304
Opinion of Souter, J.
pose of arrogating and, in effect, exercising the State's power in a way that would thus violate equal protection if so exercised by state officials, the conspiracy becomes actionable when implemented by an act "whereby [a person] is injured in his person or property, or deprived of . . . any right or privilege of a citizen of the United States." § 1985(3).10
permitted under the Constitution is not a legitimate public purpose. I do not reach the question whether and how the equal protection requirement in the prevention clause would be violated by a conspiracy which, if charged to the State, would amount to a denial of police protection to individuals who are not attempting to exercise a constitutional right.
10 The scope of this construction of the prevention clause is limited. It certainly would not forbid any conduct, unlike that at issue here, protected by the First Amendment. Nor would it reach even demonstrations that have only the incidental effect of overwhelming local police authorities, for the statute by its terms requires a "purpose" to "preven[t] or hinde[r] the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws." Indeed, it would not necessarily reach even most types of civil disobedience that may be intended to overwhelm police by inviting multiple arrests, because the purpose of these is not ordinarily to discriminate against individuals on the basis of their exercise of an independently protected constitutional right. See n. 9, supra.
As to the lunch counter sit-in protests of the early 1960's, to which the Court refers, see ante, at 282, and n. 14, if the cases that made it to this Court are representative, these normally were not "mass" demonstrations, but rather led to the arrests of small groups of orderly students who refused to leave segregated establishments when requested to do so. See, e. g., Bouie v. City of Columbia, 378 U. S. 347, 348 (1964) ("two Negro college students"); Bell v. Maryland, 378 U. S. 226, 227 (1964) ("12 Negro students"); Robinson v. Florida, 378 U. S. 153 (1964) (an integrated group of 18 blacks and whites); Barr v. City of Columbia, 378 U. S. 146, 147 (1964) ("five Negro college students"); Griffin v. Maryland, 378 U. S. 130, 132 (1964) ("five young Negroes"); Lombard v. Louisiana, 373 U. S. 267, 268 (1963) ("three Negro and one white college students" seeking service at a refreshment counter "designed to accommodate 24 persons"); Peterson v. Greenville, 373 U. S. 244, 245, 247 (1963) (10 "Negro boys and girls" seeking service at a lunch counter that "was designed to accommodate 59 persons").
In any event, under the construction I adopt today, a lunch counter sitin would not have been actionable even if police had been overwhelmed
Page: Index Previous 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 NextLast modified: October 4, 2007