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

    IN THE

Supreme Court of the United States
October T erm, 1962

No. 71

JAMES RICHARD PETERSON, YVONNE J O A N  
EDDY, HELEN ANGELA EVANS, DAVID RALPH 
STRAWDER, HAROLD JAMES FOWLER, FRANK
G. SMITH, ROBERT CROCKETT, JAMES CAR­
TER, DORIS DELORES WRIGHT, and ROSE 
MARIE COLLINS, P etitioners,

versus
CITY OF GREENVILLE, Respondent

On W rit of Certiorari to the Supreme Court 
of South Carolina

BRIEF OF RESPONDENT

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, 

Lawyers’ Building,
Greenville, South Carolina, 

Attorneys for Respondent.

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



INDEX
P age

Questions Presented............................................................ 1

Statement of the C a se ........................................................ 2

Argument:
I. The proprietor of a privately owned restaurant 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 determine.................  3

II. There was no state action and consequently no de­
nial of the equal protection of the laws secured by 
the Fourteenth Amendment in the refusal of lunch 
counter service to the Negro petitioners by a private 
entrepreneur and their subsequent prosecution for 
trespass upon failure to depart from the premises 
after being requested to leave and given ample time
to do so .......................................................................  7

III. Petitioners were not denied the freedom of speech 
secured to them by the Fourteenth Amendment 
when they were convicted for trespass for refusing 
to depart after being directed to leave the lunch 
room of a Kress’ store where they desired to conduct
a demonstration...........................................................  16

IV. Conviction for violation of a statute making it an 
offense to remain on premises after being requested 
to leave, although the statute did not require the 
person making the request to leave to establish his 
authority to issue such request, did not deprive
petitioners of freedom of speech............................. 21

Conclusion ........................................................................... 24

( i )



TABLE OF CASES

Alpaugh v. Wolverton, 184 Ya. 943, 36 S. E. (2d) 906 
(1946) ...............................................................................  3

Brookside-Pratt Mining Co. v. Booth, 211 Ala. 268, 100
So. 240 (1924)................................................................6, 9

Boynton v. Virginia, 364 U. S. 454 ..................................... 4
Burstyn v. Wilson, 343 U. S. 495 ..................................... 21
Bnenzle v. Newport Amusement Association, 29 B. I. 23,

68 Atl. 721, (1908)............................................................ 6
Carnegie-Illinois Steel Corp. v. United Steelworkers of

America, 353 Pa. 420, 45 A. (2d) 857 (1946 ).............. 20
Civil Rights Cases, 109 U. S. 3 ......................................... 7
Commonwealth v. Richardson, 313 Mass. 632, 48 N. E

(2d) 678 (1943) ................................................................ 18
Collister v. Hayman, 183 N. Y. 250, 76 N. E. 20 (1905) 5, 15 
Continental Baking Company v. Woodring, 286 U. S. 352 15
Fiske v. Kansas, 274 U. S. 380 ........................................  16
Fred Harvey v. Corporation Commission of Oklahoma,

102 Okla. 226, 229 P. 428 (1924) ................................. 6
Frohwerk v. United States, 249 U. S. 204 .........................  17
Garifine v. Monmonth Park Jockey Club, 29 N. J. 47,

148 A. (2d) 1, (1959)................. .'................................ 5, 16
Gitlow v. New York, 268 U. S. 652 ................................. 16
Greenfeld v. Maryland Jockey Club, 190 Md. 96, 57 A.

(2d) 335 (1948) ........................................................... 5, 16
Hague v. C. I. O., 307 U. S. 496 ..........................................  18
Hall v. Commonwealth, 118 Va. 72, 49 S. E. (2d) 369 

(1948) app. dism. 335 U. S. 875, reh den 335 U. S. 912 18 
Horn v. Illinois Central Railway Co., 327 111. App. 498,

64 N. E. (2d) 574 (1946) . . . . ' ........................................  4
Kovacs v. Cooper, 336 U. S. 7 7 .................................. 19, 20
Madden v. Queens County Jockey Club, 296 N. Y. 249,

72 N. E. (2d) 697 (1947) cert. den. 332 U. S. 761 . .5, 15 
Marrone v. Washington Jockey Club, 227 U. S. 633 

(1931) ............................................................................ 6, 10

P age

( i i )



Marsh v. Alabama, 326 U. S. 501 ......................................  18
Martin v. City of Struthers, 319 U. S. 4 1 .........................  10
Meisner v. Detroit B. I. & W. Ferry Co., 154 Mich. 545,

118 N. W. 14 (1908) ........................................................ 5
N. L. R. B. v. Fansteel Metallurgical Corporation, 306

U. S. 240 ................................    20
Nance v. Mayflower Tavern, 106 Utah 517, 150 P. (2d)

773 (1944) .........................................................................  4
Noble v. Higgins, 95 Misc. 328,158 N. Y. S. 867 (1916) .. 4
The Oakmar, 20 F. Supp. 650 (Md. 1937) .........................  20
Korthinos v. Niarchos, 175 F. (2d) 730 (4tli Cir. 1949)

cert. den. 338 U. S. 894 .................................................... 20
People ex rel Burnham v. Flynn, 189 N. Y. 180, 82 N.

E. 169 (1907) ..................... '............................................  5
Public Utilities Commission v. Pollack, 191 F. (2d) 450

(1951) 343 U. S. 4 5 1 ........................................................ 19
Rutledge Co-op Ass’n v. Baughman, 153 Md. 297, 138

Atl. 29 (1927)...................................................................  15
Saia v. New York, 334 U. S. 558 ......................................  18
Schenck v. United States, 249 U. S. 4 7 ............................. 17
Schneider v. State, 308 U. S. 1 4 7 ....................................  17
Shelley v. Kraemer, 334 U. S. 1 .................................7,11, 12
Slack v. Atlantic White Tower System, Inc., 181 F. 

