Hoston v. Louisiana Petition for Writ of Certiorari to the Supreme Court of Louisiana

    I n  t h e

ly u p r e m ?  (U m irt o f  %  I n i t e i t  S t a i r s
October Term, 1960 

No................

J a n n e t t e  B oston , et al.,
Petitioners,

S tate oe L o u isia n a .

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF LOUISIANA

A. P . T ureaud

1821 Orleans Avenue 
New Orleans, Louisiana

J o h n n ie  A. J ones

Baton Rouge, Louisiana
T hurgood M arshall  
J ack  G reenberg

10 Columbus Circle 
New York 19, New York

Attorneys for Petitioners
W il l ia m  C o lem a n , J r .
L ouis  H . P ollak  
E lwood H. C h iso l m  
J am es M. N abrit , III 

Of Counsel



I N D E X
PAGE

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

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

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

Statutory and Constitutional Provisions Involved......  3

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

How the Federal Questions Are Presented.................  7

Reasons for Granting the Writ ............................   11
I. The Decision Below Conflicts With Decisions 

of This Court on Important Issues Affecting 
Federal Constitutional Rights............     11

II. The Public Importance of the Issues Pre­
sented ..............................................................  27

Conclusion .................................   30

T able oe C ases

Barrows v. Jackson, 346 U.S. 249 ................................ 20
Roman v. Birmingham Transit Co., 280 F.2d 531 (5th

Cir., 1960) ............        21
Boynton v. Virginia,-----U.S.------ , 5 L. Ed. 2d 206 .... 20
Briggs et al. v. State of Arkansas (Sup. Ct. of Arkan­

sas, No. 4992) .................................................. -........  28
Briscoe v. State of Texas (Court of Crim. App., 1960,

No. 32347) ........ ......... .................................-........... - 28
Brown v. Board of Education, 347 U.S. 483 ....... ......26, 29



11

Buchanan v. Warley, 245 U.S. 60 .......... .....................  19
Burstyn v. Wilson, 343 U.S. 495 ...................................  23

Cantwell v. Connecticut, 310 U.S. 296 ............... ..17, 24, 25
City of Charleston v. Mitchell, et al. (Ct. of Gen. Sess.

for Charleston County) ..............................................  28
City of Columbia v. Bouie, et al. (Ct. of Gen. Sess. for

Richland County) .....................................................  28
Civil Rights Cases, 109 U.S. 3 ....... ...............................  20
Cole v. City of Montgomery (Ct. of App. Ala., 3rd Div.

Case No. 57) ........... ....................................... .........  28
Connally v. General Const. Co., 269 U.S. 385 .............. 17
Cooper v. Aaron, 358 U.S. 1 ........................................... 20

Evers v. Dwyer, 358 U.S. 202 .......................... ............  19

Freeman v. Retail Clerks Union, 45 Lab. Rel. Ref. 
Man. 2334 (Wash. Super. Ct., 1959) ........................  24

Gayle v. Browder, 352 U.S. 903 ...................................  19
Gibson v. Mississippi, 162 U.S. 565 ................... .......... . 18
Griffin, et al. v. Collins, et al., 187 F. Supp. 149 (D.C.

D. Md. 1960)  ................................................. ..........  28
Griffin, et al. v. State of Maryland (Ct. of App. of Md.,

No. 248, Sept. Term 1960)................ ............ ........... 28

Herndon v. Lowry, 301 U.S. 242 ...................................  17
Holmes v. City of Atlanta, 350 U.S. 879 ........ ................ 19

King v. State of Georgia (Ga. Ct. of App. Nos. 38648, 
38718) .........................................................................  28

Lanzetta v. New Jersey, 306 U.S. 451....... ....................  17
Lupper v. State of Arkansas (Sup. Ct. of Arkansas,

No. 4997) ...

PAGE

2 8



I l l

Marsh v. Alabama, 326 U.S. 501 ........ ................. ......20, 24
Martin v. Struthers, 319 U.S.141.......... ......................... 23
Munn v. Illinois, 94 U.S. 113 ....................................... 24

N.A.A.C.P. v. Alabama, 357 U.S. 449 ............................  23
Napue v. Illinois, 360 U.S. 264 ...................... ........... . 12
National Labor Relations Board v. Babcock and Wilcox

Co., 351 U.S. 105......................................................... 24
Niemotko v. Maryland, 340 U.S. 268 ............................  12
Norris v. Alabama, 294 U.S. 587 ...................................  12

Orleans Parish School Board v. Bush, 242 F.2d 156 
(5th Cir. 1957), cert, denied 354 U.S. 921..... ...........  29

People v. Barisi, 193 Misc. 934, 86 N.Y.S.2d 277 (1948) 24

Raley v. Ohio, 360 U.S. 423 .................................. ........ 17
Randolph v. Commonwealth of Va. (Sup. Ct. of App.

Va., No. 5233,1960).....................................................  28
Republic Aviation Corp. v. National Labor Relations 

Board, 324 U.S. 793 .................. .......... .................. .. 24

Schenck v. United States, 249 U.S. 47 ......................... 26
Scull v. Virginia, 359 U.S. 344 .................. ................. 17
Shelley v. Kraemer, 334 U.S. 1 ...................................  20
Smith v. State of Arkansas (Sup. Ct. of Arkansas,

No. 4994) .............................................................. .....  28
Spano v. New York, 360 U.S. 315.................................  12
State Athletic Commission v. Dorsey, 359 U.S. 533 ..19, 26,

29
State of N. C. v. Fox and Sampson (No. 442, Supreme

Court, Fall Term 1960) .......... ................... ............  28
State v. Randolph, et al. (Ct. of Gen. Sess. for Sumter

County) __________________ ____________ ____  28
State v. Sanford, 203 La. 961, 14 So. 2d 778 (1943) .... 15 
Stromberg v. California, 283 U.S. 359 ...... .................. 23

PAGE



IV

Terminiello v. Chicago, 337 U.S. 1 ................................ 25
Thompson v. City of Louisville, 362 U.S. 199 ___ 11,13,14
Thornhill v. Alabama, 310 U.S. 8 8 ....... .................... . 23
Town of Pontchatonla v. Bates, 173 La. 824, 138 So.

851 (1931) ....................................................... .........11,15

United States v. L. Cohen Grocery, 255 U.S. 81 ..........  17
United Steelworkers v. National Labor Relations 

Board, 243 F.2d 593 (D.C. Cir., 1956) _____ ____ 24

Watkins v. United States, 354 U.S. 178_____   17
Wieman v. Updegraff, 344 U.S. 183 ............      17
Winters v. New York, 333 U.S. 507 ............   17

Yick Wo v. Hopkins, 118 U.S. 356 ___      19

S t a t u t e s :

28 U.S.C. §1257(3) ......................... ......................... 1
La. Constitution (1921), Article 7, §10...... ........ 11
LSA—R.S. §14-103................................. ................4,14

O t h e r  A u t h o r it ie s

Pollitt, “Dime Store Demonstrations: Events and Legal 
Problems of the First Sixty Days,” 1960 Duke Law 
Journal 315 (1960) .................................. ................... 27

New York Times, August 11,1960, p. 14, col. 5 (late city 
edition) ........ .................... ......................................... 27

New York Times, Oct. 18, 1960, p. 47, col. 5 (late city 
edition) ..................................... ................................. 27

PAGE



I n  t h e

( t a r t  u t  %  I n t t r b  B f& U z
October Term, 1960 

No................

JANNETTE HOSTON, et dl.,
Petitioners,

S tate oe L ouisiana

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF LOUISIANA

Petitioners pray that a writ of certiorari issue to review 
the judgment of the Supreme Court of Louisiana entered 
in the above-entitled case on October 5, 1960.

Citations to Opinions Below

The opinions below are not reported. The Nineteenth 
Judicial District Court, State of Louisiana, Parish of East 
Baton Rouge, rendered an oral opinion which is set forth 
in the Statement, infra, page 6. The Supreme Court of 
Louisiana entered a brief handwritten opinion which is also 
set forth, infra, pages 10-11.

Ju r is d ic tio n

The judgment of the Supreme Court of Louisiana was 
entered on October 5, 1960. The jurisdiction of this Court 
is invoked under 28 U.S.C., §1257(3), petitioners claiming 
rights, privileges and immunities under the Fourteenth 
Amendment to the Constitution of the United States.



2

Questions Presented

Petitioners, Negro students, sat down and sought food 
service at a lunch counter which served only white people 
in a public establishment which welcomed their trade with­
out racial discrimination at all counters but that lunch 
counter; for this they were arrested and convicted under 
the provisions of a law proscribing conduct “in such a 
manner as to unreasonably disturb or alarm the public” ; 
and there was no evidence of any disorder, disturbance of 
the peace, or public alarm. Under the circumstances, were 
petitioners deprived of rights protected by the:

1. due process clause of the Fourteenth Amendment in 
that they were convicted on a record barren of any evidence 
of guilt;

2. due process clause of the Fourteenth Amendment in 
that they were convicted under a penal provision which was 
so indefinite and vague as to afford no ascertainable stand­
ard of criminality;

3. due process and equal protection clauses of the Four­
teenth Amendment to the United States Constitution in 
that they were arrested and convicted to enforce racial 
discrimination;

4. due process clause of the Fourteenth Amendment, as 
that clause incorporates First Amendment type protection 
of liberty of expression?



3

Statutory and Constitutional Provisions Involved

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

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

“Disturbing the peace is the doing of any of the fol­
lowing in such a manner as would foreseeably disturb 
or alarm the public:

(1) Engaging in a fistic encounter; or
(2) Using of any unnecessarily loud, offensive, or 

insulting language; or
(3) Appearing in an intoxicated condition; or
(4) Engaging in any act in a violent and tumultuous 

manner by three or more persons; or
(5) Holding of an unlawful assembly; or
(6) Interruption of any lawful assembly of people; 

or
(7) Commission of any other act in such a manner 

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

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



4

Statement

This is one of three petitions1 filed here this day involving 
cases decided on identical grounds by the Supreme Court 
of Louisiana on October 5, 1960. The questions presented 
are identical and the factual situations from which they 
stem are in relevant particulars almost entirely the same. 
In each criminal prosecution, the State of Louisiana, ini­
tially acting through Captail Robert Weiner of the Baton 
Rouge City Police and other police officials including, on 
one occasion a major of the police and on another occasion 
the Chief, arrested petitioners, who were students at South­
ern University, for violating a state statute, LSA-R.S. 
14:103(7), which makes criminal “any other act” committed 
“in such a manner as to unreasonably disturb or alarm the 
public.” Petitioners in each case, respectively, merely re­
quested nonsegregated service at three different public 
lunch counters in stores where otherwise they were welcome 
as customers. No disturbances in fact occurred in any of 
the three cases. Petitioners in each case were tried on 
criminal informations which disclosed their race and were 
convicted and sentenced to imprisonment of four months, 
three month of which might be suspended upon payment of 
a fine of $100.00 and costs.

On March 28, 1960 petitioners in the instant case, Negro 
students at Southern University (RT 1, 2),2 were present 
as customers in Kress’s store in Baton Rouge. It is “cus­

1 The other two petitions seek review of the following decisions 
of the Supreme Court of Louisiana; State of Louisiana v. John B. 
Garner, et al., Nos. 45,214 and 45,338; State of Louisiana v. Mary 
Briscoe, et al., Nos. 45,336 and 45,212.

2 “RT” refers to the trial record and application for review 
thereof. “RQ” refers to the record on the motion to quash and 
application for review thereof.



5

tomary that white and colored [persons] all come into 
Kress[’s] Store and make other purchases at the same 
counters at the same time” (RT 13), but Kress in Baton 
Rouge maintains separate lunch counter facilities for Ne­
groes and whites (RT 12). “That’s the custom of [the] 
store” (RT 17). There were no signs indicating it (RT 
14), but the store’s rule requiring racial segregation at the 
lunch counter was said to have been communicated to peti­
tioners by the waitresses and stewards (RT 14). The mana­
ger stated that petitioners should have known of it by cus­
toms and by noticing “that the colored people wmre being 
served at the counter across the store” (RT 14).

Petitioners did not “do anything other than sit at this 
cafe counter seat that [the manager] would consider would 
be disturbing the peace” (RT 15).

In this case, as in the Briscoe and Garner cases filed this 
day, petitioners were arrested by Captain Weiner of the 
Baton Rouge police (RT 18). On this occasion he was 
accompanied by the Chief of Police who ordered the ar­
rests (RT 18).

Captain Weiner was asked (RT 19):
“Did these defendants do anything other than sit at 

these particular cafe counter seats that you would 
consider disturbing the peace or in violation of any 
law!”

He replied (RT 20):
“Well, other than the fact that one of them men­

tioned something about the ice water nothing else was 
said.”

-y*"A" -7?

“Q. How were they disturbing the peace. A. By 
sitting there.



6

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

“Q. And that is because they were members of the 
negro race? A. That was because that place was re­
served for white people.”

The informations filed against petitioners disclosed their 
race by the notation “(CF)” or “ (CM),” (RT 1, 2), i.e., 
colored female or colored male.

