Assembly

We next discuss the evolution of the Court's treatment of public demonstrations. One hundred years ago, the Court seemed to regard public property as if it were owned by public officials, not the public. For this reason, the Court concluded the 19th century in Commonwealth v Davis (1895) by seeming to hold that one who remained on public property after being commanded to leave was trespassing. In essence, the Court had seemed to grant plenary power to municipalities to prohibit public speaking in publicly owned places.

The Davis view has, of course, been repudiated. In HAGUE v. COMMITTEE FOR INDUSTRIAL ORGANIZATION, 307 U.S. 496 (1939), individual citizens and labor organizations brought suit against the Mayor of Jersey City who, they alleged, under the guise of a public permitting ordinance, sought to bar labor advocates from convening to organize labor meetings and rallies. The District court had held that the advocates had no other purpose than to inform citizens of Jersey City by speech, and by the written word, respecting matters growing out of national labor legislation.

The question presented in Hague was whether a cause of action under the Fourteenth Amendment to protect the right to assemble and speak existed.

• [I]t is clear that the right peaceably to assemble and to discuss these topics, and to communicate respecting them, whether orally or in writing, is a privilege inherent in citizenship of the United States which the Amendment protects. In the Slaughter-House Cases it was said, 'The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizen guaranteed by the Federal Constitution. In United States v. Cruikshank, 92 U.S. 542, 552, 553, the court said: 'The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or the duties of the National Government, is an attribute of national citizenship and, as such, under the protection of and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances. If it had been alleged in these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute, and within the scope of the sovereignty of the United States.'

Since the plaintiffs were meeting for lawful expression, the question presented was whether Davis allowed the City to regulate speech on the theory that the city's ownership of streets and parks is as absolute as one's ownership of his home...":

• We have no occasion to determine whether, on the facts disclosed, the Davis Case was rightly decided, but we cannot agree that it rules the instant case. Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.

Of course, local government may properly regulate the use of public places. Following Hague, however, the Court began to be concerned about abusive use of regulatory authority to grant or deny access to public places based upon whether the assembly advocated unpopular views. The Court began to insist on standards sufficient to assure that such ordinances did not serve as devices to censor and prohibit free expression. One such case was KUNZ v. NEW YORK, 340 U.S. 290 (1951) In 1946, Kunz, an ordained Baptist minister, obtained from the city Police Commissioner a permit to hold religious meetings on the streets of New York City during that year only. It was revoked on evidence that he had ridiculed and denounced other religious beliefs, in violation of a criminal provision of the ordinance under which the permit was issued. In 1948, appellant's application for a similar permit was denied without any statement of reasons, and he was later convicted for holding a religious meeting on the streets without a permit.

The Court found the ordinance to be invalid on its face, because in imposed prior restraints upon the content of speech, and because it delegated authority to deny permits without standards:

• We have here, then, an ordinance which gives an administrative official discretionary power to control in advance the right of citizens to speak on religious matters on the streets of New York. As such, the ordinance is clearly invalid.....We have consistently condemned licensing systems which vest in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places.

During the 1960's, local ordinance enforcement became the subject of repeated review in the context of civil rights demonstrations and attempts by citizens to be served at segregated lunch counters, in public transportation and public facilities. The Court reaffirmed its insistence on standards and content neutral enforcement in COX v. LOUISIANA, 379 U.S. 536 (1965). Cox was the leader of a civil rights demonstration in Baton Rouge, Louisiana, of 2,000 Negro students protesting segregation and the arrest and imprisonment the previous day of other Negro students who had participated in a protest against racial segregation. The group assembled a few blocks from the courthouse, where Cox identified himself to officers as the group's leader and explained the purpose of the demonstration. Following his refusal to disband the group, Cox led it in an orderly march toward the courthouse. In the vicinity of the courthouse officers stopped Cox who, after explaining the purpose and program of the demonstration, was told by the Police Chief that he could hold the meeting so long as he confined it to the west side of the street. Appellant directed the group to the west sidewalk, across the street from the courthouse and 101 feet from its steps. There the group, standing five feet deep and occupying almost the entire block but not obstructing the street, displayed signs and sang songs which evoked response from the students in the courthouse jail. Appellant addressed the group. The Sheriff, construing as inflammatory appellant's concluding exhortation to the students to "sit in" at uptown lunch counters, ordered dispersal of the group which, not being directly forthcoming, was effected by tear gas. Appellant was arrested the next day and was convicted of peace disturbance, obstructing public passages, and courthouse picketing.

The objectionable conduct, according to Louisiana, occurred when Cox urged black citizens to attempt to be served at a segregated lunch counter. When Cox reached this point in his presentation, the Sheriff ordered the crowd to disburse, on the grounds that they were disturbing the peace. The fact that the audience applauded, cheered and sang could not support a conviction for disturbing the peace:

• The State argues, however, that while the demonstrators started out to be orderly, the loud cheering and clapping by the students in response to the singing from the jail converted the peaceful assembly into a riotous one. The record, however, does not support this assertion. It is true that the students, in response to the singing of their fellows who were in custody, cheered and applauded. However, the meeting was an outdoor meeting and a key state witness testified that while the singing was loud, it was not disorderly. There is, moreover, no indication that the mood of the students was ever hostile, aggressive, or unfriendly. Our conclusion that the entire meeting from the beginning until its dispersal by tear gas was orderly and not riotous is confirmed by a film of the events taken by a television news photographer, which was offered in evidence as a state exhibit.

Nor could the conviction be sustained on the theory that Cox's speech upset the white onlookers:

• Finally, the State contends that the conviction should be sustained because of fear expressed by some of the state witnesses that "violence was about to erupt" because of the demonstration. It is virtually undisputed, however, that the students themselves were not violent and threatened no violence. The fear of violence seems to have been based upon the reaction of the group of white citizens looking on from across the street. One state witness testified that "he felt the situation was getting out of hand" as on the courthouse side of St. Louis Street "were small knots or groups of white citizens who were muttering words, who seemed a little bit agitated." A police officer stated that the reaction of the white crowd was not violent, but "was rumblings." Others felt the atmosphere became "tense" because of "mutterings," "grumbling," and "jeering" from the white group...constitutional rights may not be denied simply because of hostility to their assertion or exercise.

Here again, the Court found that the ordinance itself was impermissibly broad. A broad ordinance grants unfettered discretion to local officials who may use the ordinance as a tool improperly to prevent speech with which they disagree. Cox and others also challenged the application of an ordinance prohibiting citizens from blocking public ways. After reviewing its prior decisions, the Court rejected Cox's contention that the ordinance itself violated the first amendment:

• From these decisions certain clear principles emerge. The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection. One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech or assembly. Governmental authorities have the duty and responsibility to keep their streets open and available for movement. A group of demonstrators could not insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations.

But the Court struck down Cox's conviction, because the evidence showed that the ordinance was used as a restraint on the content of speech, that it afforded broad discretion to local officials to grant or deny public access based upon the purpose of the particular assembly. See also EDWARDS v. SOUTH CAROLINA, 372 U.S. 229 (1963).

The Edwards and Cox decisions do not afford a license to citizens to violate tightly drafted fairly enforced laws prohibiting trespass in the private portions of public facilities. The Court made this plain one year after Edwards and Cox in ADDERLEY v. FLORIDA, 385 U.S. 39 (1966), where the court upheld enforcement of criminal trespass laws against persons seeking to remain on a publicly owned non-public jail driveway. The Florida trespass statute, when applied to a demonstration on the premises of a jail, which is built for security purposes and not open to the public, was found "aimed at conduct of a limited kind" and not unconstitutionally vague.