Washington State v. Seattle School District No. 1 Brief Amicus Curiae NAACP Legal Defense Fund

    I s  T H E

Bxxpxmu GImtrt of tin Into!* BIuXxb
October Term, 1962 

No. 68

N ath an iel  W eig h t , et al.,
Petitioners,

—v.—

Georgia.

ON W R IT  OE CEETIOEAEI TO T H E  SU P R E M E  COURT OF T H E  
STATE OF GEORGIA

BRIEF FOR PETITIONERS

J ack  G reenberg 
C onstance B aker  M otley 
L eroy D. Clark  
J ames M . N abrit , III 

10 Columbus Circle 
New York 19, New York

B . Clarence M ayfield 
E. H. Gadsden

458% West Broad Street 
Savannah, Georgia

Attorneys for Petitioners



INDEX
PAGE

Opinion Below ._................................................................  1

Jurisdiction ...............       l

Constitutional and Statutory Provisions Involved ___ 2

Questions Presented ....     2

Statement .......      3

A rgum ent  :

I. The Petitioners Were Denied Due Process in 
That They Were Convicted Under a Statute 
Too Vague and Indefinite to Provide an Ascer­
tainable Standard of Guilt, and Which Pro­
vided No Fair Warning That Petitioners’ 
Conduct Was Proscribed. The Only Rational 
Alternative Conclusion Would Be That Peti­
tioners Were Convicted Without Any Evi­
dence of Their Guilt ................ ..... .......... ........  10

II. The Judgment Below Does Not Rest Upon 
Adequate Non-Federal Grounds for Decision 23

Conclusion  ................. ............. ................ ............... ............. ......... 29

T able of Cases and O th er  A uthorities

Cases:

Bailey v. Alabama, 219 U. S. 219 ................................  28
Blackburn v. Alabama, 361 U. S. 199 ..........    28
Bolling v. Sharpe, 347 U. S. 497 ..........       16
Boman v. Birmingham Transit Co., 280 F. 2d 531 (5th 

Cir. 1960) .............................. .......... ...... ...... ................. . 22



XI

PAGE

Boynton v. Virginia, 364 U. S. 454 ..................................  20
Brown v. Mississippi, 297 U. S. 278 ............................... 28
Buchanan v. Warley, 245 U. S. 6 0 ................................... 21

Cantwell v. Connecticut, 310 U. S. 296 .............. .... 14, 22, 23
Chaplinski v. New Hampshire, 315 U. S. 568 ............... 14
Connally v. General Construction Co., 269 U. S. 385 ..14, 26 
Cooper v. Aaron, 358 U. S. 1 .......................................... 16, 21

Elmore v. State, 15 Ga. App. 461, 83 S. E. 799 (1914) .... 12

Faulkner v. State, 166 Ga. 645, 144 S. E. 193 (1928) ..12,14

Garner v. Louisiana, 368 U. S. 157...............12,15,18, 21, 22
Gayle v. Browder, 352 U. S. 90 ....................................... 20
Glasser v. United States, 315 U. S. 60 ...........................  27

Hague v. C. I. O., 337 U. S. 496 ......................................  16
Henderson v. Lott, 163 Ga. 326, 136 S. E. 403 ...........  25
Herndon v. Lowry, 301 U. S. 242 ................................... 13
Holmes v. City of Atlanta, 124 F. Supp. 290 (N. D.

Ga. 1954); aff’d 223 F. 2d 93 (5th Cir. 1955), vacated
350 U. S. 879 ..................................................................  22

Holmes v. City of Atlanta, 350 U. S. 879 ................... 20

Kent v. Southern R. Co., 52 Ga.. App. 731, 184 S. E.
638 (1935) ........... ................. ............................................. 11

Lanzetta v. New Jersey, 306 U. S. 451 ........... ........ .......  22
Lawrence v. State Tax Comm., 286 U. S. 276 ............... 28

Martin v. State, 103 Ga. App. 69, 118 S. E. 2d 233 ....11, 27 
Mayor and City Council of Baltimore v. Dawson, 350 

U. S. 877 .................................. ....................................... 20



I l l

New Orleans City Park Improvement Asso. v. Detiege,

PAGE

358 U. S. 54 .......................................................................  20

Roberts v. Baker, 57 Ga. App. 733, 196 S. E. 104...........  27

Samuels v. State, 103 Ga, App. 66, 118 S. E. 2d 231
(1961) ................................ ...................... .....11,12,13,14,27

Staub v. Baxley, 355 U. S. 313....... ..... ......................... . 28
Strauder v. West Virginia, 100 U. S. 303 ....................... 16

Taylor v. Georgia, 315 U. S. 2 5 ......................................... 28
Taylor v. Louisiana, 370 U. S. 154 ............................. ..... 20, 21
Terre Haute I. R. Co. v. Indiana, 194 U. S. 579 ............. 28
Thompson v. City of Louisville, 362 U. S. 199...............21, 22
Thornhill v. Alabama, 310 U. S. 8 8 ......... ....................... 15,16

Union P. R. Co. v. Public Service Commission, 248
U. S. 6 7 .............................................................................. 28

United States v. Brewer, 139 U. S. 278 ....... ................ . 26

Wieman v. Updegraff, 344 U. S. 183 ..... .........................  23
Winters v. New York, 333 U. S. 507 ............................ ..12, 26

Statutes :

United States Code, Title 28, §1257(3) ...........................  1

United States Constitution, Fourteenth Amendment, . 
Section 1 ............................................................................ 2

Georgia Code Annotated, Section 6-1308 ........    25

Georgia Code Annotated, Section 24-4515 ....................... 26

Georgia Code Annotated, Section 26-5301 ....2, 3, 7, 8,10,11,
12,16,17, 23, 24

Georgia Penal Code of 1816 (Ga. L. 1816) ................   11

Georgia Penal Code of 1833, §359 ..................     H



IV

Other Authorities:

Black’s Law Dictionary (4th ed. 1951) ............................. 27

Cobb’s Digest of the Statute Laws of Georgia (1851) .... 11 

Lamar’s Compilation of the Laws of Georgia (1821) .... 11

Myrdal, An American Dilemma, 618 (1944) ...................  22

Note, 109 U. of Pa. L. Rev. 6 7 ........................................... 19

Webster’s New International Dictionary (2d ed.) .......  27

PAGE



I n  t h e

dmxt ni %
October Term, 1962 

No. 68

N ath an iel  W righ t , et al.,
Petitioners,

Georgia.

ON W R IT  OF CERTIORARI TO T H E  SU PRE M E  COURT OF T H E  
STATE OF GEORGIA

BRIEF FOR PETITIONERS

Opinion Below

The opinion of the Supreme Court of Georgia is reported 
at 217 Ga. 453, 122 S. E. 2d 737 (1961) (R. 52).

