Hurd v. Hodge Court Opinion
Public Court Documents
May 3, 1948
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Brief Collection, LDF Court Filings. NAACP v. Alabama Brief for Petitioner, 1957. 69850922-bf9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ad3524b4-5d69-4314-8e84-048e20a2eb77/naacp-v-alabama-brief-for-petitioner. Accessed April 22, 2025.
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IN THE
irtprium.' (Emtrt nf th? Inited States
October Term, 1957
No. 91
NATIONAL ASSOCIATION FOR THE ADVANCE
MENT OF COLORED PEOPLE, a Corporation,
Petitioner,
v.
STATE OF ALABAMA, ez ret. JOHN PATTERSON,
Attorney General,
Respondent.
BRIEF FOR PETITIONER
R obert L. Carter,
20 West 40th Street,
New York, New York,
T hurgood Marshall.,
107 West 43rd Street,
New York, New York,
A rthur D. S hores,
1630 Fourth Avenue, North,
Birmingham, Alabama,
Attorneys for Petitioner.
Charles L. B lack, Jr.,
W illiam T. Coleman, Jr.,
F red D. Gray,
George E. C. H ayes,
W illiam R. M ing, Jr.,
James M. Nabrit, Jr.,
L ouis H. P ollak,
F rank D. R eeves,
W illiam T aylor,
of Counsel.
I N D E X
Opinion B e low ................................................................ 1
Jurisdiction .................................................................... 1
Question Presented ...................................................... 2
Statement ........................................................................ 2
Petitioner’s Background and General Organiza
tional Activities ................................................. 2
Petitioner’s Background and Organizational
Activities In A labam a....................................... 7
The Instant Proceedings....................................... 8
The Climate in Alabam a....................................... 12
Summary of Argum ent................................................. 18
Argument ........................................................................ 21
I— The Fourteenth Amendment Prohibits the
State From Interfering With the Activities
of Petitioner ...................................................... 21
II— Purporting to Enforce Its Foreign Corpora
tion Registi’ation Statutes, the State Has Here
Acted to Prohibit Petitioner and Its Members
from Exercising Rights Guaranteed hy the
Fourteenth Amendment..................................... 32
III— Taken As A Whole the Proceedings Were
Lacking in Fundamental Fairness Essential
to Our Concept of Due Process of L a w .......... 38
Conclusion ...................................................................... 49
PAGE
Table o f Cases
Abrams v. United States, 250 U. S. 6 1 6 ................... 22
Alabama G. S. R. Co. v. Taylor, 129 Ala. 238, 29 So.
673 (1901) .................................................................. 46
American Communications Assn. v. Douds, 339 U. S.
382 ................................................................................. 30, 31
Barrows v. Jackson, 346 U. S. 249 ............................... 32
Benitez v. Anciani, 127 F. 2d 121 (1st Cir. 1942), cert.
den. 317 U. S. 699 ...................................................... 39
Betts v. Brady, 316 U. S. 455 ....................................... 38
Birmingham Bar Association v. Phillips & Marsh,
239 Ala. 650, 196 So. 725 (1940) ............................. 34
Breard v. Alexandria, 341 U. S. 622 ......................... 31
Brotherhood of Railway & Steamship Clerks v. Vir
ginia Ry. Co., 125 F. 2d 853 (4th Cir. 1942)........... 28
Brown v. Board of Education, 347 U. S. 483 ............... 6
Burstyn v. Wilson, 343 U. S. 495 ............................. 18, 21, 25
Cadden-Allen Inc. v. Trans-Lux News ,254 Ala. 400,
48 So. 2d 428 (1950) ................................................. 33
Carden v. Ensminger, 329 111. 612, 161 N. E. 137
(1928) ........................................................................... 45,46
Chandler v. Taylor, 234 Iowa 287, 12 N. W. 2d 590
(1944) ........................................................................... 46
Columbia Pictures Corp. v. Rogers, 81 F. Supp. 580
(S. D. W. Va. 1949) ....................................... 47
Corte v. State, 259 Ala. 536, 67 So. 2d 782 (1953) .. 41
Darring, Ex parte, 242 Ala. 621, 70 So. 2d 564 (1942) 45
Daves v. Hawaiian Dredging Co., 114 F. Supp. 643
(D. Hawaii 1953) ..................................................... 47
Davis v. Wechsler, 263 U. S. 22 ................................. 1; 2
DeJonge v. Oregon, 299 U. S. 353 ......................... 18, 21, 27
Dennis v. United States, 341 U. S. 494 ..................... 30
11
PAGE
I ll
Drake v. Herman, 261 N. Y. 414, 185 N. E. 685 ........ 45, 47
Dorchy v. Kansas, 272 U. S. 306 ............................... 1, 2
Eilen v. Tappin’s Inc. et al., 14 N. J. Super. 162, 81
A. 2d 500 (1951) ........................................................ 46
Farmers Savings Bank v. Murphee, 200 Ala. 574, 76
So. 932 (1917) ............................................................ 37
Feiner v. New York, 340 U. S. 315 ............................... 31
Fikes v. Alabama, 352 U. S. 191 ................................... 8
Firebaugh v. Traff, 353 111. 82, 186 N. E. 526 (1933) 45,46
Flanner v. St. Joseph Home for Blind Sisters, 227
N. C. 342, 42 S. E. 2d 22 (1947)............................... 46
Floridin Co. v. Attapulgus Clay Co., 26 F. Supp. 968
(D. Del. 1939) ............................................................ 47
Follett v. McCormick, 321 U. S. 573 ........................... 25, 31
Francis v. Scott, 260 Ala. 590, 72 So. 2d 93 (1954) . . . 41
Frank v. Marquette University, 209 Wis. 372, 245
N. W. 145 (1932) ...................................................... 46
Frasier v. 20th Century Fox Film Corp., 119 F. Supp.
495 (D. Nebr. 1954) ’. ................................................... 47
Galvan v. Press, 347 U. S. 522 ..................................... 38
Garner v. Board of Public Works, 341 U. S. 716 . . . . 19, 30
Garner v. Teamsters C. H. Union, 346 U. S. 485. .19, 25, 30
Gayle v. Browder, 142 F. Supp. 707 (M. D. Ala. 1956),
a ff’d 352 U. S. 903 .................................................6,8,10,34
Gebhard v. Isbrandtsen Co., 10 F. B. D. 119 (S. D.
N. Y. 1950) ................................................................ 45
Gilbert v. Minnesota, 254 U. S. 325 ............................. 22
Gitlow v. New York, 268 U. S. 652 ............................... 22, 31
Goldner v. Chicago & N. W. By. System, 13 F. B. D.
326 (N. D. 111. 1952) ................................................. 45
Grater Mfg. Co., In re, 111 NLBB No. 20 (1955) . . . . 28
Griffin Mfg. Co. Inc. v. Gold Dust Corp., 245 App.
Div. 385, 292 NYS 931 (2d Dept. 1935)
PAGE
47
IV
Griffith v. State, 19 S. W. 2d 377 (Tex. Civ. App.
1929) ............. 40
Grosjean v. American Press Co., 297 U. S. 233 .......... 21
Gulf Compress Co. v. Harris Cortner & Co., 158 Ala.
343, 48 So. 477 (1909) ............................................... 37
Haffenberg v. Windling, 271 App. Div. 1057, 69 NYS
2d 546 (4th Dept. 1947) .......................................... 46
Hague v. Congress of Industrial Organization, 307
U. S. 496 ...................................................................... 22
Hardeman v. Donaghey, 170 Ala. 362, 54 So. 172
1911) ............................................................................ 37
Hawley Products Co. v. May, 314 111. App. 537, 41
N. E. 2d 769 (2d Dist. 1942) ................................... 46
Hercules Powder Co. v. Rohm & Haas Co., 4 F. R. D.
452 (D. Del. 1944) .................................................... 47
Herring v. M ’Elderry, 5 Port. 161 (1837) ................ 37
Hill, Ex parte, 229 Ala. 501, 158 So. 531 (1935) . . . . 43
Hill v. Florida, 325 U. S. 538 .....................................19, 25, 30
Hogan v. Scott, 186 Ala. 310, 65 So. 209 (1914 )........ 37
Hughes v. Superior Court, 339 U. S. 460 ................. 25, 30
In re Grater Mfg. Co., I l l NLRB No. 20 (1955) . . . . 28
International Brotherhood of Teamsters v. Vogt,
Inc., 354 U. S. 284 ....................................................... 25
International Nickel Co. v. Ford Motor Co., 15 FRD
357 (S .D .N .Y . 1954)................................................. 47
International Union v. Wisconsin Employment Rela
tions Board, 336 U. S. 245 ....................................... 23
Jacobs v. Jacobs, 50 So. 2d 169 (S. Ct. Fla. 1951) . . . 46
Jacoby v. Goetter Weil Co., 74 Ala. 427 (1883) . . . . 37, 42
Jarrett v. Hagerdorn, 237 Ala. 66, 185 So. 401 (1939) 37
Jefferson Island Salt Co. v. Longyear Co., 210 Ala.
352, 98 So. 119 (1923)................................................. 33
Joint Anti-Fascist Refugee Committee v. McGrath,
341 U. S. 123 ............................................................. 19,21,32
PAGE
V
Jones v. Martin, 15 Ala. App. 675, 74 So. 761 (1917) 33
June v. George C. Petei-son Co., 7 Fed. Rules Serv. 34
(N. D. 111. 1942) ........................................................ 47
Kaplan v. Roux Laboratories, Inc., 273 App. Div.
865, 76 NYS 2d 601 (2d Dept. 1948) ..................... 47
King, Ex parte, 263 Ala. 487, 83 So. 2d 241 (1955) .. 43
Kingsley Books v. Brown, 354 U. S. 436................. 25
Kittaning Brewing Co. v. American Natural Gas Co.,
224 Penna. 129, 73 Atl. 174 (1909)........................... 40
Konigsberg v. State Bar of California, 353 U. S. 252 2
Kovacs v. Cooper, 336 U. S. 77 ................................. 31
Kullman, Salz & Co. v. Superior Court, 15 Cal. App.
276, 114 P. 589 (1911) ............................................... 45
Lever Bros. Co. v. Proctor & Bambie Mfg. Co., 38 F.
Supp. 680 (D. Md. 1941) ........................................... 47
Los Angeles Transit Lines v. Superior Court, 119 Cal.
App. 2d 465, 259 P. 2d 1004 (1953)......................... 46
McClatchy Newspapers v. Superior Court, 26 Cal.
(2d) 386, 159 P. 2d 944 (1945) ............................... 46
McCullough v. Walker, 20 Ala. 389 (1852) .............. 37
McCollum v. Board of Education, 333 U. S. 203 . . . . 31
McLaurin v. Oklahoma State Regents, 339 U. S. 637 6
Martin v. Capital Transit Co., 170 F. 2d 811 (C. A.
D. C. 1948) .................................................................. 45
Martin v. Struthers, 319 U. S. 141.............................. 31
Mayor v. Dawson, 350 U. S. 877 ................................. 6
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 . . . 6
Mitchell v. Wright, 154 F. 2d 580 (5th Cir. 1946).. 8, 34
Momand v. Paramount Pictures Distributing Co.,
36 F. Supp. 568 (D. Mass. 1941) ............................. 47
Mongogna v. O ’Dwyer, 204 La. 1030, 16 So. 2d 829
(1943) .......................................................................... 40
Murdock v. Pennsyvania, 319 U. S. 105 ..................... 25, 31
PAGE
VI
National Broadcasting Co., Inc. v. United States, 319
U. S. 1 9 0 ...................................................................... 21
National Labor Relations Board v. Essex Wire Co.,
245 F. 2d 589 (9th Cir. 1957) ................................. 19, 27
National Labor Relations Board v. Jones & Laughlin
Steel Corp., 301 U. S. 1 ........................................... 21
National Labor Relations Board v. Minnesota Min
ing & Mfg. Co., 179 F. 2d 323 (8th Cir. 1950) . . . . 28
National Labor Relations Board v. National Plastics
Products Co., 175 F. 2d 755 (4th Cir. 1949).......... 20,27
Near v. Minnesota, 283 U. S. 697 ................................. 25
Niemotko v. Maryland, 340 U. S. 268 ......................... 22
Palko v. Connecticut, 302 U. S. 319 ......................... 22
Patterson v. Colorado, 205 U. S. 454 ....................... 22
Patterson v. Southern Ry. Co., 219 N. C. 23, 12 S. E.
652 (1941) .................................................................. 45,46
Pennekamp & Miami Herald Publishing Co. v. Flor
ida, 328 U. S. 3 3 1 ........................................................ 21, 22
Pepperell Mfg. Co. v. Alabama Nat’l Bank, 261 Ala.
665, 75 So. 2d 665 (1954) ......................................... 33
Perfect Measuring Tape Co. v. Notheis, 93 Ohio App.
507, 114 N. E. 2d 149 (Ct. App. Lucas Co., 1953) .. 47
Pierce v. Society of Sisters, 268 U. S. 510 . . . . 19, 21, 22, 32
Prudential Insurance Co. v. Cheek, 259 U. S. 530 . . . 22
Pyle v. Pyle, 81 F. Supp. 207 (W. D. La. 1947) . . . . 47
Reeves v. Alabama, 348 U. S. 8 9 1 ............................... 8
Rochell v. Florence, 236 Ala. 313, 182 So. 50 (1938) 39
Rogers v. Alabama, 192 U. S. 226 ............................. 1, 2
Roth v. United State, 354 U. S. 476 ............................. 25
Rowell, Ex parte, 248 Ala. 80, 26 So. 2d 554 (1946).. 46
Royster v. Unity Life Ins. Co., 193 S. C. 468, 8 S. E.
2d 875 (1940)
PAGE
46
Saia v. New York, 334 U. S. 558 ................................. 31
Shell Oil Co. v. Superior Court of Los Angeles
County et al., 109 Cal. App. 75, 292 P. 531 (1930) 45,46
Sims v. Green, 160 F. 2d 512 (3d Cir. 1947).............. 39
Sipuel v. Board of Regents, 332 U. S. 6 3 1 .................. 6
Smith v. Allwright, 321 U. S. 649 ............................... 6
Southard & Co. v. Salinger, 117 F. 2d 194 (7th Cir.