After motions to quash and assertions of various con­
stitutional defenses under the Fourteenth Amendment to 
the Constitution of the United States, set forth in detail 
infra, pages 7-9, a trial was had and on the evidence set 
forth above petitioners were convicted. Following the close 
of the testimony, the trial judge rendered an oral opinion 
(RT 22-23):

“The evidence in this case put on by the State is not 
disputed and it is to this effect, that these accused 
were in Kress’ store in Baton Rouge on the date 
alleged in the bill of information and that they took 
seats at the lunch counter which by custom had been 
reserved for white people only. They were advised by 
an employee of that store, or by the manager, that 
they would be served over at the other counter which 
was reserved for colored people. They did not accept 
that invitation; they remained seated at the counter 
which by custom had been reserved for white people. 
The officers were called and the officers talked to these 
accused, or some of them, and the defendants continued 
to remain seated at this particular counter. That testi­
mony is uncontradicted, and, in the opinion of the 
Court, the action of these accused on this occasion was 
a violation of Louisiana Revised Statutes, Title 14, 
Section 103, Article 7, in that the act in itself, their



7

sitting there and refusing to leave when requested to, 
was an act which foreseeably could alarm and disturb 
the public, and therefore was a violation of the Statute 
that I have just mentioned. I, accordingly, find each 
and every one of them guilty as charged, having been 
convinced beyond a reasonable doubt of their guilt.”

Motion for new trial was made and denied. Application 
for writs of certiorari, mandamus and prohibition was 
filed in the Supreme Court of Louisiana and denied (RT 
37). Application for stay of execution for 60 days was 
granted by the Chief Justice of the Louisiana Supreme 
Court on October 7, 1960, which was later extended until 
January 6,1961.

How the Federal Questions Are Presented

The federal questions sought to be reviewed here were 
raised in the court of first instance (the Nineteenth Judicial 
District Court, Division A) on April 27, 1960, by peti­
tioners’ timely motion to quash the information (RQ 7-10). 
In this motion, aside from variously alleging that the in­
formation charged no offense under Louisiana’s ‘‘disturb­
ing the peace” statute, petitioners averred (RQ. 8):

5. That if said Statute, LSA-R. S. 14:103 of 1950, 
as amended, does embrace within its terms and mean­
ings that “the defendants’ mere refusal to move from 
a cafe counter seat when ordered to do so by an agent 
or any other person or persons of the said Kress’ 
Store constitutes a disturbance of the peace,” then, 
and in that event said Statute, LSA-R. S. 14:103, is 
unconstitutional, in that, it deprives your defendants 
of their privileges, immunities and/or liberties, with­
out due process of law and denies them the equal pro­
tection of the laws guaranteed by the Fourteenth (14th)



8

Amendment to the Constitution of the United States 
of America.

6. That while the arrests and charges were for 
“D ist u r b in g  t h e  P eace ,” there was not a disturbance 
of the peace, except for the activity in which defendants 
engaged to protest segregation, and that the use of the 
criminal process in such a situation denies and deprives 
the defendants of their rights, privileges, immunities 
and liberties guaranteed your defendants, each, citizens 
of the United States, by the Fourteenth (14th) Amend­
ment to the Constitution of the United States of 
America.

The motion was argued, submitted and denied on April 
29, 1960, to which ruling petitioners objected, reserved a 
formal bill of exceptions and gave written notice of their 
intention to apply to the State Supreme Court for writs 
of certiorari, mandamus and prohibition (RQ 12, 14). The 
bill of exceptions was signed by the trial judge on May 6 
(RQ 16) and this application, which was presented to the 
Supreme Court of Louisiana on the same day (RQ 17-21), 
urged (RQ 18, 19) :

3. That while the arrests and charges were for 
“ D ist u r b in g  t h e  P eace,” there was not a disturbance 
of the peace, except for the activity in which relators 
engaged to protest racial segregation and that the use 
of the criminal process in such a situation denies and 
deprives the relators of their rights, privileges, immu­
nities and liberties guaranteed to them, each, citizens 
of the United States, by the Fourteenth Amendment 
to the Constitution of the United States of America.

4. That the refusal of your relators to move from 
a cafe counter seat at Kress’ Store in obedience 
of an order by an agent thereof is not a crime em­



9

braced within the terms and meanings of LSA-E. S. 
14:103(7) of 1950, as amended, and if said act is a 
crime within the terms and meaning of said Statute, 
then and in that event, said Statute is sufficiently vague 
to render it unconstitutional on its face, thus, depriving 
your relators of their rights, privileges, immunities 
and/or liberties without due process of law and denies 
them the equal protection of the law guaranteed by 
the Fourteenth Amendment to the Constitution of the 
United States of America.

# * # # #
6. That, thus, the relief which your relators seek 

herein under the Application for Writs of Certiorari, 
Mandamus and Prohibition, should be granted by this 
Honorable Court, in that the Statute and Bill of In­
formation under which your relators are charged, both, 
are insufficient to charge a crime, otherwise your rela­
tors be deprived of due process of law and the equal 
protection of the laws guaranteed by the Fourteenth 
Amendment to the Constitution of the United States 
of America.

This application for writs of certiorari, mandamus and 
prohibition was denied on May 9 with a notation that “Re­
lators have an adequate remedy under our Supervisory 
Jurisdiction in the event of a conviction” (RQ 27). There­
after, petitioners applied for and were summarily denied 
a rehearing on May 24 (RQ 28-29, 32).

Petitioners’ case came on for trial on June 2, 1960, at 
which time their counsel stated for the record that “he 
would like to renew all reservations and motions previously 
filed, all notices previously given, and all bills of exceptions 
previously taken” (RT 4).



10

Petitioners were found “guilty as charged” (RT 3) and, 
on June 5, they filed a motion for new trial which alleged, 
inter alia (RT 29) :

That the said verdict is contrary to the law and 
evidence in that it is repugnant to and in violation of 
Article 1, Sections 2 and 3 of the Constitution of Louisi­
ana of 1921, and also repugnant to and in violation of 
the First and Fourteenth Amendments to the Constitu­
tion of the United States; that said verdict deprives 
the said defendants of their freedom of speech, liber­
ties, privileges, immunities, due process and equal pro­
tection of the law as guaranteed by the provisions of 
the Constitution of the State of Louisiana and of the 
United States of America, respectively.

This motion was denied (RT 4) and petitioners filed forth­
with a bill of exceptions, renewing all reservations, mo­
tions and bills of exceptions previously taken (RT 6-7).

Thereafter, on July 19, 1960, petitioners applied to the 
Supreme Court of the State for writs of certiorari, pro­
hibition and mandamus (RT 24-27) which incorporated by 
reference their previous applications for such writs (RT 
24) and also urged that the verdict and sentence of the trial 
court “are repugnant to and in violation of . . . the First 
and Fourteenth Amendments to the Constitution of the 
United States, depriving relators of their freedom of speech, 
liberties, privileges, immunities, due process and equal pro­
tection of the laws as constitutionally guaranteed all citizens 
of Louisiana and of the United States” (RT 25).

The Supreme Court of Louisiana denied this applica­
tion on October 5, 1960, stating (RT 37):

Writs refused.



11

This Court is without jurisdiction to review facts in 
criminal cases. See Art. 7, Sec. 10, La. Constitution of 
1921.

The rulings of the district judges on matters of law 
are not erroneous. See Town of Pontchatoula v. Bates, 
173 La., 824, 138 So., 851.

Reasons for Granting the Writ

I.
The Decision Below Conflicts With Decisions of This 

Court on Important Issues Affecting Federal Constitu­
tional Rights.

A. T h e  decision  below  affirm s a c rim in a l conviction  based  
u p o n  n o  ev idence of g u ilt and , th e re fo re , conflicts w ith 
th is  C o u rt’s decision  in  T h o m p so n  v. C ity o f  L ou isv ille ,
3 6 2  U. S. 199.

The trial court reached the following conclusion on the 
evidence presented at trial, which is detailed in the State­
ment of Facts, supra:

“That testimony is uncontradicted, and, in the opin­
ion of the Court, the action of these accused on this 
occasion was a violation of Louisiana Revised Statutes, 
Title 14, Section 103, Article 7, in that the act in itself, 
their sitting there and refusing to leave when re­
quested to, was an act which foreseeably could alarm 
and disturb the public, and therefore was a violation 
of the Statute that I have just mentioned. I, accord­
ingly, find each and every one of them guilty as 
charged, having been convinced beyond a reasonable 
doubt of their guilt” (RT 22-23).

It is submitted that none of the evidence presented af­
fords any basis for this conclusion and determination of



12

guilt, if any conventional meaning is given to the words of 
the statute.3

It will be noted that there is no finding that petitioners’ 
actions did in fact disturb or alarm the public, but only 
that they “foreseeably could alarm and disturb the public.” 
The Supreme Court of Louisiana apparently regarded it­
self as inhibited from re-examining the factual basis for 
the determination of guilt,4 but under traditional principles 
this Court makes its “own independent examination of the 
record” where facts and constructions are determinative 
of federal constitutional rights. Napue v. Illinois, 360 U.S. 
264, 271, 272.5

The record simply shows that petitioner, Negroes, peace­
fully took seats at a lunch counter which served only white 
people and requested service; that the store manager (who 
was seated at the counter eating) advised the waitress to 
offer petitioners service at a counter across the aisle which 
served Negroes; that they remained seated at the counter; 
that the manager finished his meal and then telephoned 
the police because he “feared that some disturbance might 
occur . . . because it isn’t customary for the two races 
to sit together and eat together” (ET 11). There was no

3 In pertinent part the statute provides:
“Disturbing the peace is the doing of any of the following in 
such a manner as would foreseeably disturb or alarm the public: 

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

4 See opinion below, ET 33.
5 It is well settled that this Court will “decide for itself facts or 

constructions upon which federal constitutional issues rest” ■ Napue 
v. Illinois, above. See Spano v. New York, 360 U.S. 315, 316; 
Norris v. Alabama, 294 U.S. 587; Niemotko v. Maryland, 340 U.S. 
268, 271; and the many cases collected in Napue, at 360 U.S. 264, 
272, note 4.



13

argument or altercation; the manager insisted in his testi­
mony that petitioners were not “requested” to move to the 
other counter (RT 11), and also that “As I stated before, 
we did not refuse to serve them. We merely advised them 
they would be served on the other side of the store” (RT 
15). This uncontradicted testimony that petitioners were 
not ordered to leave by any employee of the store is clearly 
at variance with the criminal accusation (information) 
which alleged that petitioners “refused to move from a 
cafe counter seat at Kress’ store at North Third Street and 
Main Street, Baton Rouge, Louisiana, after having been 
ordered to do so by the agent of Kress Store” (RT 1). The 
police chief, along with police Captain Wiener, arrived 
in the store and then proceeded to the counter where re­
spondents were seated, ordered them to leave, and ordered 
them placed under arrest when they did not do so (RT 18). 
Captain Wiener testified that petitioners did nothing else 
that he regarded as disturbing the peace except “sitting 
there” at the white counter (RT 19-20).

There is no evidence that any customer in the store 
complained about or objected to petitioners’ presence at 
the white lunch counter; no testimony that the disturbance 
which the manager “feared . . . might occur” actually ever 
did occur or even that there was any imminent danger of 
a disturbance.

Thus this case is like Thompson v. City of Louisville, 
362 U.S. 199, and should have been decided on the same 
principles applied in that case. In the Thompson case the 
petitioner had been convicted of disorderly conduct and 
loitering. The evidence showed essentially that the peti­
tioner had been out on the dance floor of a cafe alone for 
about half an hour awaiting a bus (on this the loitering 
charge was based), and that when he was arrested for 
loitering he argued with the police (on which the disorderly



u

conduct charge was based). This Court held the convictions 
void as having been based on no evidence and, therefore, 
violative of the due process clause of the Fourteenth 
Amendment. Here, as in Thompson, “there is no support 
for these convictions in the record . . . ” (362 U.S. at 204), 
and, therefore, the convictions are “void as denials of due 
process” (Ibid.). There is in the instant suit, as the Thomp­
son opinion reiterated, “no evidence whatever in the record 
to support these convictions” (Ibid.). [J]ust as “conviction 
upon a charge not made would be sheer denial of due proc­
ess,” so is it a violation of due process to convict and pun­
ish a man without evidence of his guilt” (Id. at 206).

The judgment below conflicts sharply with the law as this 
Court declared it in Thompson. A full hearing, therefore, 
should be granted so that this Court may consider the grave 
constitutional issue posed by this contradiction.

B. P e titio n e rs  w ere convicted  o f a c rim e  u n d e r  th e  
p ro v is io n s of a  sta te  s ta tu te  w hich  as ap p lied  to  
convict th em  is so vague, in d efin ite , an d  u n c e rta in  
as to  offend th e  due  p rocess c lause o f th e  F o u rte e n th  
A m en d m en t as co n stru ed  in  app licab le  decisions of 
th is  C ourt.

The information filed in this case charges petitioners 
with having violated “Article 103 (Section 7) of the 
Louisiana Criminal Code” (R.. 1). Subsection 7 of The 
Statute invoked (LSA R.S. §14-103) prohibits the “Com­
mission of any other act in such a manner as to unreason­
ably disturb or alarm the public.” As is evident from the 
discussion in the preceding section of this petition, no con­
ventional understanding of the meaning of the words of the 
statute explains or supports the determination of guilt on 
the present record. Whether or not the statute has been 
read by the Court below to give it any esoteric meaning



15

which is not plain from a reading of the statute, it is plain 
that it is unconscionably vague and indefinite.6

It may be observed that subsection 7, the catch-all part 
of the law, has not been applied in this ease in accordance 
with the maxim ejusdem generis, for petitioners were con­
victed even though they committed no acts of the same 
character as those specifically prohibited in the six specific 
subsections. It is plain that petitioners did not (1) engage 
“in a fistic encounter”, (2) use “any unnecessarily loud, 
offensive, or insulting language”, (3) appear “in an in­
toxicated condition”, (4) engage “in any act in a violent and 
tumultuous manner by three or more persons”, (5) hold “an 
unlawful assembly”, or (6) interrupt “any lawful assembly 
of people”, but they were nevertheless adjudged guilty.

