Brown v. Louisiana/Concurrence Brennan
Mr. Justice BRENNAN, concurring in the judgment.
Petitioners were charged with and convicted of violating the Louisiana statute, § 14:103.1, which provides:
'Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby * * * crowds or congregates with others * * * in or upon * * * a public street or public highway, or upon a public sidewalk, or any other public place or building * * * and who fails or refuses to disperse and move on * * * when ordered so to do by any law enforcement officer of any municipality, or parish, in which such act or acts are committed, or by any law enforcement officer of the state of Louisiana, or any other authorized person * * * shall be guilty of disturbing the peace.' La.Rev.Stat. § 14:103.1 (Cum.Supp.1962).
In Cox v. State of Louisiana, 379 U.S. 536, 551-552, 85 S.Ct. 453, 463, 13 L.Ed.2d 471, the Court declared this statute as construed unconstitutional for overbreadth: it 'is unconstitutional in that it sweeps within its broad scope activities that are constitutionally protected free speech and assembly.' This holding was concurred in by my Brothers Black, 379 U.S. 559, at 576-580, 85 S.Ct. 466, at 467-470, Harlan and White, id., at 591, 85 S.Ct. at 475. No limiting construction  or legislative revision  has intervened, and no circumstance of this case makes that declaration of invalidity less controlling here. The overbreadth of the statute recognized in Cox therefore requires the reversal of these convictions.
The appellants in Cox were convicted for their conduct on public streets and sidewalks, while petitioners here were convicted for their conduct in a public library. Because of this it is contended in dissent, post, p. 157, that Cox and this case involve different 'phases' of § 14:103.1-a 'public street and sidewalk phase' in contrast to a 'public building phase.' Insofar as this dissection of the statute is meaningful, it does not make the holding of Cox inapplicable;  both phases are overbroad and the overbreadth of each poses a serious threat to the exercise of constitutional rights.
First. The overbreadth of § 14:103.1 discerned in Cox did not inhere in the terms 'public street' or 'public sidewalk'; it inhered in the phrase 'breach of the peace' as interpreted by the Supreme Court of Louisiana to mean 'to agitate, to arouse from a state of repose, to molest, to interrupt, to hinder, to disquiet.' 379 U.S., at 551, 85 S.Ct. at 462. Nothing in the Louisiana courts' decisions in this case rejects this interpretation of the phrase 'breach of the peace' for the public building phase of s 14:103.; nor is there anything about a public building that would make this definition of the proscribed conduct inapplicable.
The public building phase of § 14:103.1, especially when read in context of the other phases, is not, contrary to the dissent's suggestion, post, p. 162, restricted to, nor even aimed at, 'trespassers on government property'; Louisiana has a separate criminal statute, not at all involved in this prosecution, which explicitly deals with trespassing in public buildings.  Moreover, I reject the suggestion that this breach of the peace statute, making refusal to obey an order 'to disperse and move on' an element of the crime, is as narrow as a sufficiently specific trespass statute explicitly concerned with trespassing on government property that also makes refusal to obey an order to keep off or leave the property an element of the crime. Because this statute seeks to curb breaches of the peace and risks of such breaches occurring through crowding, it apparently permits a wide range of persons to issue the requisite order, no formal or customary procedures need be followed in issuing the order, and instantaneous and unquestioning compliance with the order is required. For example, the trial court below, in applying § 14:103.1, assumed that as a matter of state law any employee of the library would have the authority to issue the order 'to disperse and move on' simply as the occasion arose and that petitioners were expected to immediately comply with the order even though they might have reasonably thought they were being ejected simply to preserve the segregated character of the library. Cf. Wright v. State of Georgia, 373 U.S. 284, 291-292, 83 S.Ct. 1240, 1245-1246, 10 L.Ed.2d 349.