1941) ............................................................................. 39
Spector Motor Co. v. O ’Connor, 340 U. S. 602 ----- 33
State v. Aronson, 361 Mo. 535, 235 S. W. 2d 384
(1950) .......................................................................... 45,46
State v. Flynn, 257 S. W. 2d 69 (S. Ct. Mo. 1953) . . . 45, 46
State v. Hall, 325 Mo. 102, 27 S. W. 2d 1027 (1930) .. 45, 46
State v. Oden, 248 Ala. 39, 26 So. 2d 550 (1946)........ 34
State ex rel. Scott v. U. S. Endowment & Trust Co.,
140 Ala. 610, 37 So. 442 (1903) ............................... 34
State ex rel. Johnson v. Southern Bldg. & Loan Assn.,
132 Ala. 50, 31 So. 375 (1902) ................................. 34
Steverson v. W. C. Agee & Co., 13 Ala. App. 448, 70
So. 298 (1915) ........................................................... 45,46
Stromberg v. California, 283 U. S. 359 ..................... 22
Sweatt v. Painter, 339 U. S. 629 ................................... 6
Sweezy v. New Hampshire, 354 U. S. 234. .18,19, 21, 22, 23,
24, 26, 27, 29, 31, 48, 49
Szubinski v. Commercial Sash & Door Co., 15 F. R. D.
274 (N. D. 111. 1953) ................................................ 45
Terminiello v. Chicago, 337 U. S. 1 ........................... 18, 31
Texarkana Bus Co. v. National Labor Relations
Board, 119 F. 2d 480 (6th Cir. 1941) ................... 27
Theard v. United States, 354 U. S. 278 ................... 19, 23
Thomas v. Collins, 323 U. S. 5 1 6 ....................... 18,19, 25, 31
Thomas v. Trustees of Catawba College, 242 N. C.
504, 87 S. E. 2d 913 (1955) ....................................... 46
Thornhill v. Alabama, 310 U. S. 8 8 ........................... 22
Times-Mirror Co. v. Superior Court, 314 U. S. 252.. 21
V ll
PAGE
via
Toth v. Bigelow, et al., 12 N. J. Super. 359, 79 A. 2d
PAGE
720 (1951).................................................................... 45,46
Truax v. Raich, 239 U. S. 3 3 ......................................... 32
United Public Workers v. Mitchell, 330 U. S. 75 . . . . 31
United States v. Harriss, 347 U. S. 6 1 2 ................... 18
United States v. Rumely, 345 U. S. 41 ..............18,19, 23, 25,
26, 27, 29
United States v. United Mine Workers of America,
330 U. S. 258 ........................................................... 42,43,44
Wagner Mfg. Co. v. Cutler-Hammer, 10 F. R. 13. 480
(S. D. Ohio 1950) .................................................... 47
Walker v. Hutchinson, 352 U. S. 1 1 2 ......................... 38
Watkins v. United States, 354 U. S. 178 ........18,19, 22, 23,
25, 26, 27, 32, 48, 49
Wieman v. Updegraff, 344 U. S. 148 ............... 18, 23, 24, 27
White v. Skelly Oil Co., 11 F. R. D. 80 (W. D. Mo.
1950) ............................................................................ 46
Whitney v. California, 274 U. S. 357 ......................... 22
Williams v. Georgia, 349 U. S. 375 ............................. 49
Wolf v. Colorado, 338 U. S. 2 5 ................................... 38
Woods v. Kornfeld, 9 F. R. D. 678 (M. D. Pa. 1950) 46
37Youngblood v. Youngblood, 54 Ala. 486 (1875)
Zorach v. Clauson, 343 U. S. 306 ................................. 31
IX
Statutes
Alabama Code of 1940:
Title 7, Section 426 ................................................ 44
Title 7, Sections 474(1)-474(18) ......................... 44
Title 7, Section 757 ................................................ 41
Title 10, Sections 192, 193, 194 ........................... 9, 32
Title 10, Sections 192-195 ...................................... 35
Title 10, Sections 196-198 ...................................... 36
Title 13, Section 1 4 3 ................................................... 43
Constitution of Alabama, 1901, Article 12, § 232 . . . . 8, 32
Other Authorities
103 Cong. Rec. 85th Cong., 1st Sess. 1957, A. 5888,
5889 ............................................................................... 40
7 Cyclopedia of Federal Procedure 605-606 ............... 46
7 Cyclopedia of Federal Procedure 609-610 (3rd ed.
1951) ................................................................................. 45
7 Cyclopedia of Federal Procedure 6 4 1 ..................... 46
Federal Rule of Civil Procedure 3 4 ............................. 45
Federal Rule of Civil Procedure 6 5 ............................. 39
Anno. 58 ALR 1263 ........................................................ 46
4 Moore’s Federal Practice 2451 (2d ed. 1950 )........ 45
58 Yale Law Journal 574 (1949) ................................. 4
Latham, “ The Group Basis of Politics,” 1950 ............ 24
Skinner, “ Alabama’s Approach to A Modern System
of Pleading and Practice,” 20 FRD (Adv. pp. 119,
137) 1957 ......................................................................... 44
PAGE
X
Southern School News:
June 1955, Vol. I, No. 1 0 ....................................... 13,14
August 1955, Vol. II, No. 2 ................................... 13
September 1955, Vol. II, No. 3 ............................. 14
December 1955, Vol. II, No. 6 .................. 12
February 1956, Vol. II, No. 8 .................. 14
March 1956, Vol. II, No. 9 ..................................... 12
April 1956, Vol. II, No. 1 0 ................................... 12
June 1956, Vol. II, No. 1 2 ..................................... 12
July 1956, Vol. I ll, No. 1 ............................... 12
December 1956, Vol. I ll, No. 6 ................... 14,16
January 1957, Vol. I ll, No. 7 ......................... 13,14,16
February 1957, Vol. I ll, No. 8 ............................. 16
March 1957, Vol. I ll, No. 9 ................................... 15,16
April 1957, Vol. I ll, No. 1 0 ................................. 13,17
May 1957, Vol. I ll, No. 11................................... 14,15
June 1957, Vol. I ll, No. 1 2 ................................... 13,16
July 1957, Vol. IV, No. 1 ..................................... 15
August 1957, Vol. IV, No. 2 ................................. 12,17
September 1954-June 1955, Vol. I, Nos. 1-10 . . . . 15
July 1955-June 1956, Vol. II, Nos. 1 -12 .............. 15
July 1956-June 1957, Vol. I ll, Nos. 1 -12 ............ 15
New York Times, Sept. 10, 1957, p. 1, Col. 3 ............. 16
New York Times, Sept. 11, 1957, p. 23, Col. 3 ........... 16
Montgomery Advertiser March 4, 1957 (“ Off The
Bench” ) ....................................................................... 40
PAGE
IN THE
Supreme ( ta r t rtf tljr United States
October Term, 1957
No. 91
National, A ssociation fob the A dvancement of
Colored People, a Corporation,
Petitioner,
v.
State of A labama, ex rel. John Patterson,
Attorney General,
Respondent.
---------------------- o----------------------
BRIEF FOR PETITIONER
Opinion Below
The opinion of the Supreme Court of Alabama (R. 23)
is reported at 91 So. 2d 214.
Jurisdiction
The judgment of the court below was entered on De
cember 6, 1956 (R. 31). On March 4, 1957, by order of
Mr. Justice Black, the time within which to file the petition
for writ of certiorari was extended to March 20, 1957. The
petition was filed on March 20, 1957, and was granted on
May 27, 1957. This Court has jurisdiction of this cause
under Title 28, United States Code, Section 1257(3) de
spite the effort of the Supreme Court of Alabama to inter
pose the state’s procedure to prevent review by this Court.
See Davis v. Wechsler, 263 U. S. 22; Rogers v. Alabama,
192 U. S. 226; Dorcliy v. Kansas, 272 U. S. 306. Part of
2
the petition for writ of certiorari was devoted to demon
strating that this case came within the rationale of those
cases. As petitioner reads the Brief in Opposition (page
9), respondent concedes the basic validity of this thesis,
and Konigsberg v. State Bar of California, 353 U. S. 252,
underscores the fact that the Court has not departed from
the principles enunciated in Davis v. Weclisler, supra;
Rogers v. Alabama, supra, and cognate cases in its approach
to jurisdiction. Petitioner submits, therefore, that juris
diction to review this cause is unquestionably vested in this
Court and rests upon the argument in the petition for writ
of certiorari to support this position.
Question Presented
Did the State of Alabama interfere with the freedom
of speech and freedom of association and deny due process
of law to petitioner, the NAACP, and its members in viola
tion of the Fourteenth Amendment in interfering with and
prohibiting the continuation of the efforts of petitioner to
secure and enforce rights of Negro citizens guaranteed by
the Constitution and laws of the United States?
Statement
Petitioner’s Background and General Organizational
Activities
Petitioner is a non-profit membership organization,
founded in 1909 and incorporated in 1911 under the laws
of the State of New York. The driving force which led to
its birth was the conviction that if the American public
became aware of the injustices which Negroes suffered and
the circumscribed lives which they were forced to lead
solely because of color discrimination, an aroused public
opinion would demand that necessary social, economic and
political reforms be effected to remove racial discrimina
tion and prejudice from American life. See Ovington,
“ How the NAACP Began” 8 Crisis 184 (1914); Kytle.
3
“ The Story of the NAACP,” Coronet 140 (August 1956);
“ What Is the NAACP,” 36 Information Service #8,
Bureau of Research and Survey, National Council of
Churches of Christ in the USA (Feb. 23, 1957). Since its
inception, the efforts of the organization and its members
have been directed exclusively towards finding adequate
ways and means of eradicating color and caste discrimina
tion from all facets of American life. See Wollman,
“ AVhat’s Behind the NAACP,” N. Y. World Telegram dc
Sun, May 12, 19, (1956); Davis, “ The NAACP: A Look
At the Record and Plans of One of the Nation’s Most Con
troversial Organizations,” Winston-Salem Sunday Jour
nal-Sentinel, Feb. 26, 1956; “ Segregation Conflict: Role
of the NAACP,” N. Y. Times, Feb. 26, 1956 E 9; “ Voice
of the Negro in America,” Milwaukee Journal, March 11,
1956; “ NAACP, Negro Champion, Sets ’63 Integration
Target,” Chicago Daily News, March 11, 1956; “ An Inter
view With NAACP Brass,” Montgomery Advertiser, June
26, 27, 1956.
Its Articles of Incorporation describe its aims and pur
poses as:
. . . voluntarily to promote equality of rights
and eradicate caste or race prejudice among the
citizens; to advance the interests of colored citizens;
to secure for them impartial suffrage; and to in
crease their opportunities for securing justice in
the courts, education for their children, employment
according to their ability and complete equality be
fore the law.
To ascertain and publish all facts bearing upon
these subjects and to take lawful action thereon;
together with any and all things which may lawfully
be done by a membership corporation organized
under the laws of the State of New York for the
further advancement of these objects.1
1 A copy of these Articles was filed with petitioner’s answer.
These and other allegations in the answer were summarized in the
petition for certiorari in the Supreme Court of Alabama, which
constitutes the record here.
4
Petitioner is committed to the achievement of desired
social, economic and political reforms within the frame
work of our democratic society. It seeks to create a cli
mate of opinion in which interracial understanding can
take place and basic rights and privileges will be accorded
to all persons without regard to race. From time to time
it attempts to persuade the legislature to adopt and the
executive to enforce remedial laws to provide protection
against racial discrimination, and to aid individuals to
vindicate their constitutional rights to freedom from dis
crimination in the courts wherever necessary.2
From the outset the organization has condemned racial
intolerance and disenfranchisement. It has sought to
secure public and legislative support for anti-discrimina
tion laws, e.ff., F. E. P. C. laws, anti-lynching laws, federal
and state civil rights laws. Its officials have testified on
the need for federal legislation of this kind before the
Congress and at various local legislative hearings.3 In
2 See, Note, Private Attorneys-General, 58 Yale L. J. 574 (1949).
3 For examples of this phase of petitioner’s activities see:
Segregation Hearings, H. J. Res. 75, House Judiciary Comm.
(66th Cong. 2d Sess. 1920) pp. 8-10 (Neval H. Thomas).
Anti-Lynching Hearings, S. 121, Subcommittee o f Senate Judi
ciary Comm. (69th Cong. 1st Sess. 1926) pp. 6-37 (James Weldon
Johnson); H. R. 259, House Judiciary Comm. (66th Cong. 2d Sess.
1920) pp. 22-27 (Arthur B. Spingarn); S. 1978, Subcommittee of
Senate Judiciary Comm. (73rd Cong. 2d Sess. 1934) pp. 62-67
(Arthur B. Spingarn).
Poll Tax Hearings, S. 1280, Subcommittee of the Senate Judiciary
Comm. (77th Cong., 2d Sess. 1942) pp. 335-338 (Walter W h ite);
H. R. 7, Senate Judiciary Comm. (78th Cong. 1st Sess. 1943)
pp. 60-69 (Statements of William H. Hastie and Leon A. Ransom).
FEPC Hearings, S. 2048, Subcommittee of Senate Com. on
Education and Labor (78th Cong. 2d Sess. 1944) pp. 196-202 (Walter
White) ; S. 101, Subcommittee of Senate Comm, on Education and
Labor (79th Cong. 1st Sess. 1945) pp. 170-174 (William H. H astie);
S. 984, Subcommittee of Senate Committee on Labor and Public
Welfare, (80th Cong. 1st Sess. 1947) pp. 182-190 (Roy Wilkins) ;
5
1933 it established a full-time legal department whose func
tion was to formulate legal theories which could be utilized
H. R. 4453, Special Subcommittee of House Committee on Educa
tion and Labor (81st Cong. 1st Sess. 1949) pp. 293-300 (Clarence
Mitchell).
Civil Rights Bill Hearings, S. 83, Subcommittee on Constitu
tional Rights, Senate Judiciary Com. (85th Cong. 1st Sess. 1957)
pp. 291-326 (Roy Wilkins).