Prior decisions of the Supreme Court of Louisiana do 
nothing to elucidate how the diffuse command of the catch- 
all section 7 prohibits and makes criminal acts such as 
petitioners’. The case cited by the Court below, Town of 
Pontchatoula v. Bates, 173 La. 824, 138 So. 851 (1931), 
states that “a disturbance of the peace may be created by 
any act or conduct of a person which molests the inhabitants 
in the enjoyment of that peace and quiet to which they are 
entitled, or which throws into confusion things settled, or 
which causes excitement, unrest, disquietude, or fear among 
persons of ordinary, normal temperament.” On the other 
hand, in the most recent decision of the Louisiana Supreme 
Court dealing with this section, State v. Sanford, 203 La. 
961, 14 So. 2d 778 (1943), the Court held that when

6 The grammatical construction of subsection 7, viz., “to unrea­
sonably disturb or alarm the public”—opens the door to further 
confusion and vagueness. Query: Is the act violated when the pub­
lic “unreasonably” becomes disturbed or alarmed, or when an un­
reasonable act disturbs or alarms the public? In any event the 
record fails to show that anyone was disturbed or alarmed.



16

Jehovah’s Witnesses were charged under subsection 7 with 
having disturbed the peace by distributing literature in the 
course of their activities, the conviction should be reversed 
where the record indicated that they were “orderly and did 
not tend to cause a disturbance of the peace.” In that case 
the court expressed its view that if the statute wTere applied 
to the activities in question it might be invalid for vague­
ness :

. . to construe and apply the statute in the way the 
district judge did would seriously involve its validity 
under our State Constitution, because it is well settled 
that no act or conduct, however reprehensible, is a 
crime in Louisiana, unless it is defined and made a 
crime clearly and unmistakably by statute. . . .  It is 
our opinion that the statute is inapplicable to this case 
because it appears that the defendants did not commit 
any unlawful act or pursue an unlawful or disorderly 
course of conduct which would tend to disturb the 
peace” (14 So. 2d at 781).

Only when the statute is viewed in the light of the 
arresting officers’ theory of the crime, namely that the 
Negro petitioners committed a crime merely by sitting at 
a lunch counter reserved for white people, does the real 
basis of the arrest and conviction emerge. But such a con­
struction and application of the statute is unfair because 
the statute gives no warning that petitioners’ mere act of 
sitting at a lunch counter reserved for white people and 
requesting food service is criminally punishable.

Subsection 7 is so broad and vague that definition of the 
actions which may be punished is effectively relegated to 
the police, and ultimately to the Courts for ad hoc deter­
mination after the fact in every case. There is no readily 
ascertainable standard of criminality or guilt.



17

This Court has often held that criminal laws must define 
crimes sought to be punished with sufficient particularity to 
give fair notice as to what acts are forbidden. As the 
Court held in Lametta v. New Jersey, 306 U.S. 451, 453, 
“no one may be required at peril of life, liberty or property 
to speculate as to the meaning of penal statutes. All are 
entitled to be informed as to what crimes are forbidden.” 
See also, United States v. L. Cohen Grocery, 255 U.S. 81, 
89; Connally v. General Const. Co., 269 U.S. 385; Raley v. 
Ohio, 360 U.S. 423. The statutory provision applied to 
convict petitioners in this case is so vague that it offends 
the basic notions of fair play in the administration of 
criminal justice that are embodied in the due process clause 
of the Fourteenth Amendment.

Moreover, the statute punished petitioners’ protest 
against racial segregation practices and customs in the 
community; for this reason the vagueness is even more 
invidious. When freedom of expression is involved the 
principle that penal laws may not be vague must, if any­
thing, be enforced even more stringently. Cantwell v. 
Connecticut, 310 U.S. 296, 308-311; Scull v. Virginia, 359 
U.S. 344; Watkins v. United States, 354 U.S. 178; Herndon 
v. Lowry, 301 U.S. 242, 261-264.

As this Court stated in Winters v. New York, 333 U.S. 
507, 520, a case where the court invalidated a state law 
applied to limit free expression on the grounds of vague­
ness : “Where a statute is so vague as to make a criminal 
an innocent act, a conviction under it cannot be sustained”. 
In this case the state has indiscriminately classified and 
punished innocent actions as criminal. The result is an 
arbitrary exercise of the state’s power which offends due 
process. Wieman v. Updegraff, 344 U.S. 183, 191.



18

C. T h e  decision  below  conflicts w ith  p r io r  decisions of 
th is  C o u rt w hich co n d em n  rac ia lly  d isc rim in a to ry  
a d m in is tra tio n  o f S tate c rim in a l laws.

It is plain on the face of the record from, the testimony 
of the State’s own witnesses that petitioners were arrested 
merely because they were Negroes and sought food service 
at a lunch counter maintained for white persons. The 
petitioners’ race was the only basis for the police officers’ 
command that they leave the seats which they occupied 
at the lunch counter, and for the arrests which followed 
failure to follow this command. Both the arrests and con­
victions rest on the theory that petitioners violated the 
state law by their mere presence as Negroes, at the white 
lunch counter. The criminal accusation itself specifically 
identifies petitioners’ race.

As long ago as Gibson v. Mississippi, 162 TJ.S. 565, a 
case involving a claim of discrimination in jury procedures, 
this Court stated the broad proposition that racial dis­
crimination in the administration of criminal laws violates 
the Fourteenth Amendment. The court said at 162 U.S. 
565, 591:

“The guaranties of life, liberty, and property are for 
all persons within the jurisdiction of the United States 
or of any state, without discrimination against any 
because of their race. Those guaranties, when their 
violation is properly presented in the regular course 
of proceedings, must be enforced in the courts, both 
of the nation and of the state, without reference to 
considerations based upon race. In the administration 
of criminal justice no rule can be applied to one class 
which is not application to all other classes. (Emphasis 
supplied.)



19

This Court has repeatedly struck down statutes and 
ordinances which provided criminal penalties to enforce 
racial segregation. Buchanan v. Warley, 245 U.S. 60; 
Holmes v. City of Atlanta, 350 U.S. 879; Gayle v. Browder, 
352 U.S. 903, affirming 142 F. Supp. 707 (M.D. Ala. 1956); 
State Athletic Commission v. Dorsey, 359 U.S. 533, affirm­
ing 168 F. Supp. 149 (E.D. La. 1958), were all cases in 
which criminal laws used to maintain segregation were 
invalidated. Cf. Evers v. Dwyer, 358 U.S. 202. Likewise, 
in YicJc Wo v. Hopkins, 118 U.S. 356, the Court nullified a 
criminal prosecution under a statute which was fair on 
its face but was being administered to effect a discrimina­
tion against a single ethnic group.

While it may be argued by the State that in this case 
the racial discrimination against petitioners is beyond the 
reach of the Fourteenth Amendment because it originated 
with the decision of a “private entrepreneur” to establish 
a “white-only” lunch counter in deference to local customs 
and traditions, this is not dispositive of the case because 
it is racial discrimination by agents of the State of Loui­
siana, i.e., the police, which affords the primary basis for 
these prosecutions. It was the police officers acting as 
law enforcement representatives of the State who com­
manded petitioners to leave their seats at the lunch counter 
because petitioners were Negroes and the counter was 
maintained for white people. It was the police officers 
who arrested petitioners for failure to obey this command. 
It was the public prosecutor who charged petitioners with 
an offense, and it was the State’s judiciary that convicted 
and sentenced them. Thus from the policeman’s order, 
the conviction and punishment, the State was engaged in 
enforcing racial segregation with all of its law enforce­
ment machinery.

This racial discrimination may fairly be said to be the 
product of state action within the reach of the Fourteenth



20

Amendment which “nullifies and makes void all State 
legislation, and State action of every kind, which impairs 
the privileges and immunities of citizens of the United 
States, or which injures them in life, liberty or property 
without due process of law, or which denies to any of 
them the equal protection of the laws.” Civil Rights Cases, 
109 U.S. 3, 11. As stated by the Court in Cooper v. Aaron, 
358 U.S. 1, 17:

“Thus the prohibitions of the Fourteenth Amendment 
extend to all action of the State denying equal pro­
tection of the laws; whatever the agency of the State 
taking the action, . . . [citing cases] . . .  ; or whatever 
the guise in which it is taken, . . . [citing cases].”

Just as judicial enforcement of racially restrictive 
covenants was held to constitute state action in violation 
of the Fourteenth Amendment in Shelley v. Kraemer, 334 
U.S. 1, and Barrows v. Jackson, 346 U.S. 249, so in this 
case judicial enforcement of a rule of racial segregation 
in privately owned lunch counters operated as business 
property opened up for use by the general public should 
likewise be condemned.

Unlike Marsh v. Alabama, 326 U.S. 501, and Boynton v.
Virginia, ------ U.S. -----■, 5 L. ed. 2d 206, this is not a
“trespass” prosecution involving a collision of property 
rights and personal rights, for it was the police officer’s 
demand that petitioners leave their seats, based upon the 
officer’s determination that they violated the law by their 
very presence in the seats, that formed the basis for con­
viction.7 There is no evidence that the proprietor or any

7 But even if the case is measured in terms of criminal trespass 
provisions like those in Marsh, supra, the language of the Court in 
that case is apt. See p. 24, infra, and cases cited at that point.



21

of Ms employees demanded that petitioners leave the 
premises. Neither did they request that the police make 
such a demand.

Here petitioners, as welcome customers in a business 
establishment open to the public, sought to obtain food 
service at a lunch counter set aside for white persons. 
They were prevented from pursuing their peaceful re­
quests for service by the intervention of the police officers 
bent upon enforcing racial segregation.

The police officer’s demand that petitioners leave their 
seats because of the racial segregation customs and the 
subsequent arrests based on this demand deprived peti­
tioners of the equal protection of the laws. A similar arrest 
was said to be an illegal deprivation of civil rights by 
police officers in Boman v. Birmingham Transit Co., 280 
P. 2d 531, 533, note 1 (5th Cir. 1960), quoting from the 
decision below sub nom. Boman v. Morgan (N.D. Ala. 
1959, C.A. No. 9255), 4 Race Relations Law Reporter 1027, 
1031 (otherwise unreported):

“A charge of ‘a breach of the peace’ is one of broad 
import and may cover many kinds of misconduct. 
However, the Court is of the opinion that the mere 
refusal to obey a request to move from the front to 
the rear of a bus, unaccompanied by other acts con­
stituting a breach of the peace, is not a breach of the 
peace. In as far as the defendants, other than the 
Transit Company, are concerned, plaintiffs were in 
the exercise of rights secured to them by law.

# # # # #

“Under the undisputed evidence, plaintiffs acted in 
a peaceful manner at all times and were in peaceful 
possession of the seats which they had taken on 
boarding the bus. Such being the case, the police.



22

officers were without legal right to direct where they 
should sit because of their color. The seating arrange­
ment was a matter between the Negroes and the 
Transit Company. It is evident that the arrests at 
the barn were based on the refusal of the plaintiffs 
to comply with the request to move since those who 
did move, though equally involved except as to 
compliance, were not arrested.

“Under the facts in this case, the officers violated 
the civil rights of the plaintiffs in arresting and im­
prisoning them. Ordinance 1487-F, and their ‘willful’ 
refusal to move when directed to do so, did not 
authorize or justify their conduct.” (Emphasis sup­
plied.)

It is submitted that the use of the criminal laws of the 
states to enforce racial segregation and discrimination 
presents a grave challenge to the integrity of our system 
of criminal justice in the United States. Because, un­
fortunately, arrests and convictions based upon racial con­
siderations are not uncommon,8 it is all the more important 
that this Court should exercise continued vigilance in 
protecting civil rights in such cases. For this reason it 
is submitted that this case presents a question of public 
importance which merits plenary review by this Court.

D. T h e  decision  below  conflicts w ith  decisions of th is  
C o u rt secu rin g  th e  F o u rte e n th  A m en d m en t r ig h t to  
f re e d o m  of exp ression .

Petitioners were requesting service at public lunch 
counters in establishments where their trade was welcome, 
except that they were not permitted to sit at counters 
reserved for white persons—and for this, and this alone,

8 See I I , infra.



23

they were arrested. Their presence at these counters ex­
pressed in Baton Rouge what thousands of other Negro 
students have been manifesting throughout the nation— 
dissatisfaction with being relegated to second class status 
in public establishments which accept on an equal basis 
their trade at all counters except lunch counters; there 
racial segregation prevails.

As the motion to quash in each of these three eases stated, 
“your defendants, each, in protest of the segregation laws 
of the State of Louisiana, did . . . ‘sit in’ cafe counter 
seat reserved for members or persons of the White race, 
and for which activity your defendants, each, were 
arrested. . . ”.

