Peterson v. City of Greenville, South Carolina Brief of Respondent

    Supreme Court of the United States
OCTOBER TERM, 1961

No. 750

JAMES RICHARD P E T E R S O N ,  YVONNE JOAN 
EDDY, HELEN ANGELA EVANS, DAVID RALPH 
STRAWDER, HAROLD JAMES FOWLER, FRANK 
G. SMITH, ROBERT CROCKETT, JAMES CAR­
TER, DORIS DELORES WRIGHT and ROSE MA­
RIE COLLINS, P etitioners,

versus

CITY OF GREENVILLE, R espondent

BRIEF OF THE RESPONDENT, CITY OF GREEN­
VILLE, IN OPPOSITION TO PETITION FOR WRIT OF 

CERTIORARI

THOMAS A. WOFFORD, 
THEODORE A. SNYDER, JR., 

200 Masonic Temple, 
Greenville, South Carolina,

W. H. ARNOLD,
City Attorney,

Lawyers Building, 
Greenville, South Carolina,

H. F. PARTEE,
Assistant City Attorney, 

Greenville, South Carolina, 
Attorneys for Respondent.

The R. L. Bryan Company, Legal Printers, Columbia, S. C-



INDEX

Jurisdiction ........................................................................  1

Questions Presented .........................................................  2

Constitutional and Statutory Provisions Involved . . . .  2

Respondent’s Statement of the Case ...............................  3

Argument:
I. The petitioners were not deprived of the due

process of law and equal protection of the laws se­
cured to them by the Fourteenth Amendment in 
their trial and conviction for trespass........................  4

II. The decision of the Supreme Court of South
Carolina is in accord with the decisions of this 
Court securing the right of freedom of speech under 
the Fourteenth Amendment......................................  14

A. The conviction of petitioners of tres­
pass after their refusal to move from a lunch 
counter in a private store did not interfere with 
their right of freedom of speech.....................  14

B. The petitioners were not denied free­
dom of speech in being convicted under a tres­
pass statute which does not expressly require 
proof that the person ordering them to leave 
establish his authority at the time of making 
the request ...........................................................  17

Conclusion ..........................................................................  20

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Beauharnais v. Illinois, 343 U. S. 250 ............................. 15
Brookside-Pratt Mining Co. v. Booth, 211 Ala. 268, 100

So. 240 ............................................................................  12
Boynton v. Virginia, 364 U. S. 454 ................................  9
Breard v. Alexandria, 341 U. S. 622 ............................... 16
Civil Rights Cases, 109 U. S. 3 ........................................  8
Commonwealth v. Richardson, 313 Mass. 632, 48 N. E. 

(2d) 678 ..........................................................................  16
Fiske v. Kansas, 274 U. S. 380 ........................................  14
Garner v. Louisiana, 368 U. S. 157, 164 and Footnote 11 4 
Giboney v. Empire Storage & Ice Co., 336 IT. S. 490 .. 17
Gitlow v. New York, 268 U. S. 652 ..................................  14
Griffin v. Collins, 187 F. Snpp. 149 (Md.) .....................  13
Grimke v. Brandon, 1 Nott & McCord 356 (10 S. C. Law) 9 
Gross v. Rice, 71 Maine 2 4 1 .............................................. 8
Hague v. C. I. O., 307 IT. S. 496 ......................................  15
Hall v. Commonwealth, 188 Va. 72, 49 S. E. (2d) 369, 

App. Dismissed, 335 U. S. 875, Reh. Den., 335 U. S.
912 .............................................................................. 13, 15

Henderson v. Trail ways Bus Company, 194 F. Supp.
423 (E. D. Va.) ...............................................................  13

Lyles v. Fellers, 138 S. C. 31, 136 S. E. 1 8 .....................  9
Marsh v. Alabama, 326 IT. S. 501 ....................................  15
Martin v. City of Struthers, 319 IT. S. 1 4 1 ..........13, 14, 16
Meyers v. Anderson, 238 IT. S. 368 ................................  8
Saia v. New York, 334 U. S. 558 ....................................  15
Schneider v. State, 308 IT. S. 1 4 7 ....................................  15
Shelley v. Kraemer, 334 U. S. 1 ....................................  8
Shramek v. Walker, 152 S. C. 88, 149 S. E. 331 .............  10
Slack v. Atlantic White Tower System, Inc., 181 F.

