NAACP v. Thompson Brief for Appellants
Public Court Documents
December 9, 1964
Cite this item
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Brief Collection, LDF Court Filings. NAACP v. Thompson Brief for Appellants, 1964. 2534111c-bf9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/07141a53-bfac-43a3-b1ea-5fde4657054e/naacp-v-thompson-brief-for-appellants. Accessed July 01, 2025.
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In the
Umttb Btati's (Emtrt nf Appeals
F ob the F ifth Circuit
No. 21741
National A ssociation fob the A dvancement of
Colored People, et al.,
vs.
Appellants,
A llen Thompson, Mayor of the City of
Jackson, Mississippi, et al.,
Appellees.
BRIEF FOR APPELLANTS
Jack H. Y oung
Carsie A . Hall
115J4 North Farish Street
Jackson, Mississippi
R. Jess Brown
125J4 North Farish Street
Jackson, Mississippi
Robert Carter
Barbara Morris
20 West 40th Street
New York, New York
Jack Greenberg
D errick A . Bell
Leroy D. Clark
10 Columbus Circle
New York, New York
W illiam R. Ming, Jr.
123 West Madison Street
Chicago, Illinois
Frank D. Reeves
508 Fifth Street, N.W.
Washington, D. C.
Attorneys for Appellants
I N D E X
Statement of the C ase........................................................... 1
A. The Case in Summary..................................... . 1
B. Racial Climate in Jackson .................................. 2
C. Appellants’ Self-Help E fforts................................. 3
1. Bi-racial Committee Proposal....................... 3
2. Mass Meetings.................................................. 4
3. Selective Buying Campaign .......................... 5
4. Voter Registration Attempts ....................... 6
D. Public Protests ...................................................... 6
1. Picketing................................. ....... .......... ...... 7
2. Testing Public Accommodations................... 8
3. Public Meetings .............................................. 9
4. Protest Marches ...... 10
5. Public Parks and Libraries .......................... 13
E. Jackson’s Response ................................................ 14
1. Preparations for Arrests .............................. 14
2. Arrests and Prosecutions.............................. 14
3. Harassment ...................................................... 16
4. State Court Injunction ...................... 17
F. Denial of NAACP Registration ......................... 17
PAGE
11
PAGE
G. Summary of the Litigation................................. 19
1. Suit Is F iled ...................................................... 19
2. Preliminary Injunction Is Denied ................. 21
3. First Appeal...................................................... 21
4. The Trial .......................................................... 22
5. The Excluded Proof ...................................... 24
6. The Trial Court’s R uling.............................. 30
Specifications of Error ...................................................... 32
A rgum ent :
I. The State’s Interference With Appellants’
Protests Were Unlawful Efforts to Enforce
Segregation, Violate Freedom of Associa
tion, and Suppress Rights to Effective Ex
pression Guaranteed by the Fourteenth
Amendment .... ............. .................................... 33
II. Appellees’ Refusal to Register Appellant Cor
poration Not Only Is Arbitrary, Capricious
and an Unconstitutional Attempt to Exclude
NAACP From the State of Mississippi, But
Also Abridges Rights to Freedom of Ex
pression and Association, All in Violation of
the Fourteenth Amendment .......................... 42
III. Appellants Are Entitled to Obtain and the
Federal Courts Are Authorized to Grant All
the Relief Sought in the Complaint ........... 48
Co n c l u s io n ___ 52
1U
T able of Cases
page
American Optometric Ass’n v. Ritliolz, 101 F. 2d 883
(7th Cir. 1939) ................................................................. 50
Anderson v. City of Albany, — — F. Supp. (M. D.
Ga., Aug. 19, 1964) ........................................................ 48
Apex Hosiery v. Leader, 310 U. S. 469 .......................... 41
Bailey v. Patterson, 199 F. Supp. 595 (S. D. Miss.
1961) 49,50
Bailey v. Patterson, 368 U. S. 346; 369 U. S. 31; 323
F. 2d 201 (5th Cir. 1963) ..........................................6, 33, 49
Baines v. City of Danville,------ F. 2 d -------- (4th Cir.,
Aug. 10, 1964) ............................................................... 49, 50
Bank of United States v. Deveaux, 9 U. S. (5 Cranch.)
37 ....................................................................................... 42
Bates v. Little Rock, 361 U. S. 516................................ 39, 48
Brown v. Board of Education, 341 U. S. 483 ................... o l
Brown v. Staple Cotton Coop. Assoc., 132 Misc. 859,
96 So. 849 ......................................................................... 41
Buchanan v. Warley, 245 U. S. 6 0 .................................. 37
Burns Baking Co. v. Bryan, 264 U. S. 504 ..................... 43
Butler Bros. Shoe Co. v. U. S. Rubber Co., 156 Fed. 1
(8th Cir. 1907) ............................................................... 42
Cantwell v. Connecticut, 310 U. S. 290 .......................... 34, 37
City of Jackson v. Salter, Hinds County Chancery
Court ......................................................................... 40,17, 23
Clark v. Thompson, 206 F. Supp. 539 (S. D. Miss.
1962), aff’d 313 F. 2d 637 (5th Cir. 1963) ...................6,13
Congress of Racial Equality v. Clemmons, 323 h . 2d 54
(5th Cir. 1963) ............................................................... 49
Cooper v. Aaron, 358 U. S. 1 ............................................ 37
Cooper v. Hutchinson, 184 F. 2d 119 (3rd Cir. 1950) .... 49
IV
CORE v. Douglas, 318 F. 2d 95 (5th Cir. 1963) ...........38, 49
Crutcher v. Kentucky, 141 U. S. 47 ................................ 42
Dallas General Drivers v. Wamix, Inc., 295 S. W. 2d
873 (1956) ....................................................................... 42
Davis v. Schnell, 81 F. Supp. 872 (S. D. Ala. 1949) ..... 51
DeJonge v. Oregon, 299 U. S. 353 ................................ 36, 41
Denton v. City of Carrollton, Ga., 235 F. 2d 481 (5th
Cir. 1956) ......................................................................... 49
Donald v. Philadelphia & Reading Coal & Iron Co., 241
U. S. 329 ........................................................................... 43
Douglas v. City of Jeannette, 319 U. S. 157 ...........49, 50, 51
Edwards v. South Carolina, 372 U. S. 229 .........34, 35, 37, 38
Evers v. Jackson Municipal Separate School District,
328 F. 2d 408 (5th Cir. 1964) ........................................ 33
Ex parte Lyons, 81 P. 2d 190 (1938) .............................. 40
Fields v. South Carolina, 375 U. S. 44 .......................... 35
Freeman v. Hewit, 329 U. S. 249 ...................................... 42
PAGE
Gano v. Delmas, 140 Miss. 323, 105 So. 353 ..................... 41
Gibson v. Florida Legislative Investigation Committee,
372 U. S. 539 ................................................................. 36, 48
Gomillion v. Lightfoot, 364 U. S. 339 ............................. 37
Griffin v. Prince Edward School Board, 377 IT. S. 218
(1964) ............................................................................... 47
Gulf, Colorado and Santa Fe R.R. Co. v. Ellis, 165
U. S. 150........................................................................... 43
Hall v. St. Helena Parish School Board, 197 F. Supp.
649 (E. D. La. 1961) ...................................................... 51
Hanover Fire Insurance Co. v. Harding, 272 IT. S. 494 .. 43
Harrison v. St. Louis & San Francisco Ry. Co., 232
U. S. 319........................................................................... 43
Henry v. Rock Hill, 376 U. S. 776 ...................................... 35
V
Herndon v. Chicago, Rock Island and Pacific Ry. Co.,
PAGE
218 U. S. 135................................................................... 43
Herndon v. Lowry, 301 U. S. 342 .................................... 34
Hughes v. Superior Court, 339 U. S. 460 .....................39, 40
In the Matter of Application of Brown & Richards v.
Rayfield, 8 Race Rel. Law Rep. 425 (1963) ............... 21
Jackson v. Price, 140 Miss. 249, 105 So. 538 ................... 41
Jamison v. Alliance Ins. Co. of Philadelphia, 87 F. 2d
253 (7th Cir. 1939) ......................................................... 50
Kelly v. Page, 335 F. 2d 114 (5th Cir. 1964) ...............38, 48
Kovacs v. Cooper, 336 U. S. 77 .......................................... 36
Liggett v. Baldridge, 278 U. S. 105 .............................. 43, 47
Lineberger v. Colonial Ice Co., 17 S. E. 2d 502 (1941) .... 42
Lombard v. Louisiana, 373 U. S. 257 .............................. 37
Martin v. Struthers, 319 U. S. 414.................................... 34
Meredith v. Fair, 298 F. 2d 696 (5th Cir. 1962) ............. 33
Morrison v. Davis, 252 F. 2d 102 (5th Cir. 1958) ........... 50
NAACP v. Alabama, 357 U. S. 449 .........34, 36, 38, 39, 47, 48
NAACP v. Button, 371 U. S. 415 ............34, 37, 38, 39, 41, 48
New Negro Alliance v. Sanitary Grocery Co., 303 U. S.
552 ............................................................................. 37,39,41
New State Ice Co. v. Liebman, 285 U. S. 262 ................... 44
Nixon v. Condon, 286 U. S. 73 ........................................... 37
People ex rel. Hekanson v. Palmer, 367 111. 513,11 N. E.
2d 931 (1937) ................................................................... 43
Peterson v. City of Greenville, 373 U. S. 244................... 37
Pullman Co. v. Kansas ex rel. Coleman, 216 U. S. 56 .... 43
VI
Ready Mix Concrete and Concrete Products Company
v. Perry, 239 Miss. 329, 125 So. 2d 241 ................... 41
Rice v. Asheville Ice Co., 169 S. E. 707 (1933) ................. 41
Rosman v. United Strickling Kosher Butchers, 298
N. Y. S. 243 (1937) ......................................................... 40
Ross v. Texas, 341 U. S. 918............................................ 37
Roth v. United States, 354 U. S. 476 ................................ 36
Schneider v. State, 308 U. S. 147...................................... 36
Schware v. Board of Bar Examiners, 353 U. S. 232 .... 44
Sellers v. Johnson, 163 F. 2d 877 (8th Cir. 1957) ......... 37
Shepard v. Florida, 341 U. S. 5 0 ...................................... 37
Simonetti Bros. Produce Co. v. Fox Brewing Co., 240
Ala. 91, 197 So. 38 (1940) .............................................. 42
Smith v. Allright, 321 U. S. 649 ...................................... 37
Smith v. Apple, 264 U. S. 275 .......................................... 50
Smith v. California, 361 U. S. 147 .................................. 36, 41
Southern Railway v. Greene, 216 U. S. 400 ...................42, 43
Speiser v. Randall, 357 U. S. 513 .................................... 36
State ex rel. Knox v. Edward Hines Lumber Company,
150 Miss. 1, 115 So. 598 .................................................. 41
Stromberg v. Carlson, 283 U. S. 359 .............................. 34
Terminiello v. Chicago, 337 U. S. 1 ................................ 35
Terral v. Burke Construction Co., 257 U. S. 529 ............. 43
Thomas v. Collins, 323 U. S. 516.................................... 34, 36
Thomas v. State, 160 So. 2d 657 (1964) .......................... 50
Thornhill v. Alabama, 310 U. S. 86 .......................... 34, 37, 39
United States v. Carolene Products Co., 304 U. S. 144 .. 36
United States v. City of Jackson, 318 F. 2d 1 (5th Cir.
1963) .................................................................................6,33
United States v. Duke, 332 F. 2d 759, 765 (5th Cir.
1964)
PAGE
51
vu
United States v. Louisiana, 225 F. Supp. 353 (E. D.
La.) .... 51
United States v. Mississippi, 229 F. Supp. 925 (S. D.
Miss. 1964) ..................................................................... 34
United States v. Wood, 295 F. 2d 772 (5th Cir. 1961) ..49, 50
Wells Fargo & Co. v. Taylor, 254 U. S. 175................... 50
Western Union Telegraph Co. v. Kansas ex rel. Cole
man, 216 U. S. 1 ............................................................. 43
Williams v. Standard Oil Co., 278 U. S. 235 ................... 43
Winters v. New York, 333 U. S. 507 .............................. 36, 41
Othek A uthorities
89 U. Pa. L. Rev. 453, 454 (1941) .................................... 42
S tatutes
28 U. S. C. §1343(3) ............................................................ 19
28 U. S. C. §2283 ............................................................ 49, 50
42 U. S. C. §1983 ............................................................ 19, 49
Rule 43(c), F. R. C. P ........................................................26, 29
Fla. Stat. Ann. 542.01 et seq............................................. 41
Ga. Code Ann. Sec. 20-504 ................................................ 41
La. Rev. Stats. 51:121-126 ................................................ 41
Mississippi Business Corporation Act, P. B. #1712,
regular session 1962, Section 2-105.............................. 44
Sec. 1088, Mississippi Code of 1942, Ann.......................32, 41
Sec. 2056(7), Mississippi Code of 1942, Ann................... 31
PAGE
V l l l
Sec. 4065.3, Mississippi Code of 1942, Ann............. 31, 34, 51
Sec. 5310.1, Mississippi Code of 1942, Ann....... 44, 45, 46, 47
Sec. 5319, Mississippi Code of 1942, Ann....................... 44
Sec. 5339, Mississippi Code of 1942, Ann........................ 45
Sec. 5340, Mississippi Code of 1942, Ann........................ 45
Sec. 5341, Mississippi Code of 1942, Ann........................ 45
PAGE
I n th e
luttefc States dflurl of Appeals
F ob th e F ifth C ircuit
No. 21741
N ational A ssociation for the A dvancement of
Colored P eople, et al.,
Appellants,
—v s-
A llen T hom pson , M ayor of th e City of
J ackson , M ississippi, et al.,
Appellees.