The liberty secured by the due process clause of the 
Fourteenth Amendment insofar as it protects free ex­
pression is hardly limited to verbal utterances. It covers 
picketing, Thornhill v. Alabama, 310 U.S. 88; free distribu­
tion of handbills, Martin v. Struthers, 319 U.S. 141; display 
of motion pictures, Burstyn v. Wilson, 343 U.S. 495; join­
ing of associations, N.A.A.C.P. v. Alabama, 357 U.S. 449; 
the display of a flag or symbol, Stromberg v. California, 
283 U.S. 359. What has become known at a “sit in” is a 
different but obviously well understood symbol, a meaning­
ful method of communication.

These “sit ins” occurred in places entirely open to the 
public and to petitioners as well. That the premises were 
privately owned should not detract from the high constitu­
tional position which such free expression deserves. This 
is hardly a case involving, for example, expression of 
views in a private home or other restricted area private in 
nature. The establishment here, as in the other two peti­
tions presented today, were open to the public and the 
patronage of the public, including that of Negroes was 
sought.



24

Marsh, v. Alabama, 326 U.S. 501, 506, rejected argument 
that being present upon private property per se divests a 
person of the constitutional right of free expression:

Ownership does not always mean absolute dominion. 
The more an owner, for his advantage, opens up his 
property for use by the public in general, the more do 
his rights become circumscribed by the statutory and 
constitutional rights of those who use it. . . .

In that case, therefore, this Court held unconstitutional 
convictions of Jehovah’s Witnesses for trespass for prosel­
ytizing on private property of a company town. See also, 
Republic Aviation Corp. v. National Labor Relations Board, 
324 U.S. 793, 801, note 6; National Labor Relations Board 
v. Babcock and Wilcox Co., 351 U.S. 105, 112; United Steel­
workers v. National Labor Relations Board, 243 F. 2d 593, 
598 (D.C. Cir. 1956), rev. on other grounds, 357 U.S. 357; 
People v. Barisi, 193 Misc. 934, 86 N.Y.S. 2d 277, 279 
(1948); Freeman v. Retail Clerks Union, 45 Lab. Rel. Ref. 
Man. 2334 (Wash. Super. Ct. 1959).

These decisions, of course, are manifestations of the 
fundamental view, stated in Munn v. Illinois, 94 U.S. 113, 
126, that “when . . . one devotes his property to a use in 
which the public has an interest, he, in effect, grants to 
the public an interest in that use, and must submit to be 
controlled by the public for the common good, to the extent 
of the interest he has thus created. . . .”

Although in the case now at bar there was no evidence 
of anything remotely resembling breach of the peace, 
Cantwell v. Connecticut held in invalidating a conviction 
for inciting breach of the peace, “obvious is it that a state 
may not unduly suppress free communication of views, 
religious or other, under the guise of conserving desirable 
conditions.” 310 U.S. 296, 308. “Here,” Justice Roberts



25

wrote, “we have a situation analogous to a conviction under 
a statute sweeping in a great variety of conduct under u 
general and indefinite characterization, and leaving to the 
executive and judicial branches too wide a discretion in its 
application.” Id. at 308. Therefore, “ . . .  in the absence of 
a statute narrowly drawn to define and punish specific 
conduct as constituting a clear and present danger to a 
substantial interest of the State, the petitioner's communi­
cation, considered in the light of the constitutional 
guaranties, raised no such clear and present menace to 
public peace and order as to render him liable to conviction 
of the common law offense in question,” Id. at 311.

Indeed, in the Cantwell case there was evidence that 
defendants’ acts had provoked some hostility. That is not 
the situation in the instant case. But even if petitioners 
here had stirred unrest by their demonstration, this is 
precisely the type of expression that the freedom of speech 
guarantee of the Constitution is supposed to protect.

Terminiello v. Chicago, 337 U.S. 1, 4, held that:
[A] function of free speech under our system of 
government is to invite dispute. It may indeed best 
serve its high purpose when it induces a condition of 
unrest, creates dissatisfaction with conditions as they 
are, or even stirs people to anger. Speech is often 
provocative and challenging. It may strike at 
prejudices and preconceptions and have profound un­
settling effects as it presses for acceptance of an idea. 
That is why freedom of speech, though not absolute, 
Chaplinsky v. New Hampshire, supra (315 U.S. pp. 
571, 572, 86 L. ed. 1034, 1035, 62 S. Ct. 766), is never­
theless protected against censorship or punishment, 
unless shown likely to produce a clear and present 
danger of a serious substantive evil that rises far 
above public inconvenience, annoyance, or unrest.



26

As Justice Holmes wrote for a unanimous Court in 
Schenck v. United States, 249 U.S. 47, 52:

The question in every case is whether the words 
used are used in such circumstances and are of such 
a nature as to create a clear and present danger that 
they will bring about the substantive evil that Congress 
has a right to prevent.

In the context of this record the State apparently asserts 
the power to prevent two evils, as it views them: (1)
disturbance of the peace—but the record offers no support 
for an inference that any such danger was present in any 
degree; (2) nonsegregation at lunch counters—but the 
State has no power to compel segregation. See Brown v. 
Board of Education, 347 U.S. 483; State Athletic Commis­
sion v. Dorsey, 359 U.S. 533, affirming 165 F. Supp. 149 
(EJD. La. 1918). Therefore, having no valid interest to 
preserve, the State has no power to impose criminal 
penalties for the expression in which petitioners here en­
gaged.



27

II.
The Public Importance of the Issues Presented

A. This case presents issues posed by numerous similar 
demonstrations throughout the nation which have resulted 
in widespread desegregation and also in many similar cases 
now pending in state and federal courts. Petitioners need 
not multiply citations to demonstrate that during the past 
year thousands of students throughout the nation have par­
ticipated in demonstrations like those for which petitioners 
have been convicted.

A comprehensive description of these “sit-in” protests 
appears in Pollitt, Dime Store Demonstration: Events and 
Legal Problems of the First Sixty Days, 1960 Duke Law 
Journal 315 (1960). These demonstrations have occurred 
in Alabama, Arkansas, Florida, Georgia, Louisiana, North 
Carolina, South Carolina, Tennessee, Texas, Virginia and 
elsewhere. Pollitt, supra, passim.

In a large number of places, this nationwide protest has 
prompted startling changes at lunch counters throughout 
the South, and service is now afforded in many establish­
ments on a nonsegregated basis. The Attorney General of 
the United States has announced the end of segregation at 
public lunch counters in 69 cities, New York Times, August 
11, 1960, page 14, col. 5 (late city edition), and since that 
announcement the number of such cities has risen above 
112, New York Times, Oct. 18, 1960, page 47, col. 5 (late 
city edition).

In many instances, however, these demonstrations, as in 
the case at bar, have resulted in arrests and criminal prose­
cutions which, in their various aspects, present as a funda­
mental issue questions posed here, that is, may the state 
use its power to compel racial segregation in private estab-



2 8

lishments which are open to the public and to stifle protests 
against such segregation. Such cases having been presented 
to the Supreme Court of Appeals of Virginia,9 the Supreme 
Court of North Carolina,10 the Supreme Court of Arkan­
sas,11 the Court of Criminal Appeals of Texas,12 the Court 
of Appeals of Alabama,13 the Court of Appeals of Mary­
land,14 several South Carolina appellate courts,15 and the 
Georgia Court of Appeals.16 Numerous other cases are 
pending at the trial level.

It is, therefore, of widespread public importance that the 
Court consider the issues here presented so that the lower 
courts and the public may be guided authoritatively with

9 Raymond B. Randolph, Jr. v. Commonwealth of Va. (No. 5233, 
1960).

10 State of N. C. v. Fox and Sampson (No. 442, Supreme Court, 
Fall Term 1960).

11 Chester Briggs, et al. v. State of Arkansas (No. 4992) (con­
solidated with Smith v. State of Ark., No. 4994, and Lupper v. 
State of Ark., No. 4997).

12 Briscoe v. State of Texas (Court of Crim. App., 1960, No. 
32347) and related cases (decided Dec. 14, 1960; conviction re­
versed on ground that indictment charging in alternative invalid 
for vagueness).

13 Bessie Cole v. City of Montgomery (3rd Div. Case No. 57) 
(together with seven other cases, Case Nos. 58-64).

14 William. L. Griffin, et al. v. State of Maryland, No. 248, Sep­
tember Term 1960 (two appeals in one record) ; see related civil 
action sub nom. Griffin, et al. v. Collins, et al., 187 F. Supp. 149 
(D.C. D.Md. 1960).

15 City of Charleston v. Mitchell, et al. (Court of Gen. Sess. for 
Charleston County) (appeal from Recorders C t.) ; State v. Ran­
dolph, et al. (Court of Gen. Sess. for Sumter County) (appeal 
from Magistrates C t.) ; City of Columbia v. Bouie, et al. (Court 
of Gen. Sess. for Richland County) (appeal from Recorders Ct.).

16 M. L. King, Jr. v. State of Georgia (two appeals: No. 38648 
and No. 38718).



29

respect to the constitutional limitations on state prosecu­
tions for engaging in this type of protest,

B. The holding below, if allowed to stand, will in effect 
undermine numerous decisions of this Court striking down 
state enforced racial discrimination. For example, the dis­
crimination on buses interdicted by the Constitution in 
Gayle v. Broivder, 352 U.S. 903, aff’g 142 F. Supp. 707, 
could be revived by convictions for disturbing the peace. 
In the same manner, state enforced prohibitions against 
members of the white and colored races participating in the 
same athletic contests, outlawed in Dorsey v. State Athletic 
Commission, 168 F. Supp. 149, aff’d 359 U.S. 533, could be 
accomplished. Indeed, segregation of schools, forbidden by 
Brown v. Board of Education, 347 U.S. 483, and innumer­
able cases decided since that time, especially those affecting 
Louisiana, e.g., Orleans Parish School Board v. Bush, 242
F. 2d 156 (5th Cir. 1957), cert, denied 354 U.S. 921, might 
also be accomplished by prosecutions for disturbing the 
peace even though no disturbances in fact occurred.

The holding below, if allowed to stand, would be com­
pletely subversive of the numerous decisions throughout 
the federal judiciary outlawing state enforced racial dis­
tinctions. Indeed, the segregation here is perhaps more 
invidious than that accomplished by other means for it is 
not only based upon a vague statute which is enforced by 
the police according to their personal notions of what 
constitutes a violation and then sanctioned by state courts 
but it suppresses freedom of expression as well.



30

CONCLUSION

Wherefore, for the foregoing reasons, it is respectfully 
submitted that the petition for writ of certiorari should be 
granted.

A . P . T ureaud

1821 Orleans Avenue 
New Orleans, Louisiana

J o h n n ie  A. J ones

Baton Rouge, Louisiana

T hurgood  M arshall  
J ack  G reenberg

10 Columbus Circle 
New York 19, New York

Attorneys for Petitioners

W il l ia m  C o lem a n , J r . 
L ouis  H. P ollak  
E lwood H. C h iso lm  
J ambs M . N abrit , III 

Of Counsel



38



o  ft—

cT l

In the Supreme Court of the 
United States

O ctober  T erm , 1977

No. 76-1310

T h o m a s  L. H o u c h in s , Sheriff of the 
County of Alameda, California,

Petitioner,
vs.

KQED, In c ., et ah,

Respondents.

Petitioner’s Reply Brief

R ichard  J. M o ore ,
County Counsel of the 
County of Alameda,
State of California

K elv in  H . Bo o ty , Jr .
Senior Deputy County Counsel

A dam  Se t h  Ferber 
Deputy County Counsel 
Administration Building 
1221 Oak Street 
Oakland, California 94012

Attorneys for Petitioner



S U B JE C T  I N D E X

T a b le  o f  A u th o r i t ie s  ....................................................................................  i

I n t r o d u c t i o n ______ _______ _________ ___ _____ ___________ ________  1

S ta te m e n t o f  F a c ts  ........................................... .............................................. 1

A . In m a te  P o p u la t io n  _____________ __________ _______ _____  1

B. T h e  F a c ility  ................ ........................................................................  3

C. O th e r  F a c ilit ie s  ................... .............................................................. 4

D . V is its  ..................        5

E . T o u r s ...........................................    6

A r g u m e n t ...............................     7

I. R e s p o n d e n t’s R e lia n c e  o n  th e  C ases  o f  Pell v. Pro­
curer a n d  Saxbe v. Washington Post Co. fo r  th e  P r in ­

c ip le  T h a t  P re ss  R ig h ts  o f  A ccess A re  M o re  E x te n s iv e  

T h a n  T h o s e  o f  th e  G e n e ra l  P u b lic  Is  M i s p l a c e d _____ 7

II . Pell a n d  Saxbe L e n d  N o  S u p p o r t  to  R e s p o n d e n t’s C o n ­

te n t io n s  T h a t  P re ss  R ig h ts  S h o u ld  B e D if fe re n t  o r  

M o re  E x te n s iv e  T h a n  T h o s e  P o sse sse d  B y th e  G e n e ra l  
P u b l i c ....... ....... ........... ....................... ................ ..................... ...........  9

Page

C o n c lu s io n s 13



T A B L E  O F  A U T H O R I T I E S

Cases

P a g e s

B ra n z b u rg  v . H a y e s , 4 0 8  U .S . 665  (1 9 7 2 )  ___________ ____ _ 12

C en t. S. C a r . C h ., Soc. o f  P ro f .  J o u rn . v . U .S .D ., 551 F .2 d