Supp. 124 (Md. 1960) afPd. 284 F. (2d) 746 (4th Cir.
1960) ................................................................................. 4

Smith v. California, 361 U. S. 147 ..................................... 21
State v. Lightsey, 43 S. C. 114, 20 S. E. 975 (1895) . . . .  10 
State of Starnes, 213 S. C. 304, 49 S. E. (2d) 209 (1948) 9
Thornhill v. Alabama, 310 U. S. 8 8 .............................18, 19
Truax v. Corrigan, 257 U. S. 3 1 2 ....................................  20
Tucker v. Texas, 326 U. S. 5 1 7 .......................................  18
United States v. Colgate & Co., 250 U. S. 300 .................  5
United States v. Greenbaum, 138 F. (2d) 437 (3rd Cir. 

1943) ................................................................................  22
(Hi)

TABLE OF CASES—Continued
P age



TABLE OF CASES—Continued
P age

Watehtower Bible & Tract Society v. Metropolitan Life 
Insurance Company, 279 N. Y. 339, 79 N. E. (2d) 433
(1948) ...............................................................................

Watkins v. Oaklawn Jockey Club, 86 F. Supp. 1006 (W.
D. Ark. 1949) aff’d 183 F. (2d) 440 (8th Cir. 1950) . .5, 

Williams v. Hot Shoppes, 293 F. (2d) 835, 840 (D. C.
Cir. 1961) cert. den. 370 U. S. 925 ..................... ..........

Williams v. Howard Johnson’s Restaurant, 268 F. (2d)
845 (4th Cir. 1959) ....................... ........................... 14,

Winters v. New York, 333 U. S. 507 .................................
Woollcott v. Shubert, 217 N. Y. 212, 111 N. E. 829

(1916) ..................................................................... . . . . 5 ,
Yick Wo v. Hopkins, 118 U. S. 356 ........................... .........

CONSTITUTION OF THE UNITED STATES
Amendment I .............................................. ............. ........

STATE STATUTES
Section 16-388, Code of Laws of South Carolina, 1952, 

as amended.......................................................................

OTHER AUTHORITIES
Annotation, 9 A. L. R. 379 .......................................... .
Beale, The Law of Innkeepers and Hotels (1906)..........

18

14

14

16
21

15
17

16

2

6
4



IN THE

Supreme Court of the United States
O ctober T erm, 1962

No. 71

JAMES RICHARD PETERSON, YVONNE J O A N  
EDDY, HELEN ANGELA EVANS, DAVID RALPH 
STRAWDER, HAROLD JAMES FOWLER, FRANK 
G. SMITH, ROBERT CROCKETT, JAMES CAR­
TER, DORIS DELORES WRIGHT, and ROSE 
MARIE COLLINS, P etitioners,

versus

CITY OF GREENVILLE, R espondent

On W rit or Certiorari to the S upreme Court 
of South Carolina

BRIEF OF RESPONDENT

QUESTIONS PRESENTED
Petitioners were eonvieted of trespassing upon their 

refusal to leave a lunch counter after the elapse of a rea­
sonable time for their departure. Their original presence 
was for the purpose of a demonstration to protest the re­
fusal of service to them. The premises and business where 
the events occurred are privately owned.

I
Does the operator of a privately owned restaurant or 

lunch counter open to the public have a right to refuse serv­
ice to prospective customers?



II
Was there any “ state action” in the refusal of lunch 

counter service to Negro petitioners by a private entre­
preneur, and their prosecution for trespass upon failure 
to leave the premises after notice to depart?

III
Were petitioners denied the freedom of speech secured 

to them by the Fourteenth Amendment when they were 
convicted for trespass for refusing to obey the order of the 
manager to leave the lunch room of a Kress’ Store where 
they desired to conduct a demonstration?

IV
Does a statute making it an offense to remain on prem­

ises after notice to leave is given deprive petitioners of 
Freedom of Speech where the statute does not require the 
person giving the notice to establish his authority over the 
premises?

STATEMENT OF THE CASE
S. H. Kress and Company operates a chain of variety 

stores, with a branch in Greenville, South Carolina, de­
scribed as a junior department store. (R. 20.) One of its 
departments is a lunch counter, with seats for fifty-nine 
persons. (R. 25.) On the morning of August 9, 1960, the 
petitioners, all Negroes, took seats there and requested 
service. (R. 36.) They were told that Negroes were not 
served there. (R. 36.) Following that the manager had the 
lights turned off, announced that the lunch counter was 
closed, and requested everyone to leave. Everyone left ex­
cept the petitioners. (R. 19, 44.) They did not leave. After 
approximately five minutes, they were arrested for trespass 
in violation of Section 16-388, Code of Laws of South Caro- 
lin, 1952, as amended. (R. 19.)

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



The petitioners were refused service because they were 
Negroes. The Kress headquarters has a policy of following 
local customs in reference to serving members of the public 
and the local manager acted pursuant to orders to that 
effect (R. 21), the local custom being to serve whites only.

The petitioners were subsequently convicted of tres­
pass and sentenced. (R. 47.) On appeal the convictions were 
affirmed, first by the County Court of Greenville County 
(R. 52) and then by the Supreme Court of South Carolina. 
(R. 59.) The case is now before this Court on Certiorari. 
(R. 65.)

ARGUMENT

I
The proprietor of a privately owned restaurant has the 

right to serve only those whom he chooses and to refuse to 
serve those whom he desires not to serve for whatever rea­
son he may determine.

