Garner v. Louisiana/Concurrence Harlan

by John Marshall Harlan II

United States Supreme Court

368 U.S. 157

Garner  v.  Louisiana

 Argued: Oct. 18 and 19, 1961. --- Decided: Dec 11, 1961

Mr. Justice HARLAN, concurring in the judgment.

I agree that these convictions are unconstitutional, but not for the reasons given by the Court. Relying on Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654, the Court strikes down the convictions on the ground that there is no evidence whatever to support them. In my opinion the Thompson doctrine does not fit these cases. However, I believe the convictions are vulnerable under the Fourteenth Amendment on other grounds: (1) the kind of conduct revealed in Garner, No. 26, and in Hoston, No. 28, could not be punished under a generalized breach of the peace provision, such as Art. 103(7), La.Crim. Code; ^[1] (2) Art. 103(7) as applied in Briscoe, No. 27 (as well as in the Garner and Hoston cases) is unconstitutionally vague and uncertain.

The Court's reversal for lack of evidence rests on two different views of Art. 103(7). First, it is said that the statute, as construed by the Louisiana courts, reaches at most only 'violent,' 'boisterous,' or 'outwardly provocative' conduct that may foreseeably induce a public disturbance. On this view, these cases are found evidentially wanting because the petitioners' conduct, being entirely peaceful, was not of the character proscribed by the statute so construed. Alternatively, it is recognized that the statute is susceptible of a construction that would embrace as well other kinds of conduct having the above effect. On that view, the convictions are also found evidentially deficient, in that petitioners' conduct, so it is said, could not property be taken as having any tendency to cause a public disturbance. In my opinion, the first of these holdings cannot withstand analysis with appropriate regard for the limitations upon our powers of review over state criminal cases; the second holding rests on untenable postulates as to the law of evidence.

Turning to the first holding, it goes without saying that we are not at liberty to determine for ourselves the scope of this Louisiana statute. That was a function belonging exclusively to the state courts, and their interpretation is binding on us. E.g., Appleyard v. State of Massachusetts, 203 U.S. 222, 227, 27 S.Ct. 122, 123, 51 L.Ed. 161; Hebert v. State of Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270; Williams v. Oklahoma, 358 U.S. 576, 583, 79 S.Ct. 421, 425, 3 L.Ed.2d 516. For me, the Court's view that the statute covers only nonpeaceful conduct is unacceptable, since I believe that the Louisiana Supreme Court decided the opposite in these very cases. I think the State Supreme Court's refusal to review these convictions, taken in light of its assertion that the 'rulings of the district judge on matters of law are not erroneous,' must be accepted as an authoritative and binding state determination that the petitioners' activities, as revealed in these records, did violate the statute; in other words that, contrary to what this Court now says in Part I of its opinion, the enactment does cover peaceful conduct of a kind that foreseeably may lead to public disturbance. ^[2]

This Court's view of the statute rests primarily, if not entirely, on an earlier Louisiana case, State v. Sanford, 203 La. 961, 14 So.2d 778, involving a different, but comparable, breach of the peace statute. That case is regarded as establishing that breaches of the peace under Louisiana law are confined to nonpeaceful conduct. While I do not find the Sanford case as 'plan' as the Court does (infra, 368 U.S., pp. 191-192, 82 S.Ct., pp. 266-267), that earlier holding cannot in any event be deemed controlling on the significance to be attributed to the action of the State Supreme Court in these cases. There can be no doubt that Louisiana had to follow the principles of Sanford only to the extent that it felt bound by stare decisis. A departure from precedent may have been wrong, unwise, or even unjust, but it was not unconstitutional. Patterson v. State of Colorado, 205 U.S. 454, 461, 27 S.Ct. 556, 557, 51 L.Ed. 879. ^[3] See also Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 680, 50 S.Ct. 451, 454, 74 L.Ed. 1107, and cases there cited; cf. Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360.

More basically, established principles of constitutional adjudication require us to consider that the Louisiana Supreme Court's refusal to review these cases signifies a holding that the breach of the peace statute which controls these cases does embrace the conduct of the petitioners, peaceful though it was.