55 9  ( 4 th  C ir . 1 9 7 7 )  ________________________ ______________  9

C ro ss  v . B u rk e , 146  U .S . 82  (1 8 9 2 )  ........................ ...........................  7

E isn e r  v . M a c o m b e r , 252  U .S . 189  ( 1 9 2 0 )  __________________  8

G a r r e t t  v . E s t e l l e ,_____F . 2 d ______  ( 5 th  C ir . 1 9 7 7 )  - ..........-  8 , 9

Jo s e p h  B u rs ty n , Inc . v . W ils o n , 343  U .S . 4 9 5  ( 1 9 5 2 )  _______  12

L o v e ll v . C ity  o f  G riffin , 303  U .S . 4 4 4  (1 9 3 8 )  _____________ 12

N e w  Y o r k  T im e s  C o. v . S u lliv a n , 37 6  U .S . 2 5 4  (1 9 6 4 )  ....1 1 , 12

P ac ific  C o . v . P e te rso n , 27 8  U .S . 130  (1 9 2 8 )  _______________  8

P e ll  v . P ro c u n ie r , 4 1 7  U .S . 8 1 7  (1 9 7 4 )  __________ 7, 8 , 9, 10, 12, 13

R o th  v . U n i te d  S ta te s , 3 5 4  U .S . 4 7 6  (1 9 5 7 )  _________ _____ 12

S a x b e  v . W a s h in g to n  P o s t  C o ., 4 1 7  U .S . 843  (1 9 7 4 )  _____ 6, 7,

8 , 9 , 10, 12, 13

S c h n e id e r  v . N e w  Je rsey , 308  U .S . 147  (1 9 3 9 )  ____________  12

S ta in b a c k  v . M o  H o c k  K e  L o k  P o , 33 6  U .S . 368  (1 9 4 9 )  —- 7

T h o r n h i l l  v . A la b a m a , 3 1 0  U .S . 88  (1 9 4 0 )  __________________  12

T im e , Inc . v . H i l l ,  385  U .S . 37 4  (1 9 7 0 )  _____________________ 10

W il l ia m s  v. U n i te d  S ta te s , 2 8 9  U .S . 553 (1 9 3 3 )  _____    8

Z e m e l v . R u sk , 381 U .S . 1 (1 9 6 5 )  ______ ___ - .................   12

A rticles

B a n s  o n  In te rv ie w s  o f  P r is o n e rs :  P r is o n e r  a n d  P re ss  R ig h ts  

a f te r  Pell a n d  Saxbe, 9  U S E  L .R ev . 71 8  ( 1 9 7 5 )  _________ 10

T h e  R ig h t  o f  th e  P re ss  to  G a th e r  In fo rm a tio n , 71 C o lu m .L .

R ev . 8 3 8  ( 1 9 7 1 )  _________________________________ ________  10

T h e  R ig h ts  o f  th e  P u b lic  a n d  th e  P re ss  to  G a th e r  I n f o r m a ­

t io n , 87  H a rv . L .R ev . 1505 (1 9 7 4 ) 11



In the Supreme Court of the 
United States

O ctober  T erm , 1977

No. 76-1310

T h o m a s  L. H o u c h in s , S h e riff  o f  d ie  
C o u n ty  o f  A la m e d a , C a lifo rn ia ,

Petitioner,
vs.

K Q E D , I n c ., e t al.,

Respondents.

Petitioner’s Reply Brief

INTRODUCTION
In  th is  R e p ly  B rie f , p e t i t io n e r  S h e riff  H o u c h in s  ( " S h e r i f f ” ) 

f irs t co rrec ts  m is s ta te m e n ts  o f  f a c t  ( a n d  m is le a d in g  im p lic a tio n s  

f ro m  c o rre c t s ta te m e n ts  o f  f a c t )  se t f o r th  in  R e s p o n d e n ts ’ B rie f , 

a n d  th e n  d iscu sses  th e  le g a l an a ly s is  se t o u t  in  th a t  B rie f .

STATEMENT OF FACTS
A. Inmate Population.

S o m e o f  th e  m is s ta te m e n ts  o f  f a c t  by  re s p o n d e n ts  K Q E D , Inc ., 

a n d  th e  tw o  lo c a l b ra n c h e s  o f  th e  N A A C P  ( h e r e in a f te r  so m e tim e s  

c o lle c tiv e ly  r e f e r r e d  to  a s  " K Q E D ” )  a r e  o f  l i t t l e  co n se q u e n c e ,



a s s e r te d  o n ly  f o r  th e ir  p r e ju d ic ia l  v a lu e . S o m e  o f  th e s e  a l le g a ­

tio n s  a re  ta k e n  f ro m  th e  c o m p la in t , a n d  w e re  e i th e r  n o t  th e  su b ­

je c t o f  a n y  p r o o f  w h a te v e r ,  o r  w e re  th e  su b je c t o f  d is p u te d  ev i­

d e n c e  u n re s o lv e d  by  th e  D is t r ic t  C o u r t . S u ch  fa c ts  s h o u ld  n o t  b e  

ta k e n  as e s ta b lis h e d . F o r  e x a m p le , i t  is sa id  t h a t  th e  in m a te s  in  

th e  ja i l  a re  " d is p ro p o r t io n a te ly  b la c k ” . (A .4 , R e s p o n d e n ts ’ B rie f , 

p .  2 )  H o w e v e r ,  th e  e v id e n c e  in t ro d u c e d  in d ic a te s  th a t  o f  th e  to ta l  

u n s e n te n c e d  in m a te s  in  th e  s ta te d  p e r io d , 3 7 .6 %  w e re  b la c k . ( D e ­

f e n d a n t ’s E x h . F , R .T . 8 4 -8 5 )  W i th o u t  k n o w in g  th e  p ro p o r t io n  

o f  b la c k s  to  o th e r  ra ce s  in  A la m e d a  C o u n ty , o n e  c a n n o t  say  th a t  

th e se  f ra c t io n s  sh o w  d is p ro p o r t io n a te  n u m b e rs  o f  b lack s , a n d  

th e r e  is n o  e v id e n c e  o n  th a t  p o in t .  T h is  w o u ld  b e  o f  l i t t l e  c o n ­

seq u e n c e  in  a n y  e v e n t: th e  S h e riff  h a s  c u s to d y  o f  th o s e  s e n t h im  

by  th e  c o u r t. S u ch  re m a rk s  a re  m e re ly  in f la m m a to ry .1

F u r th e r ,  c o n tra ry  to  th e  e v id e n c e  R e s p o n d e n ts  w o u ld  h a v e  th e  

C o u r t  b e lie v e  th a t  th e  ty p ic a l in m a te  is a  tra ffic  o ffe n d e r . ( R e ­

s p o n d e n ts ’ B r ie f , p . 3 3 )  T h is  is s im p ly  n o t  so. T h e  S h e riff’s te s t i ­

m o n y  w a s  t h a t  in  th e  p a s t  m o s t  o f  th e  in m a te s  w e re  a lc o h o lic s  

a n d  m in o r  m is d e m e a n a n ts , b u t  th a t  to d a y  th e  c o u n ty  ja il in m a te s  

a re  a s  d ifficu lt as th o s e  in  th e  s ta te  p r iso n s . ( R .T .  9 5 -9 7 )  F e lo n s  

r e p re s e n te d  3 9 %  o f  a l l  b o o k in g s , b u t  7 0 %  o f  th e  p o p u la t io n  in  

c u s to d y  in  1 9 73 . ( D e f e n d a n t ’s E x h . F . a t  p . 1 )  R e s p o n d e n ts  e r r  

in  in te r p r e t in g  p a g e  7 o f  D e f e n d a n t ’s E x h . F , w h ic h  d e a ls  

w i th  u n s e n te n c e d  in m a te s  o n ly : 2 8 %  o f  a l l  p e rso n s  b o o k e d  a t  

S a n ta  R i ta  w e re  c h a rg e d  w ith  d r iv in g  ( a n d  d ru n k  d r iv in g )  v io ­

la tio n s , b u t  th o s e  p e rso n s  s e rv e d  o n ly  5 %  o f  th e  to ta l  n u m b e r  o f  

d e te n t io n  d ays. M o s t  p e rso n s  b o o k e d  f o r  th e se  o ffen ses w e re  r e ­

le a se d , a n d  a  s ig n if ic a n t f r a c t io n  w e re  b o o k e d  o n  a d d it io n a l

1. Similarly inflammatory is Respondents’ suggestion that the District 
Court decided that greater media access was necessary to prevent "con­
cealment” of jail conditions. Respondents’ Brief, p. 1. There is nothing 
in the District Court’s Memorandum or Injunction (A.66-71) showing 
that the Court had determined in any respect that the Sheriff was attempt­
ing to conceal conditions.

2



o ffen ses . T h e s e  p e rs o n s  se rv e d , o n  th e  a v e ra g e , o n ly  1.81 days 

in  cu s to d y . B y c o n tra s t , p e rs o n s  a r re s te d  f o r  su ch  fe lo n y  o ffen ses 

as ro b b e ry  a n d  " w e a p o n s ” (c o n c e a le d  w e a p o n s  o r  w e a p o n s  

u s e d  in  th e  co m m iss io n  o f  a n  o ffe n se )  c o n s t i tu te d  o n ly  2 %  a n d  

3 %  o f  th e  b o o k in g s , b u t  w e re  h e ld  in  c u s to d y , o n  th e  a v e ra g e , 

2 8 .1 9  a n d  2 4 .8 6  d e te n t io n  d ay s re sp e c tiv e ly . ( D e f e n d a n t ’s E x h . 

F ,p .  7 )

B, The Facility.
R e s p o n d e n ts  a lle g e  th a t  in  o th e r  l i t ig a t io n  th e  D is t r ic t  C o u r t  

h a d  d e sc r ib e d  th e  c o n d itio n s  a t  S a n ta  R i ta  as " s h o c k in g  a n d  d e ­

b a s in g ” , th a t  th e  N A A C P  p la in tif f s  d e s ire d  to  p a r t ic ip a te  in  th e  

p u b lic  d e b a te  o n  th e se  c o n d itio n s  (A .4 -5 , R e s p o n d e n ts ’ B rie f , 

p p . 2 , 5 ) ,  a n d  th a t  a  p s y c h ia tr is t  w h o  c r itic iz e d  th e  fa c il i ty  w as  

f ire d . (A .5 , R e s p o n d e n ts ’ B r ie f  p p . 5 -6 ) T h e  fa c ts  a re :  ( l )  th a t  

case  m e n tio n e d  c o n c e rn e d  o n e  b u ild in g  a t  S a n ta  R ita , a n d  th a t  

th e  D is t r ic t  C o u r t  h a d  d ism isse d  th e  ca se  ( s e e  P e t i t io n e r ’s O p e n ­

in g  B rie f , p . 9 , fn . 4 ) ;  ( 2 )  th e  o n ly  e v id e n c e  w i th  re sp e c t to  an y  

d e b a te  is th a t  th e r e  is  p u b lic  d isc u ss io n  o n  th e  q u e s tio n  o f  th e  

p r o p e r  lo c a tio n  o f  o n e  o f  th e  tw o  n e w  re p la c e m e n t  ja ils  b e in g  

c o n s tru c te d , a n d  n o t  o n  " c o n d it io n s ” in  an y  o f  th e  S h e riff’s fa c i l i ­

tie s  (R .T .  1 2 4 -1 2 6 ) ;  ( 3 )  as to  th e  p sy c h ia tr is t,  th e  o n ly  e v id e n c e  

is th a t  h e  w a s  f ire d  by  th e  B o a rd  o f  S u p e rv iso rs  (R .T .  1 8 6 -1 8 7 ) 

a n d  n o t  by  th e  S h eriff. T h e r e  is n o  e v id e n c e  o r  te s tim o n y , in c lu d ­

in g  th a t  o f  th e  p sy c h ia tr is t,  as to  th e  re a so n s  f o r  th e  d isch a rg e .

R e s p o n d e n ts  su g g e s t  th a t  th e  S h e r if f ’s se c u rity  c o n c e rn s  a re  

fa n c ifu l .  (S ee , e .g ., R e s p o n d e n ts ’ B r ie f  p . 4 6 )  B u t th e  ev id en ce  

sh o w s th a t  secu rity  a t  S a n ta  R ita  is so re ly  o v e r ta x e d . S a n ta  R ita  

is a n  a n t iq u a te d  m ili ta ry  b a se  c o n v e r te d  to  ja il u se  in  1947  (R .T . 

25 , 1 4 0 ) ,  a n d  n e e d s  d ire ly  to  b e  re p la c e d . (R .T .  1 3 0 ) T h e  S h eriff 

te s tif ie d  th a t  a t  S a n ta  R i ta  " s e c u r ity  a t  b e s t  is n o t  r e a l  g o o d ” .

