COX v. LOUISIANA 379 U.S. 536 (1965) 379 U.S. 559 (1965)

Some black students were jailed in a courthouse for picketing segregated lunch counters. About 2,000 other black students marched there and, in accordance with police instructions, lined a sidewalk 101 feet away. Whites gathered. Cox made a speech that elicited some grumbling from whites; the police ordered the demonstration broken up; the students were dispersed.

Justice arthur goldberg writing for the Supreme Court reversed Cox's breach of the peace conviction, finding that Cox's actions threatened no violence and that the police could have handled any threat from the whites. The Court also held the breach of peace statute unconstitutionally vague and overbroad as construed by the state supreme court to define breach as "to arouse from a state of repose … to disquiet."

In striking down Cox's conviction for obstruction of public passages because the statute's actual administration had vested discretion in city officials to forbid some parades and allow others, the Court emphasized that violation of nondiscriminatory traffic laws would not be protected by the first amendment. The court reversed Cox's conviction for picketing near a courthouse because the police, by directing the demonstrators to a particular sidewalk, had led them to believe that it was not near the courthouse within the terms of the statute so that a subsequent conviction created a "sort of entrapment," in violation of due process. Nevertheless, in dictum it invoked the old doctrine that picketing was subject to reasonable regulation as "speech plus" and supported the authority of a state legislature to forbid picketing near a courthouse because of its danger to the administration of justice.

Although Cox is often cited as a case establishing the concept of a public forum, the Court went out of its way to say "We have no occasion … to consider the constitutionality of the … non-discriminatory application of a statute forbidding all access to streets and other public facilities for parades and meetings."

Martin Shapiro
(1986)