APPEAL from the Circuit Court of Cook County, the Hon. WILLIAM
J. PATTERSON, Judge, presiding.
MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT: These consolidated appeals involve the conviction of 40 civil rights marchers under two provisions of the disorderly conduct ordinance of the city of Chicago. (Municipal Code of Chicago, sec. 193-1.) In cause number 39983 defendant Dick Gregory and four other defendants were found guilty in a jury trial before a magistrate in the circuit court of Cook County and each defendant was fined $200. In cause number 39984 the other 35 defendants were found guilty in a trial before a magistrate on a stipulation of facts adduced at the Gregory trial and each defendant was fined $25. The defendant Gregory was charged with disorderly conduct in that he "did make or aid in making an improper noise, disturbance, breach of peace, or diversion tending to a breach of the peace within the limits of the city." A constitutional question gives us jurisdiction.
The gist of the occurrence giving rise to the arrest and conviction of defendants was a march by 65 to 85 persons around the home of the mayor of Chicago. The marchers carried signs, sang songs and chanted slogans protesting the retention of Dr. Benjamin C. Willis as Superintendent of Schools of Chicago and his handling of school segregation problems in the city. In order to avert what the police believed would become a riot, the marchers were ordered to stop their demonstration and upon their refusal they were arrested.
The city in its brief has taken the position that residential picketing is per se a violation of the city ordinance. Extremely strong arguments have been advanced for the proposition that the constitutional rights of free speech, free assembly and freedom to petition for redress of grievances do not protect marches, demonstrations and picketing of a residence or residences even of the privately owned homes of public officials. (See Kamin, Residential Picketing and the First Amendment, 61 N.W.L. Rev. 177 (1966); Cf. Chafee, Free Speech in the United States (Cambridge, 1948), pp. 406-407; Pritchett, The Brief, p. 4 (published by the Illinois Division of American Civil Liberties Union, September 1965); but see Haiman, The Rhetoric of the Streets: Some Legal and Ethical Considerations, LIII The Law Quarterly Journal of Speech 99 (April 1966); Kalven, The Concept of the Public Forum, 1965 Supreme Court Review 1.) Furthermore, our legislature has now enacted a statute prohibiting residential picketing (Ill. Rev. Stat. 1967, chap. 38, par. 21.1-1) based on the following declaration of policy: "The Legislature finds and declares that men in a free society have the right to quiet enjoyment of their homes; that the stability of community and family life cannot be maintained unless the right to privacy and a sense of security and peace in the home are respected and encouraged; that residential picketing, however just the cause inspiring it, disrupts home, family and communal life; that residential picketing is inappropriate in our society where the jealously guarded rights of free speech and assembly have always been associated with respect for the rights of others. For these reasons the Legislature finds this Article to be necessary." Professor Kamin in his article, Residential Picketing and the First Amendment, states that nine other States (Colorado, Connecticut, Florida, Hawaii, Kansas, Michigan, Nebraska, Utah and Wisconsin) have enacted statutory prohibitions of residential picketing. 61 N.W.L. Rev. 177, 206.
A review of the record shows, however, that the arrests were not made on the basis of residential picketing nor did the trial proceed on that theory. Under these circumstances, we will assume, for the purposes of this opinion, as did the police and the magistrates below, that the residential picketing was not in and of itself a violation of the city ordinance.
Lieutenant Hougeson testified that on August 2, 1965, he was in charge of the "task force" of the Chicago police department and that his assignment for that day was to protect a group of people who were going to march. He explained that the task force is a unit which provides extra police protection to a district to help handle crowds at a sporting or public event or to combat a high crime rate in a certain district. On this day he had 40 police officers and 4 sergeants. About 4:00 P.M. he went to Buckingham Fountain in Grant Park on Chicago's lake front just east of the Loop, where approximately 65 marchers had assembled. He observed Dick Gregory addressing the marchers and heard him say, "First we will go over to the snake pit [city hall]. When we leave there, we will go out to the snake's house [the mayor's home]. Then, we will continue to go out to Mayor Daley's home until he fires Ben Willis [Superintendent of Schools]."
About 4:30 P.M. the marchers, two abreast, walked out of the park and went to the city hall in the loop. The marchers then walked south on State Street to 35th Street and then proceeded west to Lowe Avenue, a distance of about 5 miles from the city hall. The mayor's home is at 3536 South Lowe Avenue. The demonstrators had increased in number to about 85 and they arrived at the mayor's home about 8:00 o'clock P.M. In addition to the police, the marchers were accompanied by their attorney and an assistant city counsel. At the suggestion of an assistant city counsel, Gregory had agreed that the group would quit singing at 8:30 P.M. Commander Pierson, district commander of the 9th police district which encompasses this area, met Lieutenant Hougeson at the corner of 35th and Lowe and assumed command of the police operations.
There were about 35 people on the corner and a group of about 6 or 8 youngsters carrying a sign "We Love Mayor Daley" tried to join the marchers but the police stopped them. As the demonstrators started south into the 3500 block of Lowe Avenue, Gregory testified he went back through the line to tell everyone just to keep singing and to keep marching. "Don't stop and don't answer any one back. Don't worry about anything that is going to be said to you. Just keep marching. If anyone hits you or anything, try to remember what they look like, but above all means, do not hit them back. Keep the line straight and keep it tight." The demonstrators chanted "Ben Willis must go, Snake Daley, also;" "Ben Willis must go When? Now;" "We are going to the home of the snake, the snake pit is down the street;" "Hey, Hey, what do you know, Ben Willis must go" and "Hey, Hey, what do you know, Mayor Daley must go also." They carried signs which read: "Daley fire Willis;" "Defacto, Desmacto, it is still segregation;" "Ben Willis must go now;" and "Mayor Daley, fire Ben Willis." They also sang the civil rights songs, "We Shall Overcome" and "We Shall Not Be Moved."