BRIEF FOR APPELLANTS
Statement of the Case
A. The Case in Summary
This appeal presents for review the decision of the dis
trict court for the Southern District of Mississippi denying
all relief sought by appellants who filed suit in June 1963
seeking injunctions against officials of the City of Jackson
and the State of Mississippi, who had inter alia, failed to act
upon the corporate appellant’s request for registration re
quired by State law, and, through policies of arrest, harass
ment, and intimidation, suppressed virtually all public
protest against racial segregation and discrimination.
Appellants, seeking relief in forms that will maintain and
safeguard their constitutionally protected right to effec
tively express their opposition to Mississippi’s racial poli
cies, have compiled a lengthy documentation of precisely
what happens to proponents of racial equality in Missis
sippi’s racially-closed society, and have offered proof that
2
the governmental segregation policies which this Court has
judicially noticed in other situations, operate here to deny
fundamental rights of free speech and association, and re
dress in the State’s courts for such deprivations.
B. Racial Climate in Jackson
As of Spring 1963, Jackson, Mississippi was a racially
segregated city. The Negro communuity had long endured
the inequities of enforced segregation, discrimination, po
lice brutality and the denial of the right to vote (R. 503-04).
There was increased frustration over the inability even to
express their discontent about racial segregation (R. 748-
778). Earlier efforts to desegregate the public library
(P.R. 1164),1 the City Zoo (P.R. 547-49, 599), the City
buses (P.R. 660), the Greyhound bus terminal (R. 863-65),
and the public swimming pools (R. 691) had resulted in
harassment and arrests.
Jackson’s Mayor, Allen Thompson, readily admitted he
knew of no hotel, tavern, motel, or restaurant in the City
of Jackson accommodating both whites and Negroes (R.
266-67). Negroes who had spent their lives in Jackson
had never been allowed to use the restroom facilities on
or around Capitol Street (Jackson’s main shopping area)
(R. 48), nor were they able to obtain jobs other than as
maids or busboys (R. 481). Indeed, Negro citizens of Jack-
son were surrounded by “ discrimination in all phases of
everyday life” (R. 509), and were denied basic human dig
nity in all business, official or social transactions; they were
not addressed as Mr., Mrs., Miss, but rather “boy” , “ uncle”,
or by their first names (R. 509).
The prevailing racial policies and customs not only op
pressed Negroes against whom they were directed, they
also effectively stifled any incipient dissent within the white
community. White citizens at odds with the orthodox view
accommodated either by choosing occupations which mini
mized social pressures for conformity or by leaving Mis
sissippi altogether (P.R. 1277). Departure from the racial
1 P.R.— refers to statements based upon proffered testimony or
exhibits which the trial court excluded.
3
norm is undertaken only with considerable social, occu
pational and even physical risk (P.R. 1313-14).2
In Jackson, the orthodox view on race is consistently pre
scribed in editorials and columns (R. 1210-11) in the two
major Jackson papers—the Jackson Daily News and the
Clarion-Ledger (P.R. 1208). The Negro position is never
published (R. 522, 1208), even though protest meetings are
regularly covered by white reporters (R. 541-42, 1404).
Moreover, there is only limited access to radio and TV
by Negroes or those who wish to speak on their behalf (R.
956).3
C. Appellants’ Self-Help Efforts
1. Bi-racial Committee Proposal
The civil rights proponents, including appellants, did
not initially attempt to convey their views by public pro
tests. The Jackson NAACP approached the Mayor on a
conciliatory basis by a letter expressing its desire “ to meet
with city officials and community leaders to make good faith
attempts to settle grievances and assure full citizenship
rights for all Americans” (R. 204). The Mayor did not
reply. Subsequently, a telegram from Medgar Evers re
quested formation of a “ representative bi-racial committee
to begin negotiations as in other progressive cities” (R.
206). The Mayor explained that any response would have
been contrary to policy in dealing with the racial situation
(R. 215). These requests, together with events occurring in
other cities, convinced him that “ they were going to force
people to do as they wanted to do whether it was legal or
whether it was illegal” (R. 202-3). He elaborated further at
the trial:
2 As a result of the selective patronage campaign, one or two
of the stores on Capitol Street indicated willingness to serve Ne
groes on a non-segregated basis but hesitated for fear of community
reprisals (R. 460).
3 A small four page weekly newspaper supports their position,
but it is not distributed in any substantial numbers to the white
community (R. 523), while a larger weekly newspaper, seemingly
aimed at the Negro community, has long been discredited as sup
ported by and reflecting the views of segregation groups (R.
1650-51).
4
The NAACP insisted that the commissioners and I
appoint a bi-racial committee, and they would have
taken over the whole city, this would only have been
the first of their demands . . . in any bi-racial com
mittee that I have ever seen, the radical element takes
over and assumes all the authority (R. 1730).
Those who negotiated with the Mayor over the formation
of the committee had also approached local businessmen
over the proposal. The businessmen indicated that there
was an “ agreement” among the various organizations to
let the Mayor and the Commissioners handle it (R. 516-17).
2. Mass Meetings
In need of a forum for expression of their sentiments,
frequent mass meetings are held to encourage the Negro
community to support a drive for desegregation (R. 50).
Members of the press are present at meetings (R. 1404,
1433), and there are always some white spectators (R. 1432-
33). A plainclothes Jackson police officer attended many
meetings and was recognized by appellants (R. 1453-54).
The main topic at the mass meetings is racial segregation
and how it can be eradicated (R. 1467). Civil rights ad
vocates speak at these meetings, and generally encourage
persons attending to register to vote (R. 1467-68), support
selective buying campaigns, and take other action to secure
racial equality. Although the speeches are quite militant
and on occasion contain spirited language (R. 1409), speak
ers at these well attended meetings (R. 1411, 1415, 1416,
1456) condemn violence as a method for attainment of
goals. Continually emphasized is that the battle is a non
violent one.
At the meetings, the unsuccessful efforts to negotiate
racial problems were reported (R. 1411), and, after votes of
approval by the audience, plans were made for various
peaceful demonstrations in opposition to racial segregation.
Volunteer participants in protest activities were instructed
in non-violent methods of protest (R. 380-85; 1030; 1059;
1153-54).
5
3. Selective Buying Campaign
A selective buying campaign (sometimes referred to as a
“ boycott” ) designed to bring the Negroes’ grievances to
the attention of Jackson merchants (R. 490) was begun as
another effort to confront the City with its racial practices.
Negroes were asked not to patronize businesses where
they were not hired or where they were treated differently
from white patrons (R. 429). Voluntary support for a
campaign was solicited by telephone and door-to-door can
vassing (R. 429-30).4
The purpose of the campaign was to secure equal treat
ment for Negroes, not to put anyone out of business (R.
431). When reports were received that a store was pre
pared to treat Negroes equally and to up-grade them in
jobs, selective buying was terminated at that store and the
people previously engaged in selective buying were advised
of the changed policy through mass meetings and leaflets
(R. 460).
Efforts were made to picket the Capitol Street business
area, urging shoppers to withhold patronage from stores
having policies of racial discrimination, but pickets were
promptly arrested. An interracial group of six college
students attempting to picket a Woolworth’s store on Capi
tol Street early one morning in December 1962 by walking
close to the curb, was immediately arrested by 20 to 30 city
policemen and charged with parading without a permit and
obstructing the sidewalk although there were no pedes
trians, and police and store personnel were the only wit
nesses to their activities (R. 954-56; 858-63).
4 In an open letter pledging continuation of the campaign with
more handbills and picketing, Jackson’s businessmen were advised:
“ This is not a fight of race against race— but let us tell you that
it is a fight between humanitarian democracy on the one hand and,
on the other, a strangling racism which even many of you must
sometimes wish were gone entirely from the Mississippi scene’
(D ’s Exh. 10, R. 1126).
While critical of appellants’ selective buying campaign, Mayor
Thompson called publicly for a “boycott” of a nationally-known
television program after its stars cancelled a scheduled appear
ance in Jackson because of the City’s segregation policies (P i’s
Exh. 28, R. 1737-38).
6
Roy Wilkins, NAACP Executive Secretary, Medgar
Evers, and a Negro woman were arrested while attempting
to picket on Capitol Street and charged with violation of
the State’s restraint of trade statute, a felony (R. 1353).
4. Voter Registration Attempts
Large numbers of Negroes attempted to register to vote
during the summer of 1963. At the height of the registra
tion campaign, the registrar’s office closed, allegedly be
cause of a dearth of help (P.R. 424). Offers by Negroes to
provide the necessary secretarial assistance were rejected
(P.R. 427). A Negro girl canvassing houses with voter
registration material was quickly arrested (R. 880-81).
D. Public Protests
Toward the end of May, 1963, it appeared that efforts by
civil rights groups to obtain any serious consideration of
their problems by Jackson’s city officials was doomed to
failure (R. 510-17). Moreover, despite two years of inten
sive litigation,5 all public facilities were maintained on a
completely segregated basis, the selective buying campaign,
with few exceptions, had failed to achieve its goals (R.
460), and perhaps most frustrating of all, appellee Mayor
Allen Thompson had not only flatly rejected pleas for a
bi-racial committee (Pi’s Exh. 27(7), R. 516, 1729), but
continued broad publication of the view that “ separation
of the races in Jackson has been extremely successful. The
people believe in it” (P i’s Exh. 27(6), R. 1715). Appellants
determined that they must inform the public that Jackson
Negroes were dissatisfied with the maintenance of segrega
tion (R. 802,1113-14,1129-30).
5 Bailey v. Patterson, 199 F. Supp. 595 (S. D. Miss. 1961), 368
U. S. 346, 369 U. S. 1 (1962), 323 F. 2d 201 (5th Cir. 1963),
effort to end segregation in travel facilities in the State and
City of Jackson; United States v. City of Jackson, 206 F. Supp. 45
(S. D. Miss. 1962), 318 F. 2d 1 (5th Cir. 1963), suit to end
segregation policies in Jackson waiting rooms of common carriers;
Clark v. Thompson, 206 F. Supp. 539 (S. D. Miss. 1962), 313
F. 2d 637 (5th Cir. 1963), action to end segregation in Jackson’s
recreational facilities and libraries.
7
1. Picketing
Appellants’ concentrated public protests began on May
28, 1963, when an interracial group of seven or eight per
sons sought to picket Capitol Street (R. 657) with signs
reflecting their goals and determination: “We want equal
ity,” “We shall overcome” (R. 686). They were 10 spaces
apart and walked close to the curb (R. 658), but were ar
rested before they could cover even one block and the signs
were torn from around their necks (R. 686-87).
During each of the next few days, small groups picketing
in similar fashion were quickly arrested when they appeared
on Capitol Street at the “ Parisian” Store (R. 657-58), the
Woolworth Store (R. 480-83), H. L. Green’s (R. 658-59),
J. C. Penney’s (R. 743-44; 649-50), and Walgreen’s Drug
Store (R. 658-60, 671-73).
Efforts to vary the traditional picketing procedure in
hope of avoiding arrest proved of no avail. On June 7,1963,
five Negro parents walked single file, three or four feet
apart from the sidewalk to the City Hall steps and stood
silently where they did not block the steps (R. 630-31).
Deputy Chief of Police, Captain Ray, approached them and
asked if they wanted to see somebody in City Hall. They
did not reply “ because the signs that we were carrying told
what we were asking for and I was carrying an American
flag and the other mothers was carrying placards” (R. 631)
which read “We Want Equality.” While their heads were
bowed in silent prayer, Captain Ray asked them to move on.
When they did not move, he arrested them (R. 632-33).
On the same day, five persons, each with a small American
flag started up Capitol Street. They walked single file,
three feet apart, and well over toward the curbside of the
sidewalk, but were arrested within ten minutes for parading
without a permit (R. 726). A week later, the same charge
was placed against an eighteen year old Negro youth who
appeared alone on Capitol Street wearing a tee-shirt reflect
ing “ NAACP” (R. 940-41), and six months later in De
cember 1963, six Negro housewives attempting to picket on
Capitol Street without placards but with small American
flags and wearing pullover shirts with printed slogans:
8
“Remember Evers” , “Remember Kennedy” , “ I Want Free
dom” were quickly arrested and charged with obstructing
the sidewalk and parading without a permit (R. 759-60),
although they walked fifteen feet apart, three on each side
of the street (R. 758-62).
A group of teenagers who sought to picket the City
Jail in protest against the arrest of one of their leaders for
contributing to the delinquency of minors were themselves
arrested (R. 899), but ten Negro boys wearing NAACP
tee-shirts with Freedom signs printed on the backs were
able to remain on Capitol Street for 30 to 45 minutes with
out arrest. Their technique was to stay from 20 to 30 yards
apart on both sides of the street, and not march but stroll
up and down as if they were window shopping (R. 772-74).
Passersby stared but otherwise ignored the boys, but one
of the many police in the area gave one of them a ticket for
jay-walking (R. 774-75).
2. Testing Public Accommodations
On May 28,1963 a group of college students made various
purchases at Woolworth’s on Capitol Street and then
sought food service at the lunch counter (R. 1005, 1016).
They were refused service and surrounded by a mob of
several hundred white persons (R. 1196) who splattered
them with water, vinegar, salt, pepper, mustard, and catsup
(R. 1196, 1632). One observer, the President of Tougaloo
College, recounted:
It was a mob—it wasn’t just 200 people, it was a genu
ine mob and they were shrieking whenever somebody
would make a hit . . . hit with some mustard or catsup
or something of the kind” (R. 1196).
For a long while the Chief of Police and 20-25 policemen
remained outside the store allegedly waiting for an invita
tion from the store management to quell the disturbance
(R. 1015, 1198, 1606), although they had a clear view from
the street to the lunch counter (R. 1017) and were advised
by several persons, including a plainclothes detective, sta
tioned at the counter, that the crowd was unruly and dan
gerous (R. 1196).