Jurisdiction

The judgment of the Supreme Court of Georgia was 
entered on November 9, 1961 (R. 58). Rehearing was de­
nied November 21, 1961 (R. 60). The petition for certiorari 
was filed February 17, 1962, and was granted on June 25, 
1962. Jurisdiction of this Court is invoked pursuant to 
28 U. S. C. §1257(3), petitioners having asserted below and 
claiming here, denial of rights, privileges, and immunities 
secured by the Fourteenth Amendment to the Constitution 
of the United States.



2

Constitutional and Statutory Provisions Involved

1. This case involves Section 1 of the Fourteenth 
Amendment to the Constitution of the United States.

2. This case also involves Georgia Code Annotated, 
Section 26-5301:

Unlawful Assemblies—-Any two or more persons who 
shall assemble for the purpose of disturbing the public 
peace or committing any unlawful act, and shall not 
disperse on being commanded to do so by a judge, 
justice, sheriff, constable, coroner, or other peace of­
ficer, shall be guilty of a misdemeanor.

Questions Presented

I.
Whether the conviction of petitioners for unlawful as­

sembly denied them due process of law under the Four­
teenth Amendment, where they were convicted on no evi­
dence of guilt, or merely because they were Negroes who 
peacefully played basketball in a municipal park custom­
arily used only by white persons, under a statute which 
was drawn in sweeping and general terms and which gave 
no warning that such conduct was prohibited.

II.

WTiether the decision below asserts any adequate non- 
federal ground for limiting consideration of an aspect of 
an important constitutional right where the court below 
unjustifiably determined that such right had been aban­
doned.



3

Statement

Petitioners, six young Negro men ranging from 23 to 32 
years of age (R. 39) in Savannah, Georgia, have been 
charged and convicted of the crime of unlawful assembly, 
a misdemeanor, in violation of §26-5301, Georgia Code 
Annotated. It was charged, in an accusation signed by 
the Solicitor General of the Eastern Judicial Circuit of 
Georgia, that petitioners on January 23, 1961:

. . . did assemble at Daffin Park for the purpose of 
disturbing the public peace and refused to disburse 
(sic) on being commanded to do so by Sheriff, Con­
stable and Peace Officer, to w it: W. H. Thompson and 
G. W. Hillis . . .  (R. 8).

Petitioners were brought before the city court of Savan­
nah, Georgia on May 18, 1961; they filed demurrers raising 
constitutional defenses which were overruled (R. 11-13); 
entered pleas of not guilty (R. 10); and were tried and 
found guilty by a jury (R. 10). The court sentenced five 
petitioners to fines of one hundred dollars or five months 
in jail (R. 10-11); the sixth petitioner, Nathaniel Wright, 
was sentenced to a fine of one hundred twenty-five dollars 
or six months in jail (R. 11).

The evidence for the State consisted of testimony by 
the two arresting officers, G. H. Thompson and G. W. Hillis, 
by another officer, Sgt. Dickerson, who arrived at the scene 
of the alleged crime after the arrest, and by Carl Hager, 
Superintendent of the Savannah Recreational Department, 
who was not present during the incident but testified con­
cerning certain city park department policies. The defen­
dants presented no evidence.



4

At about 2:00 p.m. on January 23, 1961, police officers 
Thompson and Hillis were on duty in an automobile in 
Daffin Park, a fifty acre recreational park in Savannah, 
Georgia (R. 39; 49). Officer Thompson stated:

This matter first came to my attention when this white 
lady had this conversation with us, the lady who told 
us that colored people were playing in the Basket Ball 
Court down there at Daffin Park, and that is the reason 
I went there, because some colored people were playing 
in the park. I did not ask this white lady how old 
these people were. As soon as I found out these were 
colored people I immediately went there (R. 40-41).

When the officers arrived at the basketball court, accord­
ing to Officer Hillis,

. . . the defendants were playing basketball. They 
were not necessarily creating any disorder, they wTere 
just ‘shooting at the goal’, that’s all they were doing, 
they wasn’t disturbing anything (R. 50; see also R. 41).

Petitioners were well dressed in street clothes; “ some 
of them had on dress shirts, some of them had on coats— 
not a dress coat, but a jacket” (R. 39). The two officers 
approached the defendants, and both asked the defendants 
to leave the basketball court. Officer Thompson testified:

When I came up to these defendants I asked them 
to leave; I spoke to all of them as a group when 1 
drove up there, and I asked them to leave twice, but 
they did not leave at that time. I gave them an oppor­
tunity to leave. One of the, I don’t know which one 
it was, came up and asked me who gave me orders to 
come out there and by what authority I came out 
there, and I told him that I didn’t need any orders to 
come out there . .. (R. 40).



5

Officer Hillis said:

Officer Thompson told them that they would have to 
leave, he told them that at first, and they did have an 
opportunity to leave after he told them that. He asked 
them to leave, and then I asked them to leave after 
I saw they wasn’t going to stop playing, and [fol. 61] 
when I asked them to leave one of them made a sar­
castic remark, saying: “What did he say, I didn’t hear 
him” , he was trying to he sarcastic. When I told them 
to leave there was one of them who was writing with 
a pencil and looking at our badge numbers. They all 
had an opportunity to leave before I arrested them, 
plenty of time to have left, but I told them to leave, 
they wouldn’t leave and I put them under arrest 
(R. 49-50).

Officer Thompson testified further on direct that “ The 
purpose of asking them to leave was to keep down trouble, 
which looked like to me might start—there were five or six 
cars driving around the park at the time, white people” 
(R. 40).

On cross examination Officer Thompson said:

I arrested these people for playing basketball in 
Daffim Park. One reason was because they were 
negroes. I observed the conduct of these people, when 
they were on the basketball court and they were doing 
nothing besides playing basketball, they were just nor­
mally playing basketball, and none of the children from 
the schools were there at that particular time1 (R. 41). 
(Emphasis added.) 1

1 The officer had testified that children from nearby schools play 
in the park “ every afternoon when they get out of school . . . aboiit 
2:30 in the afternoon, and this was around 2:00 o’clock” (R, 40).



6

On cross examination Policeman Thompson stated that 
there was a driveway about 15 yards from the basketball 
court, and that five or six cars were riding around the 
driveway, but that “ I wouldn’t say that that was unusual 
traffic for that time of day” (R. 41).

