Petitioners, peaceful civil rights demonstrators, were arrested and convicted for disorderly conduct when they failed to disperse on orders of the Chicago police, who anticipated civil disorder because of the bystanders' unruly conduct. The Illinois Supreme Court affirmed. Held:
Marshall Patner argued the cause for petitioners. With him on the briefs was Paul E. Goldstein.
Raymond F. Simon argued the cause for respondent. With him on the brief were Marvin E. Aspen and Howard C. Goldman.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
This is a simple case. Petitioners, accompanied by Chicago police and an assistant city attorney, marched in a peaceful and orderly procession from city hall to the mayor's residence to press their claims for desegregation of the public schools. Having promised to cease singing at 8:30 p. m., the marchers did so. Although petitioners and the other demonstrators continued to march in a completely lawful fashion, the onlookers became unruly as the number of bystanders increased. [394 U.S. 111, 112] Chicago police, to prevent what they regarded as an impending civil disorder, demanded that the demonstrators, upon pain of arrest, disperse. When this command was not obeyed, petitioners were arrested for disorderly conduct.
Petitioners' march, if peaceful and orderly, falls well within the sphere of conduct protected by the First Amendment. See Shuttlesworth v. City of Birmingham, post, p. 147; Brown v. Louisiana, 383 U.S. 131, 141 -142 (1966) (prevailing opinion of MR. JUSTICE FORTAS); Henry v. City of Rock Hill, 376 U.S. 776 (1964); Fields v. South Carolina, 375 U.S. 44 (1963), reversing 240 S. C. 366, 126 S. E. 2d 6 (1962). There is no evidence in this record that petitioners' conduct was disorderly. Therefore, under the principle first established in Thompson v. City of Louisville, 362 U.S. 199 (1960), convictions so totally devoid of evidentiary support violate due process.
The opinion of the Supreme Court of Illinois suggests that petitioners were convicted not for the manner in which they conducted their march but rather for their refusal to disperse when requested to do so by Chicago police. See 39 Ill. 2d 47, 60, 233 N. E. 2d 422, 429 (1968). However reasonable the police request may have been and however laudable the police motives, petitioners were charged and convicted for holding a demonstration, not for a refusal to obey a police officer. * As we said in Garner v. Louisiana, 368 U.S. 157, 164 (1961): "[I]t is as much a denial of due process to send an accused to prison following conviction for a charge that was never made as it is to convict him upon a charge for which there is no evidence to support that conviction." See also In re Oliver, 333 U.S. 257, 273 (1948). [394 U.S. 111, 113]
Finally, since the trial judge's charge permitted the jury to convict for acts clearly entitled to First Amendment protection, Stromberg v. California, 283 U.S. 359 (1931), independently requires reversal of these convictions.
The judgments are
MR. JUSTICE STEWART and MR. JUSTICE WHITE concur in the judgment of the Court and join its opinion insofar as it holds that under the principle established by Stromberg v. California, 283 U.S. 359 , the petitioners' convictions cannot stand.
[ Footnote * ] The trial judge charged solely in terms of the Chicago ordinance. Neither the ordinance nor the charge defined disorderly conduct as the refusal to obey a police order.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring.
This I think is a highly important case which requires more detailed consideration than the Court's opinion gives it. It in a way tests the ability of the United States to keep the promises its Constitution makes to the people of the Nation. Among those promises appearing in the Preamble to the Constitution are the statements that the people of the United States ordained this basic charter "in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity . . . and secure the Blessings of Liberty to ourselves and our Posterity . . . ." Shortly after the original Constitution was adopted, again undoubtedly in an attempt to "secure the Blessings of Liberty," the Bill of Rights was added to the Constitution, in which the First Amendment, later made applicable to the States by the Fourteenth Amendment, provides that: "Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people [394 U.S. 111, 114] peaceably to assemble, and to petition the Government for a redress of grievances."