Grants to States for the Improvement of Public Elementary and
Secondary Schools Hearings, S. 1305, Subcomm. of Senate Comm, on
Education and Labor, (76th Cong. 1st Sess. 1939) pp. 178-184
(Charles H. Houston).
Federal Assistance for School Construction Hearings, H. Res. 73
(82nd Cong. 2d Sess. 1952) p. 352 (Letter of Clarence Mitchell).
Universal Military Training Hearings, H. R. 515, House Com.
on Military Affairs, (79th Cong. 2d Sess. 1946) pp. 940-948 (Leslie
S. Perry).
Universal Military Training Hearings, Senate Committee on
Armed Services, (80th Cong. 2d Sess. 1948) pp. 662-668 (Jesse O.
Dedmond, Jr.).
Military Reserve Training Hearings, H. R. 6900, (84th Cong. 1st
Sess. 1955) pp. 4260-4272 (Clarence Mitchell).
Amendments to Railway Labor Act Hearings, S. 3295, Subcom
mittee of Committee on Labor and Public Welfare (1950) pp. 242-
248 (Clarence Mitchell).
Amending the Interstate Commerce Act— Segregation of Passen
gers Hearings, H. R. 563 (83rd Cong. 2d Sess. 1954) pp. 96-118
(Robert Carter and Clarence Mitchell).
Economic Security Act Hearings, S. 1130, Senate Committee on
Finance (74th Cong. 1st Sess. 1935) pp. 640-647 (Charles H.
Houston).
Amendments to Fair Labor Standards Act Hearings, H. R. 3914,
House Committee on Labor (79th Cong. 1st Sess. 1945) pp. 441-448
(Leslie S. Perry).
Defense Housing Act Hearings, S. 349, Senate Committee on
Banking and Currency (82nd Cong. 1st Sess. 1951) pp. 477-481
(Clarence Mitchell).
Limitation on Debate in the Senate Hearings, S. Res. 41 (82nd
Cong. 1st Sess. 1951) pp. 34-64 (Walter White).
Habeas Corpus Hearings, H. R. 5649 ( 84th Cong. 1st Sess. 1955)
pp. 78-88 (Thurgood Marshall).
6
in the courts to secure relief against discriminatory gov
ernmental action and authorized the attorneys in the de
partment to participate directly as counsel in litigation
involving or raising questions of racial discrimination
where such requests were made by the litigant or his attor
ney, and where determination of the issues raised was likely
to affect the status of Negro Americans in general. Some
of the litigation in this Court for which petitioner is in
part responsible includes Missouri ex rel Gaines v. Canada,
305 U. S. 337; Smith v. Allwright, 321 U. S. 649; Sipuel v.
Board of Regents, 332 U. S. 631; McLaurin v. Oklahoma
State Regents, 339 U. S. 637; Sweatt v. Painter, 339 U. S.
629; Brown v. Board of Education, 347 U. S. 483; Mayor
v. Dawson, 350 U. S. 877; Gayle v. Browder, 142 P. Supp.
707 (M. D. Ala. 1956), aff’d, 352 U. S. 903.
Petitioner has chartered affiliates—designated as college
chapters, youth chapters, Branches and State Conferences
of Branches—throughout the United States. These affiliates
are unincorporated associations and membership therein,
upon acceptance at petitioner’s principal office in New York,
constitutes membership in the corporation. Each affiliate is
semi-autonomous, with its own officials and governing body,
and within the limits of the general directive (<to promote
the economic, political, civic and social betterment of col
ored people, and their harmonious cooperation with other
peoples, in conformity with the articles of the Association,
its Constitution and by-laws, and as directed by the Board
of Directors of the Association,” each determines for
itself the program it will follow at the local level (R. 7-8).4
Petitioner’s Board of Directors from time to time an
nounces general policy. Such a general policy was that
4 Constitution and bylaws of Branches of the N. A. A. C P
Article I, Section 2, March 1956.
7
adopted by the Board on October 9,1950, and by Convention
June 1951, forbidding all N. A. A. C. P. affiliates, officers
and members to participate in any effort to obtain “ sepa
rate but equal” facilities.
Petitioner’s Background and Organizational Activities
In Alabama
The first affiliates of petitioner in Alabama were char
tered in 1918. These were the Montgomery and Selma
Branches. Since that time petitioner has chartered various
other affiliates in Alabama and in April, 1951 established
a regional office in Birmingham, designated as its Southeast
Regional Office.
A Southeast Regional Secretary, whose chief duties are
to supervise and coordinate the programs of petitioner’s
various affiliates in Alabama, Georgia, Florida, Mississippi,
North Carolina, South Carolina and Tennessee, was placed
in charge of this office. She disseminates information to
members and to the general public concerning civil rights
and racial discrimination to seek to guide and assist peti
tioner’s various affiliates in the region in devising and
executing a program designed to eliminate racial discrimi
nation in their respective communities. Petitioner em
ployed a field secretary, and his duties were to interest
persons in Alabama in the aims, purposes and program
of the organization and to convince as many persons as
possible to take an active part in the effort to secure equal
rights for Negroes. Except for these two persons and
a clerical worker in the Birmingham office, all other persons
connected with the organization in Alabama, whether offi
cers or members, were unpaid volunteers (R. 7).
Petitioner rented office space in Birmingham for its
Southeast office and secured furniture and other office
equipment, but otherwise owns no property, real or per
sonal, in Alabama. The injunction here issued necessitated
8
the closing' of this office, the dropping of the field secretary
and clerical worker from petitioner’s payroll and the trans
fer of the Regional Secretary and petitioner’s Southeast Re
gional Office to another state.
Through its national office, its affiliates, and more re
cently its Southeast Regional Office, petitioner aided Ala
bama Negroes in seeking vindication of their constitutional
rights in the federal courts by helping to defray the
expenses of suits involving the right of Negroes to vote,
to equal access to nonsegregated facilities in public schools,
to non-discriminatory treatment in public transportation
facilities and to due process in criminal proceedings.
Among law suits in this category were Mitchell v. Wright,
154 F. 2d 580 (5th Cir. 1946); Gayle v. Browder, supra;
Fikes v. Alabama, 352 U. S. 191; Reeves v. Alabama, 348
U. S. 891.
Petitioner engaged in these activities without complying
with Sections 192, 193, 194, Title 10, Alabama Code of
1940 and Article 12, Section 232, Constitution of Alabama,
1901, which require foreign corporations to register with
the Secretary of State, because petitioner in good faith
believed that these provisions did not apply to it (R. 8).
The first notice petitioner had that the state deemed it
subject to these statutes was the service of the temporary
restraining order and the complaint herein (R. 7), where
upon petitioner offered to register (R. 7).
The Instant Proceedings
Upon a bill of complaint filed by the Attorney General
of Alabama, which alleged in essence that petitioner was
giving aid and assistance to Alabama citizens in their
efforts to secure relief from racial discrimination and doing
and “ continuing to do business” within the state without
first having complied with Article 12, Section 232, Consti
9
tution of Alabama, 1901; Title 10, Sections 192, 193, 194,
Code of Alabama, 1940 and was “ thereby causing irrep
arable injury to the property and civil rights of the resi
dents and the citizens of Alabama for which criminal prose
cution and civil action at law afford no adequate relief,”
the trial court issued the requested restraining order ex
parte, barring petitioner from:
Soliciting membership in respondent corporation
or any local chapters or subdivisions or wholly con
trolled subsidiaries thereof within the State of Ala
bama.
Soliciting contributions for respondent or local
chapters or subdivisions or wholly controlled sub
sidiaries thereof within the State of Alabama.
Collecting membership dues or contributions for
respondent or local chapters or subdivisions or
wholly controlled subsidiaries thereof within the
State of Alabama.
And, although the state did not request it, from:
Filing with the Department of Revenue and the
Secretary of State of the State of Alabama any
application, paper or document for the purpose of
qualifying to do business within the State of Alabama
(R. 19).
On July 2, 1956, petitioner tiled a motion to dissolve
the injunction and demurrers to the bill (R. 3). Hearing-
on the motion to dissolve and the demurrers was set down
for July 17 (R. 3). On July 5, the state tiled a motion
for a pretrial discovery order to require petitioner to
disclose to the state the names and addresses of all of its
members and of all persons authorized to solicit member
ships ; all correspondence pertaining to or between peti
tioner and any person, corporation, etc., in Alabama; all
evidence of ownership of real and personal property held
by petitioner in the state; cancelled checks, bank state
ments, etc., showing any financial transaction between peti
10
tioner and persons, chapters, etc., in the state; all letters,
papers, correspondence, agreements between or pertaining
to petitioner and Autherine Lucy and Polly Ann Myers;
the names and addresses of all of its officers and employees
in the state; and all papers relating to or between Aurelia
S. Browder and the other plaintiffs in Gayle v. Browder,
their Alabama counsel and petitioner (R. 5-6). The state
alleged in its motion that examination of the requested
documents was essential to its preparation for trial (R. 3).
The state motion, given precedence over petitioner’s
pleadings, was heard on July 9 and granted on July 11
(R. 6), with petitioner being ordered to produce the docu
ments on July 16, 1957 (R. 6). (The order is set out at
R. 20.) The court extended the time to produce the docu
ments requested to July 24, 1956, and simultaneously con
tinued the hearings on the demurrers and motion to dissolve
from July 17 to July 25 (R. 6). On July 23 petitioner tiled
its answer, to which it attached executed foreign corpora
tion registration forms ready for filing with the Secretary
of State and asked the court’s permission to file same,
which permission was refused (R. 7). On the same date
petitioner filed a motion to set aside the order to produce,
which was set down for hearing on July 25. After such
hearing, on July 25th, the court denied petitioner’s motion
to vacate the order for pretrial discovery and, upon peti
tioner’s continued refusal to comply therewith, adjudged
it in contempt and fined it $10,000, with a proviso that if
the order was not obeyed within 5 days the fine was to be
$100,000 (R. 8-11).
On July 30, petitioner filed a motion to set aside and
stay execution of the contempt order pending its review
by the Supreme Court of Alabama (R. 11). With this
motion petitioner tendered all documents requested except
the names and addresses of its members and its corre
spondence files. The latter request could not be complied
with because it was unduly burdensome for petitioner to
11
go through all its files and furnish correspondence re
quested and interfered with the normal operation of its
offices (R. 12). The former request was refused because
of petitioner’s belief that the order per se constituted an
abridgement of its rights and those of its members to
freedom of association and free speech, and because of its
belief that to comply with the order would subject petitioner
organization to destruction and its members to reprisals
and harassment, thereby effectively depriving petitioner
and its members ot the right to the exercise of freedom
of association and free speech—all in violation of their
constitutional rights (R. 13). Accompanying this motion,
and tendered, were affidavits showing that members of the
N. A. A. C. P. in nearby counties had been subjected to re
prisals when identified as signers of a school desegregation
petition, and a showing of evidence of hostility to the pur
poses and aims of the organization in Alabama, and evi
dence that groups in the state were organized for the ex
press purpose of ruthlessly suppressing petitioner’s pro
gram and policy (R. 13).
This motion was heard, tender of documents refused
and the motion denied on July 30 (R. 14), and on the same
day a motion to stay was filed in the Supreme Court of
the state (R. 14). This motion was heard on July 31 and
was denied the same day (R. 14). Without waiting for the
Supreme Court to announce its decision, the trial court
on July 31 adjudged petitioner in further contempt and
assessed a fine of $100,000 against it (R. 14-15). Petitioner
filed a petition for writ of certiorari and brief in support
thereof in the Supreme Court of Alabama on August 8,
which petition was denied that same day as insufficient
(91 So. 2d 221). On August 20, 1956, petitioner filed a sec
ond petition for writ of certiorari, which was denied Decem
ber 6, 1956 (R. 23). From this decision petitioner brings
the cause here.
12
The Climate in Alabama
This case cannot be properly considered without being
viewed against the background and setting in which it
arose. Alabama officials in responsible positions have set
the tone and pattern for local governmental officials, civic
leaders, educators, parents, and citizens in voicing bitter
opposition to any change in the state policy and pattern of
racial segregation, regardless of any requirement of the
United States Constitution. The Governor,5 * * 8 Lt. Governor,®
5 Southern School News, March, 1956, Vol. II, No. 9, Gov. James
E. Folsom: “ Anybody with any sense knows that Negro children and
white children are not going to school together in Alabama any time
in the near future . . . in fact, not for a long time.” p. 6, col. 1.
Southern School News, April, 1956, Vol. II, No. 10, Gov. James
E. Folsom campaigning for election as national Democratic com
mitteeman : “ My views are well known on the subject. I was and am
for segregation. That’s all I have to say on the subject.” p. 5, col. 1.
Southern School News, June, 1956, Vol. II, No. 12, Gov. James
E. Folsom: Folsom announced that white and Negro students would
not attend the same grade schools and high schools in Alabama “ as
long as I am Governor.” p. 10, col. 3.
Southern School News, July, 1956, Vol. I ll , No. 1, Gov. James
E. Folsom commenting on Lucy affair: “ There is not going to be
any race-mixing in our public schools as long as I am governor.”
p. 10, col. 5.
8 Southern School Nezvs, December, 1955, Vol. II, No. 6, Lt. Gov.
Guy Hardwick addressing the Alabama Chamber of Commerce stated
that there can be no enforcement of the Supreme Court decision in
Alabama because the public is “ bitterly opposed” to such a change.
He stated that the state legislature had passed a school placement law
and “ it appears they will pass others and additional laws in order to
insure that segregation will remain in our schools.” p. 4, col. 4.
Southern School News, August, 1957, Vol. IV, No. 2, Lt. Gov.
Guy Hardwick: “ [If the civil rights bill passes] all white men will,
of necessity, be drawn together by common bonds of resistance, and
I predict they will refuse to employ, feed, clothe or otherwise aid or
assist Negroes if the latter insist on disrupting and upsetting our way
of life in Alabama . . . We will resort to the greatest and most effec
tive boycott ever seen in Alabama or any other state . . . No man
will be elected governor of Alabama unless he enters into a solemn
pact with the voters . . . to maintain segregation, and further pledges
he will not use the National Guard . . . manning tanks, to escort
Negro children into white schools as was done in Tennessee and
Kentucky.” p. 4, col. 5.
