Garner v. Louisiana Brief for Petitioners

    I n  t h e

Isuprme (Hiwrt ni tlje Imtpft Btutm
O ctober T erm , 1961

No. 26
J o h n  B urrell Garner, et al., 

— v.—
S tate op L ouisiana ,

Petitioners,

Respondent.

No. 27
M ary B riscoe, et al., Petitioners,

S tate of L ouisiana , Respondent.

No. 28
J a n nette  H oston, et al., Petitioners,

—v.—
S tate op L ouisiana , Respondent.

O S’ W R IT S  O P C ER TIO R A R I TO T H E  S U P R E M E  CO U RT O P L O U IS IA N A

BRIEF FOR PETITIONERS

A. P . T ureaud
1821 Orleans Avenue 
New Orleans, Louisiana 

J o h n n ie  A . J ones
530 S. 13th Street 
Baton Rouge, Louisiana 

T hurgood M arshall 
J ack Greenberg

10 Columbus Circle 
New York 19, New York 

Attorneys for Petitioners
Charles L, B lack , J r.
E lwood H . Ch iso lm  
W illiam  T. C olem an , J r.
J ames A. N abrit, III 
Louis II. P ollak 

Of Counsel



TABLE OF CONTENTS
PAGE

Opinions Below........................................    1

Jurisdiction ....................................................................  2

Constitutional and Statutory Provisions Involved......  2

Questions Presented ...................................................... 3

Statement .................   4

Summary of Argument ..................................................  7

Argument ........................................................................ 8
A. Petitioners were convicted on the theory that 

their failure to obey the custom of segregation 
was itself unlawful; their convictions therefore 
clearly contravene the decisions of this Court 
that racial segregation, enforced by state author­
ity, violates the Fourteenth Amendment.............. 8
(1) Enforcement of segregation in these cases

was both formally and substantially by “state 
action” ............... ............................................. 8

(2) Even if it be urged that there is in these cases
a relevant component of formally “private” 
action, that action is substantially infected 
with state power. “Private” segregation in 
these cases was in obedience to a statewide 
custom, which in turn has long enjoyed the
support of Louisiana as a polity .................  18

B. Petitioners’ convictions denied due process of law, 
in that they rested on no evidence of an essential 
element of the crime .................... ........................  24



C. Petitioners were convicted of a crime under the
provisions of a state statute which, as applied to 
their acts, is so vague, indefinite, and uncertain 
as to offend the due process clause of the Four­
teenth Amendment ................................................  28

D. The decision below conflicts with the Fourteenth
Amendment, in that it unwarrantedly penalized 
petitioners for the exercise of their freedom of 
expression ....................................  36

Conclusion ......................    38

T able of Cases

Buchanan v. Warley, 245 U. S. 60................................18, 27
Burstyn v. Wilson, 343 U. S. 495 ...................................  37

Civil Bights Cases, 109 U. S. 3 ................................19, 20, 24
Cooper v. Aaron, 358 U. S. 1 .......................................18, 27

Feiner v. New York, 340 U. S. 315................................ 37

Gayle v. Browder, 352 U. S. 903 .....................................  8

Holmes v. City of Atlanta, 350 U. S. 879 ..................... 8

Lanzetta v. New Jersey, 306 U. S. 451............................  29

Marsh v. Alabama, 326 U. S. 501................................. 19, 36
Munn v. Illinois, 94 U. S. 113......................................... 19

Napue v. Illinois, 360 U. S. 264 .....................................  16
New Orleans City Park Improvement Assn. v. Detiege,
, 358 U. S. 54 ...................................... .......................... 8
Norris v. Alabama, 294 U. S. 587 ........... ............... ......... 16

11

PAGE



I l l

Palko v. Connecticut, 302 U. S. 319........ .......................  29

Smith v. California, 361 U. S. 147.................................. 37
State v. Sanford, 203 La. 961, 14 So. 2d 778 (1943) .....28, 32
State v. Truby, 211 La. 178, 29 So. 2d 758 (1947)..........  34
Stromberg v. California, 283 IT. S. 359 .........................17, 36

Terminiello v. Chicago, 337 U. S. 1 ................................ 37
Terry v. Adams, 345 U. S. 461 ..... .......... .......................  20
Thompson v. Louisville, 362 U. S. 199 ............... .........26, 28
Thornhill v. Alabama, 310 U. S. 88................................ 36
Town of Ponchatoula v. Bates, 173 La. 824, 138 So.

851 (1931) ................ ..... .............................................. 33

Williams v. North Carolina, 317 IT. S. 287 .....................  17
Winters v. New York, 333 IT. S. 507 ................................  37

PAGE

S tatutes and Constitutional  P rovisions

United States Constitution, Fourteenth Amendment .... 2
28 U. S; C. §1257(3) ....... ...............................................  2
Louisiana Acts, 1934, No. 227, §1... .......   32
Louisiana Acts, 1960, No. 630 ......     22
LSA-R.S. 4:5 ..................................................................  23
LSA-R.S. 4 :451, Acts 1956, No. 579 ................    22
LSA-R.S. 14:3 ................................................................  31
LSA-R.S. 14:8 ................................................................  31
LSA-R.S. 14:56, Act 1960, No. 77....      31
LSA-R.S. 14:79 ..............................................................  23



IV

LSA-R.S. 14:103 ....................................... 2,6,11,15,17,24,
30, 31, 32, 34, 35

LSA-R.S. 14:103.1, Acts 1960, No. 69, §1.....................31, 32
LSA-R.S. 14:104 ............................................................. 34
LSA-R.S. 15:752 ................................................ -........ . 23
LSA-R.S. 17:443, 17:462, 17:493, 17:523 ....................... 23
LSA-R.S. 23:971-23:972 ..................................................  23
LSA-R.S. 33:4558.1 .......................................................  23
LSA-R.S. 45:1301-45:1305 ..............................................  23

Ot h er  A utho rities

Hand, The Bill of Rights ............................................... 20
New Orleans Times-Picayune, May 11,1960, p. 2, Sec. 3,

Col. 1-7 ........................................................................ 22
Woodward, The Strange Career of Jim Crow (Oxford 

Univ. Press, 1957) .......................................................  22

PAGE



I n  t h e

Supreme Court of %  luttrb
O ctobee T e e m , 1961 

No. 26
J o h n  B urrell Garner, et al.,

S tate of L ouisiana ,

No. 27
M ary B riscoe, et al.,

S tate of L ouisiana ,

No. 28
J a n nette  H oston, et al.,

■—v.—

S tate of L ouisiana ,

on writs of certiorari to t h e  suprem e  court 

BRIEF FOR PETITIONERS

Petitioners,

Respondent.

Petitioners,

Respondent.

Petitioners,

Respondent.

O F L O U IS IA N A

Opinions Below

The brief opinions rendered in these cases by the Su­
preme Court of Louisiana, refusing petitioners’ applications



2

for writs of certiorari, mandamus and prohibition, and 
finding no error in the rulings of law by the Nineteenth 
Judicial District Court, Parish of East Baton Rouge, Lou­
isiana, are not reported. These identical opinions are set 
out in each printed record (R. Darner 53; R. Briscoe 56; 
R. Hoston 55).

The “Findings of Guilt” by the Nineteenth Judicial Dis­
trict Court in the respective cases also appear in the printed 
records (R. Garner 37; R. Briscoe 38-39; R. Hoston 38-39).

Jurisdiction

The judgments of the Supreme Court of Louisiana in 
these cases were rendered on October 5, 1960. On March 20, 
1961, this Court granted petitions for writs of certiorari to 
the Supreme Court of Louisiana, and ordered these eases 
consolidated for argument. The jurisdiction of this Court 
rests on 28 U. S. C. §1257(3).