9
One of the students, Memphis Norman, was attacked
from behind while sitting at the counter and badly beaten
(R. 1007, 1011). Trained in non-violence (R. 1030) he of
fered no resistance, but was arrested for breach of the
peace together with his attacker who was charged with
assault (R. 1997).6
The following day at Primos Restaurant on Capitol
Street, five Negroes were arrested when they attempted to
sit down and eat at the counter (R. 799). They were stopped
at the door by the owner (R. 799) and subsequently arrested
for trespass by Deputy Police Chief Ray, one of the many
police officers in the area (R. 804, 823).
On July 19th, three Negro youths sought to use the
facilities at the Jackson Y.M.C.A. designated for whites and
were asked to leave the building (R. 1038, 1041-42). They
left but sat on the front steps in protest and, although not
blocking the entrance, were arrested by Jackson police
when they refused to leave (R. 1042-43).
Later in the year, Negroes and interracial groups sought
to worship at white churches in Jackson (P.R. 866, 959,
994-95). These groups were generally arrested even when
a member of the church was in the group (P.R. 992, 994-95).
3. Public Meetings
On May 30th, 13 or 14 persons (R. 689) met on the post
office steps in order to make a public statement opposing
segregation (R. 802). The participants believed that by
choosing a federal building as a place for their protest they
would avoid police harassment and arrest (R. 810-11). The
meeting was to begin with a prayer service (R. 1128) and
“ then one of our members was to make a statement appeal
ing to all people of Jackson for an end to police brutality
and for a bi-racial commission. The prayer service was a
part of it, but it was only a small part of what we were
doing—to make a public protest” (R. 1128).
When the group came out of the Post Office, a large num
ber (R. 688, 804) of policemen had assembled in the area,
6 At a hearing, the charges against Norman were dismissed
(R. 1012).
10
as well as an unruly crowd of white persons who had gath
ered and jeered and cursed the group while they prayed
(R. 747, 1128). The group was arrested shortly after the
prayer was begun and charged with breach of the peace (R.
803). None of the white persons were arrested (R. 716,
824).
Deputy Chief Ray testified that the “ugly mood” of the
white crowd (R. 1540) made him aware “ that there was an
immediate danger there and I felt it necessary to take some
action and to do it quickly to avoid a riot.” He explained
his failure to arrest any of the white mob:
I did not arrest them. After I determined the cause of
the trouble, I tried to remove that cause and after the
cause was removed, it was very peaceful again (R.
1590).
4. Protest Marches
None of several other mass meetings planned to be
held at City Hall took place because participants were in
variably arrested enroute, generally for parading without
a permit (R. 980, 1052). A parade permit had been re
quested prior to a scheduled march on May 30th from the
Farish Street Baptist Church to City Hall where a protest
to the Mayor was to be made (R. 575, 833, 1077). The per
mit was refused by city officials (R. 1054).7
A group of several hundred persons, some carrying flags
(R. 1057), left the Church and began marching two by two
toward City Hall. There were approximately 100 to 200
policemen in the area (R. 833) who had formed a “ skirmish
line” across the line of march from sidewalk to sidewalk
(R. 1508). Over a loudspeaker, Deputy Police Chief Ray
asked if they had a permit to parade, and then ordered them
to disperse (R. 1511). Three hundred and twenty-two were
7 Later, at a hearing on the injunction obtained by the City,
Mayor Thompson stated he would not grant a parade permit to
appellants (P i’s Exh. 29, p. 372).
11
arrested (R. 1512), and transported, some in garbage
trucks, to a detention center set up at the City fairgrounds
early in May, 1963 preparatory to incarcerating any per
sons who might participate in public protests (R. 1514-15).
On May 31, 1963, there was another mass arrest when
a group of 80-90 students from the Negro Brinkley High
School walked twro abreast (R. 904, 978-1057) on the side of
a road toward the Jackson City Hall, intending to make a
peaceful protest against racial segregation. The following
day, a group of approximately 100 persons (R. 585) headed
for downtown Jackson (R. 589) for a similar purpose. All
were arrested (R. 594).
Not all groups arrested enroute to meetings or public
protests were large. On June 12, 1963, the morning follow
ing announcement of the ambush murder of NAACP Field
Secretary Medgar Evers, a group of 12-15 Negro ministers
attempted to walk slowly in single file from the Negro
Pearl Street AME Church to the City Hall for “prayer and
consultation” with the Mayor about the tense racial situa
tion, and to urge the Mayor to halt racial violence and form
a biracial committee (R. 1106). They were met by police
almost immediately, arrested and taken to the city jail
(R. 1107).
Later that same day, a group of 130 students, distressed
over the death of Evers (R. 560; 601) and the arrest of the
ministers (R. 1107) acquired small American flags and at
tempted to proceed to downtown Jackson (R. 589) on public
streets located in the Negro section of Jackson (R. 1659).
After walking a half-block (R. 553) they were stopped by
approximately 100 policemen (R. 1109) who were lined up
across Lynch Street, stopping traffic (R. 844).
Appellant Rev. King, who observed the incident, recalled:
I saw clubs going in the air. I could see people being
struck by the police. . . . You could see clubs swinging
and then suddenly the American Flag would fall (R.
1111; 1060).
He described the show of force by the police in the Negro
area after the demonstrators had been arrested and taken
away:
12
They moved down the street again, clearing the street,
people running before them, with cadence count, march
ing. Police would come to a porch where people would
be singing freedom songs, they would aim their guns
at the porch and orders would be given for people
to stop singing on the porch. . . . (R. 1112).
One hundred and fifty-six persons were arrested, includ
ing 74 juveniles (R. 1658) and charged with parading
without a permit. One demonstrator testified that she did
not recall that there was a request to disperse because:
“ When they stopped us he was telling the policemen to load
them up, bring the paddy wagons and bring the garbage
trucks” (R. 704).
On June 13, a group of approximately 80 persons who
left the Pearl Street Church (R. 895) two by two carrying
American flags (R. 895) were arrested and charged with
parading without a permit before proceeding more than a
block and a half (R. 896). On June 15, the police granted
permission for a procession to follow the funeral ceremonies
for Medgar Evers. The procession was guarded by police
and proceeded approximately 1% miles through the city
streets to a funeral home in a Negro section. As part of
the large group of participants attempted to leave the area,
they found the area blocked by police. Participants in the
funeral procession reported that onlookers in the buildings
and on the sidewalks along the street who had not been
part of the procession, threw bricks and bottles at the police
(R. 1158), but Deputy Police Chief Ray testified that it was
the processional participants who rioted and attacked his
men (R. 1536-37). Chief Ray admitted, however, that he had
left the area when the funeral procession reached the fu
neral home and returned when advised there was trouble.
He also admitted he did not know of his personal knowledge
who or how the rioting started (R. 1558).8
Appellant Rev. King testified that the procession was
orderly until police turned on a group with dogs and guns
and chased them down the street (R. 1158).
8 The description of this event which appears in the opinion of
the court below (R. 146-47) does not conform with any part of
the Record.
13
“ Q. Are you telling the Court that the people in
volved in the throwing of bricks and bottles on Farisli
Street were not parties participating in the march for
Medgar Evers’ funeral? A. I think that’s a very, very
apt description. The people who throw bottles and
bricks were not people involved in the march for the
funeral. The march had been conducted just as we
planned it, just as peacefully as we had planned it.
You had given us permission to do it. I think we
marched the five thousand people peacefully and could
have done so on any occasion that the police in Jackson
were willing to give us protection to do so” (R. 1158-59).
5. Public Parks and Libraries
Efforts were made by Negroes to use the city parks and
libraries on a nonsegregated basis. Jackson police reacted
to these efforts by harassing or arresting the participants.9
When on June 7, 1963, 21 young people attempted to use
the facilities of the traditionally white Battlefield Public
Park, they were ordered to leave (R. 827-28), followed by
police, and finally arrested for blocking the street (R. 829-
30, 1532). Deputy Chief Ray who effected the arrests, re
ported that he ordered the Negroes out of the Park because
he anticipated trouble from a group of whites who arrived
in cars and were advancing on the Negroes (R. 1882). This
white group was neither followed nor arrested (R. 1584).
A few weeks later, a large group of Negroes attempted to
use the facilities in Riverside Park. They refused to leave
on orders of a policeman, and were arrested (R. 723; 830).
Negroes seeking to use Jackson’s main library in 1963,
were not arrested as had been the case in 1961 (P.R. 1164-
65), but they were harassed by policemen who followed
them around and stood near their seats (R. 864; P.R. 1033).
9 In 1962 a suit had been filed in federal court to desegregate
Jackson’s parks and libraries. The decision by the district judge,
affirmed on appeal, declared that the plaintiffs were entitled to
use the facilities hut refused injunctive relief for plaintiffs and
the class they sought to represent. Clark v. Thompson, 206 F.
Supp. 539 (S. D. Miss. 1962), aff’d 313 F. 2d 637 (5th Cir. 1963).
14
E. Jackson’s Response
Public protests were viewed as an effort to take over
the City (Pi’s Exh. 27(10), R. 1732-33) and preparations
were made to meet this threat through a policy of “ instant
arrest” of all civil rights proponents (R. 231-32).
1. Preparations for Arrests
In late Spring 1963, the Mayor consulted with the police
chief over arrangements to augment the capacity of the
jail (R. 192), and before any demonstrations had occurred,
facilities were made available at the fairgrounds to hold
in custody large numbers of people (R. 209).
The Mayor instructed the Jackson Police Force to arrest
persons engaged in unlawful conduct. He did not define
“ unlawful conduct” (R. 228).
2. Arrests and Prosecutions
Approximately 1,000 persons were arrested (R. 1351),
50% of whom were juveniles (R. 1347), and variously
charged with parading without a permit, obstructing the
sidewalk, trespass and breach of the peace (R. 1352). From
May 31st through July, 1963, the juvenile court handled
665 children. Fifteen youths who had participated in two
or more demonstrations were referred back to the Police
Court (R. 1676). Juveniles arrested between May 13 and
June 1st were released to parents on the condition that they
not demonstrate again (R. 1677). Those arrested after
June 1st were brought to court. Cases of those for whom
it was a first offense are being held open without adjudica
tion for one year (R. 1679) which Youth Court Judge
Gurnsey admitted has the effect of barring their participa
tion in other civil rights protests during that period (R.
1684).
Appellant’s attorney Jack Young, one of only three Mis
sissippi lawyers willing to take civil rights cases (R. 1743)10
described what happened to persons arrested while pro
10 The other two attorneys R. Jess Brown and Carsie Hall are
Negroes as is Jack Young (R. 1332, 1754).
15
testing segregation. His testimony may be summarized as
follows:
Bail Bonds—Bonds for those arrested, and charged with
violation of a City Ordinance such as parading without a
permit were $100. Appeal bonds from the City to the
County Court were an additional $225 (R. 1352). Where
defendants were charged with violating State statutes, i.e.,
breach of peace or obstructing sidewalks, bail bonds were
$500, except that $1,000 bail was set for persons charged
with violating the State’s restraint of trade statute (R.
1352-53).
Defendants were required to post cash bonds, because few
persons were able or willing to post property bonds and
local bonding companies refused to furnish either appear
ance or appeal bonds (R. 1333).11 As of February 1964,
$89,900 in cash bonds had been posted for appeals from the
City to the County Court and $67,500 in appeal bonds from
the County to the Circuit Court (R. 1334-35). Bonds for
cases appealed to the Circuit Court are $1,500 each (R.
1352).
Trials—Despite the great factual similarity of cases, all
civil rights prosecutions are conducted separately. Re
quests to consolidate the “ Freedom Rider” cases for trial
were refused by the City Prosecutor, and both Circuit and
Supreme Courts of Mississippi have denied motions to con
solidate cases on appeal (R. 1336-37). Attorney Young tes
tified that all 45 persons tried in County Court as of the
trial date (R. 1355) had been convicted, except for a few
acquittals on motions for directed verdicts (R. 1341-42,
1346).
The maximum penalty is uniformly imposed after con
viction. For City Ordinance cases this is $100 fine and 30
11 Attorney Young testified that while representing the “ Freedom
Riders” in 1961, local surety companies refused to provide bonds.
He then wrote to every casualty company in the State (over 300)
asking if they would write surety bonds in civil rights cases.
He failed to receive a single affirmative reply (R. 1340-41). Appeal
bonds totaling $194,000 have been posted in the Freedom Ride
cases (R. 1334).
days jail sentence (R. 1355). State violations are $500 fine
and four months imprisonment (R. 1355-56). Nolo conten
dere pleas have been entered for many defendants who,
for varying reasons, did not appear for trial de novo in
County Court (R. 1745-46).12
3. Harassment
In addition to arresting and prosecuting persons involved
in civil rights protests, Jackson police were charged with
beating demonstrators (R. 578, 636; 1054-55; 553, 602, 701),
or allowing them to be beaten by white mobs (R. 1015, 1198,
1606).13 Participants in the larger protests were trans
ported to the detention center at the Fairgrounds in city
garbage trucks (R. 1514-15). These trucks, appellants’ wit
nesses charged, were dirty, hot, had dirty water in them and
contained no windows and a single door (R. 576). They
contained a vacuum mechanism used to compress the gar
bage, and were clearly intended to move materials, not
people (R. 1574-75). The drivers of these trucks took long
routes to the fairgrounds, stopping and starting abruptly,
causing those inside to fall (R. 577, 718). Those trans-
portees to the fairgrounds were frequently kept in the
closed paddy wagons or garbage trucks for 35 to 40 min
utes in 90 degree heat (R. 719). Charges of inhumane
treatment were generally denied by city officials and police
(R. 1515, 1658). Indeed, testimony was offered by appel
lees attempting to show that all arrests were justified by
the conduct or activities of those taken into custody (R.
1610, 1682-83).