13
state legislators,' the Alabama State Superintendent of
7 Southern School News, June, 1955, Vol. 1, No. 10, Sen. Sam
Engelhardt (Macon County) : As far as I am concerned, abolition of
segregation will never be feasible in Alabama and the South. No brick-
will ever be removed from our segregation walls.” p. 2, col. 2.
Sen. Walter Givhan (Dallas County) : “ I think we have won a
decided victory for the South, it was brought about by the con
stant fight the southern people have put up, bringing to the attention
of the American public that integration wasn’t feasible and never
would have worked, and that the southern people under no condition
would have stood for it.” p. 2, col. 2. Sen. Roland Cooper (W ilcox) :
“ I cannot forsee where desegregation would be feasible or local con
ditions would warrant it within 100 years in Wilcox County.” p. 2,
col. 2. Sen. E. O. Eddins (Marengo County) advocated prompt
action “ to pass every law that would be a safeguard so far as segrega
tion is concerned.” p. 2, col. 2.
Southern School News, August, 1955, Vol. II, No. 2, Sen. Sam
Engelhardt (Macon County) stated to the Alabama Senate Edu
cation Committee “ W e’ve got 190 colored teachers in Macon County
and the board [Macon’s Board of Education] tells me they’ll fire
every one of them that takes part in this agitation.” p. 13, col. 3.
* * * “ The National Association for the Agitation o f Colored People
forgets there are more ways than one to kill a snake . . . we will
have segregation in the public schools of Macon County or there will
be no public schools.” p. 13, col. 5.
Southern School News, January, 1957, Vol. I ll , No. 7, Sen. Sam
Engelhardt (Macon County) commenting on The Institute on
Non-Violence in Montgomery, Dec. 3-9, 1956: “ Montgomery is sit
ting on a potential keg of dynamite. If there is violence, and pray
that there won’t be, each of us should buy a towel and send it to the
Supreme Court for them to wipe the blood off their hands
Think white, talk white, buy and hire white.” p. 15, col. 1.
Southern School Ne-ws, April, 1957, Vol. I ll , No. 10, Rep. W. L.
Martin (Greene County) : The state appropriation to Tuskegee was
originally made "to prevent the necessity of Negroes attending white
colleges.” Should members of their race insist on enrolling at white
colleges, “ they have no more need for state money.” p. 13, col. 2-3.
Southern School News, June, 1957, Vol. I ll , No. 12, Senator
Albert Boutwell (Birmingham): “ I think we will adopt only meas
ures to keep segregation in a legal manner, and that we are going to
do it with a great deal of deliberation. We don’t want to abolish
schools except as a last resort. But we must be ready to do it if
necessary.” p. 12, col. 1-2. Senator Broughton Lamberth (Talla
poosa County) : “ W e’ll do everything possible to keep segregation
in the schools.” p. 13, col. 4.
14
Schools,8 * local officials 0 and even judges,10 have consist
ently issued public declarations that the constitutional
mandate prohibiting racial discrimination in public educa
tion should be resisted, and segregation strengthened. Fol
lowing the May 17, 1954 decision, the state assembly
adopted scores ot resolutions and pieces of legislation,
8 Southern School News, June, 1955, Vol. I, No. 10, State
Superintendent of Education, Austin R. Meadows commenting on
the May 31, 1955 U. S. Supreme Court decision: “ I believe that the
overwhelming majority of Negroes realize that segregation is what the
people in Alabama want, and I believe they are friendly enough to
cooperate with the majority who want segregation.” p. 2, col. 2.
Southern School News, May, 1957, Vol. I ll , No. 11, State Super
intendent of Education, Dr. Austin R. Meadows, suggested that
segregation might be maintained by “our white people influencing
the Negroes to go to their own schools.” p. 5, col. 2.
0 Southern School News, Sept., 1955, Vol. II, No. 3, Board of
Education of Mobile in a formal statement of policy refusing to end
segregation: “ . . . the tradition of two centuries can be altered by
degrees only.” p. 3, col. 4.
Southern School News, February, 1956, Vol. II, No. 8, L. R.
Grimes, Chairman of the Montgomery County Board of Revenue
announcing his membership in the White Citizens Council: “ I think
every right-thinking white person in Montgomery and the South
should do the same. We must make certain that Negroes are not
allowed to force their demands on us . . . ” p. 6, col. 5.
Southern School News, December, 1956, Vol. I l l , No. 6, Mayor
W. A. Gayle of Montgomery commenting on the bus decision: “ Like
thousands of our Montgomery citizens, the city commission
deplores the . . . decision . . . at the same time we ask our fellow
citizens to remain calm and coolheaded, while your commissioners
work diligently and earnestly to do all legal things necessary to con
tinue enforcement of our segregation laws and ordinances of all
kinds . . . enacted in recognition of long-established customs, morals
and habits of our people . . . We shall continue to enforce segrega
tion.” p. 13, col. 3.
Southern School News, January, 1957, Vol. I ll , No. 7, the Mont
gomery City Commission commenting on the Supreme Court decision
ending segregation on Montgomery buses: “ Although we consider
the Supreme Court’s decision to be the usurpation of the power to
10 Text of this footnote appears on page 15.
15
ranging from a “ nullification” resolution to pupil place
ment laws, intended to maintain racial segregation and
defy federal authority.11 Threatened and actual loss of
amend the Constitution . . . we have no alternative but to recognize
it. That is not to say, however, that we will not continue, through
every legal means at our disposal, to see that the separation of races
is continued on the public transportation system here in Montgomery
. . . The City Commission . . . will not yield one inch, but will do
all in its power to oppose the integration of the Negro race with the
white race in Montgomery and will forever stand like a rock against
social equality, intermarriage, and mixing of the schools . . . There
must continue the separation of the races under God’s creation and
plan.” p. 15, col. 1-2.
Southern School News, March, 1957, Vol. I ll , No. 9, a Mont
gomery grand jury returning indictments against four white men on
dynamiting charges: The return of the indictments “ should not be
construed as any weakening of the determination of the people of
Montgomery to preserve our segregated institutions. We reaffirm
our belief in complete segregation. We are determined to maintain
it and to maintain law and order as it applies both to those who sup
port segregation and to those who oppose it.” p. 12, col. 4.
10 Southern School News, May, 1957, Vol. I ll , No. 11, on
April 8, Circuit Judge James A. Hare said: “ . . . despite federal
rulings, segregation matters will be handled at the local level.” In
charging a Dallas County grand jury, the Black Belt judge said he
would “ advise our colored friends who follow the false hopes of
integration to go where their hopes lead them." “ Since the Supreme
Court decision of 1954” , Hare said, “ more segregation laws have been
passed than in the previous 150 years.” p. 5, col. 2. The trial judge
in the instant proceedings has been especially outspoken in his sup
port for racial segregation and condemnation o f petitioner (see infra
at p. 40).
11 Nullification Resolution : Acts of Ala. Spec. Sess. 1956, Act 42,
at 70. Resolution petitioning Congress to limit the jurisdiction of the
U. S. Supreme Court and other federal courts on appeals from state
courts: Southern School Neivs, Vol. I, No. 7, p. 3. Report of a
special legislative committee calling for a private school plan and a
threat of economic reprisals: Southern School News, Vol. 1, No. 3,
p. 2. In the following issues of Southern School News there are
reports of resolutions and legislation defying the Constitution of the
United States: Vol. IV, No. 1, July, 1957; Vol. I ll , Nos. 1-12,
July, 1956-June, 1957; Vol. II, Nos. 1-12, July, 1955-June, 1956;
Vol. I, Nos. 1-10, Sept., 1954-June, 1955. “ Status of School Segre
gation-Desegregation in the Southern and Border States.” Southern
Education Reporting Service, April 15, 1957, p. 3.
16
employment and other forms of economic reprisals have
accompanied legislation intended to punish financially those
persons who advocate ordery compliance with the law as
well as those who advocate equal rights for all. Violence
and bloodshed have been predicted by high state officials
if segregation is ended. Threats and actual acts of violence
have been directed against Negroes who seek to assist their
constitutional rights 12 as well as against whites who seek
compliance with the law.13 While Negroes have been
12 Year-long series of bombings and shootings of Negro leaders in
bus segregation issue. Southern School News, Feb., 1957, Vol. I ll ,
No. 8, p. 15.
In Montgomery, 19 major acts of violence— 9 bombings and 10
shootings— were directed against buses, or the homes of Negro
leaders. Southern School Notes, March, 1957, Vol. I l l , No. 9, p. 12.
In Montgomery, Dec., 1956, one Negro woman was hit in both
legs by bullet during firing on buses. Southern School News, Jan.,
1957, Vol. I ll , No. 7, p. 14.
In Birmingham, the home of Rev. F. L. Shuttlesworth, a Negro
leader of the bus boycott, was bombed. Southern School News, Jan.,
1957, Vol. I ll , No. 7, p. 14.
In Montgomery, four Negro churches were bombed. Also the
homes of two ministers, both leaders in bus boycott, one leader white
and one Negro. A Negro cab stand was blasted. An attempt was
made to bomb home o f Rev. M. L. King. Southern School News,
Feb., 1957, Vol. I l l , No. 8, p. 15.
Ku Klux Klan activity, demonstrations, and cross burnings, were
reported in Opelika, Montgomery, Mobile, Birmingham, Prattville
and other Alabama communities. Southern School News, Jan. 1957,
Vol. I ll , No. 7, p. 15; Feb., 1957, Vol. I ll , No. 8, p. 15; March, 1957,
Vol. I ll , No. 9, p. 13; June, 1957, Vol. I ll , No. 12, p. 13; Dec.,
1956, Vol. I ll , No. 6, p. 13.
In Birmingham, Rev. F. L. Shuttlesworth was physically attacked
when he attempted to enroll Negro students in an all-white school.
N. Y. Times, Sept., 10, 1957, p. 1, col. 3.
In Birmingham, two false bombing reports at Phillips High
School and student demonstrations at Woodland High School fol
lowed reports that Negro students would attempt to enroll at these
schools. N. V. Times, Sept. 11, 1957, p. 23, col. 3.
13 In Birmingham, a white steel worker (Lamar Weaver) was
attacked on March 6, 1957 by a crowd of white men after he sat
beside a Negro couple in a Birmingham railroad station. Weaver, who
17
refused official protection from threats of physical violence,
where Negroes have protested against deprivation of their
rights, state officials have been quick to curb this “ lawless”
activity.14 Other pressures have been exerted on Negroes
to maintain “ voluntary” segregation. Alabama officials
have committed themselves to a course of persecution and
intimidation of all who seek to implement desegregation.
Negroes who seek to secure their constitutional rights do
so at the peril of intimidation, vilification, economic re
prisals, and physical harm.
It is in this climate that the instant proceedings took
place. In view of petitioner’s seeking the elimination of
racial segregation and other barriers of race, its attempted
suppression by state authorities was all but inevitable.
With whatever cloak of legality respondent may seek to
invest these proceedings, the due process accorded peti
tioner should be viewed against a background of open
opposition by state officials and an atmosphere of violent
hostility to petitioner and its members. It is only in this
context that these proceedings can he properly measured
to test their fundamental validity. So viewed and consid
ered, the unconstitutionality and illegality of these pro
ceedings will be unmistakably revealed.
has made pro-integration speeches, escaped in his car in a storm of
heavy stones. He was struck in the face with a suitcase, windows of
the car were shattered. Southern School News, April, 1957, Vol. I ll ,
No. 10, p. 13.
The home of a white minister was bombed. Southern School
News, Feb., 1957, Vol. I ll , No. 8, p. 13.
14 Southern School News, August, 1957, Vol. IV, No. 2, Att. Gen.
John Patterson, in a statement issued after raids on the Tuskegee Civic
Association and a Tuskegee print shop: “ [The investigation] was
undertaken due to the illegal operations of the TCA, due to the racial
trouble and strife the organization is stirring up in Macon County
and due to certain individuals connected with the said organization
who have connections with foreign organizations whose purposes and
aims are not in the best interests of the welfare of this state. Such a
boycott as is being carried out by the TCA is in violation of the laws
of this state and cannot be tolerated. Certain foreign organizations
that are bent upon stirring up racial strife and disorder in our state
have been instrumental in bringing about this illegal boycott.” p. 4,
col. 4.
18
Summary of Argument
Petitioner has been adjudged in contempt, fined $100,000
and ousted from Alabama— solely because petitioner and
its members seek to obtain for Negro Americans “ what
they think is due them” under our system of government.
United States v. Harriss, 347 U. S. 612, 633, 635 (Justice
Jackson dissenting).
Petitioner is a voluntary association whose primary
objective, as its name implies, is improvement of the status
of colored people in the United States. It was organized
in 1909 and incorporated under the laws of the State of
New York as a membership, non-profit corporation in 1911.
Today petitioner is a national organization and has affili
ated local units in Alaska and the 48 states. Petitioner
does not advocate violence to further its aims; it espouses
no subversive or alien ideology; it fosters no social or
political reforms adverse to the interests of the United
States. On the contrary, it seeks to nourish faith in the
perdurance of our democratic institutions.
Petitioner is a political organization, and in seeking to
improve the Negro’s status through democratic processes,
petitioner and its members are exercising rights of free
association and free speech basic to our society.
Prom the rationale distilled from the decisions of this
Court, petitioner and its members have the protection of
the Fourteenth Amendment to pursue these activities free
from state encroachment. See e.g., United States v. Rum-
ley, 345 U. S. 41; DeJonge v. Oregon, 299 U. S. 353; Thomas
v. Collins, 323 U. S. 516; Wieman v. Updegraff, 344 U. S.
183, 194, 195; Terrniniello v. Chicago, 337 U. S. 1 ; Sweezy
v. New Hampshire, 354 U. S. 234. Cf. Burstyn v. Wilson,
343 U. S. 495; Watkins v. United States, 354 U. S. 178.
Petitioner asserts here its own right to freedom of
association and free speech, as well as that of its members
and contributors. See Sweezy v. New Hampshire, supra,
19
at 250, 251; Joint Anti-Fascist Refugee Committee v.