Second. The danger posed by the Louisiana courts' definition of 'breach of the peace'-that it might sweep within its broad scope activities that are constitutionally protected-is no less present when read in conjunction with 'public building' than when read with 'public street' and 'public sidewalk.' The constitutional protection for conduct in a public building undertaken to desegregate governmental services provided therein derives from both the First Amendment guarantees of freedom of speech, petition and assembly,  and the Equal Protection Clause's prohibition against racial segregation of governmental services and facilities. Overbreadth in the public building phase might inhibit the exercise of these constitutional rights by threatening punishment of the initial efforts to secure such desegregation. For example, the public building phase of § 14:103.1 might be read as reaching the conduct of two Negroes who did nothing more than enter a library restricted to whites, request a book and refuse to leave when ordered to do so before service was rendered. The conduct of the two Negroes would be as constitutionally protected as the conduct of the Negro who refused to leave the white section of a segregated courtroom, Johnson v. State of Virginia, 373 U.S. 61, 83 S.Ct. 1053, 10 L.Ed.2d 195, and yet their conduct would be punishable under § 14:103.1 because their purpose could be deemed 'to agitate, to arouse from a state of repose, to molest, to interrupt, to hinder, to disquiet.'
In light of these possible clearly unconstitutional applications of the statute, we need not decide whether petitioners' actual conduct is constitutionally protected; for 'in appraising a statute's inhibitory effect upon such rights, this Court has not hesitated to take into account possible applications of the statute in other factual contexts besides that at bar.' N.A.A.C.P. v. Button, 371 U.S. 415, 432, 83 S.Ct. 328, 337, 9 L.Ed.2d 405. It suffices that petitioners' conduct was arguably constitutionally protected and was 'not the sort of 'hard-core' conduct that would obviously be prohibited under any construction'  of § 14:103.1. It was engaged in to achieve desegregation of the library through a request for service and a protest, expressed by petitioners' continued presence. Petitioners were orderly and quiet. Their continued presence, for a relatively short period of time, did not interfere with the functioning of the library. Their presence might have embarrassed and unnerved the librarians, who had in the past faithfully observed the policy of segregation; but such 'vague disquietudes'  do not take petitioners' conduct outside the appropriate limits. The sheriff gave petitioners no reason for the order to leave,  and thus petitioners might have reasonably believed that they were being ejected only because they were Negroes seeking to exercise their constitutional rights;  as my Brother Black observed in Feiner v. People of State of New York, 340 U.S. 315, 327, 71 S.Ct. 303, 310, 95 L.Ed. 265, 'at least where time allows, courtesy and explanation of commands are basic elements of good official conduct in a democratic society.'
Since the overbreadth of § 14:103.1 as construed clearly requires the reversal of these convictions,  it is wholly unnecessary to reach, let alone rest reversal, as the prevailing opinion seems to do, on the proposition that even a narrowly drawn 'statute cannot constitutionally be applied to punish petitioners' actions in the circumstances of this case.'
^1 See Shuttlesworth v. City of Birmingham, 382 U.S. 87, 99, 86 S.Ct. 211, 217, 15 L.Ed.2d 176 (concurring opinion); Dombrowski v. Pfister, 380 U.S. 479, 491, n. 7, 85 S.Ct. 1116, 1123, 14 L.Ed.2d 22.
^2 Compare Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098, and Commercial Pictures Corp. v. Regents, 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329, with Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512.
^3 In declaring the statute unconstitutional for overbreadth the Court in Cox relied heavily on Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131, a case involving the application of a breach of the peace ordinance to an individual purporting to exercise First Amendment rights in an auditorium, not on the streets or sidewalks.
^4 La.Acts 1963, No. 91, amending and re-enacting La.Rev.Stat. § 14:63.3 (Cum.Supp.1962). The dissent refers to subdivision (4) of § 14:103.1 to support its view that subdivision (1), the basis for the charges and the convictions, 'is to all intents and purposes aimed at trespassers on government property.' Post, p. 162. However, subdivision (4) is also modified by the introductory clause 'Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby'; and thus to establish a violation of that subdivision more than the refusal to leave the 'premises of another' after an order to do so would have to be proved.
^5 Cf. N.A.A.C.P. v. Button, 371 U.S. 415, 428-431, 83 S.Ct. 328, 335-337, 9 L.Ed.2d 405; Garner v. State of Louisiana, 368 U.S. 157, 201-202, 82 S.Ct. 248, 271-272, 7 L.Ed.2d 207 (opinion of Mr. Justice Harlan):
'There was more to the conduct of those petitioners than a bare desire to remain at the 'white' lunch counter and their refusal of a police request to move from the counter. We would surely have to be blind not to recognize that petitioners were sitting at these counters, where they knew they would not be served, in order to demonstrate that their race was being segregated in dining facilities in this part of the country.