Baffin Park, where these incidents took place, is a part 
of the system of playgrounds maintained by the Recrea­
tional Department of the City of Savannah under the di­
rection of Superintendent Carl Hager, who testified that 
the city parks were located in various colored and white 
neighborhoods with fourteen parks in white areas and 
seven parks in Negro areas (R. 42-44), and that “ It has 
been the custom to use the parks separately for the different 
races” (R. 45). With regard to the Daffin Park area, 
Mr. Hager said, “ around that area is mostly white” (R. 43).2

Neither of the arresting officers testified that petitioners 
violated any park rules. Officer Thompson said that he had 
never arrested people in Daffin Park for playing basketball 
there, and that, “ I don’t have any knowledge myself if any 
certain age group is limited to any particular basketball 
court, I don’t know the rules of the City Recreational 
Department” (R. 41).

Superintendent Hager, whose office is located in Daffin 
Park, was informed of the arrests after they had been made 
and the police and defendants had left (R. 43). He was * I

2 Mr. _ Hager did state that occasionally colored children had 
played in the Daffin Park area and that no action had been taken 
(R. 43). Officer Thompson said:

I have observed colored children playing in Daffin Park, but 
not playing basketball, but I have observed them playing and 
fishing, we had gotten previous calls that they were fishing in 
there and such, but not playing basketball (R. 42).

He said that he had not arrested those children but that he 
arrested these people, the petitioners, “because we were afraid of 
what was going to happen” (R. 42).



7

not a witness to the incident. He did testify about certain 
park rules and policies, stating that, “ . . . we have no 
objection to older people using the facilities if there are 
no younger people present or if they are not scheduled 
to be used by the younger people”  (E. 44), and that, 
“ Grownups could use [the basketball courts] if there was 
no other need for them” (E. 45). Officer Thompson had 
testified that at the time of the arrest “none of the children 
from the schools were there at that particular time” and 
that “ it would have been at least 30 minutes before any 
children would have been in this particular area” (E. 41). 
Although the arresting officers made several comments 
about the fact that petitioners were wearing street clothes, 
asserting that they were dressed up and had on “ nice 
clothes” (E. 39; 42; 48), Mr. Hager said that the Eecrea- 
tional Department “ would probably not expect” the usual 
basketball attire—short trunks, etc.—if persons “were play­
ing in an unregulated and unsupervised program, and it 
would be consistent with our program to allow persons to 
wear ordinary clothing on the courts if they chose to do so, 
I don’t think that we would object to that” (E. 45). And, 
indeed, Officer Thompson acknowledged that:

The people who play basketball don’t usually have 
uniforms on, sometimes they do and sometimes they 
don’t.3 It is possible to play basketball in street clothes 
(E. 42).

At the close of the evidence defense counsel made an oral 
motion for acquittal, arguing that there was no evidence 
that defendants went to the park for the purpose of dis­
turbing the peace in violation of §26-5301; the court over­

3 A portion of this sentence was omitted by the printer in pre­
paring the record for this Court. See original record on file in this 
Court, pages 53-54.



8

ruled the motion (R. 14-16). The charge to the jury was 
general; it did not include any discussion of the elements 
of the defense except for a reading of the statute to the 
jury and a statement that city police officers were “peace 
officers” within the meaning of §26-5301 (R. 61-64). After 
the verdict and sentences (R. 10-11) petitioners filed iden­
tical motions for new trial, which were overruled by the 
court on July 24, 1961 (R. 17-38). The cases were con­
solidated for appeal (R. 51).

The Supreme Court of Georgia reviewed the convictions 
and affirmed, rejecting petitioners’ arguments (R. 58). The 
opinion of the Court dealt with petitioners’ constitutional 
claims in the following manner :

1) The Court refused to consider any of the grounds 
urged in the motion for new trial, asserting that the ex­
ception to the order overruling the motion for new trial 
was abandoned by petitioners’ brief in the Supreme Court 
of Georgia (R. 54). The Court asserted that the brief con­
tained “no argument, citation of authority, or statement 
that such grounds were still relied upon,” but “merely re­
ferred to the third ground by asking: ‘Did the Court com­
mit error in overruling plaintiff’s in error motion for new 
trial?’ ” (R. 54).

The motions for new trial (R. 17-38) had objected that 
the verdict was “ contrary to the evidence and without 
evidence to support it” (HI), “ decidedly and strongly 
against the weight of the evidence” (j[2), and was “ con­
trary to law and the principles of justice and equity” 
(j[3). The motion had claimed a denial to the defendants 
of due process of law under the “ First and Fourteenth 
Amendments” to the Constitution of the United States in 
that “ the statute . . .  is so vague that the defendants were 
not put on notice as to what criminal act they had allegedly



9

committed” (U4); a denial of due process under the Four­
teenth Amendment in that “ said statute is unconscionably 
vague . . . nowhere in said statute does there appear 
a definition of disturbing the peace or committing any un­
lawful act” (ff5) ; and a denial of due process under the 
Fourteenth Amendment in that the law gave the “peace 
officers untrammelled and arbitrary authority to predeter­
mine the commission of the intent to commit an offense 
under said statute” , and in that the determination of for­
bidden acts was “ left solely to the discretion of the said 
Peace Officer” (H6).

The Supreme Court of Georgia ruled on the five conten­
tions in the demurrers. It held that paragraphs 3 and 4 
of the demurrer (R. 12), which objected that petitioners 
were arrested to enforce racial discrimination and a custom 
of racial segregation in municipally owned places of public 
recreation in violation of the equal protection and due 
process clauses of the Fourteenth Amendment, on the 
ground that these were improper speaking demurrers 
(R. 55). The Court rejected the claims of paragraphs 1, 2, 
and 5 of the demurrer (R. 11-13), that the statute was 
unconstitutionally vague, denying petitioners’ rights under 
the due process clause of the Fourteenth Amendment, 
holding that the language of the statute was “ in terms so 
lucid and unambiguous that a person of common intelli­
gence would discern its meaning and apprehend with what 
violation he was charged” (R. 57), and that the law had 
“ a clear-cut standard to apprise one of what constitutes a 
criminal act and thus to guide the conduct of such officer” 
(R. 57).



10

A R G U M E N T

I.

The Petitioners Were Denied Due Process in That 
They Were Convicted Under a Statute Too Vague and 
Indefinite to Provide an Ascertainable Standard of Guilt, 
and Which Provided No Fair Warning That Petitioners’ 
Conduct Was Proscribed. The Only Rational Alterna­
tive Conclusion Would Be That Petitioners Were Con­
victed Without Any Evidence of Their Guilt.