These state judgments come to us armored with a presumption that they are not founded 'otherwise than is required by the fundamental law of the land,' Ex parte Royall, 117 U.S. 241, 252, 6 S.Ct. 734, 740, 29 L.Ed. 868 (see also Darr v. Burford, 339 U.S. 200, 205, 70 S.Ct. 587, 590, 94 L.Ed. 761), comparable to the presumption which has always attached to state legislative enactments. See, e.g., Butler v. Pennsylvania, 10 How, 402, 415, 13 L.Ed. 472. That presumption should render impermissible an interpretation of these judgments as resting on the view that the relevant breach of the peace statute reaches only unruly behavior. For, on the Court's premise that there is no evidence of that kind of behavior, such an interpretation in effect attributes to the Louisiana Supreme Court a deliberately unconstitutional decision, under principles established by Thompson v. City of Louisville, supra, which had already been decided at the time these cases came before the Louisiana courts.

Moreover, the kind of speculation in which the Court has indulged as to the meaning of the Louisiana statute is surely out of keeping with the principle that federal courts should abstain from constitutional decision involving doubtful state law questions until a clarifying adjudication on them has first been obtained from the state courts. See Railroad Comm. of Texas v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 645, 85 L.Ed. 971; Harrison v. N.A.A.C.P., 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152. Cf. Glenn v. Field Packing Co., 290 U.S. 177, 54 S.Ct. 138, 78 L.Ed. 252; Leiter Minerals, Inc., v. United States, 352 U.S. 220, 228-229, 77 S.Ct. 287, 292, 1 L.Ed.2d 267; Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058. If there be doubt as to how the statute was construed in this respect, the cases should be returned to the Louisiana Supreme Court for clarification of its judgments. See Herb v. Pitcairn, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789.

Our recent decision in Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654, cannot well be taken as justification for considering the judgments under review as other than a holding by Louisiana's highest court that breach of the peace under then existing state law may include conduct that in itself is peaceful. In Thompson, the petitioner was convicted of two offenses defined by ordinances of the City of Louisville. One of these ordinances, prohibiting loitering, expressly enumerated three elements of the offense. The prosecution introduced no evidence to establish any of these definitely prescribed components, which were not suggested to have, by virtue of state judicial interpretation, any other than their plain meaning. We held that 'Under the words of the ordinance itself,' there was no evidence to support the conviction.

The other offense of which the petitioner in Thompson was convicted was 'disorderly conduct,' not at all defined in the ordinance. The only evidence in the record relating to conduct which might conceivably have come within the prohibited scope indicated was that the petitioner was 'argumentative' with the arresting officers. We said of this conviction (362 U.S., at 206, 80 S.Ct., at 629): 'We assume, for we are justified in assuming, that merely 'arguing' with a policeman is not, because it could not be, 'disorderly conduct' as a matter of the substantive law of Kentucky. See Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888.' In other words, we held that the ordinance could not, for want of adequate notice, constitutionally be construed by the Kentucky courts to cover the activity for which the city sought to punish the petitioner.

Where, as was true of the disorderly conduct charge in Thompson, application of a generally drawn state statute or municipal ordinance to the conduct of a defendant would require a constitutionally impermissible construction of the enactment, we are not bound by the state court's finding that the conduct was criminal. In the cases now before us, however, the Court does not suggest that Louisiana's disturbance of the peace statute was too vague to be constitutionally applied to the conduct of the petitioners. I think we are obliged, because of the state courts' dispositions of these cases, to hold that there was presented at petitioners' trials evidence of criminal conduct under Louisiana law. Herndon v. Lowry, 301 U.S. 242, 255, 57 S.Ct. 732, 738, 81 L.Ed. 1066.

Thompson v. Louisville should be recognized for what it is, a case involving a situation which, I think it fair to say, was unique in the annals of the Court. The case is bound to lead us into treacherous territory, unless we apply its teaching with the utmost circumspection, and with due sense of the limitations upon our reviewing authority.

