John Marshall Harlan II

“ The Bates decision, upholding the constitutionality of an ordinance making it a crime 'to engage in a fight or in any manner disturb the Peace,' defined disturbance of the peace as 'any act or conduct of a person which molests the inhabitants in the enjoyment of that peace and quiet to which they are entitled, or which throws into confusion things settled, or which causes excitement, unrest, disquietude, or fear among persons of ordinary, normal temperament.' 173 La., at 828, 138 So., at 852. ”

“ I think these principles control the Garner and Hoston cases. There was more to the conduct of those petitioners than a bare desire to remain at the 'white' lunch counter and their refusal of a police request to move from the counter. We would surely have to be blind not to recognize that petitioners were sitting at these counters, where they knew they would not be served, in order to demonstrate that their race was being segregated in dining facilities in this part of the country. ”

“ In the Cantwell case a Jehovah's Witness had been convicted for breach of the peace under a Connecticut statute embracing what was considered to be the common-law concept of that offense. [8] 'The facts which were held to support the conviction * * * were that he stopped two men in the street, asked, and received, permission to play a phonograph record, and played the record 'Enemies,' which attacked the religion and church of the two men, who were Catholics. Both were incensed by the contents of the record and were tempted to strike Cantwell (the defendant) unless he went away. ”

“ Appellate courts have always reserved the authority to notice such commonly known propositions as are needed to support the judgment of a lower court, even if no express reference has been made below. ”

“ But we would be exalting the sheerest of technicalities were we to hold that a conviction is constitutionally void because of a judge's failure to declare that he has noticed a common proposition when, at no stage in the proceeding, is it suggested that the proposition may be untrue. ”

“ The other offense of which the petitioner in Thompson was convicted was 'disorderly conduct,' not at all defined in the ordinance. The only evidence in the record relating to conduct which might conceivably have come within the prohibited scope indicated was that the petitioner was 'argumentative' with the arresting officers. We said of this conviction (362 U.S., at 206, 80 S.Ct., at 629) : 'We assume, for we are justified in assuming, that merely 'arguing' with a policeman is not, because it could not be, 'disorderly conduct' as a matter of the substantive law of Kentucky. ”

“ Judicial notice of racial conditions in a State has sufficient probative value in determining what were the racial conditions at a particular location within the State to withstand constitutional attack. Reversing these convictions for want of evidence of racial tension would in effect be putting this Court into the realm of reviewing the sufficiency of the evidence to support these convictions, something which both Thompson v. ”