At common law, proprietors of private establishments 
had the absolute right to serve whom they pleased. They 
were under no obligation to the general public, and had no 
duty to serve all who sought their services. At common law 
restaurants were such private establishments, and today, 
in the absence of statute, their owners may select their 
clientele upon any basis they desire. Alpaugh v. Wolverton, 
184 Va. 943, 36 S. E. (2d) 906 (1946). There is no statute 
in South Carolina which changes the rights of a restaurant 
operator or imposes any duty on him to serve all who pre­
sent themselves for service. The manager of Kress’ store 
was fully within his rights when he refused to serve the 
petitioners at the lunch counter in that store.

This was not the rule as to all callings at common law. 
The innkeeper was treated differently. Innkeeping was re­
garded as a public calling, and innkeepers were under a 
duty to serve all who sought their services. The reason for

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



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

this distinction is explained by Beale, “ The Law of Inn­
keepers and Hotels,” 1906. According to Beale, the inn de­
veloped to serve the needs of the traveler in medieval Eng­
land. Night-time travel was dangerous, and the condition 
of the roads made frequent stops necessary. Without closely 
spaced inns, travel would have been impossible. The needs 
of the wayfarer were entirely different from those of the 
local population, and the duties owed to each differed ac­
cordingly. The difference between the duties of the estab­
lishments set up to accommodate these diverse needs is 
illustrated by Beale as follows:

“ The one was instituted for the weary traveler, the 
other for the native; the one furnished food that the 
traveler might continue his journey, the other furnished 
drink for the mere pleasure of neighbors; the one was 
open to the traveler for protection at night; the other 
turned its guest out the very moment when he most 
needed protection and left him to find it, if his remain­
ing senses permitted him to do so, in his own home. It 
is unnecessary, therefore, to point out the fact that a 
tavern is not an inn, and the innkeeper’s duties do not 
extend to the tavernkeeper.” As quoted in Nance v. 
May-flower Tavern, 106 Utah 517, 150 P. (2d) 773 
(1944).
The obligations placed on inns and innkeepers at com­

mon law was not applied to restaurants. Horn v. Illinois 
Central Railway Co., 327 111. App. 498, 64 N. E. (2d) 574 
(1946) *; Noble v. Higgins, 95 Misc. 328, 158 N. Y. S. 867 
(1916); Slack v. Atlantic White Tower System, Inc., 181 F. 
Supp. 124 (Md. 1960), affd. 284 F. (2d) 746 (4th Cir. 1960).

* This Court later held that a restaurant which is operated as an 
integral part of a bus company’s interstate transportation service must 
be operated without discrimination, but in so holding refused to hold 
that rule applicable to restaurants such as the one here concerned:

“ We are not holding that every time a bus stops at a wholly 
independent roadside restaurant the Interstate Commerce Act re­
quires that restaurant service be supplied in harmony with the 
provisions of that Act.”  Boynton v. Virginia, 364 U. S. 454.



A restaurant is treated the same in law as the store, where 
there is no obligation on the storekeeper to sell, and no ob­
ligation on the part of the general public to buy. United 
States v. Colgate d  Co., 250 U. S. 300.

With the exception of innkeepers and common carriers, 
public utilities, and the like, who operate by virtue of a 
franchise from the state, operators of businesses catering 
to the public have the right to select their clientele, and to 
make such selection based on any reason, or no reason at all.

Nor are restaurants the only enterprises to which this 
rule of law has been applied. A theater may refuse admis­
sion to anyone who desires entrance. Collister v. dayman, 
183 N. Y. 250, 76 N. E. 20 (1905) ;  People ex rel. Burnham 
v. Flynn, 189 N. Y. 180, 82 N. E. 169 (1907). In Woollcott 
v. Sliubert, 217 N. Y. 212, 111 N. E. 829 (1916) a theater 
owner was upheld in excluding a drama critic whose re­
views were not favorable. The Court said:

“ His [the proprietor’s] right to and control of it 
is the same as that of any private citizen in his prop­
erty and affairs. He has the right to decide who shall 
be admitted or excluded.”

The operators of race tracks have the same common law 
right to choose their customers. Greenfeld v. Maryland 
Jockey Club, 190 Md. 96, 57 A. (2d) 335 (1948); Watkins 
v. Oaklawn Jockey Club, 86 F. Supp. 1006 (W. D. Ark. 
1949), aff’d., 183 F. (2d) 440 (8th Cir. 1950); Garifine v. 
Monmouth Park Jockey Club, 29 N. J. 47, 148 A. (2d) 
1 (1959); Madden v. Queens County Jockey Club, 296 N. Y. 
249, 72 N. E. (2d) 697 (1947), cert, den., 332 U. S. 761.

A ferry operator who is not engaged in general car­
riage has the same right. Meisner v. Detroit B. I. d W . 
Ferry Co., 154 Mich. 545, 118 N. W. 14 (1908). In that case 
the court recognized that it was just by discrimination that 
the ferry company secured the type of patron and conse­

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



quently tlie financial benefits necessary to make its opera­
tions a success. What is true of the ferry business is true 
of many others. They depend on the patronage of a partic­
ular class of patrons. Many businesses succeed because they 
cater to the particular desires of a small class of persons. 
The existence of individual preferences and desires is a fact 
of the economic give and take of business and one on which 
its success is often based. The economic realities of operat­
ing a business open to the public make it necessary for sur­
vival that the operator have the right to select his custo­
mers. For example, it is reasonable that a restaurant op­
erator be able to require his men patrons to wear coats, no 
matter how clean or neat their appearance might be other­
wise, Fred Harvey v. Corporation Commission of Okla­
homa, 102 Okla. 226, 229 P. 428 (1924), or for a dance hall 
proprietor to refuse admission to persons wearing uni­
forms, as was done in Buensle v. Newport Amusement As­
sociation, 29 R. I. 23, 68 Atl. 721 (1908).