Supp. 124 (Md.) ............................ .......... ............ 7
State v. Bodie, 33 S. C. 117, 11 S. E. 624 ....................... 10
State v. Bradley, 126 S. C. 528, 120 S. E. 248 .. .10, 11, 12 
State v. Brooks, 79 S. C. 144, 60 S. E. 518 .....................  10

TABLE OF CASES
P age

( i i i )



TABLE OF CASES—Continued
P age

State v. Clyburn, 247 N. C. 455, 101 S. E. (2d) 295 . . . .  6
State v. Hallback, 40 S. C. 298, 18 S. E. 9 1 9 .................  18
State v. Lightsey, 43 S. C. 114, 20 S. E. 975 ........10, 11, 12
State v. Tenney, 58 S. C. 215, 36 S. E. 555 .....................  18
State v. Williams, 76 S. C. 135, 56 S. E. 783 .................  10
Sumner v. Beeler, 50 Ind. 341 ......................................... 8
Teamsters Union v. Hanke, 339 U. S. 470 .....................  17
Terminal Taxicab Co. v. Kutz, 241 U. S. 252, 256 .......... 7
Thornhill v. Alabama, 310 U. S. 8 8 ........................ 15, 16
Tucker v. Texas, 326 U. S. 5 1 7 ........................................  15
Watchtower Bible & Tract Society v. Metropolitan Life

Insurance Co., 279 N. Y. 339, 79 N. E. (2d) 433 .......... 15
Williams v. Howard Johnson’s Restaurant, 268 F. (2d)

845 (4th Cir.) .................................................................. 7

STATUTES AND CONSTITUTIONAL PROVISIONS
Act No. 743, 1960 South Carolina General Assembly,

R 896, H 2135................................................................3, 11
Civil Rights Act of 1875 ....................................................  8
Code of City of Greenville, 1953, as Amended, Section

31-8 ................................................................................... 8
Constitution of the United States, Amendment I ..............2

14, 17, 20
South Carolina Code of Laws, 1952, Section 16-382 . . . .  11 
South Carolina Code of Laws, 1952, Section 16-386 . . . .  11 
South Carolina Code of Laws, 1952, Section 16-388 . . . .  20
United States Code, Title 28, Section 1257(3) .............. 1
United States Code, Title 42, Section 1983 .................... 7

OTHER AUTHORITIES
Annotation, 1 A. L. R. 1165 ............................. ............... 6
Annotation, 9 A. L. R. 379 ................. .............................  12



Supreme Court of the United States
OCTOBER TERM, 1961

No. 750

JAMES RICHARD P E T E R S O N ,  YVONNE JOAN 
EDDY, HELEN ANGELA EVANS, DAVID RALPH  
STRAWDER, HAROLD JAMES FOWLER, FRANK  
G. SMITH, ROBERT CROCKETT, JAMES CAR­
TER, DORIS DELORES WRIGHT and ROSE MA­
RIE COLLINS, P etitioners,

versus

CITY OF GREENVILLE, R espondent

BRIEF OF THE RESPONDENT, CITY OF GREEN­
VILLE, IN OPPOSITION TO PETITION FOR WRIT OF 

CERTIORARI

JURISDICTION
The petitioners invoke the jurisdiction of the Supreme 

Court of the United States pursuant to Title 28 U. S. Code, 
Section 1257 (3), upon the ground of deprivation of rights, 
privileges and immunities claimed by them under the Con­
stitution of the United States. The respondent, City of 
Greenville, objects to the jurisdiction of this Court on the 
ground that no substantial Federal question was presented 
at any stage of the proceedings below and upon the ground 
that the issues below involved property rights only and 
the petitioners were not deprived of any rights, privileges 
or immunities secured by the Constitution of the United 
States.



QUESTIONS PRESENTED
The respondent, City of Greenville, denies that the 

petitioners have been deprived of any rights secured to 
them by the United States Constitution. However, for the 
purpose of argument, the respondent will assume that the 
questions to be considered are those presented by the peti­
tioners as modified below.

The respondent, subject to its reservations, submits 
that the questions presented are as follows:

Whether Negro petitioners were denied due process of 
law and equal protection of the laws as secured by the 
Fourteenth Amendment to the Constitution of the United 
States:

1. When arrested and convicted of trespass for refus­
ing to leave a department store lunch counter after demand 
was made for them to depart by the manager of the store.

2. Whether petitioners, as “ sit-in” demonstrators, were 
denied their First Amendment freedom of speech right as 
secured by the Fourteenth Amendment when (a) convicted 
of trespass upon refusal to move from a lunch counter 
which was reserved for the use of white persons and (b) 
when the convictions rest on a statute which does not spe­
cifically require proof that petitioners were requested to 
leave by a person who had established his authority to issue 
such request at the time of making the request.

CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED

In addition to the Constitutional and statutory pro­
visions cited by the petitioners on page 3 of the Petition 
this case involves the First Amendment to the Constitution 
of the United States.