McGrath, 341 U. S. 123, 149, 183. Since loss of member
ships and contributions are also involved, it claims prop
erty rights as well. See Pierce v. Society of Sisters, 268
U. S. 510.
Alabama alleges in these proceedings the right to re
strain all activities of petitioner and its members and the
right to punish petitioner in contempt for refusing to sub
mit to state interference with its right of free speech and
association. The justification for restraint of petitioner’s
activities was that it had failed to qualify to do business in
the state in accordance with state law and that injunctive
relief was essential to protect the state’s welfare (R. 2).
Even conceding this to be a bona fide state interest does not
dispose of the issues which these proceedings raise. Peti
tioner and its members seek to implement in Alabama
rights secured by the federal Constitution, and a state
cannot bar such activity altogether on the pretext of secur
ing compliance with state law. Cf. Hill v. Florida, 325
U. S. 538; Garner v. Teamsters C. & H. Union, 346 U. S.
485, 500; Thomas v. Collins, supra; and see Theard v.
United States, 354 U. S. 278. That the state’s real aim
is not petitioner’s registration with the Secretary of State,
but petitioner’s ouster, is crystal clear. Moreover, there
is nothing in the state’s bill of complaint or in the record
to justify the circuit court in issuing its injunctive decree
without first according petitioner an opportunity to be
heard.
The interlocutory order requiring petitioner to disclose
to the state the names and addresses of its members, dis
obedience of which gave rise to petitioner’s contempt cita
tion, was an unwarranted and arbitrary invasion of an
area of personal freedom immune from inquisition by
political authorities. See Watkins v. United States, supra;
Sweezy v. New Hampshire, supra; United States v. Rumley,
supra, at 57; National Labor Relations Board v. Essex
2 0
Wire Co., 245 F. 2d 589 (9th Cir. 1957); National Labor
Relations Board v. National Plastics Products Co., 175
F. 2d 755, 760 (4th Cir. 1949).
Moreover, the order of the trial court requiring dis
closure of petitioner’s members, granted ostensibly to aid
the state in its preparation for a trial on the merits, was
entered before it could have been determined that such pro
ceedings would ever be necessary.
The truth is that Alabama seeks, in these proceedings,
to silence petitioner and its members. Its purpose is to
eradicate effective opposition to continued governmental
maintenance of racial segregation by insulating the state’s
unconstitutional policy against the reach of the Fourteenth
Amendment. Obviously mere state opposition to peti
tioner ’s aims and purposes cannot vindicate the state power
here asserted, for the reason free speech is constitutionally
guaranteed is to preserve the freedom of those in dissent,
no matter how weak and unpopular, under the circum
stances and conditions now prevalent in Alabama.
The contempt citation and the punishment imposed
therefor were vindicative and arbitrary, as indeed were the
entire proceedings. Petitioner is subjected to heavy pen
alties for seeking to protect its constitutional rights. Peti
tioner’s action in this cause poses no threat to the admin
istration of justice in Alabama, and these proceedings pre
sent no valid issue of that nature. Here the state used its
judicial machinery to try to convict petitioner for the
ideas it espouses and lawfully seeks to implement. The
state’s aim was to ban petitioner’s activities by the pre
tense of a judicial procedure, and that is the vice of these
proceedings. There was lacking a fair and impartial hear
ing as required by the due process clause of the Fourteenth
Amendment. The judgment below therefore cannot be
sustained.
21
ARGUMENT
I .
The Fourteenth Amendment Prohibits the State
From Interfering With the Activities of Petitioner.
Petitioner and its members seek the “ economic, politi
cal, civic and social betterment of colored people and their
harmonious cooperation with other peoples” 16 in Alabama
and throughout the United States. In seeking to attain
these objectives through the petitioner organization, indi
vidual members are exercising the right of free association
for their mutual protection and for the more effective ad
vancement of group interests—a right fundamental to our
society. See National Labor Relations Board v. Jones and
Laughlin Steel Corp., 301 U. S. 1, 33.
In advocating and seeking the betterment of the Negro’s
status in America petitioner and its members are merely
invoking their constitutionally protected rights of free
speech and free association guaranteed under the due
process clause of the Fourteenth Amendment. See Pierce
v. Society of Sisters, 268 U. S. 510; Sweezy v. New Hamp
shire, 354 U. S. 234; Grosjean v. American Press Co., 297
U. S. 233; Times-Mirror Co. v. Superior Court, 314 U. S.
252; Pennekamp & Miami Herald Publishing Co. v. Florida,
328 U. S. 331; National Broadcasting Co., Inc. v. United
States, 319 U. S. 190; Burstyn v. Wilson, 343 U. S. 495;
DeJonge v. Oregon, 299 U. S. 253; Joint Anti-Fascist
Refugee Committee v. McGrath, 341 U. S. 123, 149, 183
(concurring opinions).
Solution of the American race problem—one of the
great social issues of this era—is the cause to which peti
tioner and its members are devoting their efforts and
energy. The right to free discussion of the problems of 15
15 This is quoted from Article 2, Constitution and By-laws of
Branches of NAACP, March, 1956.
22
our society and to engage in lawful activities aimed at
their alleviation is one of the unique and indispensable
requisites of our system. See Pennekamp v. Florida, supra,
at 346; Palko v. Connecticut, 302 U. S. 319, 327; Stromberg
v. California, 283 U. S. 359, 369. The fact that some may
view the ideas petitioner and its members espouse as ill-
advised or even infamous is of no moment. For the right of
freedom of association and free speech is accorded to
dissident and unpopular minorities, as well as those advo
cating ideas or engaging in activities of which those in
power approve. See Thornhill v. Alabama, 310 U. S. 88;
Niemotko v. Maryland, 340 U. S. 268; Pierce v. Society of
Sisters, supra; Hague v. Congress of Industrial Organiza
tion, 307 U. S. 496; Sweezy v. Hew Hampshire, supra;
cf. Watkins v. United States, 354 U. S. 178. The unimpaired
maintenance of freedom of association and free speech is
considered essential to our political integrity, see Whitney
v. California (Justice Brandeis concurring), 274 U. S. 357,
376; Stromberg v. California, supra; and their safeguard
in our basic law postulates a belief in the fundamental good
sense of the American people.10 In sum, petitioner and its
members are exercising fundamental rights and engaging
in activities basic to a free society.
It is clear that an individual who merely seeks vindi
cation of his constitutional rights or improvement of his
economic, social and political status by lawful means can- 16
16 Justice Holmes’ opinion in Abrams v. United States, 250 U. S.
616 at 630 is an expression of this idea: “ But when men have realized
that time has upset many fighting faiths, they may come to believe
. . . that the ultimate good desired is better reached by a free trade
in ideas.” It was undoubtedly belief in the vital importance, both
political and nonpolitical, of free speech which led this Court after
some hesitation to construe the Fourteenth Amendment as incor
porating against the states the First Amendment’s proscription. Com
pare Patterson v. Colorado, 205 U. S. 454; Gilbert v. Minnesota,
254 U. S. 325; Prudential Insurance Co. v. Cheek, 259 U. S. 530
with Gitlow v. New York, 268 U. S. 652 and Stromberg v. California,
283 U. S. 359.
23
not be held guilty of illegal conduct. And the fact that
such activity is taken in concert, of course, does not render
it illegal. See International Union v. Wisconsin Employ
ment Relations Board, 336 U. S. 245, 258.
While petitioner eschews partisan politics, it seeks to
influence public opinion and affect the political structure
to achieve its objectives. As such it is a political organiza
tion in the true sense, with its activities outside the area
of state interference absent compelling justification.17 See
United States v. Rumely, 345 U. S. 41; Watkins v. United
States, supra at 250-251; Wieman v. Updegraff, 344 U. S.
148, 196; Sweezy v. Neiv Hampshire, supra, at 265, 266.
In Sweezy v. New Hampshire, supra, at 250, 251, Mr.
Chief Justice Warren said:
Equally manifest as a fundamental principle of
a democratic society is political freedom of the indi
vidual. Our form of government is built on the
premise that every citizen shall have the right to
engage in political expression and association. This
right was enshrined in the First Amendment of the
Bill of Rights. Exercise of these basic freedoms in
America has traditionally been through the media
of political associations. Any interference with the
freedom of a party is simultaneously an interference
with the freedom of its adherents. All political ideas
cannot and should not be channeled into the pro
grams of our two major parties. History has amply
proved the virtue of political activity by minority,
dissident groups, who innumerable times have been
in the vanguard of political thought and whose pro
grams were ultimately accepted. Mere unorthodoxy
or dissent from the prevailing mores is not to be con
demned. The absence of such voices would be a
symptom of grave illness in our society.
17 Petitioner also aids Negroes in vindicating their constitutional
rights of freedom from discrimination in courts. In so far as these
activities involve the federal courts, there is a further serious question
of state jurisdiction to prohibit or interfere in any way. See Theard
v. United States, 354 U. S. 278.
24
Mr. Justice Frankfurter in Wieman v. Updegraff, supra,
characterized membership in a club of a political party as
“ a right of association peculiarly characteristic of our
people,” and joining such an organization as an exercise
of rights of free speech and free inquiry. More recently
in Sweezy v. New Hampshire, supra, Mr. Justice Frank
furter has given expression to the fundamental nature of
activities in political organizations. There he said at page
266 that in the political and academic realm, “ thought and
action are presumptively immune from inquisition by the
political authority.” And at another point in the same
opinion (265), Mr. Justice Frankfurter stated:
The inviolability of privacy belonging to a citi
zen’s political loyalties have so overwhelming an
importance to the well being of our kind of society
that it cannot be constitutionally encroached upon
on the basis of so meager a countervailing interest of
the State as may be argumentatively found in the
remote, shadowy threat to the security of New Hamp
shire allegedly presented in the origins and con
tributing elements of the Progressive Party and in
petitioner’s relations to these.
That group activity plays a vital role in the enactment of
legislation, conduct of party activity, formulation and exe
cution of public policy in public administration and the pro
tection of civil liberties is no longer open to question. See
Latham, “ The Group Basis of Politics,” (1950) passim.
Indeed, petitioner and organizations of its character at
times bridge the academic and political fields, for they often
seek to concretize the academician’s social and economic
abstractions into governmental action through their influ
ence upon political parties and office holders. It is sub
mitted, therefore, that these aforementioned principles are
particularly apposite here, and that their application neces
sarily renders these proceedings invalid.
It should be noted that petitioner solicits membership
dues and financial contributions to aid in carrying on these
25
activities. That alone, however, cannot place petitioner’s
activities outside the protection which the Fourteenth
Amendment affords. Murdock v. Pennsylvania, 319 U. S.
105; Follett v. McCormick, 321 IT. S. 573; Burstyn v.
Wilson, supra.
While some nondiscriminatory regulation of petitioner’s
activities might be permissible, a blanket prohibition is be
yond the state’s power. See Thomas v. Collins, 323 U. S.
516; Burstyn v. Wilson, supra; International Brotherhood
of Teamsters v. Vogt. Inc., 354 U. S. 284. The restraining
order entered in this cause constitutes such a forbidden
regulation which cannot be sustained.
Nor can a blanket restraint be justified on the ground
that petitioner’s activities are at variance with some legiti
mate state policy. Of. Hughes v. Superior Court, 339 U. S.
460. For such a proscription as here imposed would seem
to constitute a prior restraint upon the exercise of rights
of free speech and association forbidden by the Fourteenth
Amendment. See Near v. Minnesota, 283 U. S. 697; Kings
ley Books v. Brown, 354 U. S. 436, 445; Roth v. United
States, 354 U. S. 476, 496, 497.
The sole legal basis urged for the state’s interference
with petitioner’s activities was its failure to register with
the Secretary of State as a foreign corporation doing busi
ness in Alabama. See Title 10, Sections 192, 193, 194, Code
of Alabama, 1940. There can he no doubt that the state can
not upon this pretext justify interference with free speech
and freedom of association. A mere semblance of a state
interest is not sufficient to justify invasion of the rights of
free association and free speech. See United States v.
Rumely, supra; Watkins v. United States, supra, at 198.
And, it is submitted, the state cannot interpose its policy
or procedure for the purpose of defeating or infringing con
stitutionally secured federal rights. See Hill v. Florida,
325 U. S. 538; Garner v. Teamster C. H. Union, 346 U. S.
485, 500. Restriction upon exercise of petitioner’s consti
26
tutionally protected right to advocate and seek by lawful
means equal rights for Negro Americans, therefore, cannot
be justified on the ground that compliance with state regis
tration statutes was being sought, particularly in light of
petitioner’s offer to so comply and waive its asserted im
munity to the state law.
The order to disclose the names and addresses of peti
tioner’s members entered by the court below in the sup
posed exercise of its equity power and the use of pre-trial
discovery for this purpose was sustained on the merits by
the Alabama Supreme Court (R. 23). Aside from being
a gross misuse of the power of equity and pre-trial dis
covery procedures (see infra pages 44 et seq.), this order
was as open and direct a violation of the rights of petitioner
and its members to free speech and freedom of association
as directly barring petitioner’s activities without more.
This, we submit, the state cannot do whether acting through
its legislative, executive or judicial arm. See Sweezy v.
New Hampshire, supra; Watkins v. United States, supra.
In Alabama, at present, adverse sentiment to desegre
gation had been manifested by both state and local officials
and powerful forces in the dominant majority. Petitioner’s
members constitute a weak and unpopular minority—a
minority defined not so much by race as by the ideas they
espouse. Disclosure of petitioner’s members or threat of
such disclosure will necessarily tend to curb the activities
of petitioner and its members and weaken the strength and
effectiveness of the organization in pursuit of its objectives
in Alabama. See Mr. Justice Black concurring in United
States v. Rnmely, supra; cf. Sweezy v. New Hampshire,
supra.
The purported justification for the request for dis
closure, and the order requiring it, was that the state
needed petitioner’s membership list to secure facts to
prove that petitioner had been doing business in the state.