Constitutional and Statutory Provisions Involved

1. The Fourteenth Amendment to the Constitution of the 
United States.

2. The Louisiana statutory provision involved is LSA- 
R.S. 14:103:

“Disturbing the peace is the doing of any of the fol­
lowing in such a manner as would foreseeably disturb 
or alarm the public:
(1) Engaging.in a fistic encounter; or
(2) Using of any unnecessarily loud, offensive, or in­

sulting language; or
(3) Appearing in an intoxicated condition; or



3

(4) Engaging in any act in a violent and tumultuous 
manner by three or more persons; or

(5) Holding of an unlawful assembly; or
(6) Interruption of any lawful assembly of people; or
(7) Commission of any other act in such a manner as 

to unreasonably disturb or alarm the public.
Whoever commits the crime of disturbing the peace 

shall be fined not more than one hundred dollars, or 
imprisoned for not more than ninety days, or both.”

Questions Presented

1.
Whether conviction of petitioners for disturbing the 

peace, on the ground that their mere presence at counters 
reserved by custom for whites constitutes in itself such an 
offense, amounts to an unconstitutional enforcement of 
racial segregation by state power.

2.

Whether conviction of petitioners of disturbance of the 
peace, on records barren of evidence of present or threat­
ened disturbance, deprived them of due process of law, in 
that they were convicted of a crime without evidence of 
guilt.

3.
Whether the application to petitioners of a statute setting 

highly vague standards of guilt deprived them of liberty 
without due process.

4.
Whether petitioners’ constitutionally protected right to 

free expression was violated by the application to them of



4

the disturbance of the peace statute, under the circum­
stances of this case.

Statement

On March 29,1960, petitioners in Gamer (No. 26) entered 
Sitman’s Drug Store, an establishment in Baton Rouge 
which served Negroes without discrimination at the coun­
ters in the drug store section and considered them “very 
good customers” (R. Garner 30, 32). They seated them­
selves at the lunch counter and one of them ordered coffee 
(R. Garner 30). The owner refused to serve them, but he 
neither requested them to move nor did he call the police 
(R. Garner 30-31). They were arrested by Captain Weiner 
(R. Garner 34), the arresting officer in all of these cases 
(see also R. Briscoe 34; R. Hoston 35). He had been sum­
moned by the police officer on the beat (R. Garner 34), who 
made the call on his own initiative, without having received 
a complaint from any civilian (R. Garner 34-35). The 
arrests were made because petitioners “were sitting at a 
counter reserved for white people” and their “mere pres­
ence” there constituted a disturbance of the peace (R. Gar­
ner 35, 36).

In the Briscoe case (No. 27) petitioners sought service 
at a lunch counter at the Greyhound Bus Station in Baton 
Rouge on March 29,1960 (R. Briscoe 30). The waitress told 
them “they would have to go on the other side to be served” : 
“colored people are supposed to be on the other side” (R. 
Briscoe 30). When they “just kept sitting there” (R. Bris­
coe 31), and they “didn’t do anything else” (R. Briscoe 33), 
a bus driver or “some woman” called the police department 
(R. Briscoe 33, 34). Captain Weiner responded to the call 
and “saw these people sitting at the lunch counter” (R. 
Briscoe 34). Forthwith, without having any conversation 
with the proprietors or employees, he asked these “stu­



5

dents” to move (R. Briscoe 36) and, when they didn’t take 
this “opportunity to get up and leave” or “say anything” 
(R. Briscoe 35), he placed them under arrest because “They 
were disturbing the peace by the mere presence of their 
being there [‘in the section reserved for wdiite people’ (R. 
Briscoe 36)]” (R. Briscoe 38).

Petitioners in the Boston case (No. 28), on March 28, 
1960, seated themselves as customers at a lunch counter at 
the S. H. Kress & Company in Baton Rouge (R. Hoston 29), 
a store which customarily allowed all white and colored cus­
tomers to “make other purchases [save food] at the same 
counters at the same time” (R. Hoston 31). No signs indi­
cated this, but the existence of this “custom” was communi­
cated somehow to petitioners and other Negro students 
or customers by waitresses and stewards (R. Hoston 32). 
On this occasion, the waitress did not ask them to move, nor 
were they distinctly refused service; rather they were 
“offer[ed] service at the counter across the aisle” (R. Hos­
ton 29, 32, 34). When petitioners “continued to sit”, the 
store manager “advised the police department that they 
were seated at the counter reserved for whites, and within 
a short time the officers [Captain Weiner and Chief Arrighi 
(R. Hoston 35-36)] came in . . . and spoke to some of 
them” (R. Hoston 30). The officers “asked them to leave 
. . . the lunch counter reserved to white people. One of the 
[petitioners] said something about wanting to get a glass 
of tea but she was told they were disturbing the peace [‘by 
sitting there’ (R. Hoston 37)] and asked to leave again, 
and when none of them made a move to get up and leave 
Chief Arrighi told [Captain Weiner] to place them under 
arrest” (R. Hoston 36).

In each of these three cases, the information filed against 
petitioners indicated their race by adding “CM” or “CF” 
after their names (R. Garner 2; R. Briscoe 2; R. Hoston 2)



6

and, charged that they “feloniously did unlawfully violated 
Article 103 (Section 7) of the Louisiana Criminal Code in 
that they refused to move from a cafe counter seat . . . 
after being requested to do so by the agent of [the establish­
ment] ; said conduct being in such a manner as to unreason­
ably and foreseeably disturb the public . . . ” (E. Garner 1; 
E. Briscoe 1; E. Hoston 1).

Thereafter, following denials of their motions to quash 
and applications for writs of certiorari, mandamus and 
prohibition to review the denials of said motions (E. Garner 
11-12, 25; E. Briscoe 11-12, 25; E. Hoston 10-11, 24), peti­
tioners were tried and convicted in the Nineteenth Judicial 
District Court on June 2, 1960 (E. Garner 29, 37, 38; E. 
Briscoe 29, 38-39, 40-41; E. Hoston 28, 38-39, 40). On July 
5, 1960, the trial court overruled petitioners’ motions for 
new trials and sentenced each of them to 30 days in jail and 
to pay a fine of $100.00 and costs, or, in default of payment 
thereof, to 90 days in jail, with both parts of the jail sen­
tence to run consecutively in the event of non-payment of 
the fine and costs (E. Garner 41-42; E. Briscoe 43-44; E. 
Hoston 43-44). Timely applications for a writ of certiorari, 
mandamus and prohibition made to the Supreme Court of 
Louisiana, inviting its supervisory jurisdiction to review 
the judgments and sentences entered against petitioners by 
the trial court, were refused in an opinion and judgment 
filed on October 5, 1960 (E. Garner 53; E. Briscoe 56; E. 
Hoston 55-56). At each stage of the proceedings in the 
Nineteenth Judicial District Court and the Supreme Court 
of Louisiana, petitioners objected to the criminal prosecu­
tions on the ground that the same deprived them of privi­
leges, immunities and liberties without due process of law 
as well as the equal protection of the laws under the Four­
teenth Amendment to the Federal Constitution (E. Garner 
7, 14, 17, 23, 40, 43, 45-46, 51; E. Briscoe 8, 14, 16-17, 23,



42, 45, 47-48, 53-54; B. Hoston 7, 13, 15-16, 22, 42, 45, 47-48, 
53-54). These constitutional objections, however, as afore- 
shown, were rejected at all stages of the litigations.

Summary o f Argument

A.
These records show clearly that petitioners were con­

victed of not observing the custom of segregation. A change 
in name cannot make such a conviction less obnoxious to 
the equal protection clause of the Fourteenth Amendment. 
“State action” is present, both through police and court 
action and because the nominally “private” segregation that 
was in the background of these cases was followed in 
obedience to statewide custom which, for decades and con­
tinuously to the present, has been supported by official state 
law and policy.

B.

These petitioners were convicted of “disturbing the 
peace”. But the records decisively establish that no dis­
turbance of the peace either took place or was threatened, 
and that the actions of petitioners were in every respect 
decent and orderly. The only “disturbance” shown was the 
bare presence of petitioners in a place where Negroes were 
not “supposed” to be. Unless, therefore, the showing of 
this “presence” alone be held to support a finding of dis­
turbance (and in that event Point A, supra, is clearly 
applicable), the petitioners have been convicted without 
any evidence of criminality—the most elementary denial of 
due process.

