In Bachellar v. Maryland, 397 U.S. 564 (1970), the First Amendment came head to head with the unpopular war in Vietnam. Justice William J. Brennan Jr. delivered the unanimous opinion of the Supreme Court, setting aside the convictions of several anti-war protesters.

The Court found that the jury may have convicted the protesters simply because it disagreed with the protesters’ viewpoint.

Donald Bachellar and others were convicted in a Baltimore City Criminal Court for violating Maryland’s disorderly conduct statute. The petitioners were protesting the Vietnam War in front of a U.S. Army recruiting station on the afternoon of March 28, 1966.

The Maryland Court of Special Appeals ruled that the protesters were not constitutionally protected under the First and 14th Amendments. The petitioners handed out pamphlets during their protest, but the police officers on hand reported that neither the pamphlets nor the protest incited any disturbance. At 3:30 p.m. the marchers interrupted their protest to enter the recruiting office to post anti-war materials. The sergeant on duty informed them that Army regulations forbade posting such materials. In response, the petitioners staged a sit-in.

A few minutes before 5 p.m. the sergeant asked the petitioners to leave so he could close the office. When the petitioners refused to comply, they were ejected by the police. What happened next was unclear because of conflicting testimonies. It was clear, however, that the petitioners, singing “We Shall Overcome,” continued their march after being expelled from the building and that, according to police officers, they did not incite any serious counterprotest.

Still, the jury could have found them guilty of disturbing the peace because “their anti-Vietnam protest amounted to the doing or saying of that which offends, disturbs, incites or tends to incite a number of people gathered in the same area.”

'Unpopular ideas'

The Court reversed the judgment of the Maryland Court of Special Appeals because, it reasoned, the jury may have convicted the protesters simply because it found the viewpoint of the protesters offensive. Or as Brennan wrote, “[T]he petitioners may have been found guilty ... simply because they advocated unpopular ideas.”

The Court “held that where it was impossible to determine if convictions for disorderly conduct in blocking a public sidewalk as part of an anti-Vietnam war demonstration were based on grounds contrary to the First Amendment, the case must be reversed” (Bartholomew 1970: 857).

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