2 Peterson et al., Petitioners, v. City of Greenville, Respondent



Peterson et al., Petitioners, v. City of Greenville, Respondent 3

RESPONDENT’S STATEMENT OF THE CASE
The petitioners were each tried and convicted in the 

Recorder’s Court of the City of Greenville, South Carolina. 
They were charged with violating Act No. 743 of the 1960 
South Carolina General Assembly, R 896, H 2135, now 
Section 16-388, Code of Laws of South Carolina, 1952. The 
statute, in pertinent part, provides that: “Any person: 
* * * (2) who, having entered into the dwelling house, 
place of business or on the premises of another person 
without having been warned within six months not to do 
so, and fails and refuses without good cause or excuse, to 
leave immediately upon being ordered or requested to do 
so by the person in possession or his agent or represen­
tative, shall, on conviction, be fined not more than one 
hundred dollars, or be imprisoned for not more than thirty 
days.” This Act was approved by the Governor on the 16th 
day of May, 1960 and took effect 30 days later, or the 15th 
day of June, 1960. On August 9, 1960 at approximately 
11:00 A. M. the petitioners entered the S. H. Kress & Com­
pany department store in the City of Greenville and took 
seats at the lunch counter in that store (R. 5). Only one 
of the petitioners testified as to placing any order for serv­
ice (R. 41). Four of the petitioners had no money at all 
in their possession (R. 7, 8) and the one who did place 
an order refused to state that any of the others had placed 
an order (R. 46). It is apparent that the real purpose of 
the petitioners in being in the Kress store was to put pres­
sure on the manager by way of a demonstration (R. 43). 
One of the Petitioners testified that this was only one of 
several demonstrations in the same store and lunch counter 
(R. 44). There is no evidence that any of the petitioners 
had previously been served at this particular lunch counter 
on any occasion. The only reasonable inference is that on 
the occasion of the prior demonstrations service had been 
refused them.



On the date of the commission of the offenses herein 
complained of the petitioners seated themselves at a lunch 
counter which had space for fifty-nine persons. The peti­
tioners were advised that Negroes were not served at that 
counter (R. 41). The lights were extinguished and G. W. 
West, the manager of the store, requested that everyone 
leave (R. 19). All the white people who had been present 
left pursuant to this request, leaving behind the petitioners 
herein (R. 20). The petitioners did not leave and after a 
wait of approximately five minutes (R. 20), they were ar­
rested and charged with violation of the trespass after 
notice statute which has been referred to. Their convictions 
subsequently were reviewed by the Supreme Court of South 
Carolina and from the decision of that Court sustaining 
the convictions, they petition this Court for a Writ of 
Certiorari.

ARGUMENT

I
The Petitioners were not deprived of the due process 

of law and equal protection of the laws secured to them by 
the Fourteenth Amendment in their trial and conviction 
for trespass.

The real issue in this case is whether or not a land- 
owner has a right by virtue of his property ownership to 
say who may and who may not come upon or remain upon 
his premises. We reach the question left open in Garner v. 
Louisiana, 368 U. S. 157, 164 and footnote 11, the question 
“whether or not a private property owner and proprietor 
of a private establishment has the right to serve only those 
whom he chooses and to refuse to serve those whom he 
desires not to serve for whatever reason he may deter­
mine.”

The S. H. Kress & Company operates a variety or 
junior department store in the City of Greenville. In the

4 Peterson et al., Petitioners, v. City of Greenville, Respondent



building housing the store there have been set up some fif­
teen to twenty departments, including a lunch counter. 
In these departments are sold approximately ten thousand 
items (K. 21, 22). The decision as to what items are to be 
offered for sale is the result of a business judgment, made 
by a trained and experienced management. These decisions 
are made with the calculated business purpose in view of 
earning a profit. Some items sold are offered because there 
is an existing demand for them. As to other items the man­
agement seeks to create a demand by display and advertis­
ing. It has no monopoly and no one is required to buy any­
thing from it. Nor is S. H. Kress & Company a public util­
ity. It was not required to obtain a certificate of public 
convenience before opening the doors of its store in Green­
ville. It requires the consent of no one if it desires to close 
its doors and move away. The only license it is dependent 
upon is the continued good will of the buying public. No 
one can complain if its clerks are obnoxious, or if it refuses 
to sell certain items or insists on selling certain others.

Likewise, a private business such as the S. H. Kress 
& Company may regulate its opening and closing hours for 
daily business. Whether as lessee or as owner in fee simple, 
the private proprietor has the right to exclude everyone 
when the store is closed. His dominion over the premises 
is absolute.

Thus it will be seen that the proprietor has two rights 
in the situation presented in the case at bar. He has the 
right to do business with whom he pleases, and he has the 
right to control and possession of the premises whereon he 
conducts his business.

The right to select business clients.
The necessary parties to any private business selling 

transaction are a willing buyer and a willing seller. If one 
of the parties is unwilling, no measure of willingness on

Peterson et al., Petitioners, v. City op Greenville, Respondent 5



6 Peterson et al., Petitioners, v. City of Greenville, Respondent

the other side can make up the deficiency and force the 
sale. No law compels either party to go through with the 
transaction. The general rule of the common law, which is 
in effect in South Carolina, is that properietors of private 
enterprises are under no obligation to serve without dis­
crimination all who seek service, but on the contrary enjoy 
an absolute power to serve whom they please. This was 
expressly held below to be the law of South Carolina, there 
being no statute to the contrary. (Petitioners’ appendix, 
9a.) The right of a proprietor, other than an innkeeper or 
common carrier, to do business with whom he pleases, and 
to refuse to do business with others, for any reason, or 
for no reason at all, has been consistently and uniformly 
held by the courts of this country, in the absence of legisla­
tion to the contrary. Annotation, 1 A. L. R. (2d) 1165. 
The refusal of a proprietor to do business with any prospec­
tive customer can be based on the rankest of discrimination, 
either of race, color or creed, or on some whim unreason­
able or even fanciful. As was said in State v. Clyburn, 
247 N. C. 455, 101 S. E. (2d) 295:

“ The right of an operator of a private enterprise 
to select the clientile he will serve and to make such 
selection based on color, if he so desires, has been re­
peatedly recognized by the appellate courts of this na­
tion. Madden v. Queens County Jockey Club, 269 N. Y. 
249, 72 N. E. (2d) 697, 1 A. L. R. (2d) 1160; Terrell 
Wells Swimming Pool v. Rodriguez, Tex. Civ. App. 
182 S. W. (2d) 824; Booker v. Grand Rapids Medical 
College, 156 Mich. 95, 120 N. W. 589, 24 L. R. A., NS 
447: Younger v. Judah, 111 Mo. 303, 19 S. W. 1109, 
16 L. R. A. 558; Goff v. Savage, 122 Wash 194, 210 
P. 374; DeLaYsla v. Publix Theatres Corporation, 82 
Utah 598, 26 P. (2d) 818; Brown v. Meyer Sanitary 
Milk Co., 150 Kan. 931, 96 P. (2d) 651; Horn v. Illinois 
Cent. R. Co., 327 111. App. 498, 64 N. E. (2d) 574; Cole­
man v. Middlestaff, 147 Cal. App. (2d) Supp. 833, 305 
P. (2d) 1020; Fletcher v. Coney Island, 100 Ohio App.



Peterson et at, Petitioners, v. City of Greenville, Respondent 7

259, 136 N. E. (2d) 344; Alpcmgh v. Wolverton, 184 
Va. 943, 36 S. E. (2d) 906.”
Mr. Justice Holmes recognized the principle in Ter­

minal Taxicab Co. v. Kutz, 241 TJ. S. 252, 256, where he 
said:

“ It is true that all business, and for the matter of 
that, every life in all its details, has a public aspect, 
some bearing on the welfare of the community in which 
it is passed. But, however it may have been in earlier 
days as to the common callings, it is assumed in our 
time that an invitation to the public'to buy does not 
necessarily entail an obligation to sell. It is assumed 
that an ordinary shopkeeper may refuse his wares arbi­
trarily to a customer whom he dislikes * *
The refusal of a restaurateur to serve a prospective 

patron because of his color has been held in several recent 
decisions to deprive a Negro of none of the rights, privi­
leges or immunities secured to a citizen by the Constitution 
of the United States, and protected from the infringement 
by the Civil Bights Act, Title 42, United States Code, Sec­
tion 1983. Williams v. Howard Johnson’s Restaurant, 268 
F. (2d) 845 (4th Cir.) ; Slack v. Atlantic White Tower 
System, Inc., 181 F. Supp. 124 (D. C. Md.), affd., 284 F. 
(2d) 746 (4th Cir.). In the Williams v. Howard Johnson’s 
case the Fourth Circuit Court held there was a distinction 
between activities that are required by the state and those 
which are carried out by voluntary choice and without com­
pulsion by the people of a state in accordance with their 
own desires and social practices. The latter, it was held, 
deprived no one of any civil rights. That permissible area 
of voluntary selection of customers is what is presented by 
the facts of the instant case. The manager of the store tes­
tified that the practice of serving only white persons was 
in conformity with a policy of the company to follow local 
customs. The policy was made at the company’s head­



quarters, and was obviously dictated by business reasons. 
(R. 22, 23, 25.) 1

Since the manager of Kress’ store was acting for it 
enforcing its voluntarily imposed policy, he had an absolute 
right to refuse to serve the petitioners herein.

Indeed, in the Civil Rights Cases, 109 TJ. S. 3, this 
Court held unconstitutional the section of the Civil Rights 
Act of 1875 providing that all persons within the jurisdic­
tion of the United States should be entitled to the full and 
equal enjoyment of the accommodations, advantages, fa­
cilities, and privileges of inns, public conveyances, theaters 
and other places of public amusement, with penalty for one 
who denied same to a citizen. One of the vices in the statute 
was that it laid down rules for the conduct of individuals 
in society towards each other, and imposed sanctions for 
the enforcement of those rules, without referring in any 
manner to any supposed action of the state or its author­
ities. The person supposedly injured, it was said, would 
be left to his state remedy. And in the instant case, as we 
have stated, the common law is in effect and gives no right 
to the petitioners or anyone else to be served without the 
consent of the restaurateur or proprietor of a business.