In 1954 our Court held that laws segregating people on the basis of race or color in the public schools unconstitutionally denied Negroes equal protection of the laws. 1 Negroes, and many others who sympathized with them, cooperatively undertook to speed up desegregation. These groups adopted plans under which they marched on the streets carrying placards, chanting, and singing songs, all designed to publicize their grievances and to petition the various units of government, state and national, for a redress of these grievances. Their activities along these lines quite obviously aroused highly emotional feelings both on their part and on the part of others who opposed the changes in local laws and customs which the "picketers" and "demonstrators" advocated. Agitation between groups brought about sharp conflicts and clashes, threats, fights, riots, and near-riots. This Court, to be sure, has had its difficulties and sharp differences of opinion in deciding the precise boundaries dividing what is constitutionally permissible and impermissible in this field. 2 There have also been sharp disputes over whether the Court can hold laws unconstitutional because the Court deems them to be "unreasonable," "arbitrary," or contrary to fundamental standards of ethics, morals, or conscience. 3 Fortunately, however, these differences need not concern us here. For while we have pointed out in many cases that the States and their subordinate units do have constitutional [394 U.S. 111, 115] power to regulate picketing, demonstrating, and parading by statutes and ordinances narrowly drawn so as not to abridge the rights of speech, press, assembly, or petition, neither Chicago nor Illinois at the time these petitioners were demonstrating had passed any such narrowly drawn laws. 4
The facts upon which these arrests and convictions for disorderly conduct occurred were these.
Petitioner Gregory and his group had become dissatisfied because Benjamin Willis, Superintendent of Chicago's public school system, was not moving speedily enough to desegregate the public schools. While Mayor Daley did not appear to have legal authority to remove Dr. Willis, 5 the group evidently believed the Mayor could cause him to be removed if he wanted to do so, and their prodding was therefore directed at the Mayor as well as against Willis. The group march began near the Chicago Loop District at 4:30 p. m. and ended five miles away in the neighborhood of Daley's home. A lieutenant of police, four police sergeants, and about forty [394 U.S. 111, 116] policemen met Gregory at the gathering place in Grant Park. There Gregory addressed the marchers, saying:
It is because of this truth, and a desire both to promote order and to safeguard First Amendment freedoms, that this Court has repeatedly warned States and governmental units that they cannot regulate conduct connected with these freedoms through use of sweeping, dragnet [394 U.S. 111, 118] statutes that may, because of vagueness, jeopardize these freedoms. In those cases, however, we have been careful to point out that the Constitution does not bar enactment of laws regulating conduct, even though connected with speech, press, assembly, and petition, if such laws specifically bar only the conduct deemed obnoxious and are carefully and narrowly aimed at that forbidden conduct. 6 The dilemma revealed by this record is a crying example of a need for some such narrowly drawn law. It is not our duty and indeed not within our power to set out and define with precision just what statutes can be lawfully enacted to deal with situations like the one confronted here by police and protestors, both of whom appear to us to have been conscientiously trying to do their duties as they understood them. Plainly, however, no mandate in our Constitution leaves States and governmental units powerless to pass laws to protect the public from the kind of boisterous and threatening conduct that disturbs the tranquility of spots selected by the people either for homes, wherein they can escape the hurly-burly of the outside business and political world, or for public and other buildings that require peace and quiet to carry out their functions, such as courts, libraries, schools, and hospitals.