12 The Record indicates that while civil rights demonstrators
were arrested because their protest activity caused white persons
opposed to their views to become violent (R. 1540, 1590; 1589,
1882), only one of these persons, Benny Oliver, an ex-policeman,
was arrested and prosecuted for assaulting a demonstrator (R.
1008).
13 A parade participant during her trial for parading without
a permit testified that she had seen Jackson police officers strike
other persons involved in the march. When police officers denied
this, Judge Moore (R. 1360) had her bound over to await grand
jury action. She was indicted for perjury (R. 1354-55).
17
4. State Court Injunction
On June 6, 1963, the City requested and obtained, ex
parte, a temporary injunction against the NAACP and
various other groups and individuals engaged in civil rights
activities (Pis. Exh. 29). The injunction, issued by the
Hinds County Chancery Court, ordered those named to
cease inter alia street parades, blocking of public streets
and sidewalks, trespassing on private property, all of which
conduct was characterized as unlawful and illegal (R. IS
IS).14
F. Denial of NAACP Registration
For a number of years, corporate appellant, National
Association for the Advancement of Colored People
(NAACP) has been active in Mississippi (R. 476). It
sponsors several branches throughout the State and main
tains a Field Secretary’s office in Jackson.
The NAACP, organized to use lawful means to end
racial discrimination in all aspects of American life (R.
394, 419), is a non-profit membership corporation char
tered under the laws of New York, with local affiliates in
more than a thousand communities in 49 States (R. 394).
In Mississippi, NAACP works to achieve equal rights for
Negroes, by litigation of unjust laws, encouraging regis
tration and voting, desegregating public facilities includ
ing schools and ending police brutality (R. 420-21). In
this effort, NAACP has worked with other groups who
share its views (R. 436, 493, 506-07), has participated with
them in selective buying campaigns (R. 445), and in picket
ing and other public protest activities (R. 421).
Pursuant to a 1962 notice from the Secretary of State
that laws with regard to foreign non-profit corporations
had been changed by amendment of Section 5319, Missis
sippi Code of 1942, Ann., and that, effective January 1,1963,
such corporations would be required to “domesticate” by
14 After trial in January, 1964, the temporary injunction was
made permanent on May 20, 1964, and appeal therefrom is now
pending before the State Supreme Court.
18
the filing of an application and a certified designation of a
local agent for service of process, on November 27, 1962,
appellant corporation filed a certified copy of a resolution
designating its Mississippi agent, with appended accept
ance by the agent, together with an authenticated copy of
its articles of incorporation, requisite filing fees, and a
request that their organization be domesticated.
Prior to commencement of this action appellees had
neither acted upon the application nor advised appellants
of its disposition. After this action was filed, appellees
produced a letter from former Governor Barnett (in whose
stead the present Governor has been substituted) dated
June 17, 1963, denying that application, pursuant to the
authority vested in him as Governor; and a letter dated
June 19, 1963, from appellee Ladner to the President of
appellant corporation advising it of the Governor’s refusal
to approve its application for domestication. During a
hearing on appellant’s request for temporary injunctive
relief, on June 24, 1963, appellee Attorney General Patter
son, produced a letter to Governor Barnett dated January
29, 1963, setting forth the Attorney General’s opinion that
the application for domestication by appellant corporation
“ is not authorized to be approved by your office” (R. 327);
he testified that his opinion was based upon appellant cor
poration’s failure to comply with Section 5310 of the Mis
sissippi Code of 1942 as a prerequisite to domestication
and his belief that domestication of appellant corporation
would not be “ in the best interest” of the State of Missis
sippi. Finally, on July 11, 1963, the President of appellant
corporation was formally advised that the Governor had
declined to approve the application for domestication in
the State of Mississippi.
The record reflects that the conclusion of the Attorney
General that domestication of the NAACP was not “ in the
best interest of Mississippi” is based upon his experience
with the NAACP. According to him, during the period it
operated in the State, it encouraged and conducted activ
ities to acquire civil rights for Negroes and to protest
denial of civil rights to Negroes, including protest proces
19
sions and meetings, and promoted and “ stirred up” litiga
tion dealing with civil rights which, in the opinion of the
Attorney General, was uncalled for (R. 340; 344).
G. Summary of the Litigation
1. Suit Is Filed
The two-count Complaint filed June 7, 1963, invoking the
jurisdiction of the federal court under 28 U. S. C. §1343(3)
and seeking relief as authorized in 42 U. S. C. §1983 (R. 3),
alleged that more than 600 persons were arrested since
May 27th (R. 10), and except for juveniles, most had been
found guilty, given maximum sentences, required to post
bonds from $100 to $1,000, and required to take separate
appeals entailing such huge expenditures for court costs,
bail and appeal bonds that many persons will be deprived
“ . . . of any possibility of preserving and protecting through
the judicial process their [constitutional] rights. . . . ” (R.
10-11).
Appellees in Count I,18 were charged with acting under
color of state laws and customs now and for many years
“ to effectuate and maintain throughout the City of Jackson
the most rigorous and virulent form of racial segregation
now existing in the United States” (R. 5). The complaint
charges that appellees, acting in compliance with explicit
state constitutional provisions and statutes (R. 5-6), twist
and distort state laws and city ordinances to harass and
punish persons objecting to their racial policies, and “ abuse
and subvert the judicial processes of the courts of the State
to the same end” (R. 6).
Appellants alleged their sole aim is to exercise rights of
peaceful assembly, freedom of speech, and petition for re
dress of grievances and appellees know that all such activity
is constitutionally protected (R. 9). Thus, arrests for
breach of peach, restraint of trade, trespass, parading
without a permit and obstructing traffic are made “ solely 15
15 The Majmr, City Commissioners, Chief and Deputy Chiefs of
Police, Prosecuting Attorneys of the City of Jackson, the Sheriff
and County Attorney for Hinds County and the Commissioner of
the State Highway Patrol (R. 4-5).
20
for the purpose of harassing and intimidating” appellants
even though appellees know that under all these circum
stances, valid convictions cannot be obtained (R. 10).
Because appellants intend to continue their protests
against appellees’ racial policies, and appellees intend to
continue denying their right to peacefully and lawfully en
gage in activity designed to eliminate racial discrimina
tion, appellants alleged that they have “no adequate remedy
at law in the courts of the State of Mississippi. . . . ” (R.
12) .
Appellants sought injunctive and declaratory relief which
would: (1) declare the rights and legal relations of the
parties, (2) enjoin appellees’ policies of arrest and harass
ment which prevent appellants from peacefully and pub
licly protesting racial segregation through activities pro
tected by the Fourteenth Amendment, and (3) enjoin
prosecution of persons arrested but not tried or convicted
for participation in peaceful protests (R. 12-14). Follow
ing the trial, the prayer was amended to enjoin all prosecu
tions until the constitutional rights of such persons “ shall
first be declared by the Federal Courts in this or other
appropriate proceedings for relief. . . . ” (R. 133).
Count two adopts all the allegations of count one and
further alleges that the Governor, Attorney General and
Secretary of State of Mississippi have failed to communi
cate with appellant NAACP concerning its application for
registration as a foreign corporation qualified to do busi
ness despite compliance by the NAACP with all legal pre
requisites for so qualifying (R. 15-16). NAACP objectives
to eliminate racial segregation and discrimination are de
scribed as is its organization in Mississippi (R. 17). Appel
lees’ efforts to disenfranchise Mississippi Negroes and to
deprive them of constitutional rights are set forth, and
appellants review their peaceful and lawful efforts to se
cure the elimination of racial discrimination (R. 18-19).
Injunctive relief was sought to: (1) require appellees to
register NAACP as duly qualified to do business in Missis
sippi, (2) bar further court action aimed at hindering
NAACP or its members from pursuing their lawful objec
tives in the State, (3) halt further prosecution of both
21
NAACP officers for restraint of trade, and of the injunction
against NAACP and others obtained in a state court with
out hearing or notice on June 6, 1963 (R. 20-21).
2. Preliminary Injunction Is Denied
Appellants’ effort to obtain a temporary restraining
order and preliminary injunction, motion for which was
filed with the Complaint (R. 23-26), was frustrated by the
district court’s order of June 11,1963, taking the case under
advisement for later decision18 (R. 57-59).
3. First Appeal
Appellants appealed from this order (R. 59), and sought
injunctive relief from this Court pending appeal. On July
24, 1963, the appeal was dismissed for lack of jurisdiction,
this Court concluding that the order was not appealable,
and that the trial court had not abused its discretion16 17 18 19
(R. 62).
Upon remand, the trial court overruled appellants’ mo
tion for a further hearing (R. 91-95), and denied appel
lants’ request for a preliminary injunction (R. 129) as to
both Counts I 18 and II.19 Answers filed by appellees gen
16 The trial court, reviewing affidavits and briefs from both sides
and limited testimony received on June 8th (It. 170-285), post
poned decision because it viewed the case as extremely complicated,
and there is no crisis requiring immediate action since appellants
control their course of action. The court added its opinion that the
state court injunction obtained by appellees (R. 43-45) was not
void (R. 58-59). The injunction is still in effect.
17 See related case: In the Matter of Application of Brown &
Richards v. Ray field, 8 Race Rel. Law Rep. 425 (1963).
18 Chief Judge Cox found the proof did not show by a pre
ponderance of the evidence that appellants had any right to, or
need for, an injunction (R. 122-123); that their claim to an
injunction is “ full of doubt in this case” ; and that the presump
tion is that the arrests were proper in each instance and bore no
relation whatsoever to a policy of segregation (R. 124).
19 The preliminary injunction sought in Count II of the Com
plaint was denied by Judge Mize following a hearing (R. 318-69),
concluding that no emergency exists and a “matter of this impor
tance should be determined after a full hearing upon the merits”
(R. 126-27).
22
erally denied the pertinent allegations of the Complaint
(R. 76-90). Appellees in Count II pleaded affirmatively
that the action was barred by the Eleventh Amendment and
that “ the State of Mississippi has a right to exclude
foreign corporations from operating within its bound
aries, . . . ” (R. 81-82).
4. The Trial
Trial was held during five days in February 1964, dur
ing which appellants offered 50 witnesses and 29 exhibits
to support the contentions in their pleadings.
Mayor Thompson, called to identify his published state
ments critical of civil rights protests against the mainte
nance of a segregated society in Jackson (R. 1280-82) was
uncertain as to the accuracy of the statements claiming the
quotes were taken out of context (R. 1282-90). The trial
court admitted the statements as admissions (P i’s. Exh.
27, R. 1290) and subsequently Mayor Thompson (R. 1711-
43) reviewed them with explanations that generally ac
corded with the printed views:
“ The civil disobedience demonstrations of the past two
days were planned for the purpose of creating strife,”
—that is my belief—“ arousing passions and disrupting
business.”— This is my belief (R. 1722).
“ They can demonstrate, march, picket and riot from now
on, but they cannot win like this, it won’t get them more
money, more schools, or better jobs” (R. 1724).
“When Kennedy is out of office, and the NAACP has
milked innocent Negroes of their money and moved on,
local Negroes are going to have to look to the white
people who have helped them all the time” (R. 1725).
“ The Mayor labeled the National Association for the
Advancement of Colored People the ‘NAACP which
covers all agitator groups to me. They are what all
intimidators represent to me.’ ” That is right (R. 1734-
35).
23
The court below opined that the Mayor’s opinions were
his own and did not reflect City policy because he does not
write ordinances alone but with the City Commissioners
(R. 1717); during his testimony in City of Jackson v. Salter,
Mayor Thompson evidenced an expressed intention to
officially carry out duties in resistance to recognition of
Negro rights:
“ Q. What is the policy of the City of Jackson with
respect to segregation of the races? A. I have said
that a thousand times in the last two or three years.
The policy is in certain instances, certainly. My belief
is that separation of the races is best for the white
and for colored. That I believe has been changed in
final Federal Court decisions, but as long as I ’m alive
I ’m going to be diligent in an effort to change them back
to what they were before people tried to influence per
son’s lives by laws and civil rights measures, and the
policy that we’ve adopted, I have set out very clearly,
the policy about a church the policy about a business”
(Pi’s. Exh. 29, pp. 453-54).
Commissioner D. L. Luckey advocates a similar racial
policy for the City. Proof of this was established through
appellants’ witness Rev. Harold Koons, pastor of the
Trinity Lutheran Church (R. 1198-99). Without permitting
appellants to explain the nature of Rev. Koons’s testimony,
the court sustained objection to it (R. 1200), necessitating a
proffer that during the summer of 1963, efforts were made
to have Negroes admitted to Rev. Koons’s church, that
some persons favored and others opposed this position and
during this period, Commissioner Luckey, a member of the
church, wrote a letter on City stationery addressed to
each member of the congregation stating that admission
of Negroes would create a disturbance, and if they sought
admission, they would be arrested and charged with breach
of the peace in accordance with the approach followed for
a numbers of years by the City of Jackson. The Com
missioner closed by appealing to members to save the
church by voting against mixing20 (R. 1201-02).
20 Appellants were also forced to proffer the fact that Rev.
Koons had resigned from the church because of the hostility on
24
5. The Excluded Proof
In addition to Rev. Ivoons’s testimony, the trial court ex
cluded large segments of appellants’ proof notwithstanding
counsel’s frequent and strenous arguments that the offered
testimony was relevant to the allegations and prayer for
relief set out in the Complaint.
Despite allegations that appellees for many years have
arrested all persons seeking to publicly protest racial seg
regation (R. 5), testimony regarding arrests of Negroes
who sought in 1961 to use the library (R. 1164), the zoo
(R. 547-49, 599) and city buses (R. 660) was excluded;
similar incidents occurring during the same year at an
interstate bus terminal (R. 971-73), a public swimming pool
(R. 691) and the Southern Governor’s Conference (R. 883-
85) were admitted.