3



( R ,T .  8 6 )  I n d e e d  i t  a p p e a rs  th a t  in  th e  five  m o n th s  b e tw e e n  th e  

f i l in g  o f  th e  c o m p la in t  a n d  th e  h e a r in g  o n  th e  p re l im in a ry  in ju n c ­

t io n , th e r e  w e re  a t  le a s t  th r e e  e scap es  f ro m  S a n ta  R ita . ( R .T .  1 3 2 )

C. Other Facilities.
R e s p o n d e n ts  c o m p a re  u n fa v o ra b ly  th e  S h e riff’s m e d ia  p o lic ie s  

w i th  th o s e  o f  o th e r  c o u n ty  ja ils  a n d  o f  th e  s ta te  a u th o r i t ie s  a t  

S a n  Q u e n tin .  ( R e s p o n d e n ts ’ B r ie f  p p . 1 0 -1 3 )  In  fa c t , e x c e p t fo r  

S an  F ra n c isc o  C o u n ty ,’2 th e  te s tim o n y  w a s  t h a t  K Q E D  w a s  n o t  

a w a re  o f  th e  p re s s  p o lic ie s  o f  o th e r  c o u n tie s  in  C a l i fo rn ia  o f  co m ­

p a r a b le  s ize  to  A la m e d a  C o u n ty : O ra n g e , S an  J o a q u in , S an  D ie g o , 

S a c ra m e n to , a n d  S a n ta  C la ra . ( R .T .  1 8 5 )

S an  Q u e n t in  S ta te  P r is o n ’s m e d ia  p o lic y  c h a n g e s  d a te d  f ro m  

J u n e  1 975 . (R .T .  148 , 1 5 8 )  T h e r e  w e re  n o  c h a n g e s  in  th e  p r o ­

g ra m  f o r  th e  p u b lic  a t  la rg e , w h ic h  w e re  d e sc r ib e d  in  P e t i t io n e r ’s 

O p e n in g  B rie f , p . 24 .

S an  Q u e n t in ’s d e fin it io n  o f  " p re s s  re p re s e n ta t iv e ’’ is r a th e r  

re s tr ic te d 3. (R .T .  1 6 2 -1 6 3 ; see  a lso  C a l. D e p t ,  o f  C o rre c tio n s , 

A d m in . M a n u a l ,  § 4 1 5 .1 8  (P la in t i f f ’s E x h . 3, R .T . 1 4 6 ) )  E v en  

u n d e r  th e  n e w  ru le s  f o r  th e  m e d ia , th e  S an  Q u e n tin  o ffic ia ls 

w o u ld  s to p  a n  in te rv ie w  w h e n  th e  offic ia ls  re a liz e d  th a t  th e  p e r ­

so n  b e in g  in te rv ie w e d  w a s  a  p r e t r ia l  d e ta in e e  (R .T .  1 6 1 ; see 

a lso  C a l. D e p t ,  o f  C o rre c tio n s , A d m in . M a n u a l ,  § 4 1 5 .2 1 , f if th  

p a r a g r a p h )  in  f a s h io n  s im ila r  to  P e t i t io n e r ’s ru le . (P e t i t io n e r ’s 

O p e n in g  B rie f , p . 10, a n d  P e t i t io n e r ’s R e p ly  B rie f , § D .,  " V is i ts ,” 

b e lo w .)  D u r in g  th e  c o u rse  o f  th e  p re s s  to u r ,  c o rre c tio n s  o ffic ia ls 

s ta y  v e ry  c lo se  to  th e  r e p o r te rs ,  in  o rd e r  to  c o n tro l  th e i r  ac tio n s . 

( R .T .  156 , 1 6 0 )  -T h e  se c u rity  d a n g e rs  a re  so  g r e a t  th a t  e q u ip m e n t

2. The evidence with respect to San Francisco is colored by the 
obvious political motives and actions of the San Francisco Sheriff, R.T. 
194-195, who was far from a neutral reactor to media requests, but rather 
was a participant in his publicity process. Setting up one of the San Fran­
cisco television programs took several visits. (A.13, R. T. 181) _

3. The legal questions of just what is the media and who is a media 
representative are discussed at pp. 11-12 below.

4



is n o t  o n ly  s e a rc h e d  b u t  is  so m e tim e s  fu rn is h e d . ( R .T .  1 5 8 )  F e a rs  

o f  d a n g e r  f ro m  p a c k a g e s , b r ie fc a se s , a n d  ta p e  re c o rd e rs  in  a  ja il  

s e t t in g  a re  n o t  e x a g g e ra te d , as S an  Q u e n t in ’s o w n  e x p e r ie n c e  d e m ­

o n s tra te s  (R .T .  9 4 ) ,  a n d  a re  p a r t  o f  th e  S h e riff’s co n ce rn s  as 

w e ll.

T h e  " s p o t”  c o v e ra g e s  d e sc r ib e d  in  th e  s ta te  g u id e lin e s  ( s e e  R e ­

s p o n d e n ts ’ B r ie f , p .  35 , fn . 2 4 )  a re  in  f a c t  p r o v id e d  by P e ti t io n e r . 

( R .T .  2 2 3 )  T h e s e  " s p o ts ” d o  n o t  c o n s is t o f  a  v ie w  o f  th e  scen e  

o f  th e  in c id e n t  (c f .  R e s p o n d e n ts ’ B r ie f , p . 4 9 ) ,  b u t  r a th e r  o f  

access to  a n  o ffic ia l f o r  in fo rm a tio n . See C a l. D e p t ,  o f  C o rre c tio n s , 

A d m in . M a n u a l ,  §4 1 5 .0 8 .

0. Visits.
K Q E D  d ism isses  as in a d e q u a te ,  im p ra c tic a l , o r  i r r e le v a n t  th e  

a b ility  to  v is i t  in m a te s . (R e s p o n d e n ts ’ B rie f , p p . 5 8 -5 9 ) I t  is 

n e v e r th e le s s  t r u e  th a t  a n y  se n te n c e d  in m a te  c a n  b e  in te rv ie w e d  

b y  a n y  p e rso n , in c lu d in g  a  m e m b e r  o f  th e  p re ss , a t  v is i t in g  tim es . 

(A .2 9 -3 0 , R .T . 73 , 134, 1 8 3 -1 8 4 ) P re t r ia l  d e ta in e e s  m a y  b e  in te r ­

v ie w e d  b y  m e d ia  r e p re s e n ta tiv e s  in  a  p r iv a te  in te rv ie w , e sp e c ia lly  

s e t  u p  f o r  th e  p u rp o s e , a t  w h ic h  c a m e ra s  a n d  ta p e  re c o rd e rs  m a y  

b e  u se d . (R .T .  8 9 )

K Q E D  su g g e s ts  th a t  th e  r e q u ire m e n t  o f  s e c u r in g  th e  c o n se n ts  

o f  th e  in m a te , co u n se l, a n d  th e  c o u r t  a re  u n d u ly  b u rd e n so m e , a n d  

i t  is c o n te n d e d  th a t  in  o rd e r  to  o b ta in  th e  c o u r t’s c o n se n t, th e  

m a t te r  w o u ld  h a v e  to  b e  p la c e d  o n  a  c o u r t ’s c a le n d a r . (R e s p o n d ­

e n ts ’ B rie f , fn . 4 2 , p . 5 9 ) .  T h e r e  is n o th in g  in  th e  re c o rd  o r  in  

c o m m o n  sen se  to  h in t  th a t  su ch  a  p ro c e d u re  n e e d  b e  fo llo w e d . 

T h e  c o n se n ts  o f  th e  a tto rn e y s  c o u ld  b e  q u ic k ly  o b ta in e d , a n d  th e  

c o u r t’s o rd e r  su re ly  c o u ld  issu e  ex  p a r te .  T h e s e  ta sk s  o u g h t  to  be  

a b le  to  b e  a c c o m p lish e d  w ith in  a  fe w  h o u rs .

In  th e  sam e  fo o tn o te  K Q E D  critic izes  th e  id e a  th a t  th e  m e d ia  

m ig h t  g a in  in fo rm a tio n  by  in te rv ie w in g  re le a s e d  p r iso n e rs . W h e n  

i t  is re m e m b e re d  th a t  2 8 ,0 0 0  in m a te s  p a ss  th ro u g h  S a n ta  R ita

5



e a c h  y e a r  ( R .T .  8 5 ) ,  i t  is e v id e n t t h a t  th e re  is  a  h ig h  tu rn o v e r  

a m o n g  th e  p r is o n e rs , a n d  th a t  m a n y  a re  re le a s e d  f ro m  th e  d a ily  

re le a s e  b u se s . ( R .T .  9 8 )  In  M r . Ju s tic e  P o w e l l ’s d is s e n t in g  o p in ­

io n , i t  w a s  s u g g e s te d  th a t  in te rv ie w in g  re c e n tly -re le a se d  p r is o n e rs  

w a s  a  g o o d  a l te rn a t iv e  m e a n s  o f  g a in in g  in fo rm a tio n . Saxbe v. 
Washington Post, 4 1 7  U .S . a t  8 4 8 .

E. Tours.
K Q E D  a sse r ts  th a t  o n e  o f  th e  d e fe c ts  o f  a  s c h e d u le d  to u r  is 

th a t  th e  fa c il i ty  c a n  b e  " s c ru b b e d  u p ” fo r  th e  o ccas io n , a n d  th a t  

th is  h a d  h a p p e n e d  u n d e r  a  p re v io u s  sh e riff . (R e s p o n d e n ts ’ B r ie f  

p p . 7 , 1 0 )  C irc u it  J u d g e  H u f s te d le r  th o u g h t  th e  p o in t  o f  so m e  

im p o r ta n c e . ( P e t i t io n  f o r  W r i t ,  A p p e n d ix  p p . 2 5 -2 6 )  T h e r e  w a s  

n o  te s tim o n y  in  s u p p o r t  o f  th e s e  a l le g a t io n s ;  m o re o v e r , w i th  sem i­

m o n th ly  to u rs  h a v in g  b e e n  s c h e d u le d  fo r  a lm o s t tw o  y ea rs  n o w , 

su ch  s c ru b b in g s , i f  th e y  o c c u rre d , w o u ld  h a v e  b e c o m e  ro u tin e  m a in ­

te n a n c e , a n d  re f le c tiv e  o f  tire  a c tu a l  c o n d itio n s  in  th e  fac ility .

R e s p o n d e n ts  c r itic iz e  p h o to g ra p h s  o f  th e  ja il  f u rn is h e d  b y  th e  

S h e riff  as n o t  e n c o m p a ss in g  th e  e n t ir e  fa c ility . ( R e s p o n d e n ts ’ 

B r ie f , p . 8 , fn . 8 )  T h e  e v id e n c e  in d ic a te s  th a t  th e  S h e riff  is w i l l ­

in g  to  p ro v id e  m o re  p h o to g ra p h s  i f  a sk e d . ( A p p e n d ix  to  P e t i ­

t io n e r ’s O p e n in g  B rie f , p p . 2-3, a n d  R .T . 1 1 0 -1 1 1 )

T h e  o m is s io n  f ro m  th e  to u r  o f  th e  b a r ra c k s  b u ild in g  h o u s in g  

p r e t r ia l  d e ta in e e s , " L i t t le  G re y s to n e ” , is a lso  a n g r ily  p o in te d  

o u t  b y  R e s p o n d e n ts . (R e s p o n d e n ts ’ O p e n in g  B rie f , p , 8 )  B u t 

th e  in m a te s  in  th e  o th e r  b a r ra c k s  a ro u n d  L i t t le  G re y s to n e  a re  

c o n v ic te d  p e rso n s , a n d  c a n n o t  le g a lly  b e  m ix e d  w ith  th e  p r e t r ia l  

d e ta in e e s . ( R .T .  1 0 8 )  H e n c e  L it t le  G re y s to n e  is  n o t  seen  o n  th e  

to u r ,  b e c a u se  th e re  is  n o  p la c e  to  m o v e  th o s e  in m a te s  w h ile  th e  

to u r  is  in  p ro g re s s . ( R .T .  7 7 )

I t  is t r u e  t h a t  th e  te s tim o n y  o f  th e  r e p o r te r  w a s  th a t  " T h e  

m o s t e ffec tiv e  th in g  w e  c a n  d o  o n  te le v is io n  is  n o t  f i l te r  [ t h e

6



in f o r m a t io n ]  th r o u g h  a  r e p o r te r ,  b u t  sh o w  i t  d ire c tly ” . ( R .T .  

180, R e s p o n d e n ts ’ B r ie f , p . 9 )  H o w e v e r , th is  s h o u ld  b e  re g a rd e d  

in  c o n te x t  w i th  a n o th e r  s ta te m e n t  by  th e  sa m e  w itn e s s :  " T h e  

n e x t  m o s t  e ffec tiv e  m e a n s  o f  in f o r m in g  th e  p u b lic  w o u ld  b e  fo r  

a  n e w s  r e p o r te r  to  in sp e c t th e  c e lls  a n d  fa c il i t ie s  a n d  r e p o r t  

th e r e o n .” ( A .1 2 )  P re c ise ly  t h a t  access w a s  g r a n te d  th a t  w itn e ss . 

(A .6 0 -6 1 )
ARGUMENT

I
Respondents' Reliance on the Cases of Pell v. Frocunier and 

Saxbe v. Washington Post Co. for the Principle That Press 
Rights of Access Are More Extensive Than Those of the 
General Public Is Misplaced.

R e s p o n d e n ts ’ b r ie f  c o n s is te n tly  r e f e r s  t o  Pell v. Frocunier, All 
U .S . 8 1 7  ( 1 9 7 4 )  a n d  Saxbe v. Washington Post Co., 4 1 7  U .S . 

