively to preserve order  cannot be displaced by giving a speaker complete   immunity. Here, there were two police officers present  for 20 minutes. They interfered only when they  apprehended imminence of violence. It is not a  constitutional principle that, in acting to preserve   order, the police must proceed against the crowd,   whatever its size and temper, and not against the   (demonstrators).' 340 U.S. 268, at 288-289, 71 S.Ct. 328, at 336, 95 L.Ed. 295 (concurring opinion in Feiner  v. New York and other cases decided that day).

I would affirm the convictions.