The statute under which petitioners were convicted in 
this case, Section 26-5301, Code of Georgia, was held by 
the Supreme Court of Georgia to be “ so lucid and un­
ambiguous that a person of common intelligence would 
discern its meaning and apprehend with what violation he 
was charged” (R. 57). The court below discussed peti­
tioners’ argument that the law was vague only by referring 
to the common law origins of the phrase “ disturbing the 
public peace,” by asserting that this phrase was a synonym 
of “ breach of the peace,” and that this idea “ has long been 
inherently encompassed in our law and is prevalent in the 
various jurisdictions” (R. 56). The court also said that 
the crime of unlawful assembly has common law origins 
(R. 56), but offered no definition of the crime as embodied 
in this statute; nor did the court say the statute was the 
equivalent of common law unlawful assembly. The opinion 
contained no discussion of the evidence in this case.4 The 
court did say that it had no occasion to consider the alleged 
vagueness of the statutory phrase “ or committing any un­
lawful act” , because the accusation charged petitioners only

4 The trial court charge to the jury did not discuss the evidence 
or the meaning of the statute, except to state that city policemen 
were “peace officers” within the meaning of the law.



11

under the phrase concerning “ disturbing the public peace” 
(R. 55).

The Georgia Supreme Court did not refer to any prior 
opinions construing Section 26-5301. Prior to this decision, 
the statute had been mentioned only two times in pub­
lished opinions.5 Kent v. Southern R. C o 52 Ga. App. 731, 
184 S. E. 638 (1935),6 and Samuels v. State, 103 Ga. App. 
66, 118 S. E. 2d 231 (1961).7 Of these two cases, only the 
Samuels case, supra, involved a prosecution under Section 
26-5301.

In Samuels v. State, supra, three Negroes were held to 
violate Section 26-5301 in a prosecution arising from a 
completely peaceful “ sit-in” at a drugstore lunch counter 
where the police, but not the owner, ordered them to leave. 
The appellate court supplied an element to convict by judi­
cially noticing that hostility to lunch counter desegregation 
might lead white persons to attack defendants, and that 
the defendants should have known this. The facts in the 
Samuels case, set out more fully in the note below, bear

5 A similar provision appeared in the Ga. Penal Code of 1816 
(Ga. L. 1816, p. 178), Lamar’s Compilation of the Laws of Georgia 
(1821), p. 592; and see Ga. Penal Code of 1833, §359, Cobb’s Digest 
of the Statute Laws of Georgia (1851), p. 810. No reported cases 
have been discovered which discuss either of these predecessors of 
§26-5301.

6 Kent v. Southern R. Go., supra, was a damage suit brought by 
a picketing mill worker against a railroad for injury sustained from 
a tear-gas gun discharged by a police chief at the request of a rail­
road conductor to disperse a group of 50 strikers, including plain­
tiff, who were blocking a train from entering a mill by standing 
on the tracks. In holding the complaint demurrable, the court said 
that plaintiff and those with him blocking the train violated §26- 
5301 and other penal laws.

7 A companion case, Martin v. State, 103 Ga. App. 69, 118 S. E. 
2d 233, affirmed convictions said to be on facts similar to Samuels, 
supra, on authority of that case, without discussion of the facts or 
§26-5301.



12

a striking similarity to Gamer v. Louisiana, 368 IT. S. 157; 
the same is true of the judicial notice theory argued hut 
rejected in Garner, supra.11

Petitioners submit that §26-5301 is by no means clear 
and unambiguous, either in its terms or in light of the con­
struction placed upon it by the state courts. The antiquity 
of the law does nothing to add clarity to it, particularly 
since it has so rarely been mentioned in the case law.8 9

If the Samuels case construction of the law is accepted, 
the statute certainly affords no ascertainable standard of

8 In Samuels v. State, supra, it was undisputed that defendants 
were quiet, peaceable, and orderly and that they merely courteously 
requested service at a lunch counter customarily reserved for 
whites; that they were refused service because they were colored; 
that they were not asked to leave by any store employee; that a 
police officer was called and defendants were arrested for not obey­
ing his order to leave (118 S. E. 2d at 232-233). There was no evi­
dence of any threats or actual violence or disorder, but a number of 
white persons gathered as onlookers, and several witnesses opined 
“that the presence of the defendants would tend to create a dis­
turbance” (Ibid.). The Georgia Court of Appeals construed §26- 
5301 to cover such orderly conduct that was not in and of itself a 
disturbance of the peace. To support this the court quoted at 
length from Corpus Juris for a definition of “breach of the peace” 
and cited two Georgia decisions holding that cursing and abusive 
language tending to incite to immediate violence is a breach of the 
peace. See, e.g., Faulkner v. State, 166 Ga. 645, 144 S. E. 193 
(1928), and Elmore v. State, 15 Ga. App. 461, 83 S. E. 799 (1914). 
To sustain the conviction, the court held that the trial court “un­
doubtedly” judicially noticed the fact that lunch counter segrega­
tion was a custom throughout the southeast part of the United 
States; that “ the vast majority of the white people in these areas” 
have such strong feelings in favor of continuance of these customs 
that “attempts to break down the custom have more frequently than 
not been met with violent and forceable resistance on the part of 
the white people” (168 S. E. 2d at 233). The court then conchided 
that defendants were bound to know that their acts “might” result 
in violent opposition by local white people, and on this basis held 
the arrests and convictions justified. (Ibid.)

9 Laws similar to the statute in Winters v. New York, 333 U. S. 
507, 511, were said to have “ lain dormant for decades.”



13

guilt. There is no real standard for determining the ex­
istence of a “purpose to disturb the public peace.” This 
determination is left entirely in the discretion of the police, 
the courts, and the jury. When the law is construed to 
apply to peaceful and orderly conduct which may incite 
others to violence, without any required showing of threats 
or other overt manifestations of impending disorder or 
violence, the question left for the court or jury is : Whether 
under existing conditions, including the attitudes of a com­
munity majority with respect to particular peaceful and 
lawful conduct, as appraised by the court or jury from 
general knowledge not limited to the evidence, the defen­
dant should have believed that his conduct might result 
in violent opposition? This is plainly not a mere require­
ment that a defendant make a forecast based on a rule of 
reason. Rather, it is a requirement that he forecast a 
jury’s determination which in itself must be based on 
“ pure speculation” as to the future conduct of others. 
Herndon v. Lowry, 301 U. S. 242, 263. I f the public atti­
tudes that this determination involves were a fixed and 
static thing, the decision would be perilous enough— even 
for a scientific opinion analyst or pollster. But public atti­
tudes are not static. The subject of race relations, for one 
example, readily brings to mind cases of peaceful accept­
ance of desegregation in places where there has been ex­
pected violent opposition. Indeed, lunch counters in Savan­
nah have been desegregated notwithstanding the views 
expressed in the Samuels case, supra (New York Times, 
July 9,1961, p. 65, col. 1). Cf. footnote 8, supra.