Witnesses testified a major reason for public protests
was the inability of civil rights proponents to air their
views through usual news media which, themselves, favor
racial segregation (R. 522, 956-64). All such testimony
was uniformly excluded21 (R. 1207-11,1217,1244-46).
the part of the majority of the congregation toward his position
on the admission of Negroes to the church (R. 1203). On inquiry
from the court, Rev. Koons acknowledged that he had resigned
because of the difference of opinion with his congregation on the
racial question (R. 1203-04).
21 News stories, articles, editorials, and columns from the two
Jackson dailies, the Clarion-Ledger and the Daily News offered
as exhibits to appellants’ case uniformly supported continuance
of racial segregation and vehemently denounced those who espoused
the civil rights position (P i’s. Prof. Exlis. 7-27), i.e.,
The Clarion-Ledger strongly supported Governor Barnett in
his effort to bar James Meredith from the University of Mississippi
(P i’s. Prof. Exh. 24-1) and was highly critical of the United
States Government’s action at Oxford (P i’s. Prof. Exh. 24-3).
A U. S. Supreme Court decision protecting NAACP membership
lists in Florida was interpreted as a hindrance on efforts to curb
red subversion (P i’s. Prof. Exh. 24-5). Any departure from segre
gation, even the desire of a Mississippi state university basketball
team to play against an integrated team outside the state was
viewed with alarm (P i’s. Prof. Exh. 24-2), and an editorial proudly
affirmed: “ Mississippi is ‘still the last great citadel of segregation
in this country,’ and you can make a note of this further truth:
Mississippians are determined that it shall remain so” (P i’s. Exh.
25
Dr. Gordon Henderson, associate professor of political
science and Chairman of the Department of Political Sci
ence at Millsaps College in Jackson (R. 1317) sought to
testify that for a number of years he had made a study
of Jackson newspapers in connection with his work (R.
1318, 1321-22), that the news clippings offered by appel
lants (Pi’s. Prof. Exhs. 7, 8, 24) were “ typical” and “ repre
sentative” of racial views published in Jackson papers
(R. 1319-20), and that a contrary or critical view appears
only infrequently, and is never written by local columnists
(R. 1323).
Appellants submitted testimony in support of the Com
plaint’s allegations that the practice and policy of sup
pressing all objection to racial segregation was required
by State laws and customs and supported by the community
to the extent that appellees are able to “ . . . abuse and
subvert the judicial processes of the courts of the State”
(R. 6), thereby depriving appellants of “any possibility of
Prof. 24-6). A columnist analogized the Federal Government’s
action at Oxford to Russia’s suppression of Hungary’s freedom
fighters (P i’s. Prof. Exh. 18-2). James Meredith was referred
to as a “ Negro pawn of the NAACP” (P i’s. Exh. 19-3), and
reports of shotgun blasts into his family’s home were interpreted
as a “ convenient and effective gimmick for NAACP fund raisers”
(P i’s. Prof. Exh. 18-3).
The Daily News expounds that to follow the advice of “ leftwing
social reformers” and adopt as public policy, edicts contained in
various “race-mixing decisions” is a “blueprint for self-destruc
tion” (P i’s. Prof. Exh. 7-2); that Washington, D. C. is doomed
as a decent city because of integration (P i’s. Prof. Exh. 7 -3);
and that “ shocking evidence has been produced that Communists,
Commie-fronters, and their stooges are active in the South in
efforts to create friction and violence between the races” (P i’s. Prof.
Exh. 7-11). When A. D. Beittel, President of Tougaloo College
wrote a letter to the Editor critical of published statement by
appellee City Commissioner Tom Marshall that the Negroes of
Mississippi are satisfied, the News published the letter and added
a comment that Marshall spoke for the majority of Negroes, and
Beittel for “ those chronically disgruntled clusters of agitators
who are not satisfied” and never can be satisfied (P i’s. Prof. Exh.
7-5). While decrying the violence in NAACP field secretary
Medgar Evers’ death, the News stated “ visiting agitators here in
the past two weeks had set the stage for potential violence” (P i’s.
Prof. Exh. 7-12).
26
preserving and protecting their constitutional rights
through the state judicial process” (R. 11). They offered
the 1963 Report of the Mississippi Advisory Committee to
the United States Commission on Civil Rights (Pi’s. Prof.
Exh. 5), and called the Committee Chairman who testified:
“ The Committee was convinced after hearing the testimony
of many witnesses that it was substantially impossible for
Negroes to receive equal treatment before the law at the
present time” (R. 1174). Objection to the testimony and
Report were sustained22 (R. 1175, 1177), as were all simi
lar objections (R. 1324).
In support of appellants’ requests for broad relief, in
cluding enjoining prosecutions, evidence of the commit
ment of state officials and agencies, community leaders,
politicians and the community to racial segregation, was
excluded notwithstanding counsel’s efforts to explain its
admissibility (R. 661-62, 988-89, 1040).
The excluded proof, proffered under Rule 43(c),
F. R. C. P. included published statements favoring segrega
tion purportedly made by various governmental officials
including Governor Barnett,23 then Lt. Gov. Johnson,24 U. S.
22 In sustaining objection, the trial judge advised that based
on his long practice in Mississippi, he personally knew the Report
was untrue, an indictment of the State Judiciary (R. 1175), and
a “ loose-lipped remark by some irresponsible sources . . . reflecting
on the honesty and integrity of dedicated men who sit on the
trial benches in this state” (R. 1309). But see United States v.
Louisiana, 225 F. Supp. 353 (B. D. La. 1963), for an extensive
quote from a Civil Rights Commission Report at 359.
23 “ Gov. Ross Barnett of Mississippi said today some ‘weaklings’
and ‘moderates’ in the South may have become resigned to de
segregation but the big majority of the people are still firm
in their belief that integration is wrong.” Daily News, May 27,
1963 (P i’s. Prof. Exh. 10). See also P i’s. Prof. Exhs. 9-8, 12, 13,
14,15,16,17).
24 The “ disgraceful and unlawful actions of the agitators brings
shame and disgrace upon the Negro race.” Daily News, April 5,
1963 (P i’s. Prof. Exh. 11). And in a political ad acknowledged
by Governor Johnson’s campaign manager (R. 1236) a 1963 scala
wag was defined as: “ A white southerner who acts as a Republican
in an attempt to divide our white conservatives at a time when
the south needs to stand united against its enemies in both the
27
Senators and Congressmen from Mississippi,25 a County
Judge before whom most of the demonstration cases were
tried (R. 1341),26 and the Commissioner of the State De
partment of Welfare.27 Additionally proffered was testi
mony to show that the published views of influential leaders
in the community also support segregation. These included
the President of the Mississippi Farm Bureau,28 President
of the Mississippi Association of Methodist Ministers and
National Republican and National Democratic parties” (P i’s. Prof.
Exh. 25).
25 United States Congressman John Bell Williams, in criticizing
the spread of integration, predicted that “ the present national ad
ministration intends to enter every area of social life with a hopeful
plan to give the Negro preference over the whites” (P i’s. Exh. 9-3),
and following President Kennedy’s national televised address on the
Meredith case, five of Mississippi’s Congressmen and the State’s
two Senators issued a statement expressing their “ full and emphatic
disagreement with the position taken by the President” (P i’s. Prof.
Exh. 9-4).
26 Hinds County Judge Russell Moore criticized the Federal
Government’s action at Oxford as a ruthless campaign conducted
at bayonet point “seeking to indoctrinate our youth in race mix
ing, socialistic theories and the infallibility of the Federal Gov
ernment.” He indicated the theories are “ repugnant to them, their
families and the people of this state.” Clarion-Ledger, Oct. 10,
1962. (P i’s. Prof. Exh. 9-1.)
27 The Commissioner was reported as predicting that integration
means closing Mississippi’s public schools, adding “ The white race
possesses the brains, wealth, and the earning capacity to devise
a system of private schools to educate its children.” He said there
has been a concerted effort to hide and conceal from the American
people the differences which God ordained between the races. He
viewed as the major issue “ How much longer the white population
of Mississippi will continue to consent to be taxed and drained
of its sustenance for the benefit of a race and nation which shows
no appreciation for their sacrifices in order to destroy itself by
integration” (P i’s. Prof. Exh. 20).
28 The Daily News on Nov. 13, 1963, reported that the Farm
Bureau had given $10,000 to aid in the fight against the Civil
Rights Bill and quoted the President as warning that the bill
“ will destroy your way of life,” and will lead to a Communist
regime (P i’s. Prof. Exh. 23). The President denied the $10,000
aid but acknowledged the accuracy of the balance of the article
(R. 1233-34).
28
Laymen and other church groups,29 Editor of the White
Citizens Council newspaper,30 and the Jackson Junior
Chamber of Commerce.31
To show that statements of public officials contained in
the news clippings were typical and representative of Mis
sissippi officials, and that a critical view of opinions and
views expressed in the clippings is rarely heard (R. 1295-
96), appellants called Dr. Charles N. Fortenberry, Chair
man of the Department of Political Science at the Univer
sity of Mississippi, and co-author of the only available
book on Mississippi government which is used in a number
29 A Mississippi association composed of Methodist Ministers and
Laymen requested its legal advisory committee to move in the
courts against efforts by NAACP, CORE, and the National Coun
cil of Churches to integrate worship services (P i’s. Exh. 20-A).
Mrs. Hastings Kendall, a leader in the Women’s Society of the
Galloway Memorial Methodist Church, signed a resolution de
ploring the use of money raised by the local church by agencies
of the Methodist Church to further racial agitation— this following
the reporting in a local paper that the National Methodist body
was providing bond money for the release of persons arrested while
seeking to attend a church service on an integrated basis.
The official board of the Galloway Memorial Methodist Church
in Jackson repudiated criticism by their minister of enforced
segregation in the church stating: “ It is un-Christian that we
prefer to remain an all-white congregation. The practice of the
separation of the races in Galloway Methodist Church is a time
honored tradition. We earnestly hope that the perpetuation of
that tradition will never be impaired” (P i’s. Prof. Exh. 9-la).
30 The “ Citizen” favors preventing violence by preventing in
tegration, adding “but there is a point beyond which even the
most judicious restraint becomes cowardice” (P i’s. Exh. 22-1).
William Simmons, editor, acknowledged the accuracy of these re
ports (R. 1230-31), criticized the token resistance to integration
offered by some leaders and charged the Federal Government’s
“ national policy of denigrating the white man and fawning upon
the Negro has lead to a complete bankruptcy in foreign affairs.”
He added that federal extension of so-called rights to Negroes
“ means that it is done at the expense of the whites” (P i’s. Exh.
22-2 ).
31 The Jackson Junior Chamber of Commerce published a reso
lution giving full support to Mayor Thompson’s stand against
“ outside pressure groups, whose purpose appears to be to develop
racial tensions and violence within our City” (P i’s. Exh. 21). A
member testified that the news report was substantially accurate
(R. 1229-30).
29
of colleges (R. 1254-56). Dr. Fortenberry was shown sev
eral of the proffered news clippings (Pi’s. Exh. 27; Prof.
Exhs. 9, 10, 11-18) (R. 1258-59); but the court sustained
objections to all questions concerning the exhibits (R. 1257,
1261-63, 1266-67, 1293-94), and required an oral proffer of
the anticipated testimony32 (R. 1295-96). Appellants ex
cepted because the witness’ opinion supported their con
tention that appellees’ segregation policy was consistent
with an attitude generally existing in the City and the
State (R. 1296).33
The Chairman of the Department of Sociology and An
thropology at the University of Mississippi, Dr. Julien R.
Tatum (R. 1298-99), was shown a number of appellants’
proffered exhibits (R. 1301) and asked, based on his pro
fessional studies of Mississippi institutions, cultural pat
terns and behavior, whether the statements and views con
tained in the exhibits reflected the prevailing community
view (R. 1301-02). Objections were sustained to this and
several similar questions (R. 1302-13) requiring appel
lants to proffer as Prof. Tatum’s testimony that there ex
ists in Mississippi a prevailing or orthodox view in the
white community toward racial questions, particularly
those related to civil rights and that this view is extremely
intolerant of natives or outsiders in the State, who hold
a contrary view. Consequently, there is very great pres
sures for conformity to the orthodox view felt in the com
munity by whites and departure from conformity by the
32 Earlier in the trial, appellants’ attorneys had made strenuous
efforts to exercise rights under Rule 43(c) F. R. C. P., permitting
the reporting in full of the excluded evidence (R. 876; 426-27),
but the court required counsel to make an oral proffer, ruling
that the offered testimony was not admissible for any purpose
(R. 876).
33 Similarly, appellants excepted to exclusion of testimony con
cerning a 1963 political study made in the Jackson community
by Prof. Henderson showing that most persons agreed with the
general community attitudes on race and only a small minority
exhibited feelings of “political alienation,” that is, a sense of com
plete dissatisfaction, coupled with a sense of helplessness about
changing the prevailing political policy, insofar as the racial ques
tion is concerned (R. 1324-28,1330).
30
few who do not share the prevailing opinions, can be under
taken only with great social, occupational, and even physi
cal risk to themselves (R. 1313-14).34
In support of Dr. Tatum’s proffered testimony, appel
lants offered and the court sustained the objections to the
professional observations of Leonard H. Jordan, a sociol
ogist at Millsaps College (R. 1272, 1276) whose study of
his students showed that most share the prevailing atti
tudes in the community toward racial questions (R. 1274).
In this witness’ professional opinion, a certain minority of
Millsaps’ students do not share the prevailing community
attitude toward racial questions; such persons are acutely
conscious of their difference in attitude which is in sharp
conflict with those of family and peers; that the conflict
is one having great impact and usually aggravating psycho
logical problems. As a result, the student chooses an occu
pation which will permit him to minimize social pressures
for a conformity he is reluctant to follow, or he decides to
leave Mississippi because of a feeling that the society is
wrong and unchangeable, and that he would be happier liv
ing elsewhere (R. 1277).