C.
The statute under which petitioners were convicted is too 

vague to set any standard for the guidance of persons sub­



8

ject to it, or of officials. Nothing in its history or in state 
judicial constructions clears up its ambiguities. It therefore 
fails to meet one of the most fundamental requirements of 
due process.

D.

The primary function of petitioners’ conduct was that of 
expressing belief and of claiming what they conceived to 
be fair treatment. Such an expression enjoys federal con­
stitutional protection. The state has infringed this right to 
free expression by punishing petitioners solely because of 
its exercise, without any valid state interest in such repres­
sion.

ARGUMENT

A. Petitioners were convicted on the theory that their 
failure to obey the custom o f segregation was itse lf un­
lawful; their convictions therefore clearly contravene 
the decisions o f this Court that racial segregation, en­
forced by state authority, violates the Fourteenth Amend­
ment.

( 1 )  E n fo rc e m e n t o f seg reg a tio n  in  these  cases was b o th  
fo rm a lly  an d  su b stan tia lly  by  “ sta te  ac tio n ” .

These cases on their own records present a very simple 
situation. Beyond doubt, Louisiana cannot make it a crime 
for a Negro to seek service at a counter reserved by custom 
for whites, for such a law is simply and solely a state law 
commanding segregation. Gayle v. Browder, 352 U. S. 903; 
New Orleans City Park Improvement Assn. v. Detiege, 
358 IT. S. 54; Holmes v. City of Atlanta, 350 U. S. 879. But 
that is exactly what Louisiana has done in these cases. 
Very little skill in algebra is required to reach the conclu­
sion that a law making a given action a “disturbance of the



9

peace”, and then punishing this “disturbance of the peace”, 
is the very same thing as a law punishing the same action 
under a more ingenuous nomenclature.

In each of these eases, the police and the state courts 
proceeded to arrest and conviction on the clear theory that 
the mere presence of a Negro at a “white” counter was 
unlawful in itself. This is enough to vitiate the convictions, 
though petitioners will shortly show (Point A(2), infra) 
that the same result must follow even if full account be 
taken of the nominally “private” segregation followed by 
the proprietors of the establishments concerned.

In the Hoston case (No. 28), the petitioners were charged 
with a disturbance of the peace “in that they refused to 
move from a cafe counter seat at Kress’ Store . . . after 
having been ordered to do so by the agent of Kress’ Store; 
. . . ” But the transcript of testimony unequivocally and 
clearly shows, on the State’s own testimony, that no such 
order was ever given. Mathews, the store manager, testi­
fied for the State on direct, that the petitioners sat next 
to him at the “white” counter, that they were denied service 
there, and were told they would be served at the “colored” 
counter. Then he testified as follows:

Q. Were they requested to move over to the counter 
reserved for colored people? A. No, sir.

Q. They weren’t asked to go over there? A. They 
were advised that we would serve them over there 
(R. Hoston 29).

And again, on cross:
A. As I stated before, we did not refuse to serve them. 
We merely advised them they would be served on the 
other side of the store (R. Hoston 33).



10

This is careful testimony; in the absence of anything 
tending to weaken it, it leaves it very clear that this man­
ager followed a compromise course. He did not serve these 
petitioners, but did not tell them to move. The trial court, 
summing up this witness’ testimony, shows clear apprecia­
tion of this distinction. Again on cross, the following was 
said:

Q. Then why did you ask these defendants to move 
from this cafe counter?

The Court: I think he hasn’t testified to that. He 
said he advised them that they would be served else­
where, over at the other counter. He said he did not 
refuse to serve them at this particular counter. What 
he did was, he advised them they would be served 
over at the other counter. . . .  (R. Hoston 34)

When Capt. Weiner of the Baton Rouge City Police took 
the stand, the nature of the offense came clear. On direct:

A. Chief Arrighi and I had gone to the store and we 
entered the store from the Main Street entrance which 
was the closest to the lunch counter, and we noticed 
several of these people sitting at the counter. Chief 
Arrighi proceeded to the counter where they were 
sitting and asked them to leave.

Q. What counter were they seated at? A. They were 
seated at the lunch counter reserved for the white 
people. One of the defendants said something about 
wanting to get a glass of ice tea but she was told they 
were disturbing the peace and violating the law by 
sitting there and asked to leave again, and when none 
of them made a move to get up and leave Chief Arrighi 
told me to place them under arrest (R. Hoston 36).



11

And again on cross:

Q. Do I take by that that they hadn’t done anything 
other than sit at these particular cafe counter seats 
that yon consider disturbing the peace? A. That’s the 
only thing that I saw happen.

# #  #  #  *

Q. How were they disturbing the peace? A. By sit­
ting there.

Q. By sitting there? A. That’s right.
# # * # #

Q. It is your testimony their mere sitting there was 
disturbing the peace, is that right sir? A. That’s right.

Q. And that is because thej7 were members of the 
negro race? A. That was because that place was re­
served for white people (R. Boston 37).

In its statement accompanying the finding of guilty, the 
trial court showed its clear appreciation of the nature of 
the offense:

The Court: . . . they took seats at the lunch 
counter which by custom had been reserved for white 
people only. They were advised by an employee of 
that store, or by the manager, that they would be 
served over at the other counter which was reserved 
for colored people. They did not accept that invita­
tion; they remained seated at the counter which by 
custom had been reserved for white people. The offi­
cers were called and the defendants continued to 
remain seated at this particular counter. That testi­
mony is uncontradicted, and, in the opinion of the 
Court, the action of these accused on this occasion 
was a violation of Louisiana Revised Statutes, Title 
14, Section 103, Article 7, in that the act in itself,



12

their sitting there and refusing to leave when re­
quested to, was an act which foreseeably could alarm 
and disturb the public, . . . (R. Hoston 38, 39)

Here, then, is the Hoston case: Petitioners, Negroes, were 
seated at a counter customarily frequented by whites. No 
private person told them to move or to leave. A policeman 
entered and told them to leave, on the ground that, merely 
by being at the white counter, they were “disturbing the 
peace.” They remained, and were arrested and convicted 
of disturbance of the peace, on the ground, stated by the 
trial court, “that the act in itself, their sitting there and 
refusing to leave when requested to [by a policeman] ” was 
such disturbance. (Emphasis supplied.)

This is simple and pure segregation by state power in the 
most classic sense, and it is nothing else. The state, acting 
throughout by its own formal agents, has ordained that it is 
a crime for a Negro to sit at a “white” counter, and then has 
tried the petitioners for that very crime, and convicted 
them.

The Garner case (No. 26) is similar. The information 
charged a disturbance of the peace, in that petitioners “re­
fused to move from a cafe counter seat at Sitman’s Drug 
Store . . . after having been ordered to do so by the agent 
of Sitman’s Drug Store.” Again, the record affirmatively 
shows, on the State’s own uncontradicted testimony, that 
no such order was given. Willis, the drug store owner, 
testified:

Q. Go ahead. A. They occupied two seats and their 
presence there caused me to approach them a short 
time later and advise them that we couldn’t serve 
them, and I believe after that the police came and ar­
rested them and took them away.
[fol. 39] Q. Now, when you advised them you couldn’t



13

serve them did they get up and leave or,— A. No, one 
asked for coffee,—said they just wanted coffee.

Q. That was after you told them you couldn’t serve 
them? A. That was the conversation they had with me. 
I told them we couldn’t serve them and one of the boys 
said he wanted some coffee (R. Garner 30). (Emphasis 
supplied.)