Petitioners, and others, had an implied license to go 
into the Kress store. The general law on this point is sum­
marized in the annotation, 9 A. L. R. 379, 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 re­
quested to do so.”

In this case when the petitioners were requested to leave 
the lunch counter, their implied license was revoked. 
They no longer had any right to remain there, rather, they 
were under a duty to depart. If they did not leave peaceably 
after being given a reasonable opportunity to do so, the 
management had the right to use such force as would be 
necessary to effect their removal. Brookside-Pratt Mining 
Co. v. Booth, 211 Ala. 268, 100 So. 240 (1924); Marrone v.

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



Washington Jockey Club, 227 U. S. 633 (1913). Five min­
utes was certainly a reasonable time for them to leave, 
where they had nothing more to do than stand up and walk 
away. By refusing to leave when requested, the petitioners 
became trespassers, and invited the use of force to accom­
plish their removal. The petitioners were in a place where 
they had no right to be and where they knew they were not 
wanted and had no right to remain. They cannot now object 
to their removal from that place by forceable means.

II
There was no state action and consequently no denial of 

the equal protection of the laws secured by the Fourteenth 
Amendment in the refusal of lunch counter service to the 
Negro petitioners by a private entrepreneur and their sub­
sequent prosecution for trespass upon failure to depart 
from the premises after being requested to leave and given 
ample time to do so.

It is state action which results in denial of the equal 
protection of the laws which is prohibited by the Four­
teenth Amendment. Private conduct, no matter how dis­
criminatory, is not unlawful under that Amendment. Civil 
Rights cases, 109 U. S. 3; Shelley v. Kraemer, 334 U. S. 1. 
Nothing transpired in the case at bar which can be called 
state action by the State of South Carolina.

The management of Kress’ store, in refusing service 
to petitioners and requesting them to leave was acting 
purely on a business choice made by a corporate manage­
ment located outside the state. The manager testified posi­
tively on this as is shown by the record:

“ Q. What is the policy of Kress’, Greenville, South 
Carolina store with regard to serving Negroes and 
whites at its lunch counter!

“A. We follow local customs.

Peterson et a l, Petitioners, v. City of Greenville, Respondent 7



“ Q. Now, sir, ‘we follow local customs,’ is that 
orders from your headquarters?

“A. Yes, sir.
“ Q. It is?
“A. Absolutely.
“ Q. And you understand as the manager of Kress’ 

assigned to Greenville and possibly in other areas that 
it is one of the mandates of your national organization 
business chain to follow local custom with reference to 
serving members of the public ?

“ A. That’s correct.” (R. 21, 22.)
And on cross examination:

“ Q. Do I understand then further that you are 
saying that the presence of Negroes at your lunch coun­
ter was contrary to customs ?

“A. Yes, sir.
“ Q. And that is why you closed your lunch 

counter?
“A. Yes, sir, that’s right.” (R. 23.)

From this it is clear that the refusal of service to the peti­
tioners was based on purely personal motives, dictated by 
the management of the Kress chain, relying on their best 
business judgment.

Much is said about an ordinance of the City of Green­
ville requiring segregation in eating places. (R. 49). This 
ordinance, however, could have had no part in causing re­
fusal of service to the petitioners. The policy formulated at 
Kress national headquarters was obviously made without 
reference to this ordinance. We may assume that the mana­
ger of the local store would obey the orders issued by his 
national organization. If the manager was following his 
orders in refusing service to the petitioners, then he would 
have refused service to them regardless of the existence 
of this ordinance.

It is interesting to note that even counsel for the peti­
tioners was not aware of this ordinance until it was men­

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



tioned during the course of the trial. (R. 11.) Even the 
police captain who went to the scene did not have this ordi­
nance in mind (R. 11), he being of the opinion it was no 
longer in effect. (R. 17.) In any event this ordinance did 
not make the conduct of the petitioners unlawful. Its 
penalty was imposed on the operator of the eating place.

It is clear also that the action of Kress’ manager was 
not required under this ordinance, assuming arguendo, that 
it is a valid ordinance. The discussion in the record was of 
a prohibition against colored and white eating at the same 
lunch counter. (R. 11.) A reading of the ordinance shows 
that it prohibits only furnishing meals to the two races at 
the same counter. The penalty is imposed on the operator 
of the lunch room. There is nothing in this ordinance which 
would require a lunch room operator to close his business; 
there is nothing here which would penalize him for failure 
to order such persons to leave. When the manager of Kress’ 
store closed his lunch counter and ordered the petitioners 
to leave, he was not acting because of the positive command 
of any state or city law, and he was not acting for fear of 
any sanction he might incur because of failure to obey any 
such law. His action was dictated solely by his obedience 
to the orders of his national headquarters, formulated 
wholly without reference to the ordinance in question.

The arrest of petitioners by police and their conviction 
in the courts of South Carolina did not constitute state ac­
tion. It has always been the law in South Carolina that a 
property owner, whether the property be his home or a 
place of business, has the right to order any person from 
the premises, regardless of whether that person originally 
entered as an invitee. State v. Starnes, 213 S. C. 304, 49 S. 
(2d) 209 (1948). The property owner here was entitled to 
forceably remove the petitioners if he had desired. Brook- 
side-Pratt Mining Co. v. Booth. 211 Ala. 268, 100 So. 240

Peterson et al., Petitioners, v. City of Greenville, Respondent 9



(1924). Furthermore, anyone ejected by no more force than 
is reasonable has no complaint, and cannot sue for assault 
and battery or trespass in the expulsion. Marrone v. Wash­
ington Jockey Club, 227 U. S. 633.