The Court has continued to recognize that individuals 
have the right in their purely private day to day dealings 
to associate and discriminate as they see fit, for whatever 
reason is to their own minds satisfactory. The court spe­
cifically stated in Shelley v. Kraemer, 334 U. S. 1:

‘ It is equally clear that the ordinance of the City of Greenville 
requiring segregation in eating places (R. 56, 57) had no bearing on 
the instant case. The validity of this ordinance has never been tested. 
It is clear, however, that if it is unconstitutional, any action taken 
pursuant to its mandate would be personal, and taken at the risk of 
personal liability on the part of the person so acting. Gross v. Rice, 
71 Maine 241; Sumner v. Beeler, 50 Ind. 341; Meyers v. Anderson, 
238 U. S. 368. The police captain who made the arrests testified he did 
not have the ordinance in mind (R. 10) ; in fact he was of the opinion 
it had been superseded (R. 17), and was not then in effect.

8 Peterson et a l, Petitioners, v. City op Greenville, Respondent



“ Since the decision of this Court in the Civil Rights 
cases, . . . the principle has become embedded in
our constitutional law that the action inhibited by the 
first section of the Fourteenth amendment is only such 
action as may fairly be said to be that of the States. 
That Amendment erects no shield against merely pri­
vate conduct, however discriminatory or wrongful.”
Similarly, in Boynton v. Virginia, 364 U. S. 454, this 

Court held that a bus station restaurant was required to 
serve all who sought service without discrimination, under 
the Interstate Commerce Act, where the restaurant was an 
integral part of a bus company’s interstate transportation 
service. The Court made this reservation:

“We are not holding that every time a bus stops 
at a wholly independent roadside restaurant the Inter­
state Commerce Act requires that restaurant service 
be supplied in harmony with the provisions of that act.”
The instant case falls squarely within the reservation. 

The S. H. Kress & Company in Greenville, South Carolina, 
provides only a local restaurant service. Its facilities are 
not connected to or with any business affected with a public 
interest. As a purely private business venture, it is and 
was legally entitled to refuse service to the petitioners 
herein.

The right to exclusive possession of business premises.
Ownership of real estate, whether a fee simple, a life 

estate, or a term for years is basically a right to its posses­
sion. From the right of possession follows the right of the 
owner to make whatever use of the premises that suits his 
fancy. Anyone who enters without his permission is a tres­
passer. The civil action for damages for trespass quare 
clausum fregit is founded on plaintiff’s possession, and it 
is for injury to that possession that damages are awarded. 
Grimhe v. Brandon, 1 Nott & McCord 356 (10 S. C. Law ); 
Lyles v. Fellers, 138 S. C. 31, 136 S. E. 18.

Peterson et a l, Petitioners, v. City of Greenville, Respondent 9



10 Peterson et al., Petitioners, v. City of Greenville, Respondent

It has always been the law that a person in possession 
is entitled to maintain that possession, even by force if 
necessary.

“ A man who attempts to force himself into an­
other’s dwelling, or who, being in the dwelling by in­
vitation or license refuses to leave when the owner 
makes that demand, is a trespasser, and the law per­
mits the owner to use as much force, even to the taking 
of his life, as may be reasonably necessary to prevent 
the obtrusion or to accomplish the explusion.” State 
v. Bradley, 126 S. C. 528, 120 S. E. 248.
Of course, away from the dwelling, the right to kill 

in ejecting a trespasser does not exist. Still, it is the law 
of South Carolina that any person in the rightful pos­
session of land may approach any person wrongfully there­
on, and order him to leave or quit the land, and in the event 
of a refusal to do so, may use such force as may be neces­
sary to eject such trespasser. State v. Bodie, 33 S. C. 117,
11 S. E. 624; State v. Williams, 76 S. C. 135, 56 S. E. 783; 
Shramek v. Walker, 152 S. C. 88, 149 S. E. 331. In ejecting 
such trespassers gentle force must be used, State v. Brooks, 
79 S. C. 144, 60 S. E. 518.

The policy of the law does not favor the use of force 
and firearms by persons in possession of land who seek 
to remove trespassers. The charge in State v. Lightsey, 43 
S. C. 114, 20 S. E. 975 expresses it thus:

“But I charge you a man has no right to take his 
gun and run a man off his place. That is simply taking 
the law into his own hands.”
As a substitute for the strong armed ejectment by the 

person in possession, the law of this state has for many 
years provided a calm judicial mode of ejectment, employ­
ing the more even temperaments of impartial law enforce­
ment officers and judges. Thus the law has provided for 
many years that malicious injury to real property should



be a misdemeanor. Code of Laws of South Carolina, 1952, 
Section 16-382. Since 1S66 our State has made entry on 
lands of another after notice prohibiting such entry a mis­
demeanor. Code of Laws of South Carolina, 1952, Section 
16-386. It has never been suggested that these laws were 
intended other than for the protection and preservation of 
property rights. The opinions of our Court in South Caro­
lina have strongly intimated that a person in possession 
of property should not take the law in his own hands in 
removing trespassers, but on the contrary they are exhorted 
to seek the aid and protection of the courts, by prosecuting 
the trespasser for these misdemeanors. State v. Lightsey, 
supra.