8 4 3  ( 1 9 7 4 )  a s  v a l id a t in g  p re s s  r ig h ts  o f  access to  p r is o n s  a n d  

th e ir  in m a te s , w h ic h  r ig h ts  w e re  m o re  e x te n s iv e  th a n  th o s e  p o s ­

se ssed  by  th e  g e n e ra l  p u b lic  a n d  b ro a d e r  th a n  th o s e  a c c o rd e d  

th e  p re s s  b y  th e  P e t i t io n e r  in  th e  in s ta n t  case. F o r  e x a m p le , a t  

p a g e  29  o f  th e i r  b r ie f ,  R e s p o n d e n ts  a rg u e  th a t  " [ t ] h e  C o u r t ’s 

n o  sp ec ia l access to  in fo rm a t io n  s ta te m e n t’ [ i n  P e l l ]  m u s t  b e  

r e a d  in  th e  c o n te x t  o f  p r is o n s  th a t  a lre a d y  p e rm it te d  v e ry  su b ­

s ta n t ia l  p re s s  access .”

P e t i t io n e r  a s se r ts  t h a t  su ch  a  c o n s tru c tio n  o f  Pell a n d  Saxbe 
is b o th  in a c c u ra te  a n d  m is le a d in g . A  th o ro u g h  re a d in g  o f  b o th  

cases  in  th e  l ig h t  o f  se v e ra l w e ll-k n o w n  c a n o n s  o f  ju d ic ia l  c o n ­

s tru c tio n  co n firm s  th a t  b o th  d ec is io n s  re s u l te d  f ro m  th e  a p p lic a ­

t io n  o f  a  g e n e ra l  r u le  o f  lo n g  s ta n d in g :  n a m e ly , th a t  p re s s  r ig h ts  

o f  access s h o u ld  b e  n o  g r e a te r  th a n  th o s e  o f  th e  g e n e ra l  p u b lic .

I t  h a s  lo n g  b e e n  th e  ru le  th a t  w h e re  m a te r ia l  le g a l o r  f a c tu a l  

issu es  h a v e  n o t  b e e n  c o n te s te d  in  a  p r io r  case  b e fo re  th is  C o u r t, 

th e  C o u r t  s h a ll  n o t  c o n s id e r  i ts e lf  b o u n d  by th e  v iew s  e x p re sse d  

th e re in  w i th  re sp e c t to  th o se  issues. Cross v. Burke, 146  U .S . 82 , 

8 7  ( 1 8 9 2 ) ;  Stainback v. Mo Hock Ke Lok Po, 33 6  U .S . 3 68 , 379  

( 1 9 4 9 ) .  S ta te d  a n o th e r  w ay , fo rm e r  d ic tu m  s h o u ld  n o t  c o n tro l  

ju d g m e n t in  a n  a c tio n  in  w h ic h  th e  p o in t  is d ire c tly  p re se n te d .

7



Williams v. United States, 2 8 9  U .S . 553 , 569  ( 1 9 3 3 ) ,  Pacific Co. 
v. Peterson, 2 7 8  U .S . 130, 136  ( 1 9 2 8 ) .  D e fe re n c e  to  th e se  ju d ic ia l  

p o lic ie s  r e q u ire s  th a t  r e a s o n in g  w h ic h  fu rn is h e s  th e  e n t ir e  b asis  

f o r  th e  c o n c lu s io n  re a c h e d  in  a  c ase  is to  b e  p r e f e r r e d ,  i n  su b se ­

q u e n t  cases , to  r e a s o n in g  th a t  p ro v id e d  o n ly  a  p a r t ia l  b asis . 

Eisner v. Macomber, 252  U .S . 189, 205  ( 1 9 2 0 ) .

T h u s  th e  c o n tro l l in g  h o ld in g  in  Pell v. Procunier is th a t  h o ld ­

in g  w h ic h  m o s t  d ire c tly  d isp o se d  o f  th e  c o n te s te d  le g a l  issues. 

T h o s e  issu es  se t f o r th  a t  p a g e  833  w e re :  ( l )  " t h a t  { th e  s ta te  

r e g u la t io n  u n d e r  sc ru tin y }  c o n s t i tu te [ d }  g o v e rn m e n ta l  in te r f e r ­

en ce  w ith  . . . n e w s  g a th e r in g  ac tiv itie s  th a t  [ w a s ]  n e i th e r  c o n ­

s e q u e n tia l  n o r  u n c e r ta in ” ; ( 2 )  ” , . . t h a t  n o  s u b s ta n t ia l  g o v e rn ­

m e n ta l  in te re s t  { c o u ld }  b e  sh o w n  to  ju s tify  d e n ia l  o f  { re q u e s te d }  

p re s s  access . . ( 3 )  t h a t  d e sp ite  th e  access a lre a d y  a c c o rd e d

th e  p re ss , th e  re q u e s te d  access w a s  su ch  a n  e ffec tiv e  a n d  s u p e r io r  

m e th o d  o f  n e w s g a th e r in g  th a t  its  c u r ta i lm e n t  a m o u n te d  to  u n ­

c o n s t i tu t io n a l  s ta te  in te r fe re n c e  w i th  a  f re e  p ress .

A ll  th r e e  o f  th e se  c o n te n tio n s  w e re  re je c te d  by  th e  C o u r t , 

w h ic h  in  s u p p o r t  o f  i ts  d e te rm in a t io n  a p p l ie d  a  p r in c ip le  o f  la w  

p re v io u s ly  a p p lie d  in  cases in  w h ic h  p re ss  access to  g o v e rn m e n t  

fa c il i t ie s  w a s  a s s e r te d  to  b e  in a d e q u a te .  T h a t  p r in c ip le  w a s  th a t  

th e  p re s s  h a s  n o  g re a te r  r ig h ts  o f  access to  g o v e rn m e n t  fa c ilitie s  

th a n  th a t  a c c o rd e d  th e  g e n e ra l  p u b lic .4

4. Indeed in Saxbe v. Washington Post Co. the court (by Mr. Justice 
Stewart) states: "We find this case constitutionally indistinguishable from 
Pell v. Procunier [citation] and thus fully controlled by the holding in 
that case: '[N]ewsmen have no constitutional right of access to prisons 
or their inmates beyond that afforded the general public’. [Citation] The 
proposition 'that the Constitution imposes upon government the affirma­
tive duty to make available to journalists sources of information not avail­
able to members of the public generally . . . finds no support in the words 
of the Constitution or in any decision of this Court.’ ” Saxbe v. Wash­
ington Post Co., 417 U.S. 843, 850 (1974) (emphasis is supplied.)

The primary holding of Pell v. Procunier and Saxbe v. Washington 
Post Co. is reiterated in a number of recent cases of the United States 
Court of Appeals. In Garrett v. Estelle, the Court of Appeals for the Fifth

8



" T h e  [S u p r e m e ]  C o u r t  m a d e  n o  ad hoc d e te rm in a t io n  in  Saxbe 
a n d  Pell; i t  p ro c e e d e d  f ro m  th e  g e n e ra l  p r in c ip le , q u o te d  ab o v e , 

th a t  th e  p re ss  h a s  n o  g r e a te r  r ig h t  o f  access to  in fo rm a t io n  th a n  

d o e s  th e  p u b lic  a t  la rg e ;  a n d  th a t  th e  f irs t a m e n d m e n t d o es  n o t  

r e q u ire  g o v e rn m e n t  to  m a k e  a v a ila b le  to  th e  p re s s  in fo rm a t io n  

n o t  a v a ila b le  to  th e  p u b lic . T h is  p r in c ip le  m a rk s  a  l im i t  to  th e  

f irs t  a m e n d m e n t p ro te c t io n  o f  th e  p re s s ’ r ig h t  to  g a th e r  n e w s . . . . 

th e  f ir s t  a m e n d m e n t d o es  n o t  in v a l id a te  n o n -d is c r im in a to ry  p r is o n  

access r e g u la t io n .” Garrett v. Estelle,.... F ,2 d  . ( 5 th  C ir , 1 9 7 7 )

T h e  v a lid i ty  o f  p re s s  access allowed by  s ta te  p r is o n  o ffic ia ls 

a t  th e  c a se ’s in c e p tio n  w a s  n e v e r  c o n te s te d  b y  e ith e r  s id e . A n d  

th o u g h  e x is t in g  access w a s  a d v e r te d  to  b y  th e  C o u r t , th e  v a lid ity  

o f  th a t  access w a s  n e v e r  d ire c tly  ru le d  u p o n .

In  l ig h t  o f  th e  cases c ite d  a b o v e  i t  is  s u b m itte d  th a t  a b s e n t a  

d ire c t  r u l in g , th e  v a lid ity  o f  e x is t in g  p re ss  access in  Pell s h o u ld  

n o t  b e  c o n s tru e d  as th e  c o n tro l l in g  fa c to r  in  th e  C o u r t ’s d ec is io n  

to  l im i t  f u r th e r  p re s s  access. T o  e le v a te  th e  C o u r t ’s f a i lu r e  to  

ru le  u p o n  a n  issu e  n e v e r  ra is e d  ( i .e . w a s  th e  e x te n t  o f  access 

a lre a d y  a c c o rd e d , c o n s ti tu t io n a l ly  c o m p e lle d )  a n d  th e re fo re  

n e v e r  s u b m itte d  to  th e  sc ru tin y  g e n e ra te d  b y  adv o cacy , w o u ld  b e  

to  a llo w  p re c e d e n t  to  ev o lv e  f ro m  th o s e  fa c ts  a n d  la w  w h ic h  

w e re  n o t  c o n s id e re d , r a th e r  th a n  th o s e  w h ic h  w e re . P e t i t io n e r  

c o n te n d s  th a t  to  d o  so w o u ld  b e  im p ro p e r  a n d  u n w ise .

II

Pell end Saxbe Lend No Support to Respondents* Contentions That 
Press Rights Should be Different or More Extensive Than 
Those Possessed by the General Public,

In  th e i r  b r ie f  R e sp o n d e n ts  re p e a te d ly  e m p h a s iz e d  th e  n e e d s  o f  

th e  p re s s  f o r  m o re  e x te n s iv e  a n d  m o re  sp e c ia liz e d  so r ts  o f  access

Circuit quotes Pell v. Procunier as follows: "The First and Fourteenth 
amendments bar government from interfering in any way with a free 
press. The Constitution does not, however, require government to accord 
the press special access to information not shared by the public generally.”

F 2d ..... , ........  (5th Cir. 1977). Accord, Cent. S. Car. Ch., Soc.
of Prof, fourn. v. U.S.D.C., 551 F.2d 559, 563 (4th Cir. 1977).

9



to  S a n ta  R i ta  th a n  th o s e  a f fo rd e d  th e  g e n e ra l  p u b lic . T h o u g h  

th e re  is  n o th in g  in  th e  r e c o rd  in  s u p p o r t ,  R e s p o n d e n ts ’ a rg u m e n t 

is  p re m is e d  o n  its  a s s u m p tio n  th a t  " [ a ] s i d e  f ro m  th e  p ra c tic a l  

d iffe ren ces  ju s t i fy in g  d if fe re n t k in d s  o f  access, p re ss  a n d  p u b lic  

h a v e  d if fe re n t  p u rp o s e s  f o r  g o in g  to  th e  ja il .  M e m b e rs  o f  th e  

g e n e ra l  p u b lic  m a y  w ish  to  see  th e  ja i l  f o r  so m e  p e r s o n a l  re a so n , 

o r  o u t  o f  id le  c u rio s ity . B u t r e p o r te r s  g o  f o r  re a so n s  u n iq u e  to  

th e  fu n c t io n  w h ic h  th e  p re s s  p e r fo rm s  o n  b e h a lf  o f  th e  p u b lic  . . . 

T o  fu lf i l l  th is  p u rp o s e , th e y  n e e d  access a t  le a s t  a p p ro x im a tin g  

th a t  p e rm it te d  in  Pell-Saxbe.” R e sp . B r ie f  p . 40 .

P e t i t io n e r  h a s  f o u n d  n o  case  d e c id e d  by  th is  C o u r t , a n d  R e ­

sp o n d e n ts  h a v e  c ite d  n o n e , w h ic h  e x p re ss ly  a cco rd s  sp e c ia l s ta tu s  

f o r  p u rp o s e s  o f  access to  th e  p re ss . R a th e r ,  " [ h i s t o r i c a l l y  th e  

r ig h ts  o f  sp e e c h  a n d  th e  p re s s  h a v e  b e e n  co -ex ten s iv e , m e rg e d  

in to  th e  c o m m o n  p h ra s e  'f r e e d o m  o f  e x p re s s io n .’ [ c i ta t io n s ]  U n d e r  

su ch  re a so n in g , a n  a rg u m e n t  th a t  th e  p re s s  is e n t i t le d  to  a  spec ia l 

r ig h t  o f  access to  in fo rm a t io n  b a s e d  o n  f re e d o m  o f  th e  p re s s  a lo n e  

w o u ld  f a i l  b e c a u se  r ig h ts  b a s e d  o n  f re e d o m  o f  th e  p re ss  w o u ld  

n o t  b e  a n y  m o re  e x p a n s iv e  th a n  th o s e  b a s e d  o n  f re e d o m  o f  sp eech ; 

w h e re  th e r e  a re  v a l id  re a so n s  fo r  l im i t in g  p u b lic  access to  in fo rm a ­

t io n , th e  r ig h t  o f  access by  th e  p re s s  w o u ld  b e  s im ila r ly  r e s tr ic te d .” 