Willis did not call the police, but Captain Weiner was 
summoned, as he testified on direct for the State:

Q. Tell the Court exactly what was done? A. Well, 
I received a call at police headquarters from the officer 
on the beat, Officer Larsen. He told me that there 
were two negroes, sitting at the lunch counter at Sit- 
man’s Drug Store. I told him to just stand by until 
we arrived at the scene. Major Bauer approached them 
and told them that they were violating the law by sit­
ting there and asked them to leave. One of them men­
tioned something about an umbrella that he had bought 
and he couldn’t see why he couldn’t sit at the lunch 
counter. He told them again that they were violating 
the law and when they didn’t make any effort to leave 
we placed them under arrest and brought them to police 
headquarters.

Q. Did you see Mr. Willis over there? A. No, I 
didn’t see Mr. Willis. I ’m assuming Mr. Willis is the 
manager, but we didn’t talk to anyone in the place other 
than the two defendants (R. Garner 34).

The reason for the warning and arrest appears clearly in 
Weiner’s testimony on cross:

Q. And when you arrived on the scene you saw these 
defendants sitting at this lunch counter? A. That’s 
right.



14

Q. And based upon what you call a violation of the 
law you arrested them, is that correct? A. That’s right 
(E. Garner 35).

# * # # #
Q. Is it a fact that they were negroes that you ar­

rested them? A. The fact that they were violating the 
law.

Q. In what way were they violating the law? A. By 
the fact that they were sitting at a counter that was 
reserved for white people.

 ̂ ^
Q. . . .  Do you know positively that there is such 

a law? A. The fact that they were sitting there and 
in my opinion were disturbing the peace by their mere 
presence of being there I think was a violation of Act 
103.

# # # # *

By Counsel Jones:

Q. The mere presence of these negro defendants sit­
ting at this cafe counter seat reserved for white folks 
was violating the law, is that what you are saying ? 
A. That’s right, yes (R. Garner 35, 36).

Again, the trial court, in its remarks accompanying the 
finding of guilt, shows clear appreciation of the fact that 
the culpability of the petitioners had to rest on their mere 
failure to observe the custom of segregation:

. . . these two accused were in this place of business on 
the date alleged in the bill of information, and they 
were seated at the lunch counter in a bay where food 
was served and they were not served while there, and 
officers were called and after the officers [fol. 47] ar­
rived they informed these two accused that they would



15

have to leave, and they refused to leave. Whereupon, 
the officers placed them under arrest for violating the 
law, specifically Title 14, Section 103, subsection 7. The 
Court is convinced beyond a reasonable doubt of the 
guilt of the accused from the evidence produced by 
the State, for the reason that in the opinion of the 
Court, the action and conduct of these two defendants 
on this occasion at that time and place was an act done 
in a manner calculated to, and actually did, unreason­
ably disturb and alarm the public (R. Garner 37).

This, again, is segregation by state power simpliciter, 
with only a change of name.

In the Briscoe case (No. 27), based on events occurring 
in the Greyhound Bus Station in Baton Rouge, the waitress 
who dealt with petitioners repeatedly testified, when not 
led, that what she told petitioners was that they would not 
be served unless they went over to the other side. On direct:

Q. All right. Tell the judge what happened. A. 
They came in there and they sit down on the front 
seven seats and they start ordering and I told them 
they would have to go to the other side to be served, 
[fol. 39] Q. Why did you tell them that! A. Because 
we are supposed to refuse the service of anyone that is 
not supposed to be on that side (R. Briscoe 30).

This account of what she said is twice repeated (R. Bris­
coe 31, 33).

It is true that, in response to leading questions, this wit­
ness adopted, by short affirmative answers, a different mode 
of describing this same conversation, the tenor of which she 
had already given in her own words. On direct:

Q. And you told them you couldn’t serve them and 
asked them to move, is that correct? A. Yes, sir.



16

[fol. 40] Q. And when they refused to move yon 
called the officers? A. Yes, sir (R. Briscoe 31).

And on cross:
Q. Miss Fletcher, is that the only reason you asked 

them to leave is because they were Negroes? A. Yes, 
sir (R. Briscoe 31).

But it is evident that she is referring to the same utter­
ance, which she thrice describes in her own words as a 
statement to petitioners that “they would have to go to the 
other side to be served.” This is not an order to leave, or 
indeed to do anything.

When Captain Weiner enters, the true nature of the com­
plaint against these petitioners comes clear. Succinctly:

By Counselor Jones:
Q. You requested them to move then because they 

were colored, is that right, sitting in those seats? A. 
We requested them to move because they were disturb­
ing the peace.

Q. In what way were they disturbing the peace? 
A. By the mere presence of their being there (R. Bris­
coe 38). (Emphasis supplied.)

In this case, the trial court., in its “Finding”, predicated 
guilt both upon the waitress’ “request” that the petitioners 
“leave” (cf. the analysis of her testimony, above) and the 
police request of the same tenor. These ingredients are 
intermixed in indeterminable proportions. This Court may 
independently evaluate the waitress’ testimony as support 
for the trial court’s finding of a “request” on her part. 
Norris v. Alabama, 294 U. S. 587, Napue v. Illinois, 360 
U. S. 264, 272. But even if such a “request” be granted, and 
given the force of an order, it remains unquestionable that,



17

on the trial court’s own statement, an ingredient1 in the 
guilt of these petitioners was their sitting at a “white” 
counter after the agents of the State had determined that 
they were not to sit at the “white” counter—pure segrega­
tion by state power.

The record shows no consequential relation between the 
waitress’ “request to leave” (if that was ever given), and 
the parallel request on the part of the police. Captain 
"Weiner testified:

Q. Officer, you testified that they were seated at this 
cafe counter seat in the section or the side that was 
reserved for white, is that correct? A. That’s right.

Q. Now, how did you know that this particular side 
in which they were sitting was reserved for whites? 
A. Well, it is pretty obvious from the people there.

# # * # #

Q. Why did you arrest them, officer? A. Because 
according to the law, in my opinion, they were disturb­
ing the peace.

# # # # *
Q. What was your answer to that officer? A. That 

in my opinion they were disturbing the peace.
Q. Within your opinion. Explain your opinion. A. 

The fact that their presence was there in the section

one of the grounds for conviction is invalid under the 
Federal Constitution, the conviction cannot be sustained.” Wil­
liams v. North Carolina, 317 U. S. 287, 292. Stromberg v. California, 
283 U. S. 359, 370. The trier of fact in the present case had to make 
a whole judgment—whether the conduct of petitioners in all its 
bearing and under all the circumstances, met the very general 
standards of §14:103(7). His findings tell us that he took into 
account their failure to leave when ordered by the police, pure 
state agents. We know from the companion cases, where this is the 
whole of the basis for conviction, that this was a significant and 
highly material factor. It is mixed in this ease in indeterminable 
proportions with the other factor referred to—failure to obey the 
waitress’ supposed “request”—and affects the whole conviction.



18

reserved for white people, I felt that they were dis­
turbing the peace of the community (R. Briscoe 36).

This testimony makes it entirely clear that the police, 
in enforcing segregation in this case, were acting on their 
own responsibility and judgment as public agents of the 
state within the scope of their authority.

In these three cases, then, we have to do with the enforce­
ment of segregation as a state policy having the force of 
law, by agents of the state. As petitioner will later show 
more at large (Point B, infra) there is not the ghost of evi­
dence, in any of these cases, of any breach of the peace, or 
any threat of disturbance, other than such as might be in­
ferred from the mere fact that petitioners were not observ­
ing the custom of segregation. Even if the records con­
tained such a showing, it would be of no avail, for the out­
lawing of segregation by the Fourteenth Amendment is of 
course a rejection of all the reasons why segregation might 
be thought good, including the fear of disorder. Buchanan 
v. Warley, 245 U. S. 60; Cooper v. Aaron, 358 U. S. 1. But 
there is nothing of that tenor to consider. These petitioners, 
in everything but name, were convicted of the simple offense 
of not following the custom of segregation, and their con­
victions cannot be sustained without sustaining segregation 
by the direct force of state law and authority.