The use of force by the owner of one in control of prop­
erty to eject trespassers is not a wise policy. It leads to 
injuries and sometimes death. It places a premium on force 
of numbers and physical strength. The rule of “might makes 
right” runs directly counter to the rule of law. The law of 
South Carolina at least favors the removal of recalcitrant 
trespassers by the forces of law rather than brute physical 
strength. State v. Lightsey, 43 S. C. 114, 20 S. E. 975 (1895). 
It should be unnecessary for a property owner to take the 
law into his own hands to remove a trespasser, when other, 
less violent means are available. Punishment by criminal 
prosecution is the favored way in law of dealing with them. 
Mr. Justice Black has stated:

“ Traditionally the American law punishes persons 
who enter onto the property of another after having 
been warned by the owner to keep off.” Martin v. City 
of Struthers, 319 IJ. S. 41.
The manager of Kress’ store was acting within the 

framework of the law when he requested the police to come 
to his store. And it is clear that the police were there at his 
request.

“ Q. Now, on August 9, when these young people 
were seated at your lunch counter, what did you do 
first?

“A. The first thing I had one of my employees call 
the Police Department and turn the lights off and state 
the lunch counter was closed.” (E. 22.)

It was not only proper, but desirable in the interest of law- 
abiding society, for the petitioners to be arrested by the 
police and brought to trial in the courts of justice.

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



This case is not like Shelley v. Kraemer, 334 U. S. 1. 
There is no state action in the resort to the state’s courts, 
such as was found to exist in that case. In Shelley v. Krae­
mer there were fully executed contracts of sale of realty be­
tween a willing buyer and a willing seller in each instance. 
The court system of the states was resorted to there by 
third parties who sought to interfere and prevent the sales 
already mutually agreed upon. As stated by the court:

“ The undisputed facts disclose that petitioners 
were willing purchasers of properties upon which they 
desired to establish homes. The owners of the proper­
ties were willing sellers; and contracts of sale were 
accordingly consummated. It is clear that but for the 
active intervention of the state courts, supported by 
the full panoply of state power, petitioners would have 
been free to occupy the properties in question without 
restraint.”
In the case at bar one link is removed from this chain. 

The petitioners are analogous to the willing purchasers in 
Shelley, and S. H. Kress and Company stands in a position 
analogous to the sellers. Here we have no outside party re­
sorting to the courts to prevent their entering into a con­
tract. Instead, we have the situation of an unwilling seller 
who refuses to sell and who has a right to refuse to sell, 
on the one hand, and petitioners, who are willing buyers, 
and who insist on buying, but have no right to buy, on the 
other hand. Instead of a consensual agreement, there was 
an absolute disagreement. It became proper when it ap­
peared the disagreement could not be resolved peaceably 
for the police and the courts to prevent that disagreement 
from expanding into violence and to protect the property 
rights that had already been transgressed.

Shelley v. Kraemer struck down interference backed 
by state courts in agreements to transfer property. It does 
not prohibit state police and court action to protect prop­

Peterson et al., Petitioners, v. City of Greenville, Respondent 11



erty rights where that does not interfere with some agreed 
upon transfer of property. It cannot be said from the facts 
of this case that there was any agreement of Kress to sell 
to petitioners that was prevented from being consummated. 
The facts show that the only certainty was that Kress 
would refuse to serve petitioners. That was the company 
policy as formulated at its headquarters and expressed in 
an order to the manager of the Greenville store. The peti­
tioners had been refused service on several prior occasions. 
(R. 38.) Although they may have had conversations with 
the manager about not being charged, it was manifest that 
there could be no agreement about this on August 9, 1960, 
after he requested petitioners to leave. After the refusal 
of service and warning to leave, it should have been clear 
to petitioners that there could be no agreement that day. 
The arrest of petitioners after a reasonable time for their 
removal did not interfere in or prevent the receipt by peti­
tioners of any luncheon service, nor did it interfere in their 
making a contract for any such service. The action of the 
state courts in convicting petitioners therefore did not deny 
them any rights to which they might otherwise have been 
entitled.

Discriminatory acts of a private individual taken pur­
suant to a custom are not state action which is prohibited 
by the Fourteenth Amendment. As this Court stated in 
Shelley v. Kraemer, supra:

“ That Amendment erects no shield against merely
private conduct, however discriminatory or wrongful.”

Private action cannot be converted into “ state action” for 
purposes of the Fourteenth Amendment unless it is based 
on some positive legislative pronouncement. One of the 
great attributes of the rule of law in civilized societies is 
its certainty. A society subject to the changeable whim of 
its ruler is not under any rule of law. Freedom is stifled

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



when action taken under yesterday’s known edicts turns 
out to he unlawful under the next days’ announcement. Pro­
gress and development cannot be planned unless the laws 
that will govern that progress and development are known. 
In this picture custom is on the side of whim and fancy 
rather than of certainty. If custom can be law7, it will often 
be an unknown law. How will a citizen know when the simi­
lar conduct of several has reached such proportions as to be 
the expected conduct of everyone? How can a citizen know 
whether he is witnessing the coincidental concurrence of 
similar reactions to similar circumstances only, and not the 
concurrence of common reaction to a given situation? We 
submit that it is an impossible task to learn when a custom 
begins or when it ceased to be such.

Again customs may vary from place to place. Some 
customs may cover an area larger than a state, or even a 
nation. On the other hand a particular custom may not pre­
vail throughout an entire state. How great a proportion of 
a state’s territory would petitioners have a custom cover 
before they conferred upon it the force of law? Often con­
flicting customs will be found within a single state. Which 
of such conflicting customs would then have the force of 
law? The answer is clear. It is that a custom can never 
have the force of law.