C o m m e n t, B a n s  o n  In te rv ie w s  o f  P r is o n e rs :  P r is o n e r  a n d  P ress  

R ig h ts  a f te r  Pell a n d  Saxbe, 9  U S F  L .R ev . 7 1 8 , 73 0  (1 9 7 5 )

In  Time, Inc. v. Hill [ 3 8 5  U .S . 3 7 4  (1 9 6 7 )  a  case  re lie d  
u p o n  b y  R e s p o n d e n ts  a t  R B  p g . 2 4 ]  th e  C o u r t  a lso  u se d  f re e  
e x p re s s io n  la n g u a g e  w h ile  h o ld in g  th a t  c o n s ti tu t io n a l  p r o ­
te c tio n  e x te n d e d  to  f a c tu a l  r e p o r ts  o f  m a tte r s  o f  p u b lic  in te r ­
est. A l th o u g h  th e  C o u r t  o b se rv e d  th a t  ' [ t ] h e  g u a ra n te e s  fo r  
sp eech  a n d  p re ss  a re  n o t  th e  p re se rv e  o f  p o li t ic a l  e x p re s ­
s io n  o r  c o m m e n t o n  p u b lic  a f fa irs ’ i t  n e v e r th e le s s  w e n t  o n  

to  r e m a rk :
'E r ro n e o u s  s ta te m e n t  is n o  le ss  in e v ita b le  in  such  a  case  

[ o f  o n e  o th e r  th a n  a  p u b lic  o ff ic ia l]  th a n  in  th e  case  o f  
c o m m e n t u p o n  p u b lic  a ffa irs , a n d  in  b o th , i f  in n o c e n t o r 
m e re ly  n e g l ig e n t  . . i t  m u s t  b e  p ro te c te d  i f  th e  free­

1 0



doms of expression a re  to  h a v e  th e  'b r e a th in g  sp a c e ’ th a t  
th e y  'n e e d  . . .  to  su rv iv e ’”  . . . New York Times Co. v. 
Sullivan ( c i ta t io n )  ’” (e m p h a s is  in  o r ig in a l )  C o m m e n t:  T h e  
R ig h t  o f  th e  P re ss  to  G a th e r  In fo rm a tio n , 71 C o lu m .L .R e v . 
8 3 8 , 842  ( 1 9 7 1 ) .

I n  l ig h t  o f  th e  h is to r ic a l  re lu c ta n c e  to  see  f r e e d o m  o f  th e  p re ss  

a s  m u c h  m o re  th a n  a  p a r t ic u la r iz e d  fo rm  o f  f r e e d o m  o f  sp eech , 

i t  is s u b m it te d  th a t  to  d if f e re n tia te  b e tw e e n  p re ss  a n d  p u b lic  in  th e  

e v a lu a t io n  o f  th e  a d e q u a c y  o f  access r ig h ts  to  g o v e rn m e n t  in s t i tu ­

tio n s , su ch  as ja ils , is lik e ly  to  r e s u l t  in  b o th  d e c re a sed  a n d  in a p ­

p ro p r ia te  r ig h ts  o f  p u b lic  access. F o r  a l th o u g h  R e s p o n d e n ts  seek  

to  t r e a t  p re s s  a n d  p u b lic  as tw o  h o m o g e n e o u s  g ro u p s , i t  is p a in ­

fu lly  c le a r  th a t  th e y  a re  n o t. A n d  a l th o u g h  R e sp o n d e n ts  seek  to  

a c c o rd  to  e a c h  g ro u p  p re d ic ta b le  m o tiv e s  a n d  o b jec tiv e s , i.e . id le  

c u r io s ity  to  th e  p u b lic , a n d  a  p a r t ic u la r  s o r t  o f  z e a l a n d  in te g r ity  

to  th e  p re ss , th e r e  is n o th in g  in  th e  r e c o rd  th a t  so  d e n ig ra te s  th e  

p u b lic ’s re a so n s  fo r  s e e k in g  in fo rm a t io n  o r  so b li th e ly  ra tio n a liz e s  

th o s e  o f  th e  p re ss . W i t h  c e r ta in  fa ir ly  o b v io u s  ex c e p tio n s  th e re  

a re  n o  g u id e lin e s  fo r  e v a lu a t in g  w h o  is th e  p re s s  a n d  w h o  is n o t .5

I t  m u s t  b e  a sk e d  th e re fo re  i f  th e  g e n e ra l  n ew s r e p o r te r  fo r  a  

n e w s p a p e r  o r  a  te le v is io n  s ta t io n  is to  b e  a c c o rd e d  g re a te r  access

5. ". . . [ I ] f  the press clause were to mandate special newsgathering
rights, specifying its beneficiaries would be difficult since the activities of 
'press’ newsgatherers would seem to be indistinguishable from those of 
'public’ information seekers.

A distinction between 'press’ and 'public’ gatherers based on their past 
or future use of a mechanism for disseminating information could be 
easily circumvented. And any definition of the press in terms of circula­
tion, regularity or stature of the publication would as a general rule seem 
constitutionally unjustifiable since such a definition might create barriers 
to the flow of information from diverse points of view. Inevitably, the 
opinion and perspective of the newsgatherer governs his selection of what 
to acquire. Similarly, since the press generally has the discretion to pub­
lish only what it desires in a form which it chooses, information that does 
not suit the political, commercial or personal interests of the reporter or 
editor, or that does not meet a threshold of relatively widespread interest 
may not reach the public.”

Note, The Rights of the Public and the Press to Gather Information, 
87 Harv. L. Rev. 1505, 1508-09 (1974).

11



to  ja i l  in m a te s  th a n  th e  t r a in e d  p e n o lo g is t  o r  so c io lo g is t;  w h e th e r  

a  p re s s  p h o to g r a p h e r  o r  c a m e ra m a n  s h o u ld  b e  a llo w e d  u se  o f  h is  

to o ls  w h i le  a  f re e la n c e  c o m m e rc ia l o r  f in e  a r t is t  s h o u ld  b e  d e n ie d  

th e  u s e  o f  h is ;  w h e th e r  th e  e m p lo y e e  o f  m e g a lo p o l i ta n  d a ily  p a p e r  

s h o u ld  b e  a f fo rd e d  th e  r ig h t  to  in te rv ie w , w h ile  th e  e d i to r  o f  a  

w e e k ly  s u b u rb a n  'p e n n y  s a v e r’ s h o u ld  n o t .6

T h e  q u e s tio n  o f  w h e th e r  m e d ia  m e m b e rs  s h o u ld  b e  a c c o rd e d  

sp e c ia l access r ig h ts  is c o n s id e re d  in  Pell a n d  Saxbe. I t  is su m ­

m a r iz e d  in  M r . J u s tic e  P o w e l l ’s d is s e n t in  Saxbe ( a t  p a g e  8 5 6 )  

a s  fo llo w s ; " . . . [ T ] h e  g is t  o f  th e  a rg u m e n t  is th a t  th e  c o n s t i tu ­

t io n a l  g u a ra n te e  o f  a  f r e e  p re s s  m a y  b e  r e n d e re d  in e ffe c tiv e  by  

excess  r e s tr a in ts  o n  (p re s s }  access to  in fo rm a t io n  . . . ”

T h e  C o u r t  b a s e d  its  r e je c tio n  o f  th e  a rg u m e n t  o n  a  n u m b e r  o f  

g ro u n d s :  ( 1 )  A s  su m m a riz e d  by  M r . Ju s tic e  P o w e ll  in  h is  d is se n t 

a t  p a g e  8 5 7 , . . . " [ N ]  e i th e r  n e w s  o rg a n iz a t io n s  n o r  r e p o r te r s  as 

in d iv id u a ls  h a v e  c o n s ti tu t io n a l  r ig h ts  s u p e r io r  to  th o se  e n jo y e d  

by  o rd in a ry  c itiz en s . T h e  g u a ra n te e s  o f  th e  F ir s t  A m e n d m e n t 

b ro a d ly  se c u re  th e  r ig h ts  o f  ev e ry  c itiz e n ; th e y  d o  n o t  c re a te  p a r ­

t ic u la r  sp e c ia l p r iv ile g e s  f o r  p a r t ic u la r  g ro u p s  o r  in d iv id u a ls .” 

( 2 )  M o s t  s o u n d ly  re je c te d  by  Pell a n d  Saxbe w e re  a s se r tio n s  th a t  

th e  n a tu r e  o f  p re s s  in v e s tig a tio n s  n e c e ssa rily  re q u ire s  d ire c t  p re ss  

access. R e fe re n c e  is m a d e , f o r  e x a m p le , a t  p a g e  8 3 4 , fn . 9  in  

Pell to  M r . C h ie f  J u s tic e  W a r r e n ’s s ta te m e n t  in  Zemel v. Rusk, 
381  U .S . 1, 16-17  (1 9 6 5 )  as fo llo w s : " T h e r e  a re  fe w  re s tr ic tio n s  

o n  a c tio n  w h ic h  c o u ld  n o t  b e  c lo th e d  by  in g e n io u s  a rg u m e n ts  in  

th e  g a rb  o f  d e c re a se d  d a ta  f lo w .” ( 3 )  T h e  C o u r t  a lso  o b se rv e s

6. "{LJiberty of the press is the right of the lonely pamphleteer who 
uses carbon paper. . . .” Branzburg v. Hayes, 408 U.S. 665, 704 (1972). 
And, in addition to newspapers, magazines, television and radio the Court 
has held the following to constitute constitutionally protected forms of 
speech: pamphlets, Lovell v. City of Griffin, 303 US 444, 452 (1938), 
leaflets, Schneider v. New Jersey, 308 U.S. 147 (1939), signs, Thornhill 
v. Alabama, 310 U.S. 88 (1940), books, Roth v. United States, 354 U.S. 
476, 488 (1957) (dictum), motion pictures, Joseph Burstyn, Inc. v. 
Wilson, 343 U.S. 495, 502 (1952), and non-commercial advertisements, 
New York Times Co. v. Sullivan, 376 U.S. 254, 266 (1964).

1 2



a t  p a g e  8 2 3 -2 4  th a t  th o u g h  s u s ta in e d  fa c e -to -fa c e  d e b a te , d iscu s­

s io n  a n d  q u e s t io n in g  m a y  p o sse ss  p a r t ic u la r  q u a li t ie s , in  th e  c o n ­

s id e ra t io n  o f  r ig h ts  o f  access i t  c a n n o t  b e  c o n s id e re d  w i th o u t  r e s o r t  

to  a p p ra is a l  o f  a l te rn a t iv e  m e a n s  o f  in fo rm a t io n  g a th e r in g . ( 4 )  A t 

p a g e s  8 2 7 -2 8  fn . 5 o f  Pell th e  a rg u m e n t  th a t  il l i te ra c y  o f  m a n y  

in m a te s  ju s tif ie s  in c re a s e d  p re s s  access to  th e m  is a lso  so u n d ly  

re je c te d .

In  s h o r t , e q u a t io n  o f  p re s s  a n d  p u b lic  r ig h ts  o f  access is a m p ly  

s u p p o r te d  by  Pell a n d  Saxbe, th e  tw o  m o s t  r e c e n t d e c is io n s  o f  th is  

C o u r t  d ire c tly  in  p o in t .  Pell a n d  Saxbe a re  in  tu rn  c o n s is te n t w ith  

cases  th a t  p re c e d e  th e m  a n d  h o ld  th a t  p re s s  a n d  p u b lic  f r e e  sp eech  

r ig h ts  a re  co -ex ten s iv e  as p a r t ic u la r iz e d  fo rm s  o f  f r e e d o m  o f  ex ­

p re ss io n . T h e  co -ex ten s iv e  n a tu r e  o f  su ch  r ig h ts  a n d  th e  d e a r th  

o f  a u th o r i ty  d is t in g u is h in g  b e tw e e n  p re s s  a n d  p u b lic  r ig h ts  o f  

sp eech  o r  access r e q u ire  e q u a li ty  in  th e  f a s h io n  in  w h ic h  access 

to  in fo rm a t io n  is e x te n d e d  b y  th e  g o v e rn m e n t.

R e s p o n d e n t  h a s  f a i le d  to  e s ta b lish  g ro u n d s  fo r  m o d ify in g  th o se  

d ec is io n s .
CONCLUSIONS

T h e  h o ld in g s  o f  Pell a n d  Saxbe a re  t h a t  th e  p re s s  h a s  n o  g re a te r  

r ig h t  o f  access to  in fo rm a t io n  th a n  th a t  o f  th e  g e n e ra l  p u b lic . 

R e s p o n d e n ts ’ a s se r t io n  th a t  th e  tw o  cases v a l id a te d  m o re  e x te n s iv e  

r ig h ts  o f  access to  th e  p re ss  is in co rrec t.

Pell a n d  Saxbe, as w e ll as o th e r  cases  o f  th is  C o u r t , d e f e a t  R e ­

s p o n d e n ts ’ a s se r tio n s  th a t  p re ss  r ig h ts  o f  access s h o u ld  b e  d if fe re n t 

o r  m o re  e x te n s iv e  th a n  th o se  o f  th e  g e n e ra l  p u b lic .

R e sp e c tfu lly  s u b m itte d ,

R ichard J. M oore

C o u n ty  C o u n se l in  a n d  f o r  th e  

C o u n ty  o f  A la m e d a ,

S ta te  o f  C a l ifo rn ia  

K elv in  H . Bo o ty , Jr .
S en io r  D e p u ty  C o u n ty  C o u n se l 

A dam Se t h  Ferber 
D e p u ty  C o u n ty  C o u n se l

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