'Such a demonstration, in the circumstances of these two cases, is as much a part of the 'free trade in ideas,' Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (Holmes, J., dissenting), as is verbal expression, more commonly thought of as 'speech.' It, like speech, appeals to good sense and to 'the power of reason as applied through public discussion,' Whitney v. People of State of California, 274 U.S. 357, 375, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (Brandeis, J., concurring), just as much as, if not more than, a public oration delivered from a soapbox at a street corner. This Court has never limited the right to speak, a protected 'liberty' under the Fourteenth Amendment, Gitlow v. People of State of New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629, 69 L.Ed. 1138, to mere verbal expression. Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117; Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 633-634, 63 S.Ct. 1178, 1183, 87 L.Ed. 1628. See also N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488. If the act of displaying a red flag as a symbol of opposition to organized government is a liberty encompassed within free speech as protected by the Fourteenth Amendment, Stromberg v. People of State of California, supra, the act of sitting at a privately owned lunch counter with the consent of the owner, as a demonstration of opposition to enforced segregation, is surely within the same range of protections.'
Public buildings often provide a forum for more traditional forms of First Amendment activity, such as verbal expression. See, e.g., Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (city hall); Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (auditorium open to public in privately owned building).
^7 Watson v. City of Memphis, 373 U.S. 526, 535-536, 83 S.Ct. 1314, 1319-1320, 10 L.Ed.2d 529. See generally Buchanan v. Warley, 245 U.S. 60, 81, 38 S.Ct. 16, 20, 62 L.Ed. 149; Cooper v. Aaron, 358 U.S. 1, 16, 78 S.Ct. 1401, 1409, 3 L.Ed.2d 5; Taylor v. State of Louisiana, 370 U.S. 154, 156, 82 S.Ct. 1188, 1189, 8 L.Ed.2d 395; Wright v. State of Georgia, 373 U.S., at 293, 83 S.Ct., at 1246; Cox v. State of Louisiana, 379 U.S., at 551, 85 S.Ct., at 462.
^8 On cross-examination the sheriff testified as follows:
'Q. Sheriff, did you arrest these people, these defendants, because you considered their action going into the Library as a demonstration?
'A. I arrested them because the occupants of the building had asked them to leave, and so had I; it was a public building and they refused to leave.
'Q. What did you tell them when you went in, Sheriff, did you have any conversations with these people?
'A. Not with them, I talked to Mrs. Perkins, and she told me that she had taken their application and had asked them to leave, and they wouldn't and I asked them to leave. Henry Brown told me it was a public library, the rest of them didn't say anything.
'Q. Did Brown mention anything to you about wanting a book on the Constitution of the United States?
'A. He did not.
'Q. After Brown told you that it was a public library, what did you say then?
'A. I don't know of anything that I said. I was assured that Mrs. Perkins had asked them to leave since they didn't have the book they wanted.
'Q. Did you, at that point, ask them to leave?
'A. I did.
'Q. When you-
'A.-And I also told them that they had the choice of leaving, or be arrested for not leaving a public building when asked to do so by an officer.
'Q. When you got there, Sheriff, was anybody making any noise?
'A. No noise.
'Q. Prior to your asking these defendants to leave, did you ask each of them, all of them, whether or not they intended to use the reference-books at the Library?
'A. I didn't ask them what they intended to do, and they didn't state at that time what they were doing there.'
^9 See Wright v. State of Georgia, 373 U.S., at 291-292, 83 S.Ct., at 1245: 'Obviously * * * one cannot be punished for failing to obey the command of an officer if that command is itself violative of the Constitution.'
^10 This ground of reversal makes it unnecessary to decide whether subdivision (1) of § 14:103.1 embodies an invidious discrimination because it contains the following exemption: '(N)othing herein contained shall apply to a bona fide legitimate labor organization or to any of its legal activities such as picketing, lawful assembly or concerted activity in the interest of its members for the purpose of accomplishing or securing more favorable wage standards, hours of employment and working conditions * * *.' My Brother Black in his opinion in Cox v. State of Louisiana, 379 U.S., at 581, 85 S.Ct. at 470, found the obstructing public passages statute (La.Rev.Stat. § 14.100.1 (Cum.Supp.1962)) to embody 'an invidious discrimination forbidden by the Equal Protection Clause of the Fourteenth Amendment' because it contained the same exemption from its coverage for labor union activities.