The Court's holding on this phase of the matter also suffers from additional infirmities. I do not think that State v. Sanford, the cornerstone of this branch of the Court's opinion, is as revealing upon the meaning of breach of the peace under Louisiana law as the Court would make it seem. In that case the Louisiana Supreme Court reversed the convictions, under the then breach of the peace statute, of four Jehovah's Witnesses who had solicited contributions and distributed pamphlets in a Louisiana town, with an opinion which cited, inter alia, Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1214 and Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1119. Reference was made to 'the provisions of the Constitution of the United States guaranteeing freedom of religion, of the press and of speech.' 203 La., at 968, 14 So.2d, at 780. The court said, most clearly, 'The application of the statute by the trial judge to the facts of this case and his construction thereof would render it unconstitutional under the above Federal authorities.' 203 La., at 970, 14 So.2d, at 780-781. In addition, the opinion noted, conviction under the statute might violate the Louisiana Constitution 'because it is well-settled that no act or conduct, however reprehensible, is a crime in Louisiana, unless it is defined and made a crime clearly and unmistakably by statute.' 203 La., at 970, 14 So.2d, at 781. In the concluding part of its opinion the Louisiana Supreme Court also said what this Court now considers to be the sole ground of its decision: 'It is our opinion that the statute is inapplicable to this case because it appears that the defendants did not commit any unlawful act or pursue an unlawful or disorderly course of conduct which would tend to disturb the peace.' 203 La., at 970, 14 So.2d, at 781.

Thus, a full reading of Sanford will disclose that there were at least three considerations which led to the result: (1) the likelihood that a contrary holding would violate provisions of the Federal Constitution relating to religion, speech, and press under the principles declared in then-recent decisions of this Court; (2) the possibility that the statute was too vague and unclear under the Louisiana Constitution adequately to define the bounds of the conduct being declared criminal; (3) the unfairness of convicting under a general breach of the peace statute persons engaged in such peaceable religious activity.

The Court now isolates this last factor from this multifaceted opinion, and, using it as an immutable measures of what Louisiana law requires, declares that the present convictions must fall because the standard so unclearly set out in Sanford has not been met. Apart from other considerations already discussed, I am not prepared to rest a constitutional decision on so insecure a foundation.

It is further significant that the State Supreme Court's order refusing to review the present cases does not cite State v. Sanford, but rather relies on another earlier case, Town of Ponchatoula v. Bates, 173 La. 824, 138 So. 851. The Bates decision, upholding the constitutionality of an ordinance making it a crime 'to engage in a fight or in any manner disturb the Peace,' defined disturbance of the peace as 'any act or conduct of a person which molests the inhabitants in the enjoyment of that peace and quiet to which they are entitled, or which throws into confusion things settled, or which causes excitement, unrest, disquietude, or fear among persons of ordinary, normal temperament.' 173 La., at 828, 138 So., at 852. Such a definition would of course bring within the compass of the statute even peaceful activity, so long as it threw 'into confusion things settled,' or caused disquietude among ordinary members of the community. I think it was that construction which the Louisiana Supreme Court placed upon the breach of the peace statute involved in the cases now before us.

The alternative holding of the Court in Part II of its opinion also stands on unsolid foundations. Conceding that this breach of the peace statute 'might' be construed to cover peaceful conduct carried on 'in such a manner as would foreseeably disturb or alarm the public,' the Court holds that there was no evidence that petitioners' conduct tended to disturb or alarm those who witnessed their activity.

There is, however, more to these cases than what physically appears in the record. It is an undisputed fact that the 'sit-in' program, of which petitioners' demonstrations were a part, had caused considerable racial tension in various States, including Louisiana. Under Louisiana law, LSA-R.S. 15:422, Louisiana courts may take judicial notice of 'the political, social and racial conditions prevailing in this state.' State v. Bessa, 115 La. 259, 38 So. 985. This Court holds, nonetheless, that the Louisiana courts could not, consistently with the procedural guarantees of the Fourteenth Amendment, judicially notice the undisputed fact that there was racial tension in and around Baton Rouge on March 28 and 29, 1960 (the dates of these 'sitin'), without informing the parties that such notice was being taken, and without spreading the source of the information on the record.

