Monthly Archives: August 2017

Coates v. City of Cincinnati: Prohibiting “Annoying” Speech (05/01/1971)

Coates v. City of Cincinnati

Can laws prohibit annoying speech? 

Argued: 01/11/1971

Decision Date: 05/01/1971

Decision Record: 5-4; no

Justices in Favor: William Douglas, John Harlan, William Brennan, Potter Stewart, Thurgood Marshall

Justices Dissenting: Warren Burger, Hugo Black, Byron White, Harry Blackmun

Effect of the Decision

This case ruled that no laws can prohibit speeches such as annoying speeches because it violates the First Amendment.

In Favor

In the favoring side of this case, on the side of the Coates, attorney Robert R. Lavercombe argued, “This appeal concerns a Cincinnati ordinance which is called the loitering ordinance, but which is really more an unlawful assembly type piece of legislation.

The ordinance provides that when in the company of two or more other people, one so conducts himself as to annoy persons passing by, a crime is committed, unless that conduct takes place at the public meeting of citizens, in which case, it is not crime.

Hamilton County, Ohio includes Cincinnati and the number of other municipalities and several of them have also had ordinances using similar language.

In the 1940, the common police court for Hamilton County which has county wide jurisdiction held that the language used made the legislation unconstitutional.

All over Ohio, the courts reached the same conclusion through the years and in 1968, the appeals court for the Cleveland area wrote in detail at length and with emphasis how the lack of ascertainable standards made the annoyance test in the Cleveland ordinance cause it to represent an unconstitutional exercise of the police power, and it was therefore void for vagueness.

That opinion is quoted at length at pages 5 and 6 in our jurisdictional statement and was written by the same judge who in 1970, he wrote so strongly to the opposite effect in a 4 to 3 decision of the Ohio Supreme Court in this case of Coates versus Cincinnati.

But at least between 1940 and 1968, the annoyance test was considered to be void for vagueness.

Indeed in 1962, the Supreme Court of Ohio held that a dog barking ordinance which used the annoyance test was void for vagueness.

But in 1967 during the summer, Cincinnati along with many other areas had racial disturbances, and the police and perhaps more significantly, other city officials frequently found themselves irritated or provoked, annoyed by the conduct of those who complained and those who disturbed.

And members of the city Government including police were not able to charge many of those who irritated them with trespass or assault and battery or profanity or disorderly conduct.

So the officials and the police who were beset by annoyance which Webster’s collegiate dictionary in the 7th Edition defines as a wearing on the nerves by persistent petty unpleasantness, they arrested those who provoke them and hold them away and that ended the annoyance for a very short time, because that use of that legislative language making annoyance a crime, directly results in contempt for our system of law and order, or I think more properly law and order with the justice.”


In the opposition, on the side of the city of Cincinnati, attorney A. David Nichols argued, “The failure of the appellant here to present facts has been a problem for us as well in this matter, and with the permission of the Court very briefly, the broad statement that Mr. Lavercombe made with regard to the activity involved, is correct.

What happened was on December 7, 1967 with regard to the defendant Coates, he and several confederates gathered outside the United States Federal Building in Downtown, Cincinnati, which is directly across Main Street from the post office and courthouse.

And there Coates and his confederates where demonstrating against the Vietnamese war and the selective service system.”


On the side of the majority, Justice Potter Stewart wrote the opinion for the court. He wrote, “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.

The ordinance before us makes a crime out of what under the Constitution cannot be a crime. It is aimed directly at activity protected by the Constitution. We need not lament that we do not have before us the details of the conduct found to be annoying. It is the ordinance on its face that sets the standard of conduct and warns against transgression. The details of the offense could no more serve to validate this ordinance than could the details of an offense charged under an ordinance suspending unconditionally the right of assembly and free speech.”

On the other hand, the minority opinion was written by Justice Byron White. He wrote, “In the case before us, I would deal with the Cincinnati ordinance as we would with the ordinary criminal statute. The ordinance clearly reaches certain conduct but may be illegally vague with respect to other conduct. The statute is not infirm on its face and since we have no information from this record as to what conduct was charged against these defendants, we are in no position to judge the statute as applied. That the ordinance may confer wide discretion in a wide range of circumstances is irrelevant when we may be dealing with conduct at its core.”

My Opinion:

In this case, I agree with the majority decision. The word “annoying” is extremely vague and everyone has a different perspective on everything. Therefore, a law prohibiting “annoying” speech would be unconstitutional because of everyone’s different points of view. If one goes out protesting about something they feel extremely strong about and some other people find that “annoying,” the law banning “annoying” speeches would practically be violating that person’s First Amendment right to freedom of speech and expression.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right