6. The Trial Court’s Ruling
In his opinion of June 3, 1964, denying all relief and
dismissing the Complaint (R. 135-63), the trial court
adopted appellees’ position on all major issues.
34 In excepting to the exclusion of Dr. Tatum’s testimony, ap
pellants pointed to its great probative value in reviewing the
likelihood that the policy appellees are alleged to follow, and will
continue to follow, is a natural result of the deeply held and
predominant community attitude toward appellants and other civil
rights demonstrators; and asserted the realistic possibility that a
Mississippi juror, judge, or public official who did not share the
prevailing orthodox view would be required to face the social,
occupational and physical risk inherent in non-conformist views
for conduct openly expressed (R. 1314-15).
The court also excluded testimony that citizens who served on
the Advisory Committee to the U.S. Commission on Civil Rights
experienced harassment from the community (R. 1179, P i’s. Prof.
Bxh. 5), and that Tougaloo College, whose students have taken
an active part in civil rights activities (R. 1166), was unable to
obtain a single white attorney to represent it in the injunction
suit brought by the City to halt civil rights protests (R. 1169-70).
31
The court found that while the Mayor, who is also Police
Commissioner in Jackson, is a dedicated segregationist,
the City of Jackson has no official policy governing official
conduct of police on any aspect of segregation (R. 140).
It further observed that there was no evidence any agent
of the State of Mississippi or agent of any subdivision
thereof (particularly, the City of Jackson) had violated
appellants’ civil rights, or denied to appellants, or unlaw
fully abridged or curtailed any of their constitutional rights
(particularly any First or Fourteenth Amendment right)
(R. 141-2). The Court also noted that § 2056(7) and
§ 4065.3 Miss. Code 1942 established segregation of the
races on public premises (R. 142) but did not extend to
private establishments such as restaurants (R. 142) or
the YMCA (R. 143).
The court determined there was no evidence showing that
the discriminatory policies, or practices of private busi
ness establishments on Capitol Street were motivated, or
influenced in any manner, by appellees (R. 149).
In its conclusions of law, the court below found the laws
and ordinances under which appellants were arrested and
charged did not abridge their constitutional rights (R. 152),
that the “ picketing was neither peaceful nor for a lawful
purpose, and the offending parties were properly arrested
and prosecuted” (R. 156). The court further determined
the state authorities could proceed with the prosecutions
since no vested constitutional right was thereby violated
(R. 161).
As to the denial of NAACP’s domestication application,
the court ruled: “ it cannot be said with any degree of as
surance that the refusal to domesticate it is arbitrary” (R.
163). He concluded the suit was against the State of Mis
sissippi in violation of the Eleventh Amendment (R. 163).
From the final judgment of June 20, 1964, appellants
filed notice of appeal (R. 164-65).
32
Specifications of Error
The court below erred in:
1. Failing to find that appellees are utilizing state power
to maintain racial segregation in the City of Jackson and
the State of Mississippi;
2. Failing to admit evidence offered to prove the coer
cive effect of appellees’ racial policies on appellants’ con
stitutional rights to publicly oppose such policies;
3. Finding that, where, as in Jackson, racial segregation
is fostered and maintained by law and policy, persons peace
fully protesting such laws and policies may be arrested
and prosecuted without violating their constitutional
rights;
4. Finding that persons arrested while engaged in pro
testing racial segregation will be able to obtain a fair and
unbiased review of their federal constitutional claims in
the state courts of Mississippi;
5. Finding that the corporate appellant may not repre
sent its members in this action to obtain affirmative relief
for their constitutional rights;
6. Failing to find that the denial of domestication to the
corporate appellant was in violation of constitutional rights
guaranteed under the Fourteenth Amendment to the cor
porate appellant and its membership;
7. Refusing to enjoin appellees from interfering by ar
rest, harassment, or other forms of state power with peace
ful and public protests against racial segregation under
rights protected by the Fourteenth Amendment; and from
enjoining state court proceedings initiated with those ar
rests;
8. Finding that appellants’ selective buying campaign
constituted an illegal conspiracy, a secondary boycott and
a violation of § 1088 Mississippi Code of 1942, Ann.;
33
9. Refusing to enjoin appellees from proceeding with
prosecution of appellants arrested while participating in
peaceful protests against appellees’ racial policies at least
until such time as the constitutional rights of such ar
rested persons shall be declared by the federal courts in
this or other appropriate proceedings.
A R G U M E N T
I.
The State’s Interference With Appellants’ Protests
Were Unlawful Efforts to Enforce Segregation, Vio
late Freedom of Association, and Suppress Rights to
Effective Expression Guaranteed by the Fourteenth
Amendment.
The activities of city and state officials sought to he
enjoined by appellants were motivated by, intended to, and,
in fact, did stifle any overt expression of dissatisfaction
with racial segregation. The official policy of racial segre
gation in Jackson and in Mississippi has been judicially
noticed by this Court in the past.35 It persists, and is re
flected in the attitudes of the citizenry, most of whom have
accepted the concept of the inferiority of the Negro. It
is in this atmosphere that appellants, in their fight for
equality for the Negro sought and still seek the right to
dispel the myth that they are satisfied with the racial
status quo and to effectively convey and express that dis
satisfaction to an unbelieving, unknowing and often hostile
white majority, which adheres to a traditional segregation
ist philosophy.
The public policy of the City of Jackson clearly favors
the retention of racial segregation as evidenced by appel
lees’ rejection of appellants’ earnest efforts to discuss seri
35 United States v. City of Jackson, 318 F. 2d 1, 5-6 (5th Cir.
1963); Bailey v. Patterson, 323 F. 2d 201 (5th Cir. 1963). See
also, Meredith v. Fair, 298 F. 2d 696, 701 (5th Cir. 1962); Evers
v. Jackson Municipal Separate School District, 328 F. 2d 408 (5th
Cir. 1964).
34
ously their racial differences. Having failed to achieve
any agreement from appellees to acknowledge the lack of
human dignity accorded Negroes, appellants and those
whom they represent resorted to less formal means of
communication which, regardless of method, were met by
state officials with unrelenting and increasing resistance
in the form of continued police surveillance, coupled with
harassment and abuse, excessive use of force, “ instant ar
rests,” incarceration, maximum cash bail, individual trials
de novo of persons arrested in large groups and charged
with the same offense for identical activity, individual ap
peal bonds (which increase at each level) following each
conviction, individual briefs for each appellant, and the
prospect of years of litigation to preserve established fed
erally guaranteed constitutional rights.
The state policy of Mississippi is most concisely re
flected in Section 4065.3 of the Mississippi Code of 1942,
Ann.36 The facts set forth in the record confirm community
acceptance of the philosophy of continued racial segrega
tion implicit in state law.
Recognition of the right to freedom of speech has long
been accorded by the Supreme Court of the United States.
Without question, that constitutional privilege has included
the right to communicate views by the dissemination of
handbills. Martin v. Struthers, 319 U. S. 414; efforts to
persuade others to action, Thomas v. Collins, 323 U. S.
516; solicitation of political allies, Herndon v. Lowry, 301
U. S. 242; proselytism, Cantwell v. Connecticut, 310 U. S.
290; silent public expression of convictions, Stromberg v.
Carlson, 283 U. S. 359; and organized peaceful picketing,
Thornhill v. Alabama, 310 U. S. 86. More recently, this
amendment has been construed to include organized group
activity and litigation to achieve lawful goals, NAACP v.
Alabama, 357 U. S. 449; NAACP v. Button, 371 U. S. 415;
and en masse petitions for redress of grievances against
racial discrimination, Edwards v. South Carolina, 372 U. S.
36 See compilation of segregation statutes in United States v.
Mississippi, 229 F. Supp. 925, 984 (S. D. Miss. 1964).
35
229; Fields v. South Carolina, 375 U. S. 44; Henry v. Rock
Hill, 376 U. S. 776.
A lawful exercise of freedom of expression is not limited
to the form deemed acceptable by the Mayor of Jackson,
i.e. a “ person . . . get [ting] in an empty field with a sign
on Ills back saying I don’t believe in racial segregation . . . ”
(R. 254). The courts have acknowledged that this First
Amendment guarantee is impotent verbiage unless con
strued to encompass the right to “ invite dispute,” to “ in-
duce[s] a condition of unrest, create[s] dissatisfaction
with conditions as they are or even stir[s] people to anger.”
Terminiello v. Chicago, 337 U. S. 1. This thesis was re
iterated in Edivards v. South Carolina, supra, by the Su
preme Court:
The Fourteenth Amendment does not permit a state to
make criminal the peaceful expression of unpopular
views. 372 U. S. at 238.
The above cited cases dictate the indisputable conclusion
that freedom of speech, of association and the right to peti
tion for the redress of grievances are purposed to insure
the communication of ideas, i.e. effective expression. And
the means necessary to insure the effectiveness of expres
sion must be evaluated in relationship to the climate in
which communication is sought.
Jackson, Mississippi, wherein occurred the events de
scribed in the statement of facts and the official activity
sought to be enjoined by appellants, is not an atmosphere
where an exchange of ideas regarding race relations is
easily achieved. In the instant case, it was never achieved
and the impediment to the publication of dissident views
was imposed by appellees and their agents. Apart from
the few instances where individuals were able, surreptiti
ously to reach the downtown area of Jackson, all protest
activities, for which participants were immediately ar
rested for “ parading without a permit,” occurred in the
Negro residential community and it was not the Negro
community toward whom those protests were directed.
36
The constitutional provisions relied upon by appellants
and interpreted in the decisions cited here were not in
tended to provide academic definitions of the right to speak,
nor did they evolve from abstract inquiries into acceptable
dimensions of freedom of speech. The right to free ex
pression is raised in relation to whether the state may
control or, more often, encroach upon that right. State
action, whether enactment, interpretation or application
of legislation or arrests by police, which effects a limita
tion of this right is subject to judicial scrutiny, United
States v. Carotene Products Co., 304 U. S. 144, 152 note 4;
Kovacs v. Cooper, 336 U. S. 77. Absent a compelling societal
interest and a reasonable relationship of the imposition of
regulations to a valid objective sought to be achieved, the
state may neither prohibit nor suppress the exercise of
freedom of speech and association. Roth v. United States,
354 U. S. 476; Smith v. California, 361 U. S. 147; NAACP
v. Alabama, supra; Gibson v. Florida Legislative Investi
gation Committee, 372 U. S. 539; Winters v. New York, 333
U. S. 507; Schneider v. State, 308 U. S. 147.
Appellees have suppressed appellants’ rights to freedom
of expression by application of ordinances and statutes
requiring permits for parades, punishing breaches of the
peace, trespasses, blocking of the sidewalk, and disorderly
conduct. Application of seemingly innocuous laws to ap
pellants’ activities renders those laws void, for the court
has frequently said that statutes and ordinances capable
of sweeping and improper application in areas of free ex
pression are fatally defective. Smith v. California, 361
U. S. 147; Speiser v. Randall, 357 U. S. 513. Moreover, the
threatened use of such ordinances to inhibit freedom of
expression constitute a prior restraint inconsistent with
constitutional requirements. DeJonge v. Oregon, 299 U. S.
353; Thomas v. Collins, supra.
Whatever factual inconsistencies in the description of
events may be reflected in the record of this case, one issue
is clear; without regard to the form taken by appellants’
protest activities, this case is dominated by the fact that
appellees pursued an unremitting, immutable, relentless
37
program designed to stifle any expression of dissent to the
preservation and maintenance of racial segregation. The
arrests of participants in protest activities, usually accom
plished before they had in fact begun, were clearly state
enforcement of segregation, accomplished through the un
lawful infringement on the rights of appellants and their
class to freedom of speech and association.
Indirect methods to deny constitutional rights have long
been condemned by the courts, Nixon v. Condon, 286 U. S.
73; and subtle devices calculated to preserve and enforce
racial discrimination are as violative of the Fourteenth
Amendment’s due process and equal protection clauses as
are covert techniques to effectuate segregation “ ingeniously
or ingenuously,” Cooper v. Aaron, 358 U. S. 1; Gomillion v.
Liglitfoot, 364 U. S. 339; Smith v. Allright, 321 U. S. 649,
664; Ross v. Texas, 341 U. S. 918; Shepard v. Florida, 341
U. S. 50. Since maintenance of racial segregation is not a
valid societal interest to which First Amendment rights
may be validly subordinated, Edwards v. South Carolina,
supra; Sellers v. Johnson, 163 F. 2d 877 (8th Cir. 1957),
the arrests and prosecutions of the members of appellants’
class for participation in protest activities are unlawful
and require, as does their right to protest, injunctive relief
by this Court. Kelly v. Page, 335 F. 2d 114 (5th Cir. 1964).
The aims and goals being espoused by appellants are
clearly lawful, Edwards v. South Carolina, supra, and can
not be suppressed either under the guise of maintaining
public peace, Buchanan v. Warley, 245 U. S. 60; Cantwell
v. Connecticut, supra, or by labeling such activities “ un
lawful.” As was said in NAACP v. Button, supra, the
exercise of constitutional rights may not be foreclosed by
the use of mere labels.
It is beyond cavil that appellants and the class they repre
sent have the right to protest racial segregation by peaceful
picketing, New Negro Alliance v. Sanitary Grocery Co.,
303 U. S. 552; Thornhill v. Alabama, supra; to petition for
redress of grievances, Edwards v. South Carolina, supra;
to be free from arrest for seeking food service on an inte
grated basis in places of public accommodation, Peterson
v. City of Greenville, 373 U. S. 244; Lombard v. Louisiana,
38
373 U. S. 257; to meet together and plan lawful methods to
achieve legitimate goals, NAACP v. Alabama, supra;
NAACP v. Button, supra; and to participate in demonstra
tions as a means of expression of views without the inter
ference of the state. Edwards v. South Carolina, supra;
Kelly v. Page, supra; CORE v. Douglas, 318 F. 2d 95 (5th
Cir. 1963).