(2) E ven  if  i t  b e  u rg e d  th a t  th e re  is in  th ese  cases a 
re le v a n t co m p o n en t o f fo rm a lly  “ p riv a te ”  ac tion , 
th a t  a c tio n  is su b stan tia lly  in fec ted  w ith sta te  
pow er. “ P riv a te ”  seg reg a tio n  in  these  cases was 
in  o bed ience  to  a  sta tew ide custom , w hich  in  tu r n  
h as  lo n g  en jo y ed  th e  s u p p o r t  o f  L ou is ian a  as 
a po lity .

In the preceding Point, A (l), petitioners have urged 
that these cases on their own records present no novel ques­
tions of “state action”, since the enforcement of obedience



19

to the custom of segregation was the work throughout of 
formal agencies of the state. It is true, however, that a 
formally “private” pattern of segregation is in the back­
ground of each case, even though, as shown above, no right 
of private property was distinctly asserted or claimed, and 
the connection between the “private” pattern and the inde­
pendent police and judicial action remains vague.

If it be thought that this vague connection between the 
action of private proprietors and the actions of the State 
suffices to put in issue the question whether these “private” 
patterns of segregation were themselves infected with state 
power, then petitioners contend that that question must be 
answered in the affirmative.

To begin, the “property” interest of these proprietors 
was an exceedingly narrow one. In each case, petitioners 
were not only “invited” but welcomed as cash customers on 
the premises, everywhere but at the lunch counters. The 
“property” right at stake was simply the right to segregate. 
These establishments—a busy drug store, a large depart­
ment store, a bus terminal restaurant—are a part of the 
public life of Baton Rouge. The subjection of their policies 
to constitutional control raises no real issues of individual 
privacy or freedom of association. Munn v. Illinois, 94 
U. S. 113; Marsh v. Alabama, 326 U. S. 501.

It is against this background that the “state action” ques­
tion here must be set. And it ought further to be noted that 
the “state action” doctrine has proven far from satisfactory 
as a guide among the pervasive realities of state power 
intermixed in nominally “private” activities widely affecting 
public life. The basic trouble is adumbrated in the Civil 
Bights Cases opinion itself, where it is laid down that 
“some” state action is enough, 109 U. S. 3, 13; since total 
absence of state involvement rarely if every occurs in mat­
ters of public importance, the “state action” doctrine was



20

from its inception certain to create vast problems. It is 
far from clear, moreover, that “state” action must always 
be “political” action; “custom” is mentioned in the Civil 
Bights opinion as one of the forms of state action, 109 II. S. 
17, and it may be that this rests on a conception of the 
“State” as a community, acting through firm customs as 
well as by formal law. Even verbally, “state action” may 
not be a validly inferred requirement in equal protection 
cases, for denial of protection can be accomplished by inac­
tion as well as by action, and in many cases the proper 
question may be not whether the state has “acted”, but 
whether it has failed to act when it should have done so.

The late Judge Learned Hand, writing on a question of 
constitutional construction, said that “ . . . for centuries 
it has been an accepted canon in interpretation of documents 
to interpolate into the text such provisions, though not ex­
pressed, as are essential to prevent the defeat of the venture 
at hand . . . ” Hand, The Bill of Rights, p. 14. Where for­
mally ‘“private” actions would defeat the constitutional ob­
jectives of equality and freedom in the public life, this 
principle surely has some applicability. Cf. Terry v. Adams, 
345 U. S. 461.

But in these cases the State of Louisiana is so intimately 
involved, even in the formally “private” segregation pat­
tern followed by these proprietors, that we need not reach 
these ultimate problems.

The intervention of police in support of the segregation 
pattern, and the invocation of the criminal prosecution ma­
chinery, are the immediate and obvious state involvements. 
“Whether the statute book of the State actually laid down 
any such rule . . ., the State, through its officers, enforced 
such a rule; . . . ” Civil Rights Cases, supra, 109 U. S. at 
15. But the deeper involvement of Louisiana arises from 
two facts: (1) These proprietors, in segregating, were not



21

acting on whim, or in obedience to personal taste as to 
association, but were following a custom that characterizes 
Louisiana as a community; (2) the maintenance of this 
custom, by law and other official action, is the policy of 
Louisiana as a political body.

The only rational or imaginable ground for the “private” 
segregation followed by these proprietors was obedience to 
state custom. Though this background fact is assumed 
rather than explicitly stated in testimony, its presence in 
the background can be inferred from these records, if such 
support be thought necessary in regard to a matter of 
such common knowledge. In Hoston, Kress, a nationwide 
chain which as a matter of common knowledge does not 
segregate outside the South, is found segregating; the man­
ager testified that he feared a disturbance if petitioners sat 
in the white section, “Because it isn’t customary for the 
two races to sit together and eat together” (R. Hoston 30). 
In Garner, the owner testified that he could not serve 
Negroes because he had “facilities for only the one race”— 
a statement which makes sense only against the background 
of the assumption that Negroes and whites are by custom 
not to be served together (R. Garner 30, 31). In Briscoe, 
we have to do with the terminal of a national bus company; 
the facilities of such an enterprise are, as a matter of com­
mon knowledge, segregated only in states where such 
segregation is customary. The interventions of the police 
in these cases were obviously based on their knowledge of 
the customary character of this segregation. There is not a 
scintilla of evidence to rebut the inference that the segre­
gation practiced by these proprietors was a direct conse­
quence, and indeed a part, of the Louisiana custom of public 
segregation of the races.

The State of Louisiana as a community was thus in­
dispensably involved in this segregation pattern. But Lou­



22

isiana as a polity is in the same causal chain of involvement, 
for the State has given to the segregation custom the full 
support of state law and policy.

There is even good historic ground for the belief that the 
segregation system, of which the segregation followed as a 
“custom” in these eases is a part, was brought into being, or 
at least given firm lines in its inception, by state law. 
Woodward, The Strange Career of Jim Crow, Oxford Uni­
versity Press (1957) 15-25, 81-87, “ . . . [Sjtateways, 
apparently changed the folkways,” id. at 92.

Louisiana has long maintained a system of segregation 
by law. A joint resolution of the legislature in 1960 has 
recently restated the official policy of the state.

“W hereas, Louisiana has always maintained a policy 
of segregation of the races, and w hereas, it is the inten­
tion of the citizens of this sovereign state that such a 
policy be continued.” Acts 1960, No. 630.

In his inaugural address the present Governor succinctly 
stated the policy of the State: “We will maintain segrega­
tion.” New Orleans Times-Pieayune, May 11, 1960, p. 2, 
Sec. 3, col. 1-7.

It is true that Louisiana’s segregation laws, as such, are 
no longer enforceable de jure. In view of the utterances 
just quoted, the importance of this fact is hard to evaluate. 
But in any case it could not break the casual nexus between 
state support of the custom of segregation and the preva­
lence of that custom. Effects outlive their causes, but do 
not thereby cease to be effects of those causes.

Louisiana has a law, passed in 1956, making it a crime to 
permit mixed white and Negro dancing, social functions, 
entertainments, “and other such activities involving per­
sonal and social contacts” (LSA-E.S. 4:451, Acts 1956,



23

No. 579). It is uncertain whether the quoted phrase makes 
it generally unlawful for whites and Negroes to eat to­
gether ; certainly it would seem to make it unlawful for them 
to eat together under many circumstances. But this point 
need not be resolved. For segregation is a system rather 
than a series of isolated provisions. And a State which 
enacts that whites and Negroes may not eat together on the 
job or use the same sanitary facilities (LSA-R.S. 23:971- 
972), go to prison together (LSA-B.S, 15:752), buy a ticket 
at the same window ■ (LSA-B.S. 4:5), wait in a station to­
gether (LSA-R.S. 45:1301-1305), go to a public park or 
other public recreational facility together (LSA-R.S. 33: 
4558:1), marry one another (LSA-R.S. 14:79) or even 
advocate integration, if they are employed in the school 
system (LSA-R.S. 17:493, 17:523, 17:443, 17:462)—is at 
least making it vastly more likely that the general custom 
of segregation will be observed. (The foregoing sampling 
is of laws currently in force, save as to constitutionality; 
of course Louisiana has until recently had and enforced 
segregation laws as to transportation, etc., and the causal 
effect of these in creating and supporting the interconnected 
segregation system seems clear, as brought out above.)