It may be objected that the statutory law of South 
Carolina until 1960 provided only for prosecutions for entry 
after notice. But the court in State v. Bradley, supra, indi­
cated otherwise. There, quoting State v. Lightsey, supra, 
the court said that if a man warns another off his place, 
and that man comes on it, or refuses to leave, he is guilty 
of a crime, a misdemeanor, and for that misdemeanor he 
may be tried in court. The 1960 Act, under which petitioners 
were tried and convicted, adds nothing to the substance 
of the existing law. It merely clarifies and provides ex­
pressly for the misdemeanor of trespass by one who refuses 
to leave on being requested to do so. 1+ made positive what 
the court had held in State v. Bradley, supra, was impliedly 
a part of the law prohibiting entry after notice.

With respect to country and farm lands, no one may 
enter them without permission. With respect to a store 
building, or business premises, the proprietor or operator 
expects and invites prospective customers to enter. This 
is a sort of permission which renders the original entry 
rightful and not a trespass. Business invitees are often 
spoken of as licensees, license being nothing more than a 
mere grant of permission. Ordinarily it is implied from

Peterson et a l, Petitioners, v. City oe Greenville, Respondent 11



the opening of the doors of a business establishment. Such 
a license is always revocable, and when revoked the licensee 
becomes a trespasser if he does not immediately depart. 
In the annotation, 9 A. L. R. 379, it is put as follows:

“ It seems to be well settled that although the gen­
eral public have an implied license to enter a retail 
store, the proprietor is at liberty to revoke this license 
at any time as to any individual, and to eject such in­
dividual from the store if he refuses to leave when 
requested to do so.”
In BrooJcside-Pratt Mining Co. v. Booth, 211 Ala. 268, 

100 So. 240, the Court held that the proprietor of a 
store would not be liable for damages for assault and bat­
tery in ejecting a prospective patron from his store, when 
he did not desire to transact business with the person, and 
he had notified him to leave but was met with a refusal to 
do so, after giving him a reasonable time in which to depart.

The petitioners in this ease found themselves in the 
identical situation. The manager of the store revoked their 
license or privilege to be there, and directed them to leave. 
(R. 19, 20.) After five minutes had passed, the petitioners 
still had not moved, although other persons originally 
present had departed when requested to leave. (R. 20.) 
At the end of that interval, the S. H. Kress & Company 
had a right to remove the petitioners by force. It is not 
contended that the petitioners were not given a reasonable 
time in which to depart, and the finding of the courts below 
on that element of the offense is conclusive. But our law 
does not favor persons in possession of property taking 
the law into their hands to eject trespassers. State v. Brad­
ley, supra; State v. Lightsey, supra. The law made the 
conduct of the petitioners a misdemeanor. The law favors 
their removal by the forces of law and trial by the orderly 
processes of a court of justice.

12 Peterson et al., Petitioners, v. City op Greenville, Respondent



The only purpose of the law in this case is to protect 
the rights of the owners or those in lawful control of private 
property. It protects the right of the person in possession 
to forbid entrance to those he is unwilling to receive and 
to exclude them if, having entered, he sees fit to command 
them to leave. Hall v. Commonwealth, 188 Va. 72, 49 S. 
E. (2d) 369, app. dismissed, 335 U. S. 875, Reh. den. 335 
U. S. 912. As Mr. Justice Black said in Martin v. City of 
Strothers, 319 U. S. 141:

“ Traditionally the American law punishes persons 
who enter onto the property of another after having 
been warned by the owner to keep off.”

Of course, the police officers had a right and a duty to ar­
rest for the misdemeanor committed in their presence.

The petitioners contend that their arrest and trial by 
the city police and in the city court was state action which 
deprived them of Fourteenth Amendment rights. There is 
no inference that the law involved or the other trespass 
laws have been applied to Negroes as a class or to these 
petitioners to the exclusion of other offenders. Certainly 
they were not deprived of any rights in being removed 
from the Kress store, a place where they had no right to 
remain under the law, after being requested to leave. 
Granted the right of a proprietor to choose his customers 
and to eject trespassers, it can hardly be the law, as peti­
tioners contend, that the proprietor may use such force 
as he and his employees possess, but may not call on a 
peace officer to protect his rights. Griffin v. Collins, 187 F. 
Supp. 149 (D. C. M d.); Henderson v. Trailways Bus Com­
pany, 194 F. Supp. 423 (E. D. Va.). A right which cannot 
be protected and enforced through the judicial machinery 
is a non-existent right.

In this there is no conflict with any prior decisions of 
this Court. The cases cited by petitioners all involve state

Peterson et al., Petitioners, v. City of Greenville, Respondent 13



action on state owned or operated premises, state-furnished 
services, and common carriers. None of them involve purely 
private action taken in respect of property rights to private 
property. We submit that the only constitutional right in­
volved in this case is the right of a property owner to the 
free and untrammelled use of his premises in whatever 
manner he sees fit.

II
The decision of Supreme Court of South Carolina is in 

accord with the decision of this Court securing the right of 
freedom of speech under the Fourteenth Amendment.

A. The conviction of petitioners of trespass after their 
refusal to move from a lunch counter in a private store did 
not interfere with their freedom of speech.

