The Test That Wasn't a Test

Civil rights demonstrators have frequently invoked an American tradition that is as old as the country itself: the First Amendment "right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Harried police have often invoked something else: the power of every state to preserve the public peace and protect property rights. The conflict has faced the Supreme Court with a dilemma: When does state police power take precedence over the First Amendment's protections for peaceful demonstrators?

In case after case in past years, the court answered the question by throwing out convictions for demonstrations in public places. Yet the court could not blind itself to the ominous change in civil rights protest--from early nonviolence to last year's holocaust in Watts. And a changing judicial attitude became apparent last February, when a bare majority of only five Justices reversed the convictions of Louisiana Negroes who had refused to leave a segregated public library. The sharpest dissenter was the court's stoutest liberal, Justice Hugo Black. Said he: "It has become automatic for people to be turned loose as long as whatever they do has something to do with race. That is not the way I read the Constitution."

Evenhanded Enforcement. Last week it was Black who wrote the 5-to-4 majority opinion in a rare Supreme Court decision rebuffing civil rights demonstrators. Some 200 Negro students at Florida A. & M. University in Tallahassee had marched to" the Leon County jail grounds in 1963 to protest the arrest of other students for picketing segregated movie theaters. Although the marchers merely sang songs, clapped hands and did not enter the jail, the sheriff ordered them to leave in ten minutes. When Harriett Adderley and 106 others refused to go, the sheriff arrested them under a state law that makes it a crime to "trespass upon the property of another" with "a malicious and mischievous intent."

Before the Supreme Court, Appellant Adderley and 31 others cited such key precedents as Edwards v. South Carolina (1963), which voided "breach of the peace" convictions of Negroes who had sung hymns and the Star-Spangled Banner outside the South Carolina statehouse. But in Edwards, countered Justice, Black, the Supreme Court merely ruled that the state law failed to regulate any specific conduct, such as statehouse visiting hours.

By contrast, said Black, the Florida law's words, "malicious and mischievous," narrowed its scope to one offense: willful trespass. Not only were the students guilty of just that, he said, but there was "not a shred of evidence" that the sheriff objected to their protest for any reason other than his legitimate concern for jail security. "Nothing in the Constitution of the United States," said Black, "prevents Florida from evenhanded enforcement of its general trespass statute . . . The state, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated."

Emphatic Rejection. Black's theory appalled his longtime libertarian colleague, Justice William O. Douglas, who spoke for three other dissenters (Warren, Brennan, Fortas) in blasting the court for inviting the use of trespass laws as "a blunderbuss to suppress civil rights." Not only was trespass being wrongfully applied to public property, argued Douglas, but custodians of such property were being given "awesome power to decide whose ideas may be expressed." Douglas called the decision "a wonderful police-state doctrine" that will "only increase the forces of frustration which the conditions of secondclass citizenship are generating amongst us."

Perhaps, but only if the court chooses to apply Adderley v. Florida to all kinds of property, a choice it has not yet made--for now the country's demonstrators are clearly on notice to cool it. The Supreme Court, warned Black, emphatically rejects "the assumption that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please."

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