Support for this constitutional proposition is found in Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 302-303, 57 S.Ct. 724, 730, 81 L.Ed. 1093. The Court there held that it was repugnant to the Fourteenth Amendment for a state agency to deprive the telephone company of property on the basis of rates set by a precise mathematical computation derived from undisclosed statistics. This was because the procedure afforded no opportunity for rebuttal with respect to the underlying data, and for possible demonstration that the figures should not be judicially noticed, since their source was unknown and the statistics were not disclosed to any reviewing court. See Morgan, Some Problems of Proof (1956), 56.

The situation we have here is quite different. The existence of racial tensions, of which the Louisiana courts must have taken judicial notice in order to find that petitioners' conduct alarmed or disturbed the public, was notorious throughout the community and, indeed, throughout that part of the United States. The truth of that proposition is not challenged, nor is any particular authority required to confirm it. This kind of generally known condition may be judicially noticed by trial and appellate courts without prior warning to the parties, since it does not require any foundation establishing the accuracy of a specific source of information. See Uniform Rules of Evidence, 9(2)(c); ALI, Model Code of Evidence, Rule 802(c); 1 Morgan, Basic Problems of Evidence (1954), 9-10. Cf. Mills v. Denver Tramway Corp., 155 F.2d 808 (C.A.10th Cir.). I perceive no reason why that principle should be considered as applying only in civil cases, and I am not aware of any American authority which so holds.

Indeed, the fact of which I think we must consider judicial notice was taken in this instance was so notorious throughout the country that far from its being unconstitutional for a court to take it into consideration, it would be quite amiss for us not to deem that the Louisiana courts did so on their own initiative. See, e.g., Uniform Rule of Evidence, 9(1); cf. Note, 12 Va.L.Rev. 154 (1925), and cases there cited. It might have been procedurally preferable had the trial judge announced to the parties that he was taking judicial notice, as is suggested in Model Code of Evidence, Rule 804. But we would be exalting the sheerest of technicalities were we to hold that a conviction is constitutionally void because of a judge's failure to declare that he has noticed a common proposition when, at no stage in the proceeding, is it suggested that the proposition may be untrue. Whether a trial judge need notify the parties of his intention to take judicial notice of 'routine matters of common knowledge which * * * (he) would notice as a matter of course' is best left to his 'reasonable discretion.' McCormick, Evidence (1954), 708. Appellate courts have always reserved the authority to notice such commonly known propositions as are needed to support the judgment of a lower court, even if no express reference has been made below. See, Comment, 42 Mich.L.Rev. 509, 512-513 (1943).

Moreover, in this instance, the fact that the trial court had taken judicial notice of the impact of petitioners' conduct, which indeed had obviously been engaged in for the very purpose of producing an impact on others in this field of racial relations, albeit, I shall assume, with the best of motives, could hardly have failed to cross the minds of petitioners' counsel before the trial had ended. They however neither sought to introduce countervailing evidence on that issue, nor have they undertaken at any stage of these proceedings, including that in this Court, to question the availability of judicial notice on this aspect of the State's case.

Were we to follow the reasoning of the majority opinion where it would logically lead, this Court would be violating due process every time it noticed a generally known fact without first calling in the parties to apprise them of its intention. Yet without any such notification this Court has many times taken judicial notice of well-known economic and social facts, e.g., Atchison, Topeka & S.F.R. Co. v. United States, 284 U.S. 248, 260, 52 S.Ct. 146, 149, 76 L.Ed. 273; West Coast Hotel Co. v. Parrish, 300 U.S. 379, 398 400, 57 S.Ct. 578, 585, 81 L.Ed. 703; Hoyt v. Florida, 368 U.S. 57, at p. 62, 82 S.Ct. 159, at p. 163, and even of the tendency of particular epithets to cause a breach of the peace. Chaplinsky v. New Hampshire, 315 U.S. 568, 574, 62 S.Ct. 766, 770, 86 L.Ed. 1031.