When the petitioners use the term “ freedom of ex­
pression” we assume they have in mind freedom of speech, 
which is protected from abridgment by Congress by the 
First Amendment to the Constitution of the United States. 
Since 1925, the First Amendment freedom of speech has 
been regarded as an aspect of “ liberty” which under the 
Fourteenth Amendment the States are prohibited from tak­
ing away without due process of law. Gitlow v. New York, 
268 U. S. 652; Fiske v. Kmsas, 274 U. S. 380.

Freedom to expound one’s views and distribute infor­
mation to every citizen wherever he desires to receive it 
is clearly vital to the preservation of a free society. Martin 
v. Struthers, 319 U. S. 141. This freedom gives the right to 
the person who would speak to try and convince others of 
the correctness of his ideas and opinions. The title to streets 
and parks has immemorially been held in trust for the use 
of the public, and time out of mind have been used for 
purposes of assembly, communicating thoughts between, 
citizens, and discussing public questions. The streets are 
natural and proper places for the dissemination of infor­

14 Peterson et al., Petitioners, v. City op Greenville, Respondent



mation and opinion. Schneider v. State, 308 U. S. 147; 
Hague v. C. I. 0., 307 U. S. 496; Thornhill v. Alabama, 310 
IT. S. 88. Even where the streets and parks are privately 
owned, as in company towns, citizens have a right to go 
upon them to communicate information, unimpeded by tres­
pass statutes. Marsh v. Alabama, 326 U. S. 501; Tucker 
v. Texas, 326 U. S. 517. Even freedom of speech on the 
public streets is subject to some control. Saia v. New York,
334 IT. S. 558. In Beauharnais v. Illinois, 343 IT. S. 250, this 
Court held that a person expressing his honest convictions 
on the streets could be prosecuted under a state group libel 
statute.

When we leave the streets, and consider the right to 
freedom of speech on private property, we find that the 
courts have unanimously held that the right of freedom 
of speech must yield to the property right of the landowner 
to eject trespassers. In Hall v. Commonwealth, 118 Va. 
72, 49 S. E. (2d) 369; app. dism. 335 U. S. 875; reh. den.
335 U. S. 912, the conviction of a member of a religious 
sect for trespass under a statute similar to the one here 
was upheld. The right of the individual to freedom of speech 
had to yield, it was held, to the property rights of the owner 
of an apartment building and its tenants. There was no 
right for anyone, over their objection, to insist on using 
the inner hallways to distribute their views and informa­
tion. The refusal of those persons to depart after being 
requested to do so, was held to justify their conviction for 
trespass. The court stated that inner hallways of apart­
ment houses were not to be regarded in the same light as 
public roads; they emphatically do not constitute places of 
public assembly, or for communicating thoughts one to 
another, or for the discussion of public questions. The First 
Amendment has never been held to inhibit action by indi­
viduals in respect to their property. Watchtower Bible & 
Tract Society v. Metropolitan Life Insurance Compaivy,

Peterson et al., Petitioners, v. City op Greenville, Respondent 15



279 N. Y. 339, 79 N. E. (2d) 433; Commonwealth v. Richard­
son, 313 Mass. 632, 48 N. E. (2d) 678. The petitioners in 
this case had the right to express their opinions on the 
streets. They had the privilege to enter the Kress store in 
Greenville. But, when they refused to leave on being re­
quested to do so, they no longer had a right to give vent 
to their thoughts on the premises of the Kress store. They 
cannot complaint of their conviction for trespass where 
they insisted on remaining in a place they had no right to 
be. They cannot be permitted to arm themselves with an 
acceptable principle, such as freedom of speech, and pro­
ceed to use it as an iron standard to smooth their path 
by crushing the rights of others to the possession of their 
property. Breard v. Alexandria, 341 U. S. 622.

The petitioners cite a number of labor relations and 
particularly picketing cases. Undoubtedly peaceful picket­
ing may be carried out on the public streets and sidewalks. 
Picketers have the right to publicize their dispute under 
the First Amendment. What is protected in picketing is 
the liberty to discuss publicly and truthfully all matters of 
public concern. Thornhill v. Alabama, 310 TJ. S. 88. The 
important thing about picketing is that it is used to inform 
members of the public of the existing state of affairs. Its 
purpose is not to inform the employer; assumedly he knows 
of the dispute, and at least one side of the argument. In 
the instant case the petitioners were not attempting to pass 
on information to the public. They were attempting by 
demonstration and coercion to force a private person to 
make a use of his property not in accord with his desires. 
Here there was no gentle persuasion. Nor was the S. H. 
Kress & Company the proper object of their instruction. 
A  private person cannot be forced, on his own property, 
to listen to the arguments of anyone, whether he agrees 
with the sentiments expressed or not. Martin v. Struthers, 
supra. Even the listener on the street can turn away. A

16 Peterson et al., Petitioners, v. City of Greenville, Eespondent



listener on his own land should not be required to retreat, 
he should be able to require the speaker to turn away, and 
prosecute him for trespass if he does not.