The formally “private” segregation practiced in these 
cases is therefore unbreakably connected with state law, for 
it is the creature of state custom, and the support of that 
custom is itself the keystone policy of Louisiana as a polit­
ical entity. This course of action is not only touched by but 
permeated with the power of the state.

If the element of “private” choice be thought material on 
these records, petitioners insist that the quantum and kind 
of genuine “private” choice in this pattern is negligible, a 
mere bridge from statewide custom, fostered by state law 
and policy, into the state criminal machinery. No private 
interest of these proprietors is at stake, other than the gain



24

they may look to from following the state-fostered segre­
gation custom. On any view, “state action” permeates the 
whole pattern. A contrary holding would turn upside down 
the criterion of the Civil Bights Cases, for it would have 
to rest on the proposition that action is “private” unless it 
is wholly public—that any small component of nominally 
“private” choice robs a public pattern of its public char­
acter.

B. Petitioners’ convictions denied due process o f  law, 
in  that they rested on no evidence o f  an essential ele­
m ent o f the crime.

Louisiana Bevised Statutes 14:103, under which peti­
tioners were convicted, reads, in relevant part :

“disturbing the peace is the doing of any of the follow­
ing in such a manner as would foreseeably disturb or 
alarm the public:

^

(7) Commission of any other act in such a manner as 
to unreasonably disturb or alarm the public.”

(Petitioners’ conviction was had under subsection (7), 
evidently the only one which could conceivably apply to 
them.)

In each case, the information contained substantially the 
following allegation:

“ . . . said conduct being in such a manner as to unrea­
sonably and foreseeably disturb the public. . . . ”

In each of the cases, the “Finding of Guilt” contains 
a recital corresponding (roughly, and with variations, see 
infra p. 26) to these allegations.



25

Thus the State of Louisiana formally recognized at every 
crucial stage that (as indeed is patent as the statute’s face) 
a conviction can be had under the statute only on a find­
ing and a showing that the conduct complained of was 
performed, in the words of the informations, “in such man­
ner as to unreasonably and foreseeably disturb the public.”

There is no evidence in any of the records that this 
conduct bore any such character. There is much in these 
records, on the other hand, that tends strongly to rebut 
the hypothesis.

In the Garner case, the owner of the store had received 
no complaints, and did not summon the police (R. Garner 
33, 31). The police witness, Captain Weiner, when asked 
the general question “Tell the Court exactly what was 
done?” described a scene of profound peace. He knew of 
no complaints (R. Garner 34). The rest of his testimony 
contains no hint of an actual, threatened, or even antici­
pated breach of the peace. Yet he was being examined on 
direct by a prosecutor whose duty it was to show through 
this experienced witness, if he could, that this indispensable 
element of the crime was present. On cross the questions 
of counsel repeatedly sought, and never received, some­
thing other than the “mere presence” of these Negroes as 
a ground for the arrest.

In Briscoe, again, the waitress’ testimony contains no 
hint of anything other than an occasion profoundly peace­
ful in its surrounding circumstances. She gave no evidence 
of so much as grumbling on the part of anyone. Her re­
fusal to serve petitioners was based solely on their race 
in itself (R. Briscoe 32). Captain Weiner, again (though 
with every reason to allude to circumstances of disorder or 
threatened disorder if they were present) describes a peace­
ful scene, and gives “the mere presence of their being



26

there” as the sole factor constituting a breach of the peace 
(R. Briscoe 38).

In Boston, the situation described in the testimony is 
one containing no elements of present or threatened dis­
turbance. The manager, it is true, “feared” a disturbance, 
but he “feared” it, as he testified, solely because “it isn’t 
customary for the two races to sit together and eat to­
gether” (R. Hoston 30). The imminence in his mind of 
what he “feared” may be assessed by his distinct testi­
mony that he did not even ask the petitioners to move 
(id at 34). Weiner’s testimony, again, distinctly negates 
any factor of disturbance of the peace, other than “their 
mere sitting there” (id at 37).

It is on this evidence, and nothing else, that the trial 
judge made the findings, indispensable under the statute, 
that “the conduct of the defendants on this occasion at 
that time and place was an act done in a manner calculated 
to, and actually did, unreasonably disturb and alarm the 
public” (R. Garner 37, emphasis added), that “their actions 
in that regard in the opinion of the Court was an act on 
their part as would unreasonably disturb and alarm the 
public” (R. Briscoe 39), that the same conduct “was an 
act which foreseeably could alarm and disturb the pub­
lic. . . . ” (R. Hoston 39, emphasis added). These findings, 
essential to conviction under the statute, are unsupported 
by evidence, and a conviction without evidence of guilt is 
the most elementary possible denial of due process. Thomp­
son v. Louisville, 362 U. S. 199.

Since the trial court jumped this gap merely by using 
conclusory language, and since the State Supreme Court’s 
brief opinion sheds no light on the problem, it is hard to 
make out on what theory the state courts considered that 
petitioners could be convicted on testimony so palpably not 
containing evidence of an essential element of guilt. The



27

only reasoned utterance of any organ of the State of Louisi­
ana on this question is found in the State’s Brief in Opposi­
tion to Petition for Writ of Certiorari, filed in this ease. 
On pp. 11-13 of that document the thought is developed 
that petitioners, having access to newspapers and having 
lived in Baton Rouge, should have known that their actions 
were likely to produce trouble, and that they were not 
welcome.

The first of these points goes pretty far. It amounts, 
for the purposes of these cases, to an assertion that the 
formation of mobs to attack peacefully protesting Negroes 
is so expectable a phenomenon in Louisiana that the trial 
judge, absent any support in the record, must be assumed 
to have taken judicial notice, svib silentio, not only of the 
likelihood of such trouble but also of the petitioners’ knowl­
edge of that likelihood. In the absence of any assertion 
to this effect by any court in Louisiana, it would be going 
pretty far for this Court to supply the clear defect of these 
records by an assumption so gratuitously insulting to the 
people of Louisiana. Disturbances there have been, in Lou­
isiana as elsewhere, but nothing has yet happened to make 
it suitable for this Court to assume a position so hopeless.

But even if this assumption be made, the sole upshot, 
in application to the facts of these cases, is that public 
protest may be anticipated where Negroes sit with whites, 
and that fear is not on any view a sufficient ground for 
state support of segregation. Buchanan v. Warley, 245 
U. S. 60; Cooper v. Aaron, 358 U. S. 1.

As to petitioners’ imputed knowledge, suggested by the 
Brief in Opposition, that they were “not welcome”, it is to 
be observed, first, that this falls far short of proving a 
threat to the peace, or a public disturbance or alarm. More 
fundamentally, this argument ignores the essence of the 
sit-in demonstration, which is addressed to the conscience



2 8

and to the self-interest of the proprietor. Petitioners may 
have guessed or known they were “not welcome”, in the 
sense that the proprietors of these stores would rather 
the whole thing had never come up; but the whole point of 
the demonstrations was that petitioners wanted to try 
whether, by solemn protest, they could gain the “welcome” 
—in the cash-nexus sense in which that word may meaning­
fully here be used—to which they believed themselves mor­
ally entitled. Again, the austere utterances of the state 
courts give no guidance; it is asking a great deal of this 
Court to ask it to supply the deficiency of these records 
by guesses as to the degree of “unwelcome” felt by these 
proprietors, and the connection of that, in turn, with a fore­
seeable tendency of petitioners’ actions unreasonably to 
“disturb and alarm” the public.

These are speculations, justified only by the correspond­
ing speculations in the Brief in Opposition. The hard fact 
remains that these records are fatally defective as a matter 
of the simplest due process, for they contain no evidence 
of an essential element of the crime charged. Thompson v. 
Louisville, supra.