The difference between law and voluntary custom was 
pointed out recently by the Fourth Circuit Court of Appeals 
when it said:

“ This argument fails to observe the important dis­
tinction between activities that are required by the 
state and those which are carried out by voluntary 
choice and without compulsion by the people of the 
state in accordance with their own desires and social 
practices. Unless these actions are performed in obedi­
ence to some positive provision of state law, they do 
not furnish a basis for the pending complaint. . . . The

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



customs of the people do not constitute state action 
within the prohibition of the Fourteenth Amendment.”
Williams v. Howard Johnson’s Restaurant, 268 F. 
(2d) 845 (4th Cir. 1959).

This ruling was adopted with approval by the Court of 
Appeals for the District of Columbia in Williams v. Hot 
Shoppes, 293 F. (2d) 835, 840 (D. C. Cir. 1961), cert, den., 
370 U. S. 925.

The licensing and regulatory powers of the State of 
South Carolina over the business of S. H. Kress and Com­
pany do not convert the operations of that business into 
state action. In these times, virtually every business is 
licensed and taxed. The interest of the government in ob­
taining revenue should not convert a private business into 
an arm of the state. Nor should its regulations in the exer­
cise of its police power to secure the health and safety of 
the public. This has been the conclusion of all the courts to 
consider this question. Thus it was stated in Watkins v. 
Oaklawn Jockey Club, 86 F. Supp. 1006 (W. D. Ark. 1949), 
aff’d., 183 F. (2d) 440 (8th Cir. 1950):

“ . . . the fact that it operates the track under a 
license from the State Racing Commission does not 
make it an administrative agency of the State and does 
not render its actions in operating the track, and ex­
cluding or ejecting persons from the track, state action 
within the provisions of the Fourteenth Amendment 
and Section 43 of Title 8, U. S. C. A.”
The common law requiring innkeepers to serve the pub­

lic without discrimination was a law dictated in great part 
by circumstances. The law as applied to innkeepers was con­
fined to exceptional callings where the needs of the public 
urgently required that the service be provided. An example 
of this today is the common carrier. The great multiplicity 
of restaurants and other public eating places today is a 
matter of common knowledge. The business of providing

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



meals to the public is not one which presents an urgent 
need for service to all. There is no necessity to equate such 
a business to that of a common carrier. Common carriers 
today are extensively licensed and regulated. But such 
licensing and regulation merely add to their duties. They 
do not change them. On the other hand, licensing and regu­
lation do not convert private carriers into public carriers. 
Rutledge Co-op. Ass’n v. Baughman, 153 Md. 297, 138 Atl. 
29 (1927); Continental Baking Company v. Woodring, 286 
U. S. 352.

Another category of enterprise which is required to 
serve all without discrimination is the public utility. These 
businesses depend for their existence on a franchise from 
the state. It is clear, however, that the licensing and regula­
tion of S. H. Kress and Company by the State of South Car­
olina is not the equivalent of a franchise. The argument that 
licensing of a race track amounted to a franchise depriving 
the track owner of the right to select its patrons was re­
jected in Madden v. Queens County Jockey Club, 296 N. Y. 
249, 72 N. E. (2d) 697 (1947). On that point the court said:

“Plaintiff’s argument results from confusion be­
tween a ‘license’ imposed for the purpose of regulation 
or revenue, and a ‘franchise’. A franchise is a special 
privilege, conferred by the State on an individual, 
which does not belong to the individual as a matter of 
common right. . . .  It creates a privilege where none 
existed before, its primary object being to promote the 
public welfare.”

Since the Kress corporation did not derive from the state 
the right to initiate and conduct their business, it remained 
a private enterprise, regardless of the fact that it was 
licensed and taxed. Woollcott v. Shubert, 217 N. Y. 212, 111 
N. E. 829 (1916); Collister v. Hayman, 183 N. Y. 250, 76 
N. E. 20 (1905). Even racing, which is so closely licensed 
and regulated as to be no longer a strictly private busi­

Peterson et a t, Petitioners, v. City op Greenville, Respondent 15



ness, and approaches being a monopoly, is not because of 
that regulation an arm of the State In spite of these close 
controls it retains its private character including the right 
of the proprietor to select his patrons at will. Greenfeld v. 
Maryland Jockey Club, 190 Md. 96, 57 A. (2d) 335 (1948); 
Garifine v. Monmouth Park Jockey Club, 29 N. J. 47, 148 
A. (2d) 1 (1959).

The argument that state licensing and inspection of 
restaurants was most recently considered and rejected by 
the Fourth Circuit Court in Williams v. Howard Johnson’s 
Restaurant, 268 F. (2d) 845 (4th Cir. 1959).

Ill
Petitioners were not denied the freedom of speech se­

cured to them by the Fourteenth Amendment when they 
were convicted for trespass for refusing to depart after be­
ing directed to leave the lunch room of a Kress’ Store where 
they desired to conduct a demonstration.

The freedom of speech which is secured by the Four­
teenth Amendment is the freedom of speech of the First 
Amendment which is an attribute of “ liberty” which the 
Fourteenth Amendment prohibits states from depriving 
persons without due process of law. Gitlow v. New York, 
268 U. S. 652; Fiske v. Kansas, 274 IT. S. 380. The First 
Amendment provides:

“ Congress shall make no law . . . abridging the
freedom of speech. . . .”

The prohibition of the First Amendment is specific, no law 
shall be made which abridges the freedom of speech. It is 
laws which attempt to restrict this liberty that are forbid­
den. There is no law of South Carolina in the present case 
which even remotely interferes with speech.