The disorderly conduct ordinance under which these petitioners were charged and convicted is not, however, a narrowly drawn law, particularly designed to regulate certain kinds of conduct such as marching or picketing or demonstrating along the streets or highways. Nor does it regulate the times or places or manner of carrying on such activities. To the contrary, it might better be described as a meat-ax ordinance, gathering in [394 U.S. 111, 119] one comprehensive definition of an offense a number of words which have a multiplicity of meanings, some of which would cover activity specifically protected by the First Amendment. The average person charged with its violation is necessarily left uncertain as to what conduct and attitudes of mind would be enough to convict under it. Who, for example, could possibly foresee what kind of noise or protected speech would be held to be "improper"? That, of course, would depend on sensibilities, nerves, tensions, and on countless other things. As pointed out in Cantwell v. Connecticut, 310 U.S. 296, 308 (1940), common-law breach of peace is at its best a confusing offense that may imperil First Amendment rights. But how infinitely more doubtful and uncertain are the boundaries of an offense including any "diversion tending to a breach of the peace . . ."! Moreover, the ordinance goes on to state that it shall be a crime for persons to "collect in bodies or crowds for unlawful purposes, or for any purpose, to the annoyance or disturbance of other persons . . . ." Such language could authorize conviction simply because the form of the protest displeased some of the onlookers, and of course a conviction on that ground would encroach on First Amendment rights. See Thornhill v. Alabama, 310 U.S. 88 (1940); Edwards v. South Carolina, 372 U.S. 229 (1963); Cox v. Louisiana, 379 U.S. 536 (1965). And it must be remembered that only the tiniest bit of petitioners' conduct could possibly be thought illegal here - that is, what they did after the policeman's order to leave the area. The right "peaceably to assemble, and to petition the Government for a redress of grievances" is specifically protected by the First Amendment. For the entire five-mile march, the walking by petitioners in a group, the language, and the chants and songs were all treated by the city's assistant attorney and its specially detailed policemen as lawful, not lawless, conduct. [394 U.S. 111, 120]
The so-called "diversion tending to a breach of the peace" here was limited entirely and exclusively to the fact that when the policeman in charge of the special police detail concluded that the hecklers observing the march were dangerously close to rioting and that the demonstrators and others were likely to be engulfed in that riot, he ordered Gregory and his demonstrators to leave, and Gregory - standing on what he deemed to be his constitutional rights - refused to do so. The "diversion" complained of on the part of Gregory and the other marchers was not any noise they made or annoyance or disturbance of "other persons" they had inflicted. Their guilt of "disorderly conduct" therefore turns out to be their refusal to obey instanter an individual policeman's command to leave the area of the Mayor's home. Since neither the city council nor the state legislature had enacted a narrowly drawn statute forbidding disruptive picketing or demonstrating in a residential neighborhood, the conduct involved here could become "disorderly" only if the policeman's command was a law which the petitioners were bound to obey at their peril. But under our democratic system of government, lawmaking is not entrusted to the moment-to-moment judgment of the policeman on his beat. Laws, that is valid laws, are to be made by representatives chosen to make laws for the future, not by police officers whose duty is to enforce laws already enacted and to make arrests only for conduct already made criminal. One of our proudest boasts is that no man can be convicted of crime for conduct, innocent when engaged in, that is later made criminal. See, e. g., Chambers v. Florida, 309 U.S. 227, 236 (1940). To let a policeman's command become equivalent to a criminal statute comes dangerously near making our government one of men rather than of laws. See Cox v. Louisiana, 379 U.S. 559, 579 (1965) [394 U.S. 111, 121] (separate opinion). There are ample ways to protect the domestic tranquility without subjecting First Amendment freedoms to such a clumsy and unwieldy weapon.
The City of Chicago, recognizing the serious First Amendment problems raised by the disorderly conduct ordinance as it is written, argues that these convictions should nevertheless be affirmed in light of the narrowing construction placed on the ordinance by the Illinois Supreme Court in this case. That court held that the ordinance
It is not necessary for the Court to resolve such issues in the present case, however, because the Chicago ordinance, as applied here, infringed on First Amendment rights for an even more fundamental reason. Whatever the validity of the Illinois Supreme Court's construction, this was simply not the theory on which these petitioners were convicted. In explaining the elements of the offense to the jury, the trial judge merely read the language of the ordinance. The jury was not asked to find whether, as the Illinois Supreme Court's construction apparently requires, there was "an imminent threat of violence," or whether the police had "made all reasonable efforts to protect the demonstrators." Rather, it was sufficient for the jury to decide that petitioners had made an "improper noise" or a "diversion tending to a breach of the peace," or had "collect[ed] in bodies or crowds for unlawful purposes, or for any purpose, to the annoyance or disturbance of other persons."