27
But the factors which determine that question concern what
activities petitioner has engaged in, not the identification
of its members and contributors. See DeJonge v. Oregon,
supra; cf. Wieman v. Upilegraff, supra. A simulated
state interest will no more suffice to justify this type of
invasion of the Bill of Rights than those condemned in
Sweesy v. New Hampshire, supra; Watkins v. United
States, supra, and United States v. Rumely, supra. Indeed,
since here the judicial process is involved, the requirements
of due process are, if anything, more stringent.
Because unpopular organizations lawfully engaged in
pursuit of their activities are subject to coercive influences
effectively restricting exercise of their rights, the National
Labor Relations Board and the courts have held the right
of self-organization under the Labor Management Relations
Act violated where an employer sought disclosure of union
membership and activities of individual employees. See,
e.g., National Labor Relations Board v. National Plastics
Products Co., 175 F. 2d 755, 760 (4th Cir. 1949): Texarkana
Bus Co. v. National Labor Relations Board, 119 F. 2d 480
(6th Cir. 1941). In National Labor Relations Board v.
Essex Wire Co., 245 F. 2d 589 (9th Cir. 1957), the court
upheld the order of the National Labor Relations Board
that the demand by management for surrender of executed
union membership cards was an unfair labor practice.
There it said at page 592:
Assuming that the cards were demanded in an
effort to enforce the rule against union campaigning
on company time, and that the foreman intended to
return the cards at the end of the day, we are never
theless of the view that the demand was coercive
with respect to the rights specified in ̂7 of the act.
Possession of such cards, even for a temporary
period, would enable management to inform itself
as to the progress being made in campaigning for
a then-unrepresented union. It would also make it
possible for management to exercise surveillance
over the union affiliations and activities of individual
28
employees. Whether the company would be disposed
to make such use of the cards is beside the point. As
long as the opportunity is present, employees may
have a real fear that this would be done. Such fear
could well influence their inclination to execute such
cards.
# * #
. . . In our view, a demand for surrender of
membership cards in a union not then established
in the plant is at least as coercive as such remarks
and questioning.
We are therefore of the view that the demand
. . . was an unfair labor practice. . . .
While inquiries about union strength are permissible,
inquiries about the union affiliation of individual employees
or the union activities of union leaders are prohibited as
an unfair labor practice. National Labor Relations Board
v. Minnesota Mining and Mfg. Co., 179 F. 2d 323 (8th
Cir. 1950); In re Grater Mfg. Co., I l l NLRB No. 20 (1955).
In Brotherhood of Railway and Steamship Clerks v.
Virginia Ry. Co., 125 F. 2d 853, 858 (4th Cir. 1942), the
court said: “ [Cjertainly the [National Mediation] Board
should no more have given publicity to the names of those
who had given authorization cards to the [union] and thus
have subjected them to the danger of reprisal or discrimi
nation, than it should have disclosed the votes of those
participating in an employees’ election.”
While these are Congressional statutes and hence dem
onstrate a legislative condemnation of interference with
the group activity sanctioned, the basis for the legislative
proscription is the plenary power of Congress over inter
state commerce. Here the rights to which the group activity
is directed are rights created and protected by the Four
teenth Amendment itself. It follows necessarily, therefore,
that state interference with the exercise of these rights
cannot be permitted. Thus, the reasons which condemned
enforced exposure of union members as violating the
29
national Labor Management Relations Act forbid disclosure
of petitioner’s members names; the coercive effect and the
unlawful interference with speech and association are the
same. Disclosure could serve no other purpose.
As the state is barred from inquiries concerning an in
dividual’s partisan political affiliation, see Siveezy v. New
Hampshire, supra, it is likewise barred from inquiries con
cerning his stand on political issues or affiliations which
would reveal what these political views are—e.g., does he
support civil rights legislation? or believe that curbs on im
migration should be relaxed? or what position does he hold
on public power, or on repeal of Taft-Hartley? or what are
his beliefs on segregation? or does he belong to a group
which is opposed to segregation? To borrow a phrase from
Mr. Justice Frankfurter in Siveezy v. New Hampshire,
supra such inquiries could only act to “ check the ardor and
fearlessness” of the individual in the active participation in
activities designed to solve great public issues of impor
tance to his generation. This order seeks to effect an
invalid intrusion into an area of individual and group
freedom from which the due process clause of the Four
teenth Amendment bars the state.
To paraphrase Mr. Justice Black, concurring in United
States v. Rumely, supra, at 57, once the state can demand
of petitioner the identification of its members, the spectre
of the police will look over the shoulder of every member
who belongs to the organization. A contribution or pur
chase of a membership today may result in a subpoena
tomorrow. The consequences of such disclosure would be
necessarily coercive, and freedom of association as we know
it would disappear.
There are, of course, instances where invasion of free
speech is permitted. Where questions of loyalty or sub
version are involved, such invasion has been permitted. See
30
Dennis v. United States, 341 U. S. 494. In those cases the
intrusion was permitted because it was found that there
was a rational basis for inquiry into the individual’s mem
bership in subversive organizations in order to protect the
integrity of public employment, Garner v. Board of Public
Works, 341 U. S. 716; or to keep interstate commerce free
from obstruction, American Communications Association v.
Douds, 339 U. S. 382; or to protect the state from violent
overthrow, Dennis v. United States, supra. Further, when
the activity involved offends some valid state policy, state
interference has been allowed. See Hughes v. Superior
Court, supra.
But these cases have no application here. Petitioner is
engaged in no acts of disloyalty or subversion. It merely
seeks the eradication of state imposed racial segregation
and discrimination. Since the Constitution forbids such
discrimination, justification for restricting petitioner’s
activities, although at war with avowed state policy, is
totally lacking. A.s this Court held in Garner v. Teamsters,
C. & H. Union, supra, federal power constitutionally
exerted “ cannot he curtailed, extended or circumvented”
merely because some state policy or doctrine is opposed to
it. Indeed, since petitioner and its members were exercis
ing and seeking to secure only those rights guaranteed by
the federal Constitution, these activities are impliedly pro
tected against the erection of state burdens which would
impair or nullify those federal rights. See Hill v. Florida,
supra.
There has long been full agreement on this Court that
interference with freedom of speech and freedom of asso
ciation by governmental authority cannot be justified,
except where compelling necessity requires the protection
of some competing societal interest of substantial impor
tance. This is merely recognition that some limitation of
these freedoms may be necessary in an organized society.
31
Where the lines of demarcation should be drawn, however,
has been the subject of much controversy, and this Court’s
decisions on the reach of the First Amendment guarantees
are difficult to harmonize under any single formula. Com
pare Martin v. Struthers, 319 U. 8. 141, and Murdock v.
Pennsylvania, supra, with Follett v. McCormick, supra, and
Breard v. Alexandria, 341 U. 8. 622 (itinerant peddlers of
religious literature) ; Zorach v. Clauson, 343 U. S. 306, with
McCollum v. Board of Education, 333 U. S. 203 (released
tim e); Kovacs v. Cooper, 336 U. 8. 77, with Saia v. New
York, 334 U. S. 558 (use of sound trucks); Terminiello
v. Chicago, 337 U. 8. 1, and Feiner v. New York, 340
U. S. 315 (right of police authorities to interfere with
free speech as likely to produce a breach of the peace).
Each of these decisions turns upon an ultimate appraisal
of the facts. The cases, however, seem amenable to a
loose classification, viz., interference with exercise of these
rights has been prohibited except where this Court has
found the restriction necessary for the preservation of
some important societal interest. See Breard v. Alexandria,
supra; Feiner v. New York, supra. Where no such impor
tance has been discovered, however, the restriction has
been struck down. See Saia v. New York, supra.
Until such time as the state has a rational basis to sup
port regulation of the activities of petitioner and its mem
bers as necessary for the prevention of some substantive
evil which the state has a right to prevent, it cannot inter
fere by legislative enactment or judicial decree with the
activities of petitioner and its members in their effort to
secure social, economic or political reform to which peti
tioner and its members are committed. See Sweezy v. New
Hampshire, supra; Thomas v. Collins, supra; cf. Gitlow v.
New York, 268 U. S. 652; American Communications Assn.
v. Bauds, supra; United Public Workers v. Mitchell, 330
U. S. 75.
32
Here petitioner asserts its own right and the rights of
its members to freedom from interference with the exer
cise of precious constitutional liberties. By enjoining its
continued activity, Alabama has deprived petitioner of
freedom of speech and freedom of association and of prop
erty in the continued receipt of the dues and contributions
of its members. Petitioner has standing to assert its inter
est as an entity, see Joint Anti-Fascist Refugee Committee
v. McGrath, supra (Mr. Justice Frankfurter’s concurring
opinion at 149); Pierce v. Society of Sisters, supra; and
may vindicate the constitutional right of freedom of speech
and freedom of association of its members as well. See
Joint Anti-Fascist Refugee Committee v. McGrath, supra
(Justice Jackson’s concurring opinion at 183); Watkins v.
United States, supra at 250, 251. This Court has more than
once permitted a litigant to safeguard constitutional rights
of persons far more removed than is petitioner in relation
to its members. See Pierce v. Society of Sisters, supra;
Barrows v. Jackson, 346 U. S. 249; Truax v. Raich, 239
U. S. 33.
I I .
Purporting to Enforce Its Foreign Corporation Reg
istration Statutes, the State Has Here Acted to Prohibit
Petitioner and Its Members from Exercising Rights
Guaranteed by the Fourteenth Amendment.
The purported basis for the state’s action was failure
of the petitioner to file with the Secretary of State its
Articles of Incorporation and designate an agent for serv
ice of process in accord with Title 10, Sections 192, 193 and
194 of the Code of Alabama, 1940 and Article 12, Section
232, Constitution of Alabama of 1901. This failure and
petitioner’s continuing to engage in activities designed to
secure constitutional rights of Negroes in the state was
allegedly causing irreparable injury to the property and
33
civil rights of citizens of the state. On the basis of the
bare unsupported allegations in the complaint—which to
an objective and unbiased appraiser would hardly furnish
the basis for exercise of equity’s extraordinary power—
petitioner was placed under sweeping restraint without
hearing.
The pleading of the state registration statutes was a
pretext to give a facade of legality to the state’s unlawful
and unwarranted interference with the lawful activities of
petitioner and its members in violation of the Fourteenth
Amendment’s command. The purpose of Title 10, Sec
tions 192, 193 and 194 is to compel foreign corporations to
submit to the jurisdiction of the courts of the state as a
prerequisite to invoking equal protection of the laws in the
enforcement of intrastate obligations. Jones v. Martin,
15 Ala. App. 675, 74 So. 761 (1917). It is designed to pro
tect property interests of Alabama citizens. Jefferson
Island Salt Co. v. Longyear Co., 210 Ala. 352, 98 So. 119
(1923). See Pepper ell Mfg. Co. v. Alabama Nat’l. Bank,
261 Ala. 665, 75 So. 2d 665 (1954); Cadden-Allen Inc. v.
Trans-Lux Netvs, 254 Ala. 400, 48 So. 2d 428 (1950). Here
the state knew where petitioner’s main office was located.
It so recites it in the complaint, and there is no showing
that any Alabama citizens had sought to bring an action
against petitioner in the state court and had been unsuc
cessful because of petitioner’s failure to comply with the
statutes. In short, petitioner’s failure to register had
caused none of the harm or deprivations to Alabama citi
zens wdiich the law was designed to eliminate.
There is doubt as to the statute’s application to peti
tioner, since petitioner is engaged in interstate commerce.
Of. Spector Motor Service v. O’Connor, 340 U. S. 602.
If the state’s thesis is to be accepted, however, petitioner
has been continuously present in Alabama since 1918 when
its first Branches were chartered in Selma and Montgomery
(R. 6-7). Since that time it has continuously engaged in
activities seeking to protect Negroes against denial of rights
34
because of race and to remove barriers of discrimination
based upon color. In the course of that effort, petitioner
has assisted in prosecuting or defending in courts litigation
in which such questions were raised. Among these cases
are Mitchell v. Wright, 154 P. 2d 580 (5th Cir. 1946);
Gayle v. Browder, 142 F. Supp. 707 (M. D. Ala. 1956),
afF’d, 352 U. S. 903. The state’s enforcement authorities
have failed to proceed against petitioner from 1918-1956,
and from this failure there is at least a presumption that
they did not construe the registration statute as being-
applicable to petitioner.
The form of remedy sought by the state is a conclusive
demonstration that compliance with the statute was not the
state’s purpose. The state did not seek to require peti
tioner to register, as the statute provides, but to restrain
all of its activities and secure its ouster from the state.
The decree entered barred compliance with the statute’s
terms, and petitioner’s offer to comply, which should have
ended the lawsuit, was not allowed by the court.
In quo warranto proceedings to forfeit corporate char
ters (which “ award relief of like character to that sought
by injunction . . . ” , Birmingham Bar Association x. Phil
lips and Marsh, 239 Ala. 650, 658, 196 So. 725 (1940)) Ala
bama courts have been disinclined to decree forfeiture for
mere technical violations, State v. Oden, 248 Ala. 39, 26
So. 2d 550 (1946); or for violations which are not sub
stantial or clear, State ex rel. Johnson v. Southern Build
ing and Loan Association, 132 Ala. 50, 57, 31 So. 375 (1902);
moreover, it has been required that the violation be willful
and shown to have prejudiced a citizen of the state or other
person. State ex rel. Scott v. United States Endowment
and Trust Co., 140 Ala. 610, 620, 37 So. 442 (1903).
Further, it is clear from the state’s motion for an order
requiring the disclosure of petitioner’s membership and
the court’s order to that effect that what actually was
35
sought was an effective curb upon petitioner’s activities.
If petitioner had complied with the state’s law, which is
the purported basis for these proceedings, it would not be
required to furnish the state any list of its members.19 The
19 Title 10, Sections 192, et seq., are as follows:
§ 192. Foreign corporation must file instrument of writing desig-
nating agent and place of business in this state.— Every corporation
not organized under the laws of this state shall, before engaging in or
transacting any business in this state, file with the secretary of state
a certified copy of its articles of incorporation or association and file
an instrument of writing, under the seal of the corporation and signed
officially by the president and secretary thereof, designating at least
one known place of business in this state and an authorized agent or
agents residing thereat; and when any such corporation shall amend
its articles of incorporation or association, or shall abandon or change
its place of business as designated in such instrument, or shall sub
stitute another agent or agents for the agent or agents designated in
such instrument of writing, such corporation shall file a new instru
ment of writing as herein provided, before transacting any further
business in this state.