The clear and present danger test emerged in rulings 
on the validity of legislative enactments which seemed to

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



restrict the freedom of speech. That rule requires that be­
fore an utterance prohibited by law can be penalized by the 
government, it must have occurred in such circumstances 
or have been of such a nature as to create a clear and pres­
ent danger that it would bring about substantive evils which 
the government had the right to prevent and sought to do 
by the law in question. Schenck v. United States, 249 U. S. 
47. But even that rule is not without limitation. Mr. Justice 
Holmes qualified it by saying:

“ . . . The First Amendment while prohibiting leg­
islation against free speech as such cannot have been, 
and obviously was not, intended to give immunity for 
every possible use of language.” Frokwerk v. United 
States, 249 U. S. 204.
The trespass statute in the present case has nothing to 

do with speech, and in no way restricts it. The statute de­
clares certain property rights and that alone. There is no 
claim by petitioners and no proof of discriminatory ap­
plication of the statute to them. Yick Wo v. Hopkins, 118 
U. S. 356.

The constitutional purpose in proscribing legislation 
against free speech was to leave the arena open for free 
trade in ideas. It is implicit that such speech will be at the 
proper place and with the consent of the listener.

The right of freedom of speech is closely bound to the 
right of freedom of assembly. Of course, a man may speak 
what he desires in his own home. But in order for there to 
be an}?* interchange of thoughts in an effort to convince, we 
must look to the public places. It is in the streets and parks 
where the freedom of speech reaches its full capabilities. 
There is the opportunity to find a diversity of opinions and 
the makings of a discussion of different views. The streets 
are the natural and the proper places for the dissemination 
of information and opinion. Schneider v. State, 308 IT. S.

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



147; Hague v. C. I. 0., 307 U. S. 496; Thornhill v. Alabama, 
310 U. S. 88. Even where the streets and parks are privately 
owned, as in company towns, citizens have a right to go 
there to communicate information, unimpeded by trespass 
laws. Marsh v. Alabama, 326 U. S. 501; Tucker v. Texas, 
326 U. S. 517. Even speech on the streets and other public 
places is not without some liability to control. Saia v. New 
York, 334 U. S. 558.

When the place of speaking changes away from public 
property and the traditional areas of free interchange, the 
rights of those who would speak are altered. Property 
rights come into play. On private property the right of 
freedom of speech must yield to the property right of the 
landowner to elect trespassers. Hall v. Commonwealth, 118 
Va. 72, 49 S. E. (2d) 369, (1948), app. dism. 335 U. S. 875, 
reh. clem, 335 U. S. 912. In that case a conviction for tres­
pass under a statute similar to the one here was upheld, 
where a member of a religious sect insisted on distributing 
information in the halls of an apartment building after be­
ing requested to leave. The court stated that these places 
could not be regarded the same as public roads. Hallways 
are not the proper place for public assembly, or for the 
discussion of public questions. Watchtower Bible & Tract 
Society v. Metropolitan Life Insurance Company, 279 N. 
Y. 339, 79 N. E. (2d) 433 (1948); Commonwealth v. Rich­
ardson, 313 Mass. 632, 48 N. E. (2d) 678 (1943).

A public store is not the proper place for discussion 
either. It is a commercial establishment, devoted to business 
uses. People do not ordinarily congregate there, nor do they 
resort to such a place to discuss the great and burning 
issues of the day.

The petitioners were not exercising any right of free­
dom of speech toward the proper persons. There is implicit 
in the idea of speech the idea of communicating informa­

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



tion. These petitioners were not attempting to publicize any 
argument they had to make. The purpose of picketing, which 
this resembles, is to inform members of the public of an 
existing state of affairs, usually a labor dispute. Thornhill 
v. Alabama, 310 U. S. 88. Here, however, there was no at­
tempt or purpose to convey information to the public, or 
to seek to enlist public support or public sentiment in their 
favor. Just the opposite, the petitioners were conducting an 
argument with S. H. Kress and Company. They had a 
right to ask Kress’ for service in these circumstanes. That 
was the proper expression of their side of the argument. 
But they had no right to repeat their views over and over 
after the management had expressed its opinion by denying 
them service and requesting them to leave. When that ex­
change was ended, their rights of speech were ended, too. At 
that point the property rights of the Kress Company be­
came paramount.

On the street, when a listener is accosted, he may choose 
to stop and talk or he may choose to turn away. When a 
man is in his home or on his property, however, he has no 
duty to leave and retreat. Such a person can require the 
would-be speaker to turn away, and if he does not, prose­
cute him for trespass. Further, to require the property 
owner to remain and listen in circumstances such as these, 
makes him a captive audience, and that deprives him of the 
same rights the petitioners would seek to assert. Kovacs 
v. Cooper, 336 U. S. 77. As Judge Edgerton stated in Pub­
lic Utilities Commission v. Pollack, 191 F. (2d) 450 (1951), 
reversed, 343 U. S. 451:

“One who is subjected to forced listening is not free
in the enjoyment of all his faculties.”
This case lacks the necessary element of a willing lis­

tener, without which there is no such thing as free inter­
change of ideas.

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



“ The right of free speech is guaranteed every citi­
zen that he may reach the minds of willing listeners.”
Mr. Justice Reed in Kovacs vr Cooper, 336 U. S. 77.
There is another element in this case deriving from the 

occupation of seats by the petitioners and their refusal to 
give them up. The silent and forceful occupation of a pri­
vate person’s store is not speech. Such conduct smacks of 
coercion, ft is a demonstration of force, not of reason. The 
threat of and use of force is not connected in any way with 
the idea of persuasion by words, thoughts and logic. To 
characterize the conduct of petitioners they were saying: 
“ If you are not convinced by our talk, we will convince you 
by taking possession of your premises and denying you the 
use of them.”