In fact, far from taking account of the limiting factors stressed by the Illinois Supreme Court, the judge's charge was based on precisely the opposite theory. The jury was instructed, over petitioners' objection, that "the fact that persons other than these Defendants may or may not have violated any laws or may or may not have been arrested should not be considered by you in determining the guilt or innocence of these Defendants." The significance of this instruction in the context of the evidence at trial is of course apparent - the jury was simply told to ignore questions concerning the acts of violence committed [394 U.S. 111, 123] by the crowd of onlookers and attempts made by the police to arrest those directly responsible for them. 7 Under these circumstances, the principle established by Stromberg v. California, 283 U.S. 359 (1931), compels us to set aside these convictions. As we explained in Williams v. North Carolina, 317 U.S. 287, 292 (1942):
In agreeing to the reversal of these convictions, however, I wish once more to say that I think our Federal Constitution does not render the States powerless to regulate the conduct of demonstrators and picketers, conduct which is more than "speech," more than "press," more than "assembly," and more than "petition," as those terms are used in the First Amendment. Narrowly drawn statutes regulating the conduct of demonstrators and picketers are not impossible to draft. And narrowly drawn statutes regulating these activities are not impossible to pass if the people who elect their legislators want them passed. Passage of such laws, however, like the passage of all other laws, constitutes in the final analysis a choice of policies by the elected representatives of the people.
I, of course, do not mean to say or even to intimate that freedom of speech, press, assembly, or petition can be abridged so long as the First Amendment remains unchanged in our Constitution. But to say that the First Amendment grants those broad rights free from any exercise of governmental power to regulate conduct, as distinguished from speech, press, assembly, or petition, would subject all the people of the Nation to the uncontrollable whim and arrogance of speakers, and writers, and protesters, and grievance bearers. As Mr. Justice Goldberg wrote for the Court in Cox v. Louisiana, 379 U.S. 536, 554 (1965):
For these reasons I concur in the reversal.
[ Footnote 3 ] See, e. g., Chambers v. Florida, 309 U.S. 227, 235 -236, n. 8 (1940); Rochin v. California, 342 U.S. 165 (1952); id., at 174 (concurring opinion); Ferguson v. Skrupa, 372 U.S. 726 (1963).
[ Footnote 4 ] The nearest thing to such a law in existence at that time was 36-31 of the Municipal Code of Chicago, which required written permits for parades on "any public way" or for "any open air public meeting . . . in or upon any public way." Petitioners were neither charged with nor convicted for the offense of failing to obtain a written permit. Indeed, the city clearly gave its effective permission to the marchers by sending a city attorney and a detail of specially trained officers to protect them along every foot of their march. Since "[d]eeply embedded traditional ways of carrying out state policy . . . are often tougher and truer law than the dead words of the written text," Nashville, C. & St. L. R. Co. v. Browning, 310 U.S. 362, 369 (1940), this march could not be considered illegal in and of itself.
[ Footnote 5 ] Respondent asserts that under Ill. Rev. Stat., c. 122, 34-13 (1967), the Superintendent of Schools is accountable solely to the Board of Education and not to the Mayor.
[ Footnote 6 ] See, e. g., Thornhill v. Alabama, 310 U.S. 88 (1940); Cantwell v. Connecticut, 310 U.S. 296 (1940); Giboney v. Empire Storage Co., 336 U.S. 490 (1949); Scull v. Virginia, 359 U.S. 344 (1959).
[ Footnote 7 ] The trial judge explained the need for this instruction to counsel, in chambers, as follows:
MR. JUSTICE HARLAN, concurring in the result.
Two factors in this case run afoul of well-established constitutional principles, and clearly call for reversal. These are the ambulatory sweep of the Chicago disorderly conduct ordinance, see, e. g., Cantwell v. Connecticut, 310 U.S. 296 (1940), and Garner v. Louisiana, 368 U.S. 157, 186 (1961) (HARLAN, J., concurring in judgment), and the possibility that as the case went to the jury the convictions may have rested on a constitutionally impermissible ground. See Stromberg v. California, 283 U.S. 359 (1931).
I agree with the concurring opinion of my Brother BLACK on both of these scores, and to that extent join in it. [394 U.S. 111, 131]