To make the peaceful exercise of a constitutional right 
subject to a preliminary guess of this nature, under penalty 
of fine or imprisonment, is so to deter the exercise of the 
right as to practically destroy it. See Herndon v. Lowry, 
301 U. S. 242, 261-264. Just as the “ current rate of per diem



14

wages in the locality” was held inherently incapable of fixa­
tion in Connolly v. General Construction Co., 269 IT. S. 385, 
393-395, so in this case the required judicial appraisal of 
the attitudes of an amorphous vast community majority, 
as viewed from the defendants’ point of view, provides no 
ascertainable standard for the court or jury.

If the statute is considered without the benefit of the 
construction given it in the Samuels case, supra, it could 
not be known whether the law covered peaceful and orderly 
acts or merely outwardly disorderly conduct; whether an 
actual or an imminent or merely a foreseeable disturbance 
was required; whether violence was essential and, if so, 
whether it must be actual or merely threatened; whether 
the defendants’ “ purpose”  must be manifested by some 
overt act or whether it may be supplied by a jury deter­
mination, discretionary or otherwise.

It is evident that this law is not “narrowly drawn to 
define and punish specific conduct,” Cantwell v. Connecticut, 
310 U. S. 296, 311. Here, as in Cantwell (310 U. S. at 308), 
the vice of the law consists in its “ sweeping in a great 
variety of conduct under a general and indefinite charac­
terization and leaving to the executive and judicial branches 
too wide a discretion in its application.”

The opinion below cites Faulkner v. State, 166 G-a. 645, 
665, 144 S. E. 193 (1928), a case holding that abusive and 
profane language was a breach of the peace. This Court 
has upheld a prohibition aimed at such direct incitements 
to violence in a law “ narrowly drawn to define and punish 
specific conduct.” Chaplinski v. New Hampshire, 315 IT. S. 
568, 573. Insulting or fighting words were said to receive 
no protection as free speech because they are “no essential 
part of any exposition of ideas and are of such slight social 
value . . . ” (315 IT. S. at 572). But no comparable char­



15

acterization can be given to petitioners’ conduct, whether 
it be regarded as merely playing a basketball game, or as a 
profound non-verbal expression of the impropriety of racial 
segregation in public parks.

As stated by Mr. Justice Harlan, concurring in Garner 
v. Louisiana, 368 U. S. 157, 202:

But when a State seeks to subject to criminal sanctions 
conduct which, except for a demonstrated paramount 
state interest, would be within the range of freedom 
of expression as assured by the Fourteenth Amend­
ment, it cannot do so by means of a general and all- 
inclusive breach of the peace prohibition, it must bring 
the activity sought to be proscribed within the ambit 
of a statute or clause “narrowly drawn to define and 
punish specific conduct as constituting a clear and 
present danger to a substantial interest of the State.” 
Cantwell v. Connecticut, supra (310 U. S. at 311); 
Thornhill v. Alabama, 310 U. S. 88, 105.

As this court held in Thornhill v. Alabama, 310 IT. S. 88, 
97, “ a penal statute . . . which does not aim specifically at 
evils within the allowable area of state control but, on 
the contrary, sweeps within its ambit other activities that 
in ordinary circumstances constitute an exercise of free­
dom of speech or of the press” brings to bear a threat 
similar to that involved in discretionary licensing of free 
expression. That opinion said:

The existence of such a statute, which readily lends 
itself to harsh and discretionary enforcement by local 
prosecuting officials, against particular groups deemed 
to merit their displeasure, results in a continuous and 
pervasive restraint on all freedom of discussion that 
might reasonably be regarded as within its purview. 
310 U. S. at 97-98.



16

Similarly here, the existence of an indefinite unlawful 
assembly law operates to deter and restrain any attempt 
by Negro citizens to exercise constitutional rights to non- 
segregated use of public facilities. The Fourteenth Amend­
ment was primarily designed to protect the civil rights 
of Negroes. Strauder v. West Virginia, 100 U. S. 303, 307. 
Such rights cannot properly be regarded as any less pre­
ferred than the First Amendment type protections incor­
porated into the Fourteenth Amendment by the due process 
clause. The right to nonsegregated use of facilities the 
government provides is so fundamental as to be protected 
both as “ liberty” under the due process clause and by the 
equal protection clause of the Amendment. Cooper v. Aaron, 
358 U. S. 1, 19; cf. Bolling v. Sharpe, 347 U. S. 497.

Hague v. C. I. 0., 307 U. S. 496, also supports the proposi­
tion that §26-5301 is unconstitutionally general and in­
definite. In Hague, supra, the right of free assembly was 
limited by a requirement that a permit be obtained from 
an official who could refuse a permit only “ for the purpose 
of preventing riots, disturbances, or disorderly assemblage” 
(307 U. S. at 502, n. 1). The court held the law invalid 
on its face because, “ it can thus, as the record discloses, 
be made the instrument of arbitrary suppression of free 
expression. . . . But uncontrolled official suppression of 
the privilege cannot be made a substitute for the duty to 
maintain order in connection with the exercise of the right” 
(307 U. S. at 517). And, of course, one accused under a 
general and sweeping law has no obligation to demonstrate 
that the state could not have written a different and more 
precise law constitutionally proscribing his conduct. Thorn­
hill v, Alabama, supra, at 198. Furthermore:

[I] t is the statute and not the accusation or the evi­
dence under it, which prescribes the limits of per­
missible conduct and warns against transgression.



17

Stromberg v. California, 238 IT. S. 359, 368; Schneider 
v. State, 308 U. S. 147,155, 162,163. Compare Lanzetta 
v. New Jersey, 306 U. S. 451. (Ibid.)

Turning to the facts of the present case, it is equally 
apparent that §26-5301 gave no fair warning of the offense 
punished, and that it would confer unrestrained discretion 
of the exercise of constitutional freedoms.

First, there was no claim that petitioners’ conduct was, 
in itself, disorderly or offensive. The police officer testified 
to the contrary that “ they were not necessarily creating 
any disorder, they were just ‘shooting at the goal,’ that is 
all they were doing. They wasn’t disturbing anything” 
(E. 50). There was no admission by the defendants of a 
purpose to disturb the public peace, and there was nothing 
in their conduct which might justify a determination that 
they had such a purpose. This is true because there was 
neither an actual disturbance of the peace, nor any evi­
dence that their conduct made such a disturbance imminent 
or even foreseeable because of its tendency to provoke a 
disorderly response from others. The only thing in the 
record touching upon the possibility that defendants’ con­
duct might have led to a breach of the peace was testimony 
by officer Thompson that:

The purpose of asking them to leave was to keep 
down trouble, which looked like to me might start— 
there wrere five or six cars driving around the park at 
the time, white people (sic) (R. 40).