It is no answer to say in these cases that while it was permissible for the Louisiana courts to take judicial notice of racial conditions generally, they could not take notice of the particular conditions on the premises involved in these prosecutions. In the absence of contrary evidence, it was certainly not constitutionally impermissible for the Louisiana courts to consider that the racial conditions in Baton Rouge and in the establishments where petitioners sat were not dissimilar to those existing throughout the State. Judicial notice of racial conditions in a State has sufficient probative value in determining what were the racial conditions at a particular location within the State to withstand constitutional attack. Reversing these convictions for want of evidence of racial tension would in effect be putting this Court into the realm of reviewing the sufficiency of the evidence to support these convictions, something which both Thompson v. City of Louisville, supra, 362 U.S., at 199, 80 S.Ct. at 624, and the Court's opinion in the present cases, ante, 368 U.S., p. 163, 82 S.Ct., p. 251, recognize is not properly within our purview.

In my opinion, skimpy though these records are, the convictions do not fall for want of evidence, in the constitutional sense.

Were there no more to these cases, I should have to vote to affirm. But in light of principles established by Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1214, and consistently since recognized, I think the convictions are subject to other constitutional infirmities.

At the outset it is important to focus on the precise factual situation in each of these cases. Common to all three are the circumstances that petitioners were given the invitation extended to the public at large to patronize these establishments; that they were told that they could be served food only at the Negro lunch counters; that their conduct was not unruly or offensive; and that none of them was ever asked by the owners or their agents to leave the establishments. While in Briscoe, No. 27, there was some very slight, but in my view constitutionally adequate, evidence that those petitioners were expressly asked 'to move' from the 'white' lunch counter, ^[4] and undisputed evidence that they did not do so, in Garner, No. 26, and Hoston, No. 28, there was no evidence whatever of any express request to the petitioners in those cases that they move from the 'white' lunch counters where they were sitting.

Nor do I think that any such request is fairly to be implied from the fact that petitioners were told by the management that they could not be served food at such counters. The premises in both instances housed merchandising establishments, a drugstore in Garner, a department store in Hoston, which solicited business from all comers to the stores I think the reasonable inference is that the management did not want to risk losing Negro patronage in the stores by requesting these petitioners to leave the 'white' lunch counters, preferring to rely on the hope that the irritations of white customers or the force of custom would drive them away from the counters. ^[5] This view seems the more probable in circumstances when, as here, the 'sitters" behavior was entirely quiet and courteous, and, for all we know, the counters may have been only sparsely, if to any extent, occupied by white persons. ^[6]

In short, I believe that in the Garner and Hoston cases the records should be taken as indicating that the petitioners remained at the 'white' lunch counters with the implied consent of the management, ^[7] even though a similar conclusion may not be warranted in the Briscoe case. Under these circumstances, applying principles announced in Cantwell, I would hold all these convictions offensive to the Fourteenth Amendment, in that: (1) in Garner and Hoston petitioners' conduct, occurring with the managements' implied consent, was a form of expression within the range of protections afforded by the Fourteenth Amendment which could in no event be punished by the State under a general breach of the peace statute; and (2) in Briscoe, while petitioners' 'sitting' over the management's objection, cannot be deemed to be within the reach of such protections, their convictions must nonetheless fall because the Louisiana statute, as there applied (and a fortiori as applied in the other two cases), was unconstitutionally vague and uncertain.

In the Cantwell case a Jehovah's Witness had been convicted for breach of the peace under a Connecticut statute embracing what was considered to be the common-law concept of that offense. ^[8] 'The facts which were held to support the conviction * * * were that he stopped two men in the street, asked, and received, permission to play a phonograph record, and played the record 'Enemies,' which attacked the religion and church of the two men, who were Catholics. Both were incensed by the contents of the record and were tempted to strike Cantwell (the defendant) unless he went away. On being told to be on his way he left their presence. There was no evidence that he was personally offensive or entered into any argument with those he interviewed.' 310 U.S., at 302-303, 60 S.Ct., at 903.

