402 U.S. 611 (1971)
The City of Cincinnati adopted Section 901-L6 of its Code of Ordinances in 1956.1 This provision made it unlawful for three or more persons to assemble, except at a public meeting of citizens, on any of the sidewalks, street corners, vacant lots, or mouths of alleys, and there conduct themselves in a manner annoying to persons passing by or occupants of adjacent buildings.2 Violations were punishable by a fine not exceeding fifty dollars or imprisonment of not less than one nor more than thirty days, or both.3
The appellants were convicted of violating the ordinance.4 Appellant Coates was a student involved in a demonstration, and the other appellants were pickets involved in a labor dispute.5
The convictions were ultimately affirmed by a closely divided vote in the Supreme Court of Ohio.6 That court upheld the constitutional validity of the ordinance.7
An appeal from the Ohio judgment was brought to the United States Supreme Court pursuant to 28 U.S.C. § 1257(2).8 The Supreme Court noted probable jurisdiction.9
Throughout the litigation, the appellants maintained that the ordinance on its face violates the First and Fourteenth Amendments.10 The record before the reviewing courts revealed no more than these positions regarding the appellants' activities.
The Ohio Supreme Court did not give the ordinance any construction at variance with the apparent plain import of its language.11 It described the word "annoying" as widely used and well understood, and concluded that the standard of conduct specified is not dependent upon each complainant's sensitivity.
Whether the Cincinnati ordinance is unconstitutional on its face?12
The ordinance is unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard, and unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct.13
Yes. The City of Cincinnati adopted Section 901-L6 of its Code of Ordinances in 1956. This provision made it unlawful for three or more persons to assemble, except at a public meeting of citizens, on any of the sidewalks, street corners, vacant lots, or mouths of alleys, and there conduct themselves in a manner annoying to persons passing by or occupants of adjacent buildings. Violations were punishable by a fine not exceeding fifty dollars or imprisonment of not less than one nor more than thirty days, or both.
The appellants were convicted of violating the ordinance. Appellant Coates was a student involved in a demonstration, and the other appellants were pickets involved in a labor dispute. The convictions were ultimately affirmed by a closely divided vote in the Supreme Court of Ohio. That court upheld the constitutional validity of the ordinance.
An appeal from the Ohio judgment was brought to the United States Supreme Court pursuant to 28 U.S.C. § 1257(2). The Supreme Court noted probable jurisdiction. Throughout the litigation, the appellants maintained that the ordinance on its face violates the First and Fourteenth Amendments. The record before the reviewing courts revealed no more than these positions regarding the appellants' activities.
The Ohio Supreme Court did not give the ordinance any construction at variance with the apparent plain import of its language. It described the word annoying as widely used and well understood, and concluded that the standard of conduct specified is not dependent upon each complainant's sensitivity.14 Because the ordinance provides no fixed standard, it is unconstitutionally vague and overbroad on its face.15
The Cincinnati ordinance is unconstitutional on its face.16
Related opinions on this issue
Justice White dissented from the majority's holding that the ordinance is unconstitutionally vague and overbroad on its face.17 He contended that any man of average comprehension should know that some kinds of conduct, such as assault or blocking passage on the street, will annoy others and are clearly covered by the annoying conduct standard of the ordinance.18 Justice White maintained that when a criminal charge is based on conduct constitutionally subject to proscription and clearly forbidden by a statute, it is no defense that the law would be unconstitutionally vague if applied to other behavior.19
He noted that since the record contains no information as to what conduct was charged against the defendants, the court is in no position to judge the statute as applied.20 Justice White concluded that the ordinance is not infirm on its face.21
Whether the ordinance subjects the exercise of the right of assembly to an unascertainable standard?22
An ordinance is unconstitutionally vague if men of common intelligence must necessarily guess at its meaning because no standard of conduct is specified at all.23
Yes. The ordinance requires that three or more people meeting on a sidewalk must conduct themselves so as not to annoy any police officer or other person who should happen to pass by.24 Conduct that annoys some people does not annoy others, and the Ohio Supreme Court did not indicate upon whose sensitivity a violation depends.25 As a result, the ordinance subjects the exercise of the right of assembly to an unascertainable standard.2627
The ordinance subjects the exercise of the right of assembly to an unascertainable standard.
Whether the ordinance authorizes the punishment of constitutionally protected conduct?28
An ordinance is unconstitutionally broad if it authorizes the punishment of constitutionally protected conduct such as the right of free assembly and association.29
Yes. The ordinance violates the constitutional right of free assembly and association because mere public intolerance or animosity cannot be the basis for abridgment of these constitutional freedoms.30 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.31 Such a prohibition 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.32
The ordinance authorizes the punishment of constitutionally protected conduct.33