Although the court below concluded that freedom of
speech is not a novel theory and is amply supported by
decisional authority, it found that the arrests of partici
pants in demonstrations did not abridge their constitutional
rights. Initially, inquiry into the details of the activities
detailed in Section D of the Statement of the Case is sub
ordinate to the conduct of appellees which was designed to
and did interfere with and thwart those activities.
Additional detention facilities were arranged at the fair
grounds long before the commencement of demonstrations.
Scores of police officials were detailed to Capitol Street and
to those areas where protest rallies were held. Clearly, ap
pellees’ intention was not the preservation of the peace
but the cessation of expressions of dissent.
Arrests were made indiscriminately. A single individual
was arrested for parading without a permit as were small
groups conducting themselves in an orderly fashion and
sufficiently separated to belie any rational definition of a
parade. Groups, seeking to petition city officials, were ar
rested and removed by patrol wagons before they had pro
gressed 100 feet. Potential pickets, now prosecuted for
parading without a permit, were arrested before they could
take a single step. None of these arrests were for intent
to do an act, but for activity never permitted to occur.
The group arrested on the steps of the federal building
was arrested and is now being prosecuted for breach of
the peace whereas the record establishes that the peace
was breached by hostile onlookers. In short, the law was
subverted to achieve the termination of any protest activ
ity and to intimidate any further expression of discontent.
The court below erred in restricting lawful picketing
within the confines of a labor dispute (R. 155; 157-58).
It is well settled that individuals may, through the dis
39
semination of handbills, advocate their position and seek
to influence the public. Thornhill v. Alabama, supra. The
advancement of a social goal through the exercise of a
recognized First Amendment right has been sustained in
NAACP v. Button, supra; Bates v. Little Bock, 361 U. S.
516; and NAACP v. Alabama, supra. These decisions sup
port the thesis that all forms of peaceful protest are pro
tected by the Fourteenth Amendment against state in tru
sion. As was said in NAACP v. Alabama, at 460-61:
Of course, it is immaterial whether the beliefs sought
to be advanced by association pertain to political, eco
nomic, religious or cultural matters, and state action
which may have the effect of curtailing the freedom to
associate is subject to the closest scrutiny.
Group activity to achieve the equality of treatment for
members of the Negro community is lawful and may take
the form of peaceful picketing in order to assure transmis
sion of a grievance to the public and to urge public sup
port. Contrary to the determination of the court below
(R. 155, 157-58), picketing does not become illegal because
motivated by a desire to eliminate and discourage racial
discrimination by private persons or businesses. This thesis
was recognized by the Supreme Court in New Negro Alli
ance v. Sanitary Grocery Co., supra, at 561:
. . . [T]he removal of discrimination against them by
reason of their race or religious beliefs is quite as
important to those concerned as fairness and equity in
terms and conditions of employment can be to trade or
craft unions or any form of labor organization or asso
ciation. Race discrimination by an employer may rea
sonably be deemed more unfair and less excusable than
discrimination against workers on the ground of union
affiliation.
Hughes v. Superior Court, supra (R. 158), is distinguishable
as it does not support the conclusions of the court below.
The fact that plaintiffs in the Hughes case were picketing
to achieve the employment of Negroes on a quota basis
40
was held to be discrimination based on race and an attempt
to picket for an unlawful purpose. The Supreme Court
pointed out at 466:
The California Supreme Court suggested a distinction
between picketing to promote discrimination, as here,
and picketing against discrimination.
The California court assumed without deciding that
. . . if such discrimination exists, picketing to protest
it would not be for an unlawful objective. Hughes v.
Superior Court, 798 P. 2d at 888 (1948).
Within the Negro community, which is constantly sub
ject to racial segregation, there is as clear a unity of inter
est as exists in labor organizations which picket for the
purpose of achieving economic advantage. See, Ex parte
Lyons, 81 P. 2d 190 (1938); Rosman v. United Strickling
Kosher Butchers, 298 N. Y. S. 243 (1937). The fallacy of
distinguishing between picketing in labor disputes and
picketing as a form of persuasion protected by the First
Amendment is best summed up in Ex parte Lyons, supra,
which appellants commend to this Court:
In this state the right to peacefully picket rests
upon the constitutional guaranty of the right of free
speech. We cannot see how the right to peacefully
picket, under the guaranty of free speech, could be
confined to cases in which there exists a dispute be
tween an employer and organized labor over hours or
conditions of employment, rates of pay, unionization
of employees or employment of non-union men and not
extended to a dispute between a business man and any
citizen or group of citizens who may differ with him on
a question of business policy. The guaranty of the right
of freedom of speech is general and extends to every
class or group of citizens. As that guaranty is not
confined to labor organizations, decisions in those cases
announcing the principles upon which the right rests
in the cases involving the ordinary labor dispute are
important and controlling here.
41
The court below has determined that picketing in support
of a selective buying campaign violated Sec. 1088 of Miss.
Code of 1942, Ann., which seeks to deter activities in re
straint of trade. This section was not intended as a weapon
to prevent or suppress constitutionally guaranteed rights
of freedom of expression or assembly, nor was it intended
for use to curtail the attempts of a minority racial group
to achieve equality under law. DeJonge v. Oregon, 299
U. S. 253. Such a construction would render Sec. 1088 un
constitutional. Winters v. New York, 233 U. S. 507; Smith
v. California, supra.
Section 1088 is limited to areas of monopoly, personal
contracts and union activities. Ready Mix Concrete and
Concrete Products Company v. Perry, 239 Miss. 329, 125
So. 2d 241; Jackson v. Price, 140 Miss. 249, 105 So. 538;
Gano v. Delmas, 140 Miss. 323, 105 So. 353. These areas
are similar to those considered in application of restraint
of trade statutes in other states.37
Appellants’ activities were not intended to restrain trade,
hut rather to expand that trade by freeing it from the
artificial barriers of restraint of commerce which result
from the practice of racial segregation. New Negro Alli
ance v. Sanitary Grocery Co., supra.
Moreover, as the objectives sought by appellants are
not inimicable to the public welfare, no violation of the
statute could occur. Brown v. Staple Cotton Coop. Assoc.,
132 Miss. 859, 96 So. 849; Jackson v. Price, supra; State
ex rel. Knox v. Edward Hines Lumber Company, 150 Miss.
1, 115 So. 598. That the objectives of “ equality of treat
ment by all governments, federal, state and local, for the
Negro members of the community is lawful is no longer
open to question,” N.A.A.C.P. v. Button, 371 U. S. 415,
429. A member of the public cannot be deprived of the
right to purchase goods or to attempt to persuade others
not to purchase goods from persons with whom he is not
in competition under the guise of a restraint of trade stat
ute. Apex Hosiery v. Leader, 310 U. S. 469; Rice v. Ashe
37 See Laws of Florida, Fla. Stat. Ann. 542.01 et seq.; Louisiana
Revised Statutes 51:121-126; Georgia Code Ann., Section 20-504.
42
ville Ice Co., 169 S. E. 707 (1933); Dallas General Drivers
v. Wamix, Inc., 295 S. W. 2d 873 (1956); Lineberger v.
Colonial Ice Co., 17 S. E. 2d 502 (1941).
II.
Appellees’ Refusal to Register Appellant Corporation
Not Only Is Arbitrary, Capricious and an Unconstitu
tional Attempt to Exclude NAACP From the State of
Mississippi But Also Abridges Rights of Freedom of
Association and Expression, All in Violation of the Four
teenth Amendment.
A state has no absolute power to exclude a foreign corpo
ration. Southern Railway v. Greene, 216 U. S. 400; Free
man v. Hewit, 329 U. S. 249; Simonetti Bros. Produce Co.
v. Fox Brewing Co., 240 Ala. 91, 197 So. 38 (1940).
The theory of the power of exclusion originated in colo
nial times and related to trading companies, the distinguish
ing feature of which was monopoly rather than personality.
In 1809 the recognition of corporate rights to sue in states
other than the state of incorporation destroyed these re
strictive principles. Bank of United States v. Deveaux, 9
U. S. (5 Cranch.) 37. Today, incorporation is no longer re
garded as a matter of special legislative grant; rather to
allow only domestic corporations to carry on legal busi
ness within the state would appear to he a denial of full
faith and credit to the statute of a sister state. 89 U. Pa.
L. Rev. 453, 454 (1941).
A series of cases struck down the theory of absolute right
to exclude a corporation whose origin is in another state.
Freeman v. Hewit, supra; Butler Bros. Shoe Co. v. U. S.
Rubber Co., 156 F. 1 (C. A. 8, 1907); Crutcher v. Kentucky,
141 U. S. 47. As was stated in Crutcher, referring to state
regulations burdening interstate commerce, a corporation’s
right to operate interstate was one granted to every citizen
of the United States, and incorporating within a state is a
mere convenience of which the state cannot unreasonably
deprive it.
43
The sovereign power of a state in excluding foreign cor
porations is subject to the limitations of the supreme fun
damental law and consequently appellees’ exclusion of ap
pellant corporation from qualifying to do business, is vio
lative of the First and Fourteenth Amendments. Terral
v. Burke Construction Co., 257 U. S. 529. Further, such ex
clusion is a deprivation of the equal protection of the laws,
particularly with regard to non-commercial corporations.
Western Union Telegraph Co. v. Kansas ex rel. Coleman,
216 U. S. 1; Southern Railway v. Greene, 216 U. S. 400;
Hanover Fire Insurance Co. v. Harding, 272 U. S. 494.
Since a corporation is a person within the Fourteenth
Amendment, exclusion of a foreign corporation on arbi
trary grounds is a violation of the due process clause of
the Fourteenth Amendment. Gulf, Colorado and Santa Fe
R.R. Co. v. Ellis, 165 U. S. 150, 154; Liggett v. Baldridge,
278 U. S. 105.
The Court in Burns Baking Co. v. Bryan, 264 U. S. 504
said at p. 513:
. . . A state may not, under guise of protecting the
public, arbitrarily interfere with private business or
prohibit lawful occupation or impose unreasonable and
unnecessary restrictions upon them. Lawton v. Stelle,
152 U. S. 133, 137; Meyer v. Nebraska, 262 U. S. 390,
399.
The Record supports the conclusion that the denial of
domestication is based on the corporate appellant’s civil
rights activities and efforts to eradicate racial discrimina
tion and segregation in the State of Mississippi.
It is well settled that to require a foreign corporation
to submit to unconstitutional conditions or to relinquish
constitutional rights in order to operate in a state is a
denial of equal protection of the laws. Wiliams v. Stand
ard Oil Co., 278 U. S. 235; Pullman Co. v. Kansas ex rel.
Coleman, 216 U. S. 56; People ex rel. Hakansen v. Palmer,
367 111. 513, 11 N. E. 2d 931 (1937); Herndon v. Chicago,
Rock Island and Pacific Ry. Co., 218 U. S. 135; Harrison
v. St. Louis d San Francisco Ry. Co., 232 U. S. 319; Donald
v. Phila. d Reading Coal d Iron Co., 241 U. S. 329.
44
Arbitrary exclusion of a corporation from the state is
as violative of the due process clause as is the prevention
of a person or organization from the pursuit of a lawful
occupation. Schware v. Board of Bar Examiners, 353 U. S.
232; New State Ice Co. v. Liebmann, 285 U. S. 262.
The doctrine of exclusion was not applied to nonprofit
corporations, even before they became subject to legal limi
tations. The doctrine arose because of profit-making ac
tivities of commercial corporations, competing with domes
tic corporations. There can be no doubt that Mississippi
recognizes the difference between profit and non-profit cor
porations, since in regard to organization of domestic cor
porations, non-profit corporations are treated under en
tirely different legal provisions (Mississippi Code, 1942,
Section 5310.1) than business corporations for profit (Mis
sissippi Business Corporation Act, P. B. #1712, regular
session 1962, Section 2-105).
Consistent with this statutory scheme— recognizing a dis
tinction between business and non-profit corporations—the
Mississippi Business Corporations Act of 1962, supra,
makes specific provisions for admission of foreign business
corporations (Sections 106-112), but no similar provision is
made in the 1962 law for admission or domestication of
nonprofit or nonshare corporations. However, Section 150
specifies amendments to existing law (Chapter 4, Title 21,
Mississippi Code of 1942, Recompiled), including amend
ing Section 5319 to read in pari materia as follows:
“ Every nonprofit nonshare or nonprofit or nonshare
corporation, organized or domesticated under the laws
of the State of Mississippi. . . ”
# # # # *
“ No foreign nonprofit nonshare or nonprofit or non
share corporation shall do business in the State of
Mississippi until it has first been domesticated accord
ing to the laws of the State of Mississippi . . . ”
Thus, it is submitted that the only laws of the State of
Mississippi under, or according to which a foreign non
profit nonshare or nonprofit or nonshare corporation might
45
seek domestication are set forth in Sections 5339-5341 of
the Mississippi Code of 1942, Ann.
Examination of the Mississippi corporation laws reflects
that the only sections relating to domestication as defined
in § 5319 are §§ 5339, 5340, 5341, pursuant to which appel
lant corporation filed its application. Appellees seek to in
terject herein their contention that appellant’s failure to
comply in § 5310.1 falls within that section of 5340 which
requires the Attorney General to state he finds nothing in
a charter or articles of incorporation violative of the Con
stitution and laws of Mississippi. Section 5310.1 is part
of that section of Mississippi’s corporation laws which
concern initial incorporation of groups or associations and
on its face relates only to the granting of an original charter
of incorporation. There is nothing in the corporation laws
of the State of Mississippi to substantiate a conclusion that
§ 5310.1 applies to foreign corporations.