Accepting the determination of the state courts that although the defendant himself had not been disorderly or provocative, his conduct under Connecticut law nonetheless constituted a breach of the peace because of its tendency to inflame others, this Court reversed. Starting from the premise that the 'fundamental concept of liberty embodied in (the Fourteenth) Amendment embraces the liberties guaranteed by the First Amendment,' the Court found that the defendant's activities fell within the protection granted to the 'free exercise' of religion. Then recognizing the danger to such liberties of 'leaving to the executive and judicial branches too wide a discretion' in the application of a statute 'sweeping in a great variety of conduct under a general and indefinite characterization,' the Court held that the defendant's activities could not constitutionally be reached under a general breach of the peace statute, but only under one specifically and narrowly aimed at such conduct. 310 U.S., at 307-308, 60 S.Ct., at 907. The Court stated:

'Although the contents of the (phonograph) record not unnaturally aroused animosity, we think that, in the absence of a statute narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State, the petitioner's communication, considered in the light of the constitutional guarantees, raised no such clear and present menace to public peace and order as to render him liable to conviction of the common law offense in question.' (Citing to such cases as Schenck v. United States, 249 U.S. 47.) 310 U.S., at 311, 60 S.Ct., at 906.

I think these principles control the Garner and Hoston cases. 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. 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. This is not to say, of course, that the Fourteenth Amendment reaches to demonstrations conducted on private property over the objection of the owner (as in Briscoe), just as it would surely not encompass verbal expression in a private home if the owner has not consented.

No one can deny the interest that a State has in preserving peace and harmony within its borders. Pursuant to this interest, a state legislature may enact a trespass statute, or a disturbance of the peace statute which either lists in detail the acts condemned by legitimate state policy or proscribes breaches of the peace generally, thus relating the offense to the already developed body of common law defining that crime. Or it may, as Louisiana has done, append to a specific enumeration in a breach of the peace statute a 'catch-all' clause to provide for unforeseen but obviously disruptive and offensive behavior which cannot be justified, and which is not within the range of constitutional protection.

But when a State seeks to subject to criminal sanctions conduct which, except for a demonstrated paramount state interest, would be within the range of freedom of expression as assured by the Fourteenth Amendment, it cannot do so by means of a general and all-inclusive breach of the peace prohibition. It must bring the activity sought to be proscribed within the ambit of a statute or clause 'narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State.' Cantwell v. Connecticut, supra, 310 U.S., at 311, 60 S.Ct., at 906; Thornhill v. State of Alabama, 310 U.S. 88, 105, ^[9] 60 S.Ct. 736, 745. And of course that interest must be a legitimate one. A State may not 'suppress free communication of views, religious or other, under the guise of conserving desirable conditions.' Cantwell, supra, at 308, 60 S.Ct. at 905.

These limitations exist not because control of such activity is beyond the power of the State, but because sound constitutional principles demand of the state legislature that it focus on the nature of the otherwise 'protected' conduct it is prohibiting, and that it then make a legislative judgment as to whether that conduct presents so clear and present a danger to the welfare of the community that it may legitimately be criminally proscribed. ^[10]

The Louisiana Legislature made no such judgment before the petitioners in Garner and Hoston engaged in their 'sit-in' activity. In light of the Cantwell case, whose reasoning of course cannot be deemed limited to 'expression' taking place on the public streets, cf. Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131, Niemotko v. State of Maryland, 340 U.S. 268, 281, 71 S.Ct. 325, 328, 332, 95 L.Ed. 267 (concurring opinion), Louisiana could not, in my opinion, constitutionally reach those petitioners' conduct under subsection (7)-the 'catch-all clause'-of its then existing disturbance of the peace statute. ^[11] In so concluding, I intimate no view as to whether Louisiana could by a specifically drawn statute constitutionally proscribe conduct of the kind evinced in these two cases, or upon the constitutionality of the statute which the State has recently passed. ^[12] I deal here only with these two cases, and the statute that is before us now.