§ 193. Where filed and fee for filing.— Such instrument when filed
by a corporation engaged in any business of insurance must be filed
in the office of the superintendent o f insurance, and when filed by a
corporation engaged in any other business than that of insurance must
be filed in the office of the secretary of state, and there shall be paid
at the same time for filing such instrument to the officer with whom the
same is filed the sum of ten dollars for the use of the state. (1919,
p. 831.)
§ 194. Unlawful for foreign corporation to transact business in
this state before declaration filed; penalty.— It is unlawful for any
foreign corporation to engage in or transact any business in this state
before filing the written instrument provided for in the two preceding
sections; and any such corporation that engages in or transacts any
business in this state without complying with the provisions of the two
preceding sections shall, for each offense, forfeit and pay to the state
the sum of one thousand dollars.
§ 195. Unlawful to act as agent of foreign corporation before such
declaration is filed; penalty.— It is unlawful for any person to act as
agent or transact any business, directly or indirectly, in this state, for
or on behalf of any foreign corporation which has not designated a
36
statute merely requires furnishing the Secretary of State
with Articles of Incorporation and naming an agent to
accept service of process. Thus, in a lawsuit purportedly
based upon petitioner’s failure to comply with the state law,
petitioner is ordered to do more than the statute requires.
Indeed, if the justification for these proceedings was peti
tioner’s failure to register, that justification was removed
before the contempt adjudication by petitioner’s tender of
compliance with state law.
known place of business in this state and an authorized agent or agents
residing thereat, as required in this article; and any person so doing
shall, for each offense, forfeit and pay to the state the sum of five
hundred dollars.
§ 196. Foreign corporations, their agents, officers, etc., contracting
or doing business in state without license, penalty for.— Any corpora
tion or any person acting as agent, servant, or officer of such foreign
corporation or nonresident corporation or corporation organized under
or by authority of the laws of any state or government other than the
State of Alabama, who shall make or attempt to make any contract,
agreement, undertaking, or engagement with, by, or in the name of
or for the use or benefit of any such corporation without a license
authorizing such corporation to do business in this state, or after such
license shall have been cancelled, shall be guilty of a misdemeanor,
and, on conviction, shall be fined not less than one hundred dollars,
nor more than one thousand dollars, and may also be imprisoned in
the county jail or sentenced to hard labor for the county for not more
than twelve months, one or both, at the discretion of the jury trying
the case.
§ 197. Solicitor must enforce penalties; commissions.— Every
penalty provided for in this article shall be sued for and recovered
in the name of the State of Alabama, by the solicitor of the circuit
or county in which the offense is committed; and when collected, must
be paid by the solicitor into the state treasury for the use of the state,
less twenty-five percent, to be retained by such solicitor for his serv
ices. The attorney-general shall represent the state in such actions
carried to the supreme court, and for his services therein is entitled
to one-half the commissions herein allowed to the solicitor.
§ 198. Exceptions.— The provisions of this article do not apply
to corporations organized under the laws of the United States; nor
to corporations engaging in or transacting business of interstate com
merce only within the state.
37
Further evidence of the real purpose of these proceed
ings is demonstrated by the scheduling of the hearing-
date on petitioner’s motion to dissolve after hearing and
determination of the state’s motion for pretrial disclosure
of petitioner’s members. The motion to dissolve, not having
been heard, and petitioner having been adjudged in con
tempt, petitioner is precluded from contesting the validity
of the injunction now outstanding against it, until it has
purged itself of contempt. .Jacoby v. Goetter Weil Co.,
74 Ala. 427 (1883). The burdensome contempt penalty and
the equally burdensome alternative of purging itself of
contempt and disclosing its members, in effect places peti
tioner in position of not being able to challenge the
restraining order. Thereby the temporary restraining
order, entered ex parte, is rendered final and permanent.
That this result was intended is hardly open to doubt.
The penalties for violation of the statutes here involved
are criminal, and it is clear under Alabama law as else
where that equity will not assume jurisdiction to enforce
statutory penalties, Jarrett v. Hager darn, 237 Ala. 66, 185
So. 401 (1939); or assume jurisdiction where a plain and
adequate remedy exists at law. Farmers Savings Bank
v. Murphee, 200 Ala. 574, 76 So. 932 (1917); Hogan v. Scott,
186 Ala. 310, 65 So. 209 (1914); Hardeman v. Donagliey,
170 Ala. 362, 54 So. 172 (1911); Gulf Compress Co. v.
Harris Cortner & Co., 158 Ala. 343, 48 So. 477 (1909);
Youngblood v. Youngblood, 54 Ala. 486 (1875); McCullough
v. Walker, 20 Ala. 389 (1852); Herring v. M ’Elderry, 5 Port.
161 (1837). The state alleges “ irreparable” injury, but no
facts are asserted to warrant giving credence to this alle
gation. Thus, despite the fact that under principles of
equity jurisdiction, no basis for equity intervention was
shown, the trial court nonetheless asserted its equity power
and proceeded to grant injunctive relief.
38
These factors all demonstrate that the proceedings below
were deliberately and premeditatedly designed and utilized
to impose restrictions and regulations upon exercise of
rights of freedom of association and freedom of speech of
petitioner and its members and lawful activities aimed at
securing the constitutional rights and privileges of Negro
Americans. For the reasons set forth in Part I hereof
the proceedings below are, therefore, fatally defective
and should be reversed.
I I I .
Taken As A Whole the Proceedings Were Lacking
in Fundamental Fairness Essential to Our Concept of
Due Process of Law.
1. The entire proceedings in the trial court and in the
State Supreme Court are lacking in objectivity and im
partiality which is the essence of due process. At no place
in these proceedings does the litigation below present a
picture of a court seeking to strike a fair balance between
the interests of contending parties. Judicial discretion
and interpretation of the rules of state procedure were
here involved—in general, matters of state law. But where
the exercise of judicial discretion and the interpretation
of rules of procedure are at variance with fundamental
notions of fairness, there is a failure to accord a hearing-
consonant with requirements of due process guaranteed
under the Fourteenth Amendment. See Walker v. Hutchin
son, 352 U. S. 112; Betts v. Brady, 316 U. S. 455; W olf v.
Colorado, 338 U. S. 25. Cf. Galvan v. Press, 347 U. S. 522,
530.
The state’s complaint, even assuming the truth of all the
allegations made, presents no such extraordinary set of cir
39
cumstances as to warrant the exercise of equity jurisdic
tion. Title 10, Sections 194-196, Code of Alabama, 1940,
which provides statutory penalties for a corporation doing
business in violation of Alabama law, could have been in
voked against petitioner for the alleged violation of the
state’s registration law. Of course, the state alleges that
these remedies at law were inadequate. In view of the
fact that the organization had chartered affiliates operating
in Alabama since 1918, and had been operating its South
east Regional Office in Birmingham since 1951 without
protest by state authorities, even conceding a case for
equity jurisdiction, ex parte proceedings seem entirely
inappropriate 20 since the purpose of such proceedings is
to issue restraints of short duration to maintain the status
quo. Indeed, a restraining order issued ex parte is such
a drastic interference with personal rights that it should
be carefully utilized only in appropriate situations, else
its use is of doubtful constitutionality. A restraining order,
which alters rather than preserves the status quo, which
is entered without the presence of those pressing considera
tions of possible irreparable injury before hearing can be
had, which is entered because of violation of the law but
enjoins compliance, and which is extended as here for
an unreasonable length of time without hearing, fails to
meet minimum constitutional requirements of notice and
hearing. Cf. Rule 65, Federal Rules of Civil Procedure;
Sims v. Green, 160 F. 2d 512 (3d Cir. 1947); Southard &
Co. v. Salinger, 117 F. 2d 194 (7th Cir. 1941); Benitez
20 No question is raised, or indeed could be raised at this late date,
concerning the trial court’s authority in the abstract to issue tempo
rary restraining orders ex parte in appropriate situations. See
Rochell v. Florence, 236 Ala. 313, 182 So. 50 (1938).
40
v. Anciani, 127 F. 2d 121 (1st Cir. 1942); cert, denied 317
U. S. 699; Mongogna v. O’Dwyer, 204 La. 1030, 16 So. 2d
829 (1943); Griffith v. State, 19 S. W.-2d 377 (Tex. Civ.
App. 1929); Kittaning Brewing Co. v. American Natural
Gas Co., 224 Penna. 129, 73 Atl. 174 (1909).
It is doubtful, moreover, that such proceedings would
have been tolerated but for the fact that this petitioner
was the defendant. The personal bias of the trial judge
is clearly manifested in the March 4, 1957 issue of the
Montgomery Advertiser in an article entitled “ Off The
Bench” , where the trial judge said “ ‘ I speak for the White
Race, my race’, because today it is being unjustly assailed
all over the world. * * * The integrationists and mon-
grelizers do not deceive any person of common sense with
their pious talk of wanting only equal rights and opportuni
ties for other races. Their real and final goal is inter
marriage and mongrelization of the American people.”
This bias is further evidenced in a speech delivered by him
on July 11, 1957, before the Baptist Laymen in Alabama.
The speech was reproduced in full in the Congressional
Record of July 22, 1957. Two short excerpts only are
necessary to reveal its character. There the judge said:
Many of our religious organizations, the NAACP,
and it has the financial and moral backing of the
American Jewish Congress in New York, commit
tees of labor imions, and the Supreme Court of the
United States, and both of the Nation’s chief politi
cal parties, are all working together to achieve com
plete integration of the races, and this we know is
the first step toward amalgamation, the consolidat
ing and fusing into 1 race the 2, the white and black
races. A 5888, 5889, 103 Cong. Rec. (85th Cong. 1st
Session) 1957.
and
It is almost unbelievable, yet it is true, that the
Presbyterian Church in one of our Southern States,
41
underwrote the race mixing activities of the Com
munist-dominated NAACP . . . (italics supplied)
Ibid.21
With a judge so personally committed, it can hardly be
said that petitioner was tried in an objective forum as due
process requires.
Under Alabama law when an injunction has been issued
a motion to dissolve will lie and tests the equity of the bill,
see Corte v. State, 259 Ala. 536, 67 So. 2d 782 (1953), and
an appeal therefrom lies directly to the State Supreme
Court. See Title 7, Section 757, Alabama Code of 1940;
Francis v. Scott, 260 Ala. 590, 72 So. 2d 93 (1954). Peti
tioner was put under a sweeping injunction without a hear
ing. Its first responsive pleadings to the state’s bill were
a motion to dissolve and demurrers to the bill filed on
July 2. Hearing on these pleadings were set for July 17.
When the state subsequently filed, on July 5, a motion for
pretrial discovery, however, hearing on its motion was
set for July 9. The setting of hearing dates is in the
realm of judicial discretion, but it hardly seems a fair or
objective determination to give priority to a motion filed
subsequent to that which will grant a defendant its first
opportunity to a hearing to test the equity of a restraining
order without notice and hearing.
After the state’s motion was granted and petitioner was
ordered to give to the state a list of its members, petitioner
sought to demonstrate the irrelevance of the identity of its
members to any germane issue in these proceedings by
21 The bill of complaint makes no charge of subversion, and peti
tioner challenges the state to prove the validity of such charge if it
can. However else petitioner may be characterized, no responsible
authority has ever leveled the charge of subversion.
42
filing an answer revealing in full its defense and offering
to waive its rights not to register. Despite this, the court
refused to vacate its order, and petitioner was put in the
dilemma of either waiving its constitutional rights, as a
condition precedent to a hearing on the merits in the
Alabama courts and thereby exposing its members to
danger, or being adjudged in contempt and thereby losing
its standing to vindicate in the Alabama courts its rights
to continue its activities free of state interference, until it
had purged itself of contempt or the validity of contempt
adjudication had been settled by higher authority. See
Jacoby v. Goetter Weil £ Co., supra, on which the State re
lies and with which interpretation the court concurred (see
Brief in Opposition, p. 20). The alternatives available
posed such unconstitutional conditions that petitioner was
in effect denied access to Alabama courts to litigate its
claims as to the invalidity of the court’s restraining order.
The magnitude and vindictiveness of the fine levied on
the adjudication of contempt, in total disregard of the non
profit character of the organization and its paucity of
funds, is another evidence of the harsh treatment afforded
petitioner and the absence of concern for petitioner’s
interest. Cf. United States v. United Mine Workers, 330
U. S. 258.
The fine itself was excessive and punitive and not war
ranted by the facts. Petitioner is a non-profit corporation
with limited resources. Apparently the court believed
otherwise, but there are no facts in the record or outside
to justify that belief. It was clear that petitioner’s refusal
to obey the court’s order was based upon its good faith
belief that to do so would cause serious injury to its mem
bers and itself and would constitute a waiver of vital con
stitutional rights. The restraining order was being scrupu
43
lously obeyed. Hence, there was no such public defiance
as might give rise to any apprehension of a general under
mining of judicial authority. Cf. United States v. United
Mine Workers of America, supra.
On July 25, in the order adjudging petitioner guilty of
contempt, the court ordered, “ adjudged and decreed . . .
as punishment for its said contempt, the said National Asso
ciation for the Advancement of Colored People, be and it
is hereby fined the sum of $10,000.00” . On July 31, in its
order adjudging petitioner guilty of further contempt, the
order reads: “ as punishment for its said contempt, the
said National Association for the Advancement of Col
ored People, be and it is hereby fined the sum of $100,000.”
