|Justice Stewart Disagreed With Hometown|
CINCINNATI (TDB) -- The case of Dennis Coates v. Cincinnati, rooted in a 1967 protest a few blocks away, resonates a bit in the downtown demonstrations now taking place. With Occupy Cincinnati protesters being cited into court and pleading not guilty today for trying to spend nights camped out in Piatt Park, it's worthwhile to look back at the Vietnam War era when city officials acted to enforce an 1856 loitering ordinance. Their move backfired and led to a landmark ruling. Authorities took Dennis Coates into custody outside the Hamilton County draft board office for making "loud and boisterous sounds." In reality, he was protesting against the war. The police claimed he was annoying pedestrians outside the federal building.
Justice Potter Stewart, a Republican and former Cincinnati Councilman (whose father James Garfield Stewart had served as Cincinnati's mayor), wouldn't buy the city's case. He wrote the June 1, 1971 Supreme Court decision that struck down his hometown's loitering ordinance. Today, the federal courthouse a five minute walk away from Piatt Park -- where Occupy Cincinnati is trying to camp -- bears his name. He said the law violated constitutional rights of free assembly and association. Stewart famously opined that what is annoying conduct to some people may not be annoying to others: "If this were not the rule, the right of the people to gather in public places for social or political purposes would be continually subject to summary suspension through the good-faith enforcement of a prohibition against annoying conduct." That's pretty straightforward -- people can gather in parks for political purposes no matter whom is offended. Officials have to have really strong reasons to keep them out. At the time, Cincinnati's assistant solicitor unsuccessfully asserted, "I don't think there's anything too difficult about the word annoying." He was wrong. Officials trying to close the park at 10 p.m., and hand out $105 tickets to those who stay, could be just as mistaken. You can read some legal background about the case here. And here's an old newspaper clip about the court battle from Marysville, Ohio. If you go past the jump, you can read some of what Justice Stewart actually wrote in striking down his hometown's law.
"It is said that the ordinance is broad enough to encompass many types of conduct clearly within the city's constitutional power to prohibit. And so, indeed, it is. The city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct. It can do so through the enactment and enforcement of ordinances directed with reasonable specificity toward the conduct to be prohibited. It cannot constitutionally do so through the enactment and enforcement of an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed.
"But the vice of the ordinance lies not alone in its violation of the due process standard of vagueness. The ordinance also violates the constitutional right of free assembly and association. Our decisions establish that mere public intolerance or animosity cannot be the basis for abridgment of these constitutional freedoms. The First and Fourteenth Amendments do not permit a State to make criminal the exercise of the right of assembly simply because its exercise may be 'annoying' to some people. If this were not the rule, the right of the people to gather in public places for social or political purposes would be continually subject to summary suspension through the good-faith enforcement of a prohibition against annoying conduct. And such a prohibition, in addition, contains an obvious invitation to discriminatory enforcement against those whose association together is 'annoying' because their ideas, their lifestyle, or their physical appearance is resented by the majority of their fellow citizens."