Finally, I believe that the principles of Cantwell lead to the conclusion that this general breach of the peace provision must also be deemed unconstitutional for vagueness and uncertainty, as applied in the circumstances of all these cases. As to Garner and Hoston this affords an alternative ground for reversal. As to Briscoe, where the evidence falls short of establishing that those petitioners remained at the 'white' lunch counter with the express or implied consent of the owner (notes 4, 5, supra), I would rest reversal solely on this ground. ^[13]

While Cantwell was not explicitly founded on that premise, it seems to me implicit in the opinion that a statute which leaves the courts in uncertainty as to whether it was intended to reach otherwise constitutionally protected conduct must by the same token be deemed inadequate warning to a defendant that his conduct has been condemned by the State. See Chaplinsky v. New Hampshire, 315 U.S. 568, 573-574, 62 S.Ct. 766, 770, 86 L.Ed. 1031. Cf. Winters v. People of State of New York, 333 U.S. 507, 509-510, 68 S.Ct. 665, 667, 92 L.Ed. 840; Smith v. California, 361 U.S. 147, 151, 80 S.Ct. 215, 217, 4 L.Ed.2d 205; Thompson v. City of Louisville, 362 U.S. 199, 206, 80 S.Ct. 624, 629, 4 L.Ed.2d 654. Such warning is, of course, a requirement of the Fourteenth Amendment. Lanzetta v. State of New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888.

This conclusion finds added support in the cases requiring of state legislatures more specificity in statutes impinging on freedom of expression than might suffice for other criminal enactments. See Winters v. People of State of New York, supra, 333 U.S., at 509-510, 68 S.Ct., at 667; Smith v. California, supra, 361 U.S., at 151, 81 S.Ct., at 217; cf. Herndon v. Lowry, 301 U.S. 242, 261-264, 57 S.Ct. 732, 742, 81 L.Ed. 1066. To the extent that this Louisiana statute is explicit on the subject of expression it prohibits only that which is 'unnecessarily loud, offensive, or insulting' or activity carried on 'in a violent or tumultuous manner by any three or more persons' (note 1, supra). No charge was made or proved that petitioners' conduct met any of those criteria. Nor has the statute been elucidated in this respect before, or since, petitioners' conviction, by any decision of the Louisiana courts of which we have been advised. Cf. Winters v. People of State of New York, supra, 333 U.S., at 514, 68 S.Ct., at 669; Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895. Lastly, it is worth observing that in State v. Sanford the Louisiana Supreme Court seriously questioned on the score of vagueness the validity of that earlier breach of the peace statute under the State Constitution, as there applied to conduct within the same range of constitutional protection. ^[14]

In the absence of any Louisiana statute purporting to express the State's overriding interest in prohibiting petitioners' conduct as a clear and present danger to the welfare of the community, peaceful demonstration on public streets, and on private property with the consent of the owner, was constitutionally protected as a form of expression. Louisiana's breach of the peace statute drew no distinct line between presumably constitutionally protected activity and the conduct of the petitioners in Briscoe, as a criminal trespass statute might have done. ^[15] The fact that in Briscoe, unlike Garner and Hoston, the management did not consent to the petitioners' remaining at the 'white' lunch counter does not serve to permit the application of this general breach of the peace statute to the conduct shown in that case. For the statute by its terms appears to be as applicable to 'incidents fairly within the protection of the guarantee of free speech,' Winters v. People of State of New York, supra, 333 U.S., at 509, 68 S.Ct., at 667, as to that which is not within the range of such protection. Hence such a law gives no warning as to what may fairly be deemed to be within its compass. See Note, 109 U. of Pa.L.Rev. 67, 75-76, 99-104 (1960).

For the foregoing reasons I dissent from the opinion of the Court, but join in the judgment.