C. Petitioners were convicted o f a crime under the 
provisions o f a state statute which, as applied to their 
acts, is so vague, indefinite, and uncertain as to offend  
the due process clause o f the Fourteenth Amendment.

The requirement of civilized law with respect to clarity 
of the commands in criminal statutes has never been better 
stated than by the Louisiana Supreme Court:

“ . . .  it is well-settled that no act or conduct, however 
reprehensible, is a crime in Louisiana, unless it is 
defined and made a crime clearly and unmistakably 
by statute.” State v. Sanford, 203 La. 961, 970, 14 So. 
2d 778, 781 (1943).



29

This requirement, as a minimum component in our con­
cepts of ordered liberty, Palko v. Conn., 302 U. S. 319, 325, 
is an indispensable ingredient of due process of law under 
the Fourteenth Amendment. Lametta v. New Jersey, 306 
U. S. 451.

On its face and as applied, this statute entirely fails to 
meet this test. To begin with, all seven of the categories 
of offenses proscribed are subject, by the introductory 
clause, to the overriding requirement that the act be done 
“in such a manner as would foreseeably disturb or alarm 
the public.” Presumably this language embodies some lim­
itation ; not every “fisticuff”, not every “interruption of any 
lawful assembly of people,” is an offense, but only such as is 
“done” in the proscribed “manner.” But what is the scope 
and tenor of this limitation? Does the introductory lan­
guage refer (as it seems to, in the use of the phrase “in 
such a manner”) to some aggravated characteristic of the 
act itself? Or does it refer (as seems more natural where 
“foreseeability” is at stake) to the surrounding circum­
stances?

“Foreseeability”, moreover, is in criminal law and in the 
law of private obligations usually a criterion of responsi­
bility for what actually takes place; to speak of the “fore­
seeability” of what never happened is at the least a bit 
unusual. Does this language, then, limit criminal respon­
sibility to the case where the public disturbance and alarm 
actually take place, and where these might have been “fore­
seen”? That is the construction suggested by the phrase 
being defined, “disturbing the peace”, for the conclusion 
goes down hard that “disturbing the peace” can be found 
to have occurred when the peace is not actually disturbed. 
Yet the mind remains unsatisfied that this limited construc­
tion was (or was not) the one in the legislative mind.



30

When we get to the very subsection under which these 
petitioners were charged, a puzzling partial redundancy 
occurs. The requirement of a connection with public dis­
turbance and alarm is reiterated, though under a different 
verbal form. The act proscribed by (7) must be committed 
“in such a manner as to unreasonably disturb or alarm the 
public.” Does this “as to” look toward actual result or does 
it refer to tendency? Both usages are normal English.

The requirement of foreseeability moreover, dropped out 
in the special definition of (7), though it doubtless still rides 
through from the introductory phrase. Does this mean that 
the actual consequence of public disturbance must be pres­
ent under (7), while foreseeable tendency to disturbance is 
enough, say, to bring a “fisticuff” under the statutory ban?

Finally, is the rule eiusdem generis applicable to (7) ? 
The other actions prohibited by (l)-(6) are all to some 
degree disorderly or blameworthy in themselves. Does this 
limitation subsist as to (7)? Or does the subsection really 
penalize “any other act” if its further vague criteria are 
met? (Subsection (4) of this same section penalizes “three 
or more persons” for any “act” done in a “violent and tumul­
tuous manner” ; is it reasonable to suppose that subsection 
(7) was meant to penalize acts by any number of persons 
done in a non-violent manner ?)

These multifarious indeterminacies, impossible of reso­
lution save by fiat, function in series with the almost total 
vagueness of each word in the phrase “unreasonably dis­
turb or alarm the public.”

The Louisiana Criminal Code contains directions for its 
own interpretation, but these help very little, or even tend 
to establish that the application of §14:103(7) to petitioners 
would contravene the canons of construction ordained. For 
example:



31

LSA-A.R. 14:3—Interpretation of Criminal Code.
“ . . . all of its provisions shall be given a genuine 

construction, according to the fair import of their 
words, taken in their usual sense, in connection with 
the context, and with reference to the purpose of the 
provision.”

The “context” in which §14:103(7) occurs is mainly or 
entirely one of violence or indecency in the proscribed ac­
tion itself, a characteristic entirely missing in these cases. 
In LSA-R.S. 14:8, it is enacted that:

Criminal conduct consists of an act or failure to act 
which produces criminal consequences.

This would tend to suggest that the actual ensuing of dis­
turbance is a defining character of an offense under §14:103 
(7). The main thrust of these passages, however, is their 
confirming of the vagueness of §14:103(7).

The Louisiana Legislature must have been doubtful 
whether §14:103(7) could apply to peaceful sit-ins, for 
an elaborate new §14:103.1, added by Acts 1960, No. 69, 
§1, provides, among other things that:

“A. Whoever wfith intent to provoke a breach of the 
peace, or under circumstances such that a breach of 
the peace may be occasioned thereby:
. . .  (4) refuses to leave the premises of another when 
requested so to do by any owner, lessee or any em­
ployee thereof, shall be guilty of disturbing the peace.

And Act 1960, No. 77, amending LSA-R.S. 14:56, added 
to the categories of “criminal mischief” a new one:



32

“(6) Taking temporary possession of any part or parts 
of a place of business, or remaining in a place of 
business after the person in charge of such business 
or portion of such business has ordered such person 
to leave the premises and to desist from the temporary 
possession of any part or parts of such business.”

As petitioners have already shown, even these new sec­
tions would not apply to them because they were not 
ordered to leave. (Supra, Point A (l), passim). But the 
fact that the legislature conceived it necessary to spell out 
even this more concrete offense in new legislation makes 
it most unlikely that any clear command was thought to he 
embodied in §14:103(7), forbidding the less definite offense 
of simply being where Negroes are not “supposed” to be.

The introductory part of the new §14:103.1, quoted above, 
also shows a contrast with the attempted definitions in 
§14:103(7) “Intent to provoke a breach of the peace”, and 
“circumstances such that a breach of the peace may be 
occasioned thereby”, are far from precise in their reference. 
But at least it is made clear that either the state of mind 
of the actor or the potentialities in the situation are being 
referred to. By contrast, in our §14:103(7), as is shown 
above, it is impossible even to be sure what the field of 
reference is.

Prior Louisiana statutes and decisional law are not help­
ful. The leading case under a prior act roughly similar 
to §14:103 was State v. Sanford, 203 La. 961, 14 So. 2d 778 
(1943). Defendants, Jehovah’s Witnesses were convicted 
under the phrase “ . . . who shall do any other act, in a 
manner calculated to disturb or alarm the inhabitants . . . 
or persons present. . . ” Acts 1934 No. 227, §1. Their “act” 
was being in town and handing out magazines after city 
officials had warned them that their “presence” might cause



33

trouble. Beversing the convictions, the Supreme Court of 
Louisiana said:

“ . . . the defendants went about their religious mission­
ary and evangelistic work in an orderly, peaceful and 
quiet way and did not demand or insist that the per­
sons approached either listen to them or make a con­
tribution. Briefly, their acts and conduct were lawful 
and orderly and did not tend to cause a disturbance 
of the peace. The Mayor and the Chief of Police had 
no legal right to insist that these defendants forego 
either their religious beliefs and works, or remain away 
from the town, as long as they conducted themselves 
in a lawful and orderly manner. . . . ” 203 La. 961, 
967,14 So. 2d 778, 780.

This language seems to make the orderly character of the 
defendants’, own actions a defining characteristic of non­
culpability. In Town of Ponchatoula v. Bates, 173 La. 824, 
at 827-828, 138 So. 851 at 852 (1931), the same court up­
holding as against a vagueness claim a town ordinance 
making it a crime to “engage in a fight or in any manner 
disturb the Peace,” said:

“It was not necessary that the ordinance define the 
offense for the reason that no better definition for 
the offense could be found than that contained in the 
ordinance itself. To disturb means to agitate, to 
arouse from a state of repose, to molest, to interrupt, 
to hinder, to disquiet. . . .  A disturbance of the peace 
may be created by any act or conduct of a person which 
molests the inhabitants in the enjoyment of that peace 
and quiet to which they are entitled, or which throws 
into confusion things settled, or which causes excite­
ment, unrest, disquietude, or fear among persons of 
ordinary, normal temperament. Such acts to come



34

within the purview of the ordinance must be voluntary, 
unnecessary, and outside or beyond the ordinary course 
of human conduct.”

