New Limits for an Old Conflict

Casting a cool eye at three convictions of one Louisiana civil rights worker, the Supreme Court last week tossed out all three. In the process, it spelled out new limits for both sides of an old conflict--the need for public law and order v. the First Amendment's guarantee of the rights of free speech, assembly and petition.

In Baton Rouge, in 1961, police arrested 23 students of Southern (Negro) University for picketing segregated lunch counters. Next day, the Rev. B. Elton Cox, a Congregationalist minister and CORE worker, led 2,000 more students to the courthouse for a peaceful demonstration against the arrests. Cox figured he had permission because Police Chief Wingate White had told him to "confine" his demonstrators to the opposite side of the street.

When Cox urged his crew to go to segregated lunch counters, white bystanders began muttering angrily, and the sheriff ordered Cox & Co. to leave "immediately." Minutes later the demonstrators were still there, and police dispersed them with tear-gas shells.

No Standards. Cox was arrested, convicted and sentenced to four months in jail and fined $200 for breach of the peace. He got five months and a $500 fine for obstructing public passages, one year and a $5,000 fine for picketing a courthouse--all to be served cumulatively, for a total of 21 months in jail and $5,700 in fines. Louisiana's highest court upheld the convictions.

Speaking for the Supreme Court, which viewed TV news films of the entire incident, Justice Arthur Goldberg said that "the students were wellbehaved throughout." What the police feared, he added, was white reaction; their paramount duty was to protect rather than attack the peaceful Negroes. Out went Cox's first conviction, by unanimous vote--along with Louisiana's "unconstitutionally vague" breach-of-the-peace statute.

In considering Cox's next case, Goldberg upheld the principle of Louisiana's obstruction-of-passage statute. "Governmental authorities have the duty and responsibility to keep their streets open and available for movement." Indeed, "we emphatically reject the notion urged by appellant" that the First Amendment protects street demonstrations just as much as pure speech. But the Louisiana statute contains no precise standards, and the way Baton Rouge police put it to work, said Goldberg, was "an unwarranted abridgment of appellant's freedom of speech and assembly." Out went the second conviction, 7 to 2.

Poisoned Justice. In reversing Cox's third conviction, however, the Justices bitterly divided, 5 to 4, over a problem that first arose when U.S. Communists picketed trials of the U.S. party's lead ers. In 1949, Congress passed a law banning such demonstrations "in or near" all federal courthouses. Louisiana copied that Saw (as did Massachusetts and Pennsylvania) to deal with demonstrations near state courthouses. Goldberg praised Louisiana's law as "a precise, narrowly drawn regulatory statute which prohibits specific behavior." It does not violate the First Amendment, he said, because picketing is "subject to regulation, even though intertwined with expression and association." To this point at least, the court was unanimous. Then could Cox be excused?

As the majority saw it, said Goldberg, "the record clearly shows that the officials present gave permission for the demonstration to take place." Cox was then banished "because officials erroneously concluded that what he said threatened a breach of the peace." To allow the conviction to stand, he wrote, would amount to punishing the defendant for doing something he had been told was lawful.

The four dissenters completely disagreed. "If the police chief's action be consent," snapped Justice Tom C. Clark, "I never knew until today that a law enforcement official--city, state or national--could forgive a breach of the criminal laws. 1 missed that in my law school, in my practice, and for two years while I was head of the Criminal Division of the Department of Justice."

Clark called the decision a victory for "mobocracy." Justice Hugo Black was equally incensed. "Government under law as ordained by our Constitution is too precious," he said, "too sacred, to be jeopardized by subjecting the courts to intimidatory practices that have been fatal to individual liberty and minority rights wherever and whenever such practices have been allowed to poison the streams of justice."

Despite the dissent, however, the long-range significance of the case probably is that all nine Justices upheld Louisiana's statute against courthouse demonstrations. At the same time, they reaffirmed the First Amendment's guarantees of free speech, assembly and petition--but only to the extent that those rights are exercised in keeping with a government of laws, not men.

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