The denial of access to a person’s property by strikers 
who are exercising freedom of speech is not lawful. Car- 
neige-Illinois Steel Corp. v. United Steelworkers of Ameri­
ca, 353 Pa. 420, 45 A. (2d) 857 (1946); Truax v. Corrigan, 
257 IT. S. 312. The right of free speech must yield in these 
circumstances to other rights, N. L, R. B. v. Fansteel Metal­
lurgical Corporation, 306 U. S. 240, held further the seiz­
ure of a portion of an employers plant could not be justified 
under the N. L. R. A., even though the employer may have 
been engaged in unfair labor tactics, and the discharge of 
the employees who seized the buildings was upheld. Like­
wise, laboring men who seize a possession of a vessel in 
order to publicize a labor dispute and seek to gain advan­
tageous terms in the bargaining are held to be ordinary tres­
passers, unprotected by any labor statute. The Oakmar, 20 
F. Supp. 650 (Md. 1937); Korthinos v Niarchos, 175 F. 
(2d) 730 (4th Cir. 1949), cert, den., 338 IT. S. 894. The right 
to freedom of speech does not carry with it the right to 
deprive another person of his property.

20 Peterson et al„ Petitioners, v. City OF Greenville, Eespondent



Peterson et al., Petitioners, v, City of Greenville, Respondent 21

IV
Convictions for violation of a statute making it an of­

fense to remain on premises after being requested to leave, 
although the statute did not require the person making the 
request to leave to establish his authority to issue such re­
quest, did not deprive petitioners of freedom of speech.

The statute in this case contained no words which were 
capable of several meanings, or which could be construed 
to prohibit legitimate acts. Winters v. New York, 333 U. S. 
507. Statutes such as the one here under consideration are 
entirely different from the censorship-type statutes consid­
ered in Smith v. California, 361 U. S. 147, Winters v. New 
York, supra, and Burstyn v. Wilson, 343 U. S. 495. There 
was nothing here that could have different meanings to 
different people, or which would permit the application of 
an arbitrary standard.

To require a person in possession of land to identify 
his authority to a trespasser before he could take steps to 
eject him would make a mockery of the law. Ordinarily the 
possessor would be unable to prove this authority except 
by stating it verbally. What landlord" carries his deed or 
lease in his pocket? The public record of deeds and leases 
is notice to the world of the owners and holders thereof. 
But many persons are in possession of property under oral 
leases, or under an implied lease, as tenants at will holding 
over at the end of the term, or tenants from month to month. 
What good and what point could be gained by having the 
person in possession state his claim is unclear. Looking at 
it from the viewpoint of the petitioners, and others who 
would trespass, it is clear that they always know about the 
absence of their own authority. There is no requirement in 
the law relating to larceny to which this is analogous, that 
the thief be instructed as to the ownership of what he is 
about to steal.



The rule of scienter, which the petitioners discuss, is 
wholly a different matter. Scienter is a question of the state 
of mind of the offender. The requirement of scienter is the 
requirement of a type of specific intent. Scienter, or specific 
knowledge of the criminality of a specific act is not an es­
sential element of every crime, nor does social justice re­
quire that it be included in every offense. For the case of 
statutory offenses, the intent required by the legislature 
must be proved in order to convict, but there is no require­
ment that intent of any kind be prescribed. As was stated in 
United States v. Greenbcmm, 138 F. (2d) 437 (3rd Cir. 
1943):

“Whether allegation and proof of mens rea is 
requisite to a conviction of a crime which carries with 
it a possible sentence to penal servitude depends upon 
the legislative intent evidenced by the statute which 
defines and punishes the particular offense. United 
States v. Balint, 258 IJ. S. 250, 252, 66 L. Ed. 604, 42 
S. Ct. 301. The constitutional requirement of due proc­
ess is not violated merely because mens rea is not a 
required element of a prescribed crime.”

Many common law crimes require only such a general crim­
inal intent, for example, battery.

If scienter could be read into the requirements of this 
statute, it would not be the scienter urged by petitioners. 
It would not be necessary to satisfy the scienter require­
ment that the person in possession of property prove his 
authority to require others to leave. All that could possibly 
be required would be the conveyance to petitioners and 
persons like them of notice that someone other than them­
selves asserted the right of possession to their exclusion. 
Notice to the petitioners, and the notice required by the 
statute was ample to give petitioners the knowledge that a 
superior right to possession was being claimed. At that 
point, had they needed any further information as to the au­

22 Peterson et a t, Petitioners, v. City of Greenville, Eespondent



thority of the person requesting them to leave, they were 
required to inquire as to his authority, or disobey at their 
peril. When a person in a position of apparent authority 
requested them to leave, they had the right to inquire of 
him as to the nature of his authority. Having failed to do 
that, we may assume they were satisfied by the appearances.

Assuming further that scienter is an element of the of­
fense charged by this trespass statute, it is clear that 
as to these petitioners the requirement of scienter was met. 
At the outset of the trial, it was agreed that the facts and 
findings of one case would be the facts and findings of all:

“Judge Jester: And the facts and findings of one 
case would be the facts and findings of all as far as 
the record is concerned?

“Mr. Smith: [Willie T. Smith, one of petitioners’ 
counsel] That is correct.” (R. 6.)
The manager of the store in Greenville testified posi­

tively that.he was the manager and that he requested peti­
tioners to leave. (R. 19.) The only one of the petitioners to 
testify at the trial knew the person ordering them to leave 
was the manager as she had spoken to him over the tele­
phone previously (R. 39) and she recognized him at the 
store at the time of the demonstration. (R. 37, 41.) No mat­
ter what interpretation is given the statute in this case, the 
petitioners have violated its terms and their conviction and 
punishment thereunder was proper.

Peterson et al., Petitioners, v. City op Greenville, Respondent 23



CONCLUSION
For the foregoing reasons, it is respectfully submitted 

that the judgments below should be affirmed.

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, 

Lawyers’ Building,
Greenville, South Carolina, 

Attorneys for Respondent.

24 Peterson et al., Petitioners, v. City or Greenville, Respondent

i