Peaceful picketing, even when conducted on the streets, 
is not absolutely protected by the First Amendment. Picket­
ing cannot be used in connection with a conspiracy to re­
strain trade, to prevent union drivers from crossing picket 
lines. Giboney v. Empire Storage d Ice Co., 336 U. S. 490. 
Nor is picketing lawful where it interferes with the free 
ingress and egress of customers into a place of business. 
Teamsters Union v. Hamke, 339 U. S. 470. The conduct of 
the petitioners in this case, if it can be analogized to picket­
ing, was unlawful. They sought not to appeal to the reason 
of the public. They sought rather to obstruct the business 
of S. H. Kress & Company by squatting on its property and 
refusing to move. They sought to prevent its doing business 
with others unless it did business with them, by taking 
steps to effectively prevent the entrance of others. Their 
conduct clearly exceeded the bounds of freedom of speech 
and of peaceful picketing. They were properly arrested 
and convicted of trespassing.

B. The petitioners were not denied freedom of speech 
in being convicted under a trespass statute which does not 
expressly require proof that the person ordering them to 
leave establish his authority at the time of making the 
request.

The petitioners moved in the trial court for dismissal 
of the warrants on the ground they were indefinite and un­
certain. The facts of the case show otherwise. They were 
arrested in the act of committing the offense charged, they 
refused the manager’s request to leave after the lunch coun­
ter had been closed and the lights extinguished. There could 
have been no doubt in their minds as to what they were 
charged with. Warrants drawn such as the ones in the in­

Peterson et al., Petitioners, v. City of Greenville, Respondent 17



stant case have been passed on before and held sufficient. 
In State v. Hallback, 40 S. C. 28, 18 S. E. 919, the warrant 
was held sufficiently certain which alleged “that Jerry Hall- 
back did commit a trespass after notice.” Of like effect is 
State v. Tenney, 58 S. C. 215, 36 S. E. 555. The petitioners’ 
attorneys realized they were being charged with trespass. 
(E. 2.) And from the warrant they had a citation to the 
law, with particulars as to the date, time and place of the 
arrest. And it is noteworthy of comment that the petitioners 
did not make a motion to make the charge more definite 
and certain, which they had a right to do.

The petitioners claim that the statute is unconstitu­
tional because it does not expressly require the landowner 
or person in possession to identify himself. The statute 
necessarily means that the person forbidding a person to 
remain in the premises of another shall be the person in 
possession, or his agent or representative, and that is an 
essential element of the offense to be proved by the State 
beyond a reasonable doubt. The manager of the store tes­
tified positively that he was the manager and that he re­
quested the petitioners to leave. (E. 19.) The only one of 
the petitioners to testify at the trial knew Mr. West was 
the manager as she had spoken to him over the telephone 
before (E. 43), and she recognized him at the store at 
the time of the demonstration (E. 42, 47).

If the person ordering them out had no such authority, 
that would be a defense, to be proved in Court. But here 
the evidence supports the inference that the petitioners 
knew that the person who ordered them to leave had au­
thority to do so. They did not question his authority. They 
did not so much as ask his name, so they could later inves­
tigate the extent of his authority. The petitioners knew 
they were not authorized and they could presume that any­
one who undertook to exercise control over the premises 
was lawfully in control.

18 Peterson et al., Petitioners, v. City of Greenville, Respondent



The cases cited by petitioners are not relevant here at 
all. They require scienter in cases involving matters of 
opinion based on value judgments. The authority of the 
person ordering them to leave the S. H. Kress Company 
store does not involve such a judgment. It cannot be con­
tended that petitioners should be entitled to spar with the 
person in possession requiring proof of authority to their 
satisfaction. Could they require a landowner to produce 
his deed, or a lessee his lease? Can they argue with him 
over the extent of his implied authority and all the nice 
technicalities of the law of agency? We submit that the 
authority of the person in possession is apparent from his 
direction to another to leave the premises, that he cannot 
be required to prove his authority to the satisfaction of 
the trespasser there or anywhere, except in a court when 
he is tried for the trespass. The petitioners never ques­
tioned the authority of the manager and his authority hav­
ing been proved in court beyond a reasonable doubt, they 
should not now be heard to complain.

Peterson et al., Petitioners, v. City op Greenville, Respondent 19



20 Peterson et a l, Petitioners, v. City op Greenville, Respondent

CONCLUSION
For the foregoing reasons the respondent submits that 

Section 16-388 of the Code of Laws of South Carolina, 1952, 
as applied to the petitioners, presents no question what­
ever in conflict with the Fourteenth and First Amendments 
to the Constitution of the United States, or the decisions 
of this Court, and that the petition for Writ of Certiorari 
in this case should be denied.

Respectfully submitted,

THOMAS A. WOFFORD,
THEODORE A. SNYDER, JR., 

200 Masonic Temple,
Greenville, South Carolina,

W. H. ARNOLD,
City Attorney,

Lawyers Building, 
Greenville, South Carolina,

H. F. PARTEE,
Assistant City Attorney, 

Greenville, South Carolina, 
Attorneys for Respondent.