The facts resulting in the denial of appellant’s request
for domestication are clear. Having determined that the
NAACP’s activities were a threat to maintenance of segre
gation and discrimination in the State of Mississippi, ap
pellees sought to exclude appellant corporation from op
erating in the State. That exclusion was accomplished by
the novel interpretation of the corporation laws to impose
upon foreign corporations those conditions prescribed for
initial incorporation within the State and by a determina
tion that domestication was not in the best interests of the
State. Section 5310.1 does not support appellees’ conten
tions ; rather it substantiates appellant’s claim that recourse
to § 5310.1 was merely a device to authenticate the arbitrary
denial of domestication to appellant corporation.
It is to be noted that the Attorney General did not him
self comply with the express requirements of § 5310.1 that—
. . . thereupon should he be of the opinion that the
issuance of the charter as applied for is not to the best
interest of the State of Mississippi, even though the
application on its face is not violative of the Consti
tution or the laws of the State of Mississippi, he shall
prepare and submit to the Governor of the State of
46
Mississippi his opinion why the issuance of such charter
would not he to the best interest of the State of Mis
sissippi, and which shall he hy separate document ac
companying the application. (Emphasis added.) (See
E. 326-27.)
Appellees’ interpolation of § 5310.1 into the requirements
for domestication of a foreign non-profit corporation were
stated as follows first by the Attorney General and then
by the Assistant Attorney General:
“ Q. . . . the question is did you determine that it vio
lated any provision any specific provision of the Con
stitution or laws of the State? A. Except to one ex
tent, further extent dealing with non-profit non-share
corporations Subsection 1 of Section 5310.1 which pro
vides among other things that three members of all
of whom shall be adult resident citizens of the State
of Mississippi authorized by any of said organizations
in its minutes to apply for the charter that deals with
granting of charters to non-profit non-share corpora
tions.
“ Q. Do I understand that you made an investigation
and determined that this application did not comply
with that provision of the charter? A. It does not
comply on its face. Your certified copy of your charter
of incorporation shows it to be a New York non-profit
corporation, the incorporators all being residents of
the State of New York or some other state close to the
reby [sic].
“ Q. Do I understand you to be saying sir that this
section of the statute to which you are referring applies
to foreign corporations seeking domestication? In
other words a foreign corporation seeking domestica
tion? A. That has always been our position that a
foreign corporation certainly must comply with our
own laws to be entitled to domestication.
“ Q. I want to be sure I understand that includes then
a requirement that the foreign corporation seeking do
mestication must include three residents of the State
of Mississippi in its uh board of directors? A. That’s
right.
# # # # #
47
A. As he explained to you Mississippi statute 5310.1
requires that all domestic non-profit corporations con
sist of members who are residents of Mississippi and of
course that is the would apply to foreign corporations
that applied for domestication because under the theory
we think it’s sound that you can’t do indirectly what you
cannot do directly and in order for a corporation to
take on a non-profit or an association to take on a non
profit structure and thereby would be entitled to tax
and other advantages offered by the State of Missis
sippi the legislature deemed it proper that they should
be resident” (E. 348).
Assuming arguendo that § 5310.1 Avas, in fact, a prereq
uisite to registration, imposition of the condition that
“non-profit corporations consist of members who are resi
dents of Mississippi” or have three board members who are
state residents would impose an unconstitutional burden
on interstate commerce.
The decision of the court below that this aspect of the
case is an action against the State forbidden by the Elev
enth Amendment is without merit. The complaint is di
rected toward State officials depriving rights guaranteed
by the Fourteenth Amendment. As the Supreme Court
said in Griffin v. Prince Edward School Board, 377 U. S.
218:
“ It has been settled law since Ex parte Young, 209 U. S.
123 (1908), that suits against state and county officials
to enjoin them from invading constitutional rights are
not forbidden by the Eleventh Amendment.”
Accordingly, denial of domestication by the Governor
without the Attorney General’s opinion as to why the issu
ance of the charter was not in the best interest of the State
of Mississippi was arbitrary action, was contrary to the
Mississippi laws and was a denial of due process of law.
Liggett v. Baldridge, supra.
Denial of domestication was an abridgment of the right
to freedom of expression and freedom of association guar
anteed by the Fourteenth Amendment. The corporate ap
pellant asserts the rights of its members, N.A.A.C.P. v.
48
Alabama, 357 U. S. 458, to associate together and to advo
cate, in concert, their right to equal treatment under the law,
their right to be free of segregation and racial discrimina
tion and their right to espouse their convictions through
litigation and all other peaceful means. Bates v. Little Rock,
supra; Gremillion v. N.A.A.C.P., 366 U. S. 293; N.A.A.C.P.
v. Button, supra; Gibson v. Florida Legislative Investiga
tive Committee, supra.
The activities which appellant corporation espouses and
which the Attorney General found to be not in the best
interest of Mississippi are clearly protected by the First
Amendment as freedom of expression, freedom of assem
bly and freedom to petition for redress of grievances.
Accordingly, the denial of domestication was a device to
interfere with group activities protesting segregation, ad
vocating civil rights for Negroes and fostering litigation
to secure those rights. N.A.A.C.P. v. Alabama, supra;
N.A.A.C.P. v. Button, supra. The state may not, consistent
with constitutional requirements, interfere with the rights
of individuals to freely advocate realization of lawful ob
jectives and to associate together in the N.A.A.C.P. for the
purpose of engaging in lawful activities in furtherance of
its aims.
m .
Appellants Are Entitled to Obtain and the Federal
Courts Are Authorized to Grant All the Relief Sought
in the Complaint.
The policy of arresting, prosecuting, and harassing all
persons seeking to peacefully protest against racial dis
crimination via the various methods set forth in the Rec
ord is violative of fundamental constitutional rights, and
fully justifies the injunctive relief appellants requested in
the prayer of their complaint, as amended. Such relief was
recently held appropriate by this Court in Kelly v. Page,
335 F. 2d 114 (5th Cir. 1964), and subsequently, upon re
mand of the case, granted by the district court. Anderson
49
v. City of Albany,------ F. Supp.------- (M. D. Ga. Aug. 19,
1964).38
In addition to enjoining future violations of their right
to end racial segregation through legal means, appellants
seek to enjoin further prosecution of appellants and all
others arrested for participating in peaceful demonstra
tions against racial segregation (R. 133). This relief, as
the Record in this case clearly reflects, is absolutely neces
sary to prevent the irreparable harm which will be suffered
by appellants and others as a result of continued exposure
to prosecution in the State of Mississippi for opposition
to the policy of enforced racial segregation, see United
States v. Wood, 295 F. 2d 772 (5th Cir. 1961); Bailey v.
Patterson, 199 F. Supp. 595, 612, 616 (S. D. Miss. 1961)
(dissenting opinion).39
The requested injunction is not barred by reason of 28
U. S. C., Sec. 2283 because here relief is sought under 42
U. S. C., Sec. 1983, which this Court has indicated con
stitutes an exception “ expressly authorized by Act of Con
gress, . . . ” Denton v. City of Carrollton, Ga., 235 F. 2d
481 (5th Cir. 1956). See also, Cooper v. Hutchinson, 184
F. 2d 119 (3d Cir. 1950).
This Court in Denton, supra, found that the rule of
Douglas v. City of Jeannette, 319 U. S. 157, “ envisages it
self the necessity, under circumstances of genuine and ir
38 The district judge, while noting changed conditions in Albany
(repeal of segregation ordinances, passage of Civil Rights Act,
1964, voluntary desegregation of the library, and withdrawal by
Negroes of a boycott in recognition of the improved racial climate)
entered an injunction against the City protecting rights to protest
segregation by : (a) peacefully picketing private businesses, (b)
engaging in small protests at City Hall, (c) walking two abreast on
public sidewalks to assemble at City Hall. And see CORE v. Doug
las, 318 F. 2d 95 (5th Cir. 1963); Congress of Racial Equality v.
Clemmons, 323 F. 2d 54 (5th Cir. 1963); Baines v. City of Danville,
-------F. 2 d ------- (4th Cir. 1964).
39 The Supreme Court refused to enjoin prosecution of the “ Free
dom Riders” under Mississippi’s breach-of-peace statutes because
the appellants did not allege that they had been prosecuted or
threatened with prosecution, and therefore lacked standing to seek
such relief. Bailey v. Patterson, 368 U. S. 346; 369 U. S. 31 (1962).
No such standing problems exist here. Each o f the individual
appellants have been arrested and prosecuted.
50
retrievable damages, for affording equitable relief even
though the result is to forbid criminal prosecution or other
legal proceedings.” 235 F. 2d at 485.40
Subsequently, in Morrison v. Davis, 252 F. 2d 102, 103
(5th Cir. 1958), this Court found the doctrine of comity—
the basis for Sec. 2283—is not applicable in civil rights
cases,41 and adhered to this finding in United States v.
Wood, supra.42
Judge Rives, dissenting in Bailey v. Patterson, 199 F.
Supp. 596, 616 (S. D. Miss. 1961), observed that enjoining
prosecutions similar to those involved here “ is not so much
an exception as a practical application of the Jeannette
requirement of ‘adequacy.’ ” The alternative to this suit,
as Judge Rives accurately predicted:
. . . is that a great number of individual Negroes would
have to raise and pi’otect constitutional rights tin ough
the myriad procedure of local police courts, county
courts and state appellate courts, with little prospect
of relief before they reach the United States Supreme
Court.43
40 See also, American Optometric Ass’n v. Ritholz, 101 F. 2d 883,
887 (7th Cir. 1939) ; Jamison v. Alliance Ins. Co. of Philadelphia,
87 F. 2d 253, 256 (7th Cir. 1937).
41 Section 2283 does not go to the jurisdiction of a federal court,
hut is an affirmation of the rules of comity. Smith v. Apple, 264
U. S. 275; Wells Fargo & Co. v. Taylor, 254 U. S. 175.
42 The Fourth Circuit in Baines v. City of Danville, supra, care
fully considered all the authorities on both comity and Section
2283, decided that state court prosecutions of civil rights demon
strators can he enjoined under extraordinary circumstances, and
that such circumstances had been present when it enjoined prose
cutions pending appeal. Based on changes in the community, the
court dissolved its injunction and remanded the case for further
findings of fact and action in accordance with its opinion.
43 The 328 “ freedom rider” cases (which resulted from arrests
made in mid-1961) were tried individually in Municipal Court.
Most were appealed to County Court where 129 received trials
de novo and appealed to the Circuit Court (R. 1338). As of
February 1964, 22 cases had reached the State Supreme Court
(R. 1339), which affirmed the first case on February 17, 1964,
Thomas v. State, 160 So. 2d 657 (1964). A petition seeking
certiorari in 29 cases was filed with the United States Supreme
Court on June 13, 1964, and is presently pending.
51
Appellees, moreover, are hardly on firm ground in throw
ing up the shield of comity as a defense against the relief
sought by appellants. They have shown little respect for
the decisions of federal courts invalidating racial segre
gation in public facilities, and indeed, as indicated pre
viously, have been directed by state statute, 17 Miss. Code
Ann. § 4065.3:
. . . to prohibit by any lawful, peaceful and constitu
tional means, the implementation of or the compliance
with the Integration Decisions of the United States
Supreme Court . . .
Appellees have assumed this obligation wholeheartedly,
and without respect for the doctrine of comity, or regard
for the constitutional rights of appellants. They have, more
importantly, assumed this obligation within the unique so
ciety which is Mississippi. Appellants attempted to prove
that the nature of this society precludes a finding similar
to that upon which Douglas v. City of Jeannette, supra at
165, is founded, i.e.,
“ There is no allegation here and no proof that respon
dents would not, nor can we assume that they will not,
acquiesce in the decision of this Court holding the
challenged ordinance unconstitutional as applied to
petitioners.”
While the court below excluded much of the proffered
proof,'44 appellants submit that the Record is sufficient as
it stands to dispel any doubt that this is one of the “ excep
tional” cases referred to in Douglas v. Jeannette, “ . . . which
call for the interposition of a court of equity to prevent
irreparable injury which is clear and imminent; . . . ” 319
U. S. at 163.
44 The rulings were clearly erroneous. See Brown v. Board of
Education, 347 U. S. 483; United States v. Louisiana, 225 F. Supp.
353 (E. D. La. 353); Hall v. St. Helena Parish School Board, 197
F. Supp. 649, 652-53 (E. D. La. 1961) ; Davis v. Schnell, 81 F.
Supp. 872, 880 (S. D. Ala. 1949); ef. United States v. Duke, 332
F. 2d 759, 765 (5th Cir. 1964).
52
CONCLUSION
For all the foregoing reasons, appellants request that
this Court reverse the decision of the court below and
remand the case with specific direction for the lower
court to issue an injunction as prayed for in the com
plaint.
Respectfully submitted,
Jack H . Y oung
Carsie A. H all
115% North Farish Street
Jackson, Mississippi
R. Jess B rown
125% North Farish Street
Jackson, Mississippi
R obert L. Carver
B arbara A. M orris
20 West 40th Street
New York 18, New York
Jack Greenberg
D errick A. B ell , Jr.
10 Columbus Circle
New York 19, New York
F rank D. R eeves
508 Fifth Street, N.W.
Washington 1, D. C.
W illiam R. M in g , J r.
123 West Madison Street
Chicago, Illinois
Attorneys for Appellants
53
CERTIFICATE OF SERVICE
This is to certify that the undersigned attorney for ap
pellants, has on this date served a copy of Appellants’ Brief
on the Honorable Joe T. Patterson, Attorney General of
the State of Mississippi, State Capitol Building, Jackson
5, Mississippi, and on Thomas H. Watkins, Esq., and E. W.
Stennett, Esq., 800 Plaza Building, Jackson, Mississippi,
by mailing same to the above addresses by United States
air mail, postage prepaid.
Dated, December 9,1964.
Attorney for Appellants
38