If the order was made to induce obedience as in the
nature of civil contempt, see Ex parte Hill, 229 Ala. 501,
158 So. 531 (1935); Ex parte King, 263 Ala. 487, 83 So. 2d
241 (1955), it is clear that a more reasonable fine would
have been sufficient. The inordinate amount of the fine and
the language in the order itself designating it as punish
ment for what had been done would seem to render this
criminal rather than civil contempt under definition of Ala
bama authorities cited above. This is the prevailing rule
and was the Alabama rule until this case reached the Ala
bama Supreme Court. The State Supreme Court in this
case, however, set a new yardstick making the demarcation
between civil and criminal contempt (R. 23).22 Whether
it is classified as civil or criminal contempt, the fine was
levied without consideration of the fact that the conse
quences of petitioner’s disobedience would not adversely
undermine judicial authority, that the disobedience occurred
to preserve constitutional rights, and that petitioner is a
22 Since Title 13, Sec. 143, Alabama Code of 1940 limits court’s
powers to punish for criminal contempt to a fine of $50.00 or jail for
5 days, decision as to which category this adjudication could Ire classi
fied was crucial.
44
non-profit corporation with limited financial resources. Cf.
United States v. United Mine Workers of America, supra.
There is some doubt as to whether petitioner can purge
itself of contempt even if it could afford to pay the fine
levied.
The Supreme Court of the State, although expressly
recognizing certiorari as an appropriate remedy in denying
petitioner’s motion to stay the order of the trial court (91
So. 2d 220), after the petition was filed, denied relief on
the ground that certiorari is not the proper remedy (R. 23).
Thus, petitioner contends that it was denied a fair and
impartial hearing in both state tribunals.
2. Since decision in this case, the rules of civil pro
cedure of Alabama have been under comprehensive study
and the State Commission on Judicial Reform has recom
mended ‘ ‘ adoption of the Federal Rules of Civil Procedure
to the Alabama practice” to insure greater liberality and
freedom in litigation and avoid stringent technicalities of
pleading and practice to meet the ends of justice. Skinner,
“ Alabama’s approach to A Modern System of Pleading
and Practice,” 20 F. R. D. (Adv. pp. 119, 137, 1957).
At the time of these proceedings, although some of the
federal rules in respect to pretrial discovery by inter
rogatories had been superimposed on Alabama procedure
with adoption of Act 375, codified as Title 7, Sections
474(1)-474(18) (Supp. 1955), Title 7, Section 426, Alabama
Code of 1940 governed disposition of the state’s motion.
Section 426 is a part of the restrictive and outmoded state
procedure which the State Commission on Judicial Reform
is seeking to jettison.
23 The new proposals have been approved by the lower House in
the Alabama legislature, but approval has not as yet been given by the
Senate.
45
A common feature of even the liberal discovery pro
cedures, however, is a requirement that “ good cause” be
shown to obtain an order for discovery or inspection of
private documents or papers. See, e.g., Federal Rule 34;
16 Ariz. Rev. Stat. R. 134 (1956); Ark. Stat. Ann. #28-356
(Supp. 1955); Colo. Rev. Stat. R. Civ. P. 34 (1953); 13 Del.
Code Ann. Ch. Ct. R. 34 (1953); 30 Fla. Stat. Ann. R. Civ. P.
1.28 (1956); La. Rev. Stat. #13.3782 (Supp. 1954); Mo.
Ann. Stat. #510.030 (1952); Wash. Ct. R. 34.
And this requirement has been reinforced by judicial
decisions. See e.g., State v. Hall, 325 Mo. 102, 27 S. W. 2d
1027 (1930); State v. Aronson, 361 Mo. 535, 235 S. W. 2d
384 (1950); Kullman, Salz <& Co. v. Superior Court, 15 Cal.
App. 276, 114 P. 589 (1911); Toth v. Bigelow et al., 12 N. J.
Super. 359, 79 A. 2d 720 (1951); Shell Oil Co. v. Superior
Court of Los Angeles County et al., 109 Cal. App. 75, 292
P. 531 (1930); Martin v. Capital Transit Co., 170 F. 2d
811 (C. A. D. C. 1948); Carden v. Ensminger, 329 111. 612,
161 N. E. 137 (1928); Firebaugh v. Traff, 353 111. 82, 186
X. E. 526 (1933); State v. Flynn, 257 S. W. 2d 69 (S. Ct.
Mo. 1953); Gebliard v. Isbrandtsen Co., 10 F. R. D. 119
(S. D. N. Y. 1950); 7 Cyclopedia of Federal Procedure,
609-610 (3rd ed., 1951) and cases cited. Cf. Ex parte
Darring, 242 Ala. 621, 70 So. 2d 564 (1942); Steverson
v. IF. C. Agee & Co., 13 Ala. App. 448, 70 So. 298 (1915).
As part of the requirement of good cause, many courts
require that the party seeking discovery demonstrate that
he cannot obtain the information sought by means other
than discovery. Szubinski v. Commercial Sash & Boor Co.,
15 F. R. D. 274, 276 (N. D. 111., 1953); Goldner v. Chicago
& N. IF. Ry. System, 13 F. R. D. 326 (N. D. 111., 1952);
Gebhard v. Isbrandtsen Co., supra; Drake v. Herman, 261
X. Y. 414, 185 X. E. 685 (1933); Patterson v. Southern
Ry. Co., 219 X. C. 23, 12 S. E. 2d 652 (1941); see 4 Moore’s
Federal Practice, 2451 (2d ed. 1950), and cases cited.
46
Some jurisdictions with liberal pre-trial discovery pro
cedures require that a party seeking the production of docu
ments demonstrate that the papers sought are relevant to
some material issue in the case. See, e.g., Royster v. Unity
Life Ins. Co., 193 S. C. 468, 8 S. E. 2d 875 (1940); Flanner
v. St. Joseph Rome for Blind Sisters, 227 N. C. 342, 42 S. E.
2d 22 (1947); Thomas v. Trustees of Catawba College, 242
N. C. 504, 87 S. E. 2d 913 (1955); Carden v. Ensminger,
supra; Firebaugh v. Traff, supra; State v. Flynn, supra;
Jacobs v. Jacobs, 50 So. 2d 169 (S. Ct. Fla. 1951) ; Chandler
v. Taylor, 234 Iowa 287, 12 N. W. 2d 590 (1944); Patterson
v. Southern Ry., supra; Frank v. Marquette University, 209
Wis. 372, 245 N. W. 145 (1932); Hawley Products Co. v.
May, 314 111. App. 537, 41 N. E. 2d 769 (2d Dist. 1942); Raf-
fenberg v. Windling, 271 App. Div. 1057, 69 NYS 2d 546
(4th Dept. 1947); White v. Shelly Oil Co., 11 FED 80 (W. D.
Mo. 1950); Woods v. Kornfeld, 9 FED 678 (M. D. Pa. 1950);
Anno., 58 ALE 1263 and cases cited; 7 Cyclopedia of Fed
eral Procedure 641 and cases cited; Steverson v. W. C.
Agee <& Co., supra; State v. Rail, supra; State v. Aronson,
supra; McClatchy Newspapers v. Superior Court, 26 Cal.
(2d) 386, 159 P.' 2d 944 (1945); Toth v. Bigelow, et al.,
supra; Ellen v. Tappin’s Inc., et al., 14 N. J. Super. 162,
81 A. 2d 500 (1951); Shell Oil Co. v. Superior Court of Los
Angeles County, et al., supra; Ij Os Angeles Transit Lines v.
Superior Court, 119 Cal. App. 2d 465, 259 P. 2d 1004 (1953).
Cf. Alabama G. S. R. Co. v. Taylor, 129 Ala. 238, 29 So. 673
(1901); Ex parte Rowell, 248 Ala. 80, 26 So. 2d 554 (1946).
The burden of proving relevancy must be met by factual
allegations showing that the papers sought are pertinent,
and not merely by argumentative conclusions. Thomas v.
Trustees of Catawba College, supra. The rules of discovery
do not authorize an unlimited inquiry into a party’s records
on the chance that some relevant information may be turned
up; Royster v. United Life Ins. Co., supra; Haffenberg v.
Windling, supra-, 7 Cyclopedia of Federal Procedure 605-
606; nor do they require a corporation to produce all its
47
business records merely because a suit has been filed against
it. June v. George C. Peterson Co., 7 Fed. Rules Serv. 34,
41 (N. D. 111. 1942).
Additional protection to parties against whom discovery
is sought is afforded by courts deferring consideration of
a motion to produce where a decision on a pending issue
may make production unnecessary. Thus, where defend
ant files a motion to dismiss or a motion for summary judg
ment contemporaneous with plaintiff’s motion to produce,
consideration of the latter will be postponed until it is de
cided whether plaintiff has a cause of action. Frasier v.
20th Century Fox Film Corp., 119 F. Supp. 495, 497
(D. Neb. 1954); Daves v. Hawaiian Dredging Co., 114 F.
Supp. 643, 648, 649 (D. Hawaii 1953); Pyle v. Pyle, 81 F.
Supp. 207 (W. D. La. 1948); Columbia Pictures Corp. v.
Rogers, 81 F. Supp. 580, 585 (S. D. W . Va. 1949); Momand
v. Paramount Pictures Distributing Co., 36 F. Supp. 568,
571 (D. Mass. 1941).
In situations where a party can demonstrate that some
valuable right may be infringed upon by discovery proceed
ings, courts exercise even greater care in issuing orders to
produce. Thus, where the production of documents may
lead to the revelation of trade secrets, a court will refuse
to issue an order to produce unless the party seeking it
demonstrates that discovery is necessary for a proper de
termination of the case. Drake v. Herman, supra; Griffin
Mfg. Co. Inc. v. Gold Dust Corp., 245 App. Div. 385, 292
X IS 931 (2d Dept. 1935); Kaplan v. Roux Laboratories,
Inc., 273 App. Div. 865, 76 NYS 2d 601 (2d Dept. 1948);
Perfect Measuring Tape Co. v. Notheis, 93 Ohio App. 507,
114 N. E. 2d 149 (Ct. App. Lucas Co. 1953); International
Nickel Co. v. Ford Motor Co., 15 FRD 357 (S. D. N. Y.
1954); Wagner Mfg. Co. v. Cutler-Hammer, 10 FRD 480,
485 (S. IX Ohio 1950); Hercules Powder Co. v. Rohm &
Haas (>o., 4 1 RD 452 (D. Del. 1944); Lever Bros. Co. v.
Procter & Gamble Mfg. Co., 38 F. Supp. 680 (D. Md. 1941);
Floridin Co. v. Attapulgus Clay Co., 26 F. Supp 968 97?
(D. Del. 1939).
48
Here, petitioner alleged in good faith that the conse
quences of disclosure sought would be adverse to it and its
members. The court could not have been unaware of public
hostility to petitioner. Fair play required, at least, that
the court be certain that the apprehended injury be an
essential consequence of affording the state a fair oppor
tunity to prove its case. Whatever rationale there might
be for the disclosure ordered, it is clear that if petitioner’s
motion to dissolve was heard and sustained either by the
trial court, the Supreme Court of Alabama or this Court,
no trial on the merits could take place. Thus, the informa
tion might never be needed by the state.
3. Petitioner recognizes the fact that this Court cannot
tell Alabama what procedure it should adopt for the
handling of litigation. We raise these questions here, how
ever, because they go to the essential character and nature
of the proceedings below. The court below issued an order
which, if obeyed, would have subjected petitioner’s members
to danger. Certainly, the court must be convinced of some
needed state interest which had to be served to take such an
order out of the category of caprice. In Watkins v. United
States, supra, at pp. 187 and 200, this Court stated that
the Congress lacked authority to expose the private affairs
of individuals for the sake of exposure and without justi
fication in terms of a Congressional function. The harmful
effect on individuals was likely to be so great that the Con
gress was admonished to use its power only within the
limits essential to its adequate functioning.
‘ ‘ The mere summoning of a witness and compelling him
to testify, against his will, about his beliefs, expressions or
associations is a measure of governmental interference.
And when these forced revelations concern matters that
are unorthodox, unpopular, or even hateful to the general
public, the reaction in the life of the witness may be disas
trous” (at page 197). And see Sweezy v. New Hampshire,
supra.
49
The Watkins and Siveezy cases concern the power of the
Congress and state legislature, but as we have said supra,
their rationale is applicable to the judiciary. For whatever
limitations are placed upon the legislative investigatory
function to protect individuals must be applicable to the
courts which are unquestionably bound by rules of substan
tive and procedural due process. Applying the same con
siderations here applied in those cases, it is clear, we sub
mit, that the order of the court below was arbitrary, and
that the entire proceedings failed to meet the standards of
due process essential to a judicial determination under our
system.
Conclusion
While many persons may find petitioner’s aims objec
tionable and deplore the erosion of the parochial con
cept of the ultimate superiority of the white race, the aims
and purposes which petitioner is seeking to accomplish con
stitute the great promise and the basic aspiration of Amer
ican society. Certainly mere dislike of petitioner’s pur
poses cannot justify use of state machinery to restrict its
lawful activities. Moreover, whatever the bases for the
proceedings to restrict petitioner’s operations, it is en
titled to a fair and impartial hearing in accord with the
requirements of due process. Although resting its deci
sion on procedural grounds, the State Supreme Court
passed upon and sustained the trial court’s interlocutory
order to require petitioner to disclose the names and ad
dresses of its members. If petitioner’s position is vindi
cated here, therefore, no good purpose can be served by
remanding the cause to the State Supreme Court for
reconsideration. Cf. Williams v. Georgia, 349 U. S. 375.
W herefore, it is respectfully submitted that the cause
be reversed on the ground that the decree restraining all of
petitioner’s activities, the order to disclose the names and
50
addresses of petitioner’s members and the lack of funda
mental fairness throughout the proceedings violated peti
tioner’s right and the rights of its members to due process
of law as secured by the Fourteenth Amendment to the
Constitution of the United States.
R obert L. Carter,
20 West 40th Street,
New York, New York,
T hurgood Marshall,
107 West 43rd Street,
New York, New York,
A rthur D. S hores,
1630 Fourth Avenue, North,
Birmingham, Alabama,
Attorneys for Petitioner.
Charles L. B lack, Jr.,
W illiam T. Coleman, Jr.,
F red D. Gray,
George E. C. H ayes,
W illiam R. M ing, Jr.,
James M. Nabrit, Jr.,
L ouis H. Pollak,
F rank D. R eeves,
W illiam T aylor,
of Counsel.
Supreme Printing Co., I nc., 54 L afayette Street, N. Y. 13, BEekman 3-2320
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