Notes

1. The Louisiana statute, LSA-R.S. 14:103, then provided:
2. As Mr. Justice Jackson put it in Gryger v. Burke, 334 U.S. 728, 731, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683:
3. There Mr. Justice Holmes said of a claim that a state court was constitutionally obliged to follow its own precedents: 'Even if it be true, as the plaintiff in error says, that the supreme court of Colorado departed from earlier and well-established precedents to meet the exigencies of this case, whatever might be thought of the justice or wisdom of such a step, the Constitution of the United States is not infringed. It is unnecessary to lay down an absolute rule beyond the possibility of exception. Exceptions have been held to exist. But, in general the decision of a court upon a question of law, however wrong and however contrary to previous decisions, is not an infraction of the 14th Amendment merely because it is wrong or because earlier decisions are reversed.'
4. In Briscoe, the waitress who had spoken to the defendants testified at the trial that she told them 'they would have to go to the other side to be served.' It was only when she responded affirmatively to a leading question, 'And you told them you couldn't serve them and asked them to move, is that correct?' that she provided any evidence at all to support a finding that the defendants were even asked by the management to move from the 'white' lunch counter. Contrary to what the trial court in Briscoe may have meant when it said that the defendants 'were requested to leave and they refused to leave' before the police appeared, the waitress' laconic reply furnished no evidence whatever that the defendants were requested to leave the establishments.
5. The owner of the drugstore in Garner testified that his store provided eating 'facilities for only one race, the white race,' and that when petitioners sat down at the lunch counter he 'advise(d) them that we couldn't serve them.' He admitted that 'negroes are very good customers' in the drugstore section of the establishment. In Hoston, the manager of the department store repeatedly insisted at the trial that the petitioners had not been 'requested to move over to the counter reserved for colored people.' When asked, 'They weren't asked to go over there?' he replied, 'They were advised that we would serve them over there.' He denied that the petitioners had been 'refused' service: 'We did not refuse to serve them. I merely did not serve them and told them that they would be served on the other side of the store. * * * As I stated before, we did not refuse to serve them. We merely advised them they would be served on the other side of the store.'
6. In Garner there was evidence that 'a number of customers (were) seated at the counter.' In Hoston there was no evidence even of that kind.
7. The manager of the department store in Hoston seemed particularly complacent. Although two Negro girls sat 'adjoining' him while he was eating lunch at the counter, he finished his meal before calling the police. He instructed a waitress 'to offer service at the counter across the aisle,' but never approached the petitioners himself. He testified that his purpose in calling the police was that he 'feared that some disturbance might occur.'
8. The Connecticut statute, Cong.Gen.Stat. § 6194 (1930), provided:
9. Compare, for example, the statutes upheld in Beauharnais v. People of State of Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919; Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233; Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513; Valentine v. Chrestensen, 316 U.S. 52; Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031; Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049.
10. Mr. Justice Roberts, speaking for a unanimous Court in Cantwell, stated (310 U.S., at 307-308, 60 S.Ct., at 904, 905):
11. It follows, of course, that petitioners' refusal to accede to the request to leave made by police officers could also not constitutionally be punished under this general statute. Were it otherwise, the determination whether certain conduct constitutes a clear and present danger would be delegated to a police officer. Simply by ordering a defendant to cease his 'protected' activity, the officer could turn a continuation of that activity into a breach of the peace.
12. After the incidents which gave rise to these cases, the Louisiana Legislature passed a bill adding to the disturbance of the peace statute a second clause, LSA-R.S. § 14:103, subd. B, which provides:
13. Because of the absence of any evidence in the Briscoe record regarding the legal relationship between the restaurant and the Greyhound Bus Terminal in Baton Rouge, on whose premises it was located, I would not pass in this case on the Solicitor General's suggestion, made as amicus curiae, that segregated facilities were prohibited by § 216(d) of Part II of the Interstate Commerce Act, 49 U.S.C. § 316(d), 49 U.S.C.A. § 316(d). See Boynton v. Com. of Virginia, 364 U.S. 454, 81 S.Ct. 182, 5 L.Ed.2d 206.
14. I do not intend to suggest that the present Louisiana statute, either on its face or as it might be applied with respect to conduct not within the 'liberty' assured by the Fourteenth Amendment, is or would be unconstitutional for vagueness. Cf. Winters v. People of State of New York, supra, 333 U.S., at 524 526, 68 S.Ct., at 676 (dissenting opinion).
15. The criminal trespass statute in force in Louisiana at the time of petitioners' acts prohibited only 'unauthorized and intentional taking (of) possession' and 'unauthorized and intentional entry' on another's property. LSA-R.S. § 14:63 (1950). No attempt was made to prosecute the petitioners under this law. The statute has since been amended to cover 'remaining in places after being forbidden,' 1 La.Acts, 1960, pp. 245-248, and an anti-trespass provision is now included in the disturbance of the peace statute, 1 La.Acts, 1960, p. 234.