There was an unexplained statement that “ . . .  I arrested 
these people because we were afraid of what was going to 
happen” (E. 42). But the record contains no support for 
the policeman’s fears. There was no evidence that anyone 
in the passing automobiles even observed petitioners, and



18

certainly no evidence that these passersby did or said any­
thing to indicate that they were disturbed in any way or 
were provoked or angered by petitioners’ conduct. There 
was no evidence that any of the automobiles stopped or 
approached petitioners, or that traffic was impeded. There 
is a positive statement by the officer that this automobile 
traffic was not unusual for that time of day (R. 41).

The only other person whom the record shows to have 
observed petitioners’ conduct was the unidentified white 
lady who reported to the officers merely that colored people 
were playing basketball in the park. There was no testi­
mony by the officers that she manifested any disturbance, 
anger, or anxiety and certainly no indication that she was 
provoked to the point of creating disorder. No other per­
sons were present.10 11 School children in the nearby schools 
were not expected in the area for “ at least thirty minutes” 
by the officers (R. 41).11

There is no evidence that petitioners violated any park 
rules,12 but, in any event, it appears that the arresting

10 The plain words of the statute require something in addition to 
disobedience of the officer’s orders. If this were all that was re­
quired, the statute would nevertheless be offensively indefinite. 
Garner v. Louisiana, 368 U. S. 157, 204, footnote 11 (Mr. Justice 
Harlan concurring).

11 The officers did not connect their order to leave with the an­
ticipated presence of school children, nor was their order that 
petitioners leave timed to coincide with the arrival of the children. 
There was no park rule or policy prohibiting adults from using the 
park facilities when they were not being used by the children 
(E. 46) ; nor were any hours posted for use of the basketball courts 
(E. 44).

12 The State has argued in its “Brief in Opposition to Certiorari” 
in this Court that petitioners were arrested because they were 
“grown men” on a “children’s playground” and were dressed in 
street clothes. (See Brief in Opposition, p. 10, second paragraph.) 
But the superintendent of the recreation department testified that 
the basketball courts could be used by adults (R. 44) (and, there-



19

officer did not know the park rules and thus could not have 
predicated his command that petitioners leave or the arrest 
upon any park rule violation.* 13

The arresting officer expressly acknowledged that race 
was a factor in the arrests. Officer Thompson stated that:

I arrested these people for playing basketball in Baffin
Park. One reason was because they were negroes (R.
41). (Emphasis added.)

This testimony, of course, must be understood as it re­
lates to the evidence that Baffin Park was one which was 
customarily used by white persons, with the occasional ex­
ception of Negro children fishing and playing—but not 
on the basketball court (It. 42), as a part of a more gen­
eral local custom “ to use the parks separately for the dif­

fore, petitioners were not on a playground exclusively for chil­
dren), and also that it was not improper to wear street clothes in 
unsupervised play on the basketball courts. The witness stated that 
“ if there was a conflict betwen younger people and the older people 
using the park facilities, the preference would be for the younger 
people to use them, but we have no objections to older people using 
the facilities if there are no younger people present or if they are 
not scheduled to be used by the younger people” (R. 44). The 
witness said that he would not know whether any program was 
scheduled for the time petitioners were there without referring to 
his records (R. 47).

13 See Note, 109 U. of Pa. L. Rev. 67, 81:
“ It is scarcely consonant with ordered liberty that the ame­
nability of an individual to punishment should be judged solely 
upon the sum total of badness or detriment to the legitimate 
interests of the state which can be found, or inferred, from a 
backward looking appraisal of his trial record.”

And see Id. at footnote 74:
“A  state could probably justify punishing most conduct 

which it desired to punish on the basis of the after-the-fact 
record, by isolating from the precisely detailed circumstances 
of the particular defendant’s acts a sufficient quantum of 
substantive evil of legitimate legislative concern to dress up 
a tolerable constitutional crime.”



20

ferent races” (R. 45). The officer’s actions tend to confirm 
his statement that race was a reason for the arrests since 
he acknowledged that he proceeded directly to the basket­
ball court to investigate upon merely being told that “ col­
ored people were playing in the Basketball Court” , and 
—insofar as the record reveals—nothing more (R. 41). 
The officer did not ask the unidentified white lady who 
gave him this information how old the people playing bas­
ketball were. As he put it, “ as soon as I found out these 
were colored people I immediately went there”  (R. 41).

The race of the petitioners cannot validly be made a 
basis for the determination of their guilt. The mere pres­
ence of Negroes in a facility which they customarily do 
not use, cannot be regarded as criminal conduct or as evinc­
ing a purpose to violate the law. Taylor v. Louisiana, 370 
U. S. 154. It is settled that this municipally operated 
park was an area which petitioners had a right to use, 
regardless of any segregation rule or custom, Holmes v. 
City of Atlanta, 350 U. S. 879; Mayor and City Council of 
Baltimore v. Dawson, 350 U. S. 877; New Orleans City Park 
Improvement Asso. v. Detiecje, 358 U. S. 54; just as this 
was clear in Taylor v. Louisiana, supra, with respect to 
interstate transportation facilities. Cf. Cayle v. Browder, 
352 U. S. 903; Boynton v. Virginia, 364 U. S. 454, 459, 460.

There was no evidence tending to show that petitioners’ 
action in conflict with the racial custom of park segregation, 
would, in the locality involved, be likely to arouse passions 
or inflame those opposed to desegregation of publicly owned 
facilities. There is no such evidence relating either to the 
particular circumstances of this case or to any general 
community condition. Here there is not even evidence of 
“ restless onlookers” which was held insufficient to sup­
port such a claim in Taylor v. Louisiana, 370 IT. 8. 154, 155.



21

Tlie fact that Negro children had used this very park with­
out the necessity for any official intervention (though their 
presence was noted by the police and park officials), fur­
ther undermines any such speculation based on judicial 
notice of local attitudes14—even if such opposition could 
be substituted for evidence at the trial, as it clearly can­
not be under the holding in Garner v. Louisiana, 368 U. S. 
157, 173, 175-176.

Even beyond this lack of evidence to provide a basis for 
a permissible inference that petitioners’ conduct engen­
dered such extreme racial hostility as to ineite unlawful, 
violent opposition, it is clear that this is not enough to 
justify using the state’s police power to preserve segrega­
tion customs. Taylor v. Louisiana, 370 U. S. 154, 156, foot­
note 2; Buchanan v. Warley, 245 U. S. 60, 80, 81; Cooper 
v. Aaron, 358 U. S. 1. “For the police are supposed to be 
on the side of the Constitution, not on the side of discrimi­
nation.”  Garner, supra, at 177 (Justice Douglas concur­
ring) .