Here the criterion of actual result is obviously in the 
court’s mind.

In State v. Truby, 211 La. 178 at 184, 192, 29 So. 2d 758 
at 759, 762 (1947) the same court, interpreting a “dis­
orderly place” statute (LSA-R.S. §14:104) said:

“It is so well settled that citation of authority is 
unnecessary that in Louisiana there are no common- 
law crimes, and that nothing is a crime which is not 
made so by statute . . . . [A] penal statute must be 
strictly construed and cannot be extended to cases 
not included within the clear import of its language, 
and . . .  nothing is a crime which is not clearly and 
unmistakably made a crime.” (Emphasis added.)

Nothing in any of the above decisions has the slightest 
tendency to bring the petitioners’ conduct “clearly and 
unmistakably” under §14:103(7).

Section 14:103(7), then, is not a warning to the public. 
It is not a guide to policemen or to courts. It says nothing 
except perhaps “You’d better watch out,” or “Bad actions 
are to be punished.” The legislature, in language impos­
sible of rational construction, has simply furnished a 
means of convicting those whom it seems desirable to 
convict.

It is unnecessary to consider how much curative power 
might have resided in a firm and intelligible judicial con­
struction, channeling the sprawl of these words into per­
missibly narrow grounds, for, as these cases illustrate, 
confusion is worse confounded in the application of the 
statute to petitioners. In its Findings of Guilt, the trial



35

court used three different formulae, one for each case, 
though the problem was exactly the same in all. In Garner, 
the act of the petitioners was said to be “an act done in 
a manner calculated to, and actually did, unreasonably 
disturb and alarm the public” (R. Garner 37). (These 
references to manner and calculation, and to actual result, 
are, of course, in the teeth of the evidence; see Point B, 
supra.) In Briscoe, the very same conduct is said to be 
“an act on their part as would unreasonably disturb or 
alarm the public” (R. Briscoe 39). In Boston, it “was 
an act which foreseeably could alarm and disturb the 
public” (R. Hoston 39). It would be tedious and un­
needful to subject these utterances to narrow verbal crit­
icism; the least that can be said of them is that they 
bring no clarity whatever to the total ambiguity and 
vagueness of the statute.

The brief opinion of the Supreme Court of Louisiana 
casts no light on any of these questions. The testimony 
in these cases, as shown supra under Point B, has no ten­
dency to connect these petitioners in any way to public 
disturbance or alarm—wdiether by way of their intent, 
or of their foreknowledge, or of actual result, or of prob­
able I’esult. It remains entirely unclear, therefore, how 
this statute could possibly apply to them.

It is impossible to imagine any statute more pressingly 
calling for clarity than 14:103(7), for that subsection, on 
its face, makes criminal any act performable by man, so 
long as it meets the other tests of the subsection and of 
the section as a whole. That these tests are not tests at 
all, but merely a sort of automatic writing putting entire 
discretion into the hands of the police, has already been 
shown. This Court has never had under its hand a statute 
more obnoxious to the due process requirement of definite­
ness, nor one which reached further into the whole lives 
of those subject to it.



36

D. The decision below conflicts with the Fourteenth  
Amendment, in that it unwarrantedly penalized peti­
tioners for  the exercise o f their freedom  o f expression.

There could be no serious doubt that petitioners, in 
peacefully taking their places at the “white” counters, were 
solemnly expressing their belief that they were morally 
entitled to be treated on terms of full equality by the 
establishments that solicited and enjoyed their patronage 
at other counters. Such a non-verbal expression on a mat­
ter of solemn moment is in every way equivalent to speech, 
and is entitled to constitutional protection. Stromberg v. 
California, 283 U. S. 359, Thornhill v. Alabama, 310 U. S. 
88. It is entirely immaterial at this point whether they 
had a legal or constitutional right to enjoy unsegregated 
service; what is at issue here is something quite different, 
their right to indicate their conviction that in fairness 
they should be served. Their expression wTas completely 
peaceful, and was exactly adapted to time and place.

Nor is there, in these cases, any problem of the ac­
commodation between private property rights and the right 
to free expression, cf. Marsh v. Alabama, 326 IT. S. 501, 
for these petitioners were not convicted, in name or in 
substance, for trespass, but solely for being in a place 
reserved by custom for whites. This has already been 
conclusively shown, under Point A, su)pra.

We have to do then with a very clear suppression and 
penalization of expression, by state authority. This fact 
necessitates a reiteration of Point C, supra, in a context 
which deeply intensifies its impact. The statute invoked 
in this case is, as shown under Point C, supra, so vague 
and uncertain as to offend against due process, when con­
sidered simply as a criminal statute. When it is applied, 
as here, to the suppression of constitutionally protected 
utterance, its unacceptability is even more plain. It is,



37

in fact, in the field of free expression that this Court has 
most vigorously applied the rule against vagueness. Smith 
v. California, 361 U. S. 147, 151; Winters v. New York, 
333 U. S. 507, 517-18; see Mr. Justice Frankfurter, con­
curring in Burstyn v. Wilson, 343 U. S. 495, 533.

No valid state interest appears in this case to over­
balance the extremely weighty Fourteenth Amendment in­
terest in personal freedom of expression. The state interest 
in the preservation of the peace can have no application 
to these records, for they fail to show, or even to hint, 
that a breach of the peace was threatened. This has been 
fully shown under Point B, supra. In this connection, 
Femer v. New York, 340 U. S. 315, and Termimello v. 
Chicago, 337 U. S. 1, may be adverted to, not for their 
specific holdings, nor for selection among the divergent 
views expressed in the opinions, but for exhibiting that 
the debatable ground, on the present point, is miles away 
from the terrain occupied by the cases here at bar. In 
Feiner, there was some evidence at least of actual danger 
of outbreak at the very time and place concerned. In 
Terminiello, a situation fraught with imminent possibility 
of violence was shown to exist. In both Feiner and Ter­
miniello, moreover, the expressions themselves were in­
trinsically provocative. In our cases, the whole situation 
exhibited by these records is one of peaceful conduct on 
petitioners’ part, and peaceful surroundings.

The only “breach of the peace” interest the State argu­
ably had in these cases rested on the remote and in­
ferential possibility, undeveloped in the records or in any 
judicial utterance below, that somebody might later get 
ungovernably upset at what petitioners were doing. To 
sustain these convictions on such a ground would amount 
to no less than holding that free utterance may be sup­
pressed as a breach of the peace, if it can be guessed 
that public disagreement with the utterance may be in­



38

tense. This would be simply the abolition of the guarantee 
of free expression in America.

The other assertable state interest implemented by these 
convictions is the interest (abundantly evidenced in the 
case of Louisiana) in the maintenance of segregation. But 
this interest can have no constitutional standing, for it 
takes effect only (as here) as a form of the use of state 
power to support segregation.

In the aspect now under scrutiny, then, these cases con­
stitute state suppression of expression, under a statute 
maximally vague, and with no state interest appearing.

CONCLUSION

For the reasons stated, it is respectfully submitted  
that the judgments o f the court below should be re­
versed.

A. P . T ureaud
1821 Orleans Avenue 
New Orleans, Louisiana

J o h n n ie  A. J ones
530 S. 13th Street 
Baton Rouge, Louisiana

T hurgood M arshall
J ack Greenberg

10 Columbus Circle 
New York 19, New York

Attorneys for Petitioners

C harles L. B lack , J r .
E lwood H. Chisolm  
W illiam  T. Colem an , J r.
J ames A. N abrit, III 
Louis H . P ollak

Of Counsel