The police ordered the taverns closed during the march. Police from the task force, the 9th district and other districts surrounded the block in which the mayor's home is located. There were about 10 officers at each of the four intersections and about 10 officers spread along each of the four blocks. The rest of the 100 police officers assigned to the march accompanied the demonstrators as they marched around the block. The police tried to keep all spectators across the street from the marchers. They were equipped with walkie-talkie radios to relay reports of conditions to each other and they had a bullhorn with which they addressed the spectators and the demonstrators.
As the marchers started around the block the first time, the neighbors began coming out of their homes. On the second time around the block some of the residents had moved their lawn sprinklers onto the sidewalk and the demonstrators went into the street just long enough to get around the water. On the third trip around the block the water sprinklers had been removed, presumably by order of the police. Gregory himself testified to several instances when the police kept the crowd that was accumulating from interfering with the march. "One of the neighborhood people stood in front of the line, and we just stopped. This individual didn't move and we didn't move. After a few minutes, the officer standing on the corner asked him to move and he moved." He said that on their fourth trip around the block (about 8:30 P.M.) people were yelling out the windows and the police made spectators in door ways close the doors. About 8:30 P.M. the demonstrators quit their singing and chanting and marched quietly. Shortly before 9:00 P.M. 100 to 150 spectators formed a line of march ahead of the demonstrators. Gregory said "the lieutenant [Hougheson] asked me if I would hold up the line until they got those people out of the way. I said, I will hold up the line, but they have just as much right to march peacefully as we have." The spectators were ordered to move. In order to avoid the appearance that the marchers were following the 100 to 150 spectators who had been ordered to move, Gregory said his group marched straight south crossing 36th Street thus taking them one block south of the block which they had been marching. They had to stop when they crossed 36th Street while the police opened a pathway through about 300 spectators they had confined on the corner across the street.
Sergeant Golden testified that between 8:00 o'clock and 9:00 o'clock the crowd increased steadily to a few hundred, but that from 9:00 o'clock until about 9:20 o'clock the people just seemed to come from everywhere until it reached between 1,000 and 1,200. During this time the crowd became unruly. There was shouting and threats, "God damned nigger, get the hell out of here;" "Get out of here niggers go back where you belong or we will get you out of here" and "Get the hell out of here or we will break your blankety-blank head open." Cars were stopped in the streets with their horns blowing. There were Ku Klux Klan signs and there was singing of the Alabama Trooper song. Children in the crowd were playing various musical instruments such as a cymbal, trumpet and drum.
Rocks and eggs were also being thrown at the marchers from the crowd. The police were dodging the rocks and eggs and attempted to catch the persons who threw them. Sergeant Golden explained the problem. "You could see these teen-agers behind the crowd. You could see a boil of activity and something would come over our heads and I or my partner would go down to try to apprehend who was doing it. You couldn't see who was doing it. They would vanish into the crowd." He further testified that about 9:25 P.M., "They were saying, `Let's get them,' and with this they would step off the curb to try to cross 35th Street and we would push them back with force. Once in a while somebody would run out, and we would grab ahold of them and throw them back into the crowd."
About 9:30 P.M. Commander Pierson told Gregory the situation was dangerous and becoming riotous. He asked Gregory if he would co-operate and lead the marchers out of the area. The request to leave the area was made about five times. Pierson then told the marchers that any of them who wished to leave the area would be given a police escort. Three of the marchers accepted the proposal and were escorted out of the area. The remaining demonstrators were arrested and taken away in two police vans.
While we have gone into considerable detail in describing the events leading to the arrest of defendants, only a complete reading of the record can give one a true picture of the dilemma confronting the police. During the entire march from 4:30 P.M. until 9:30 P.M. the marchers were accompanied by their attorney who advised them, and the police were accompanied by an assistant city attorney who advised them. In short the record shows a determined effort by the police to allow the marchers to peacefully demonstrate and at the same time maintain order.
The defendants place heavy reliance on a footnote statement in Brown v. Louisiana, 383 U.S. 131, 133, 15 L.Ed.2d 637, 86 S.Ct. 719, that "Participants in an orderly demonstration in a public place are not chargeable with the danger, unprovoked except by the fact of the constitutionally protected demonstration itself, that their critics might react with disorder or violence;" a statement in Watson v. City of Memphis, 373 U.S. 526, 535, 10 L.Ed.2d 529, 83 S.Ct. 1314, 1320, quoted in Cox v. Louisiana, 379 U.S. 536, 551, 13 L.Ed.2d 471, 85 S.Ct. 453, 462, that "The compelling answer to this contention is that constitutional rights may not be denied simply because of hostility to their assertion or exercise;" and a statement in Wright v. Georgia, 373 U.S. 284, 293, 10 L.Ed.2d 349, 83 S.Ct. 1240, 1246, that "* * * the possibility of disorder by others cannot justify ...