The only rational alternative explanation for the con­
viction, to the claim that the statute did not fairly warn 
against petitioners’ conduct, is that there was indeed no 
evidence at all to support these convictions, thus requiring 
reversal under the doctrine of Thompson v. City of Louis­
ville, 362 U. S. 199. The mere presence of Negroes on a 
customarily all-white city owned basketball court “ is not, 
because it could not be” unlawful assembly. Thompson v.

14 There is, of course, no necessary consistency, even in a given 
locality in the South, between the vehemence of the attitudes of 
the white majority toward nonsegregated lunch counter service— as 
in Garner, supra— and the same group’s attitude towards an all- 
Negro group, as here (or for that matter, even an integrated 
group) playing basketball in a city-owned facility customarily 
used by whites.



22

Louisville, 362 U. 8.199, 206, citing Lanzetta v. New Jersey, 
306 U. S. 451. Certainly this statute does not give clear 
warning that the presence of a Negro on a customarily white 
basketball court is punishable. It is certainly not difficult 
to draft a segregation law specifically making it unlawful 
for a Negro to use a “ white” park. Cf. Holmes v. City of 
Atlanta, 124 F. Supp. 290, 291-292 (N. D. Ga. 1954); aff’d 
223 F. 2d 93 (5th Cir. 1955); vacated 350 U. S. 879. But the 
well-known invalidity of such open segregation laws has 
frequently led to the use of Aesopian language to accom­
plish the same purpose,15 or the use of catch-all laws to 
the same end. Garner v. Louisiana, 368 U. S. 157.16

Petitioners’ activity, if not a “ demonstration” in the 
sense that a sit-in has become a well recognized form of 
protest (and there is nothing in the record to indicate 
whether petitioners went to Baffin Park as demonstrators 
to test segregation or merely to play basketball), was never­
theless sufficiently non-conformist to be regarded as evi­
dencing petitioners’ conviction that racial exclusion from 
a publicly owned park is improper. Such conduct within 
the area of protected liberty under the Fourteenth Amend­
ment, may not constitutionally be reached by a vague and 
indefinite law which does not evince any legislative judg­
ment that it represents so clear and present a danger that 
it should be criminally proscribed. Cantwell v. Connecticut, 
supra; Garner v. Louisiana, 368 U. S. 157, 196-207 (Mr. 
Justice Harlan concurring).

15 Compare the ordinance in Boman v. Birmingham Transit Co., 
280 F. 2d 531, 532 (5th Cir. I960), which replaced an overt 
segregation requirement with a mandate of obedience to bus drivers’ 
orders.

16 The Swedish writer, Gunner Myrdal, noticed this in his book 
published 18 years ago saying that “ . .. policemen in the South 
consider the racial etiquette as an extension of the law, and the 
courts recognize ‘disturbance of the peace’ as having almost un­
limited scope,” Myrdal, An American Dilemma, 618 (1944).



23

Finally, the State’s suggested construction of §26-5301 
renders it even more indefinite. The “Brief in Opposition 
to Certiorari,” p. 12, suggests that the law does not require 
criminal intent at all, saying:17

Thus it is not necessary to show whether the petitioners 
actually intended to create a breach of the peace to 
convict them.

What does “ purpose” refer to if it does not refer to 
“ actual intent” ? If this construction of the law is correct, 
and no real criminal intent is required under §26-5301 to 
convict a person for an act admittedly not blameworthy 
per se, Georgia has denied due process. This would be an 
“ indiscriminate classification of innocent with knowing ac­
tivity [which] must fall as an assertion of arbitrary power” 
and which “ offends due process.” Wieman v. U pdeqraff, 
344 U. S. 183, 191.

II.

The Judgment Below Does Not Rest Upon Adequate 
Non-Federal Grounds for Decision.

Initially it should be emphasized that the court below 
indisputably did consider and reject petitioners’ due process 
claim under the Fourteenth Amendment. The State has 
never argued to the contrary either in its brief in opposition

17 In connection with this the “Brief in Opposition,” p. 12, per­
haps harmlessly misquotes Cantwell v. Connecticut, 310 U. S. 296, 
309. Not so harmlessly it ignores the impact of the following 
sentence pointing out that practically all such decisions holding 
acts likely to provoke disorder to be a breach of the peace 
“even though no such eventuality [disorder] be intended” , 
involved “profane, indecent or abusive remarks directed to the 
person of the hearer.”



24

to certiorari or in the court below.18 The court below con­
cluded its discussion of the due process vagueness issue 
(E. 55-58) by asserting: “However, by applying the well- 
recognized principles and applicable tests above-stated, we 
find no deprivation of the defendants’ constitutional rights 
under the Fourteenth Amendment of the United States 
Constitution” (R. 57-58).

The only potential area of dispute concerns whether this 
Court may consider the facts of petitioners’ case in decid­
ing the constitutional claim. This potential conflict does 
not arise because the court below ever said that it was pro­
hibited from looking at the facts of the case. It did not so 
state; there is only an implication that this is so because 
the opinion was written as an abstract discussion of the 
extent to which §26-5301 was indefinite without reference 
to the facts of this case, or any other case; because the 
court below ruled that it would not appraise the facts re­
lating to another and essentially different constitutional 
claim raised in the demurrer—the claim that the arrest was 
the product of discriminatory law enforcement designed to 
compel racial segregation in public parks; and because the 
court ruled that it would not consider petitioners’ claim of 
error in the overruling of the motion for new trial.

The conflict over this limited issue is indeed only “ poten­
tial” for the State has never argued either in the court 
below nor in this Court that no consideration may be given 
to the facts of the record in deciding the vagueness issue. 
To the contrary, indeed, the State has consistently argued 
that petitioners’ acts were criminal under the law and that 
it gave them fair warning.19

18 Petitioners have deposited with the Clerk of this Court certified 
copies of all briefs filed in the Supreme Court of Georgia.

19 See “Brief in Opposition to Certiorari,” passim; see also, the 
State’s “Brief of Defendant-in-Error” in the court below.



25

However, in the event that this matter is viewed by this 
Court as having any significance, petitioners present the 
following to demonstrate that in the circumstances of this 
case no significant limitation can be placed upon this Court’s 
review because of any state procedural rule.

As has been said before, petitioners’ due process vague­
ness claims were raised in both the demurrer (R. 11) and 
the motions for new trial (R. 17, et seep). The vagueness 
objections were thus made both before and after the evi­
dence against petitioners was adduced.

The Supreme Court of Georgia ruled that it would not 
consider the motion for new trial because it read petitioners’ 
brief as abandoning the objection to the overruling of the 
motion for new trial. The opinion below acknowledged (R. 
54) that defendants’ brief did contain as one of three “ Is­
sues of Law” the following: “Did the court commit error 
in overruling plaintiff’s-in-error motion for new trial?” 20 
But the court went on to find an abandonment of this claim 
asserting that “ there was no argument, citation or author­
ity, or statement that such grounds were still relied upon” , 
and that the point must be treated as abandoned under the 
applicable rule laid down in Henderson v. Lott, 163 Ga. 326, 
136 S. E. 403.21

The court below thus found an implied waiver of a fed­
eral constitutional right. There was no assertion that peti­
tioners made any expressed abandonment of the claim

20 “Brief of Plaintiff--in-Error” , in court below, p. 6.
21 The opinion below makes no reference to Section 6-1308, Ga.

Code Ann., providing:
“ 6-1308. Questions to ie  considered.—All questions raised 

in the motion for new trial shall be considered by the appellate 
court except where questions so raised are expressly or im­
pliedly abandoned by counsel either in the brief or upon oral 
argument. A general insistence upon all the grounds of the 
motion shall be held to be sufficient. (Acts 1921, pp. 232, 233.)”



26

either in the brief or in oral argument. However, a fair 
reading of petitioners’ brief filed in the court below does 
not support even the theory of implied abandonment. Peti­
tioners’ brief in the court below contained a portion labelled 
“ Argument and Citation of Cases” which was not sub­
divided,22 and which did argue that the law was vague mak­
ing particular references to the facts in this record,23 and 
did refer to appropriate decisions of this Court.24

The Georgia Court of Appeals has held that the mere 
citation of one applicable decision of that court was snffi-

22 Nothing in the rules of the Supreme Court of Georgia requires 
any subdivision of argument among the assigned errors. Rule 14 
of the Georgia Supreme Court (printed in Section 24-4515, Ga. 
Code Ann.) states:

“ Contents of brief of plaintiff in error.”— The brief of the 
plaintiff in error shall consist of two parts:

(1) Part one shall contain a suceinct but accurate statement 
of such pleadings, facts, assignments of error, and such other 
parts of the bill of exceptions or the record as are essential to 
a consideration of the errors complained of.

(2) Part one shall also contain succinct and accurate state­
ments of the issues of law as made by the errors assigned, 
and reference to the parts of the record or bill of exceptions 
necessary for consideration thereof.

(3) Part two shall contain the argument and citation of 
authorities.

23 See “Brief of Plaintiffs in Error,” pp. 7-10. One example of 
such argument appears at p. 8:

“Plaintiffs-in-Error could not possibly have predetermined 
from the wording of the statute that it would have punished 
as a misdemeanor an assembly for the purpose of playing 
basketball. It follows as a matter of course that if the act 
committed was not punishable, then the peace officer would not 
have the authority to command their dispersal. To be arrested 
and convicted pursuant to said statute denies to the Plaintiffs- 
in-Error due process of law as secured to them by the Four­
teenth Amendment to the United States Constitution.”

24 Decisions of this Court on vagueness issues cited in the “Brief 
of Plaintiffs in Error” were United States v. Brewer, 139 U. S. 
278; Connolly v. General Construction Co., 269 U. S. 385 393- 
Winters v. New York, 333 U. S. 507.



27

cient argument of an assignment of error to prevent its 
being treated as abandoned, even absent a clear statement 
that the point was relied upon. Roberts v. Baker, 57 Ga. 
App. 733, 735, 196 S. E. 104. But here there is even more, 
for the argument begins with a statement that the “princi­
pal question” was raised by the overruling of the demurrer 
(Brief of Plaintiffs in Error, p. 7), thus, plainly implying 
that this was not the only question, but merely the chief, 
foremost, or highest in importance.25

It is submitted that the basis for this holding of abandon­
ment or waiver of an aspect of a fundamental constitutional 
defense which is otherwise conceded to have been pre­
served, is so tenuous and unsupported as to compel the 
view that the court below did not exercise due regard for 
the general doctrine that every reasonable presumption is 
to be indulged against the waiver of a constitutional right. 
Cf. Glasser v. United States, 315 IT. S. 60, 70.

Even beyond all this, if it be assumed arguendo that the 
procedural rules applied below must limit this Court’s con­
sideration of the petitioners’ due process vagueness claim 
to any extent, it by no means necessarily follows that this 
Court is compelled to consider the law in a completely 
sterile and abstract fashion, blinding itself to the uses to 
which this law in all its generalities can be put, and has 
been put in the only other reported application of it. 
See e.g., Samuels v. State, 103 Ga. App. 66, 118 S. E. 2d 
231 (1961); Martin v. State, 103 Ga. App. 69, 118 S. E. 2d 
233 (1961). And since even though the Court below may 
not have discussed the evidence, it did have the full record 
before it, this Court should not ignore the fact that the 
very “ judgment of conviction” represents in a real sense

25 See definition of “principal” , adjective, in Webster’s New 
International Dictionary, p. 1966 (2d ed.), and Black’s Law Dic­
tionary, p. 1355 (4th ed. 1951).



2 8

“ a controlling construction of the statute” , Bailey v. Ala­
bama, 219 U. S. 219, 235; Taylor v. Georgia, 315 U. S. 25, 
30.

The appellees argue in the “ Brief in Opposition to Cer­
tiorari” that this Court may pass upon federal issues where 
the state court has refused to entertain them only if the 
State has applied a procedural rule inconsistently. But this 
Court has found such refusals unreasonable for reasons 
other than inconsistent application. Staub v. Baxley, 355 
U. S. 313; Terre Haute I. R. Go. v. Indiana, 194 IT. S. 579, 
589; Union P. R. Co. v. Public Service Commission, 248 
IT. S. 67. Indeed, this Court has rejected attempts to limit 
the scope of its review on the theory that denials of due 
process must be ignored when, although they appear clearly 
from the proceedings, objections made were not renewed 
after the denial of due process became manifest. See Black­
burn v. Alabama, 361 IT. S. 199, 209-210; Brown v. Missis­
sippi, 297 U. S. 278, 286-287.

Any state avoidance of federal constitutional issues 
raised by a defendant in a criminal proceeding must meet 
minimum standards of intrinsic fairness. It is submitted 
that the action of the court below in limiting consideration 
of the due process vagueness issue fails to meet such stand­
ards, and is as much a denial of due process as an er­
roneous decision on the merits. Lawrence v. State Tax 
Comm., 286 U. S. 276, 282.



29

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that the judgment below should be reversed.

Respectfully submitted,

J ack  Greenberg 
C onstance B aker  M otley 
L eroy D . Clark  
J ames M. N abrit , III 

10 Columbus Circle 
New York 19, New York

B. Clarence M ayfield 
E. H. G adsden

458% West Broad Street 
Savannah, Georgia

Attorneys for Petitioners



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