Avent v. North Carolina Brief of the Respondent, State of North Carolina, in Opposition to Petition for Writ of Certiorari

    j /V

Supreme Court of the United States
October Term, 1960

No. 943

JOHN THOMAS AVENT, CALLIS NAPOL1S BROWN, 
SHIRLEY MAE BROWN, FRANK McGILL COLEMAN, 
JOAN HARRIS NELSON, DONOVAN PHILLIPS, and 
LACY CARROLE STREETER,

Petitioners,
vs.,

STATE OF NORTH CAROLINA,
Respondent.

BRIEF OF THE RESPONDENT, STATE OF NORTH 
CAROLINA, IN OPPOSITION TO PETITION FOR 
WRIT OF CERTIORARI.

T. W. BRUTON,
Attorney General of North Carolina

RALPH MOODY,
Assistant Attorney General 

Justice Building 
Raleigh, North Carolina 

Counsel for the State of 
North Carolina, Respondent,

JAM ES M. NABRlT, Ml



INDEX
Opinion Below ...........................................................................................  1

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

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

Constitutional Provisions and Statutes Involved ..........................  2

Respondent’s Statement of the C ase...................................................  2

Argument ...................................................................................................  5

I. The State Prosecution did not Deprive Petitioners of
any Rights Protected by the Fourteenth Amendment.......  5

II. The State Statute is not Unconstitutional for Uncer­
tainty and Vagueness ................................................................  11

III. The Statute as Administered does not violate the
Constitutional Protection of Freedom of Speech................... 13

IV. Conclusion .......................................................................................  16

TABLE OF CASES
American Federation of Labor v. Watson, 327 U.S. 582 ............... 10

Armstrong v. Armstrong, 230 N.C. 201, 52 S.E. 2d 362 ................... 9

Barrows v. Jackson, 346 U.S. 249 ....................................................   6

Beauharnais v. Illinois, 343 U.S. 250 .................... ..............................  12

Bolling v. Sharpe, 347 U.S. 497 ..............................................................  7

Boman v. Birmingham Transit Co., 280 F2d 531 ..........................  6

Bowder v. Gayle, 142 F. Supp. 707, aff’d 352 U.S. 903 ..................  6

Boynton v. Virginia, ...........U.S............... , 5 L.ed. 2d 206 ................. 9

Brookside-Pratt Min. Co. v. Booth, 211 Ala. 268 .............................. 10

Brown v. Board of Education, 347 U.S. 483 ...................................  7

Burton v. Wilmington Parking Authority, 29 U.S. Law
Week 4317...........................................................................................  7

City of Greensboro v. Simkins, 246 F.2d 425 .................................. 7

Civil Rights Cases, 109 U.S. 3 ..............................................................  16

Cole v. Arkansas, 338 U.S. 345 ..........................................................  12

Cooper v. Aaron, 358 U.S. 1 ................................................................  7

l



Derrington v. Plummer, 240 F.2d 922 ...............................................  7

Dawson v. Baltimore, 220 F.2d 386, aff’d 350 U.S. 877 ................... 7

Flemming v. South Carolina Elec. & Gas Co., 224 F.2d 752 ...........  6

Highland Farms Dairy v. Agnew, 300 U.S. 608 ..............................  10

Kovacs v. Cooper, 336 U.S. 77 ..........................................................  14

Lee v. Stewart, 218 N.C. 287, 10 S.E. 2d 804 .................................... 9

Monroe v. Pape, No. 39, Oct. Term, 1960, Feb. 20, 1961 ................  6

Milk Wagon Drivers Union v. Meadowmoor Dairies, 312
U.S. 287 ........................................ f....................................................... 14

Marsh v. Alabama, 326 U.S. 501 ............................................................  15

Nash v. United States, 229 U.S. 373 ....................................................... 13

Phillips v. United States, 312 U.S. 246 ...............................................  10

Roth v. United States, 354 U.S. 476 ...................................................  12

Schenck v. United States, 249 U.S. 4 7 .................................................  14

Screws v. United States, 325 U.S. 91 .............................................6,12

Shelley v. Kraemer, 334 U.S. 1 ......................................................... 6,8

Slack v. Atlantic White Tower System, Inc., 181 F. Supp.
124, aff’d 284 F.2d 746 ......................................................................  10

State v. Avent, et als., 253 N.C. 580, 118 S.E. 2d 47 ......................  1, 7

State v. Baker, 231 N.C. 136, 56 S.E. 2d 424 .....................................  9

State v. Clyburn, 247 N.C. 455, 101 S.E. 2d 295 ............................ 9,10,11

State v. Cooke et als., 246 N.C. 518, 98 S.E. 2d 885 ..........................  9

State v. Goodson, 235 N.C. 177, 69 S.E. 2d 242 ............................  9

Terminal Taxicab Co. v. Kutz, 241 U.S. 252 .....................................  8

Thornhill v. Alabama, 310 U.S. 88 ................................................... 14

United States v. Cruikshank, 92 U.S. 542 ...........................................  8

United States v. Harris, 106 U.S. 629 .................................................  8

United States v. Wurzbach, 280 U.S. 396 .........................................  12

Valle v. Stengel, 176 F. 2d 697 ............................................................  6

Williams v. Howard Johnson’s Restaurant, 268 F. 2d 845 ............. 10

Williams v. United States, 341 U.S. 9 7 ...............................................  12

ii



CONSTiTUTlONAL PROVISIONS AND STATUTES
Constitution of the United States:

First Amendment.....................................................................................  13

Fourteenth Amendment.........................................................2, 5,6, 7,8,11

Federal Statutes:

28 U.S.C. 1257 (3) ...................................................................................  2

42 U.S.C. 1981 ...................................   6

42 U.S.C. 1982 .............................................................................................  6

18 U.S.C. 242 ............................................................................................... 12

State Statutes:

Sec. 14 - 134 of General Statutes of North Carolina.................. 2, 9,11

Sec. 14 - 126 of General Statutes of North Carolina........................  9

LAW REVIEW ARTICLES
Race Relations Law Reporter..............................................................  6, 7

47 Virginia Law Review 1 ..................................................................  7

46 Virginia Law Review 123 ................................................................  7

15 U. of Miami Law Review 123 ........................................................  7

1960 Duke Law Journal 315 ..............................................................  7

109 U. of Pennsylvania Law Review 67 .........................................  13

62 Harvard Law Review 7 7 ....................................................................  13

40 Cornell Law Quarterly 195 ..............................................................  13

iii



Supreme Court of the United States
October Term, 1960

No. 943

JOHN THOMAS AVENT, CALLIS NAPOLIS BROWN, 
SHIRLEY MAE BROWN, FRANK McGILL COLEMAN, 
JOAN HARRIS NELSON, DONOVAN PHILLIPS, and 
LACY CARROLE STREETER,

Petitioners,
vs.

STATE OF NORTH CAROLINA,
Respondent.

BRIEF OF THE RESPONDENT, STATE OF NORTH 
CAROLINA, IN OPPOSITION TO PETITION FOR 
WRIT OF CERTIORARI.

OPINION BELOW

The opinion of the Supreme Court of North Carolina, in 
this case, is reported as STATE v. AVENT, et als, 253 N.C. 
580 (No. 6, Advance Sheets of North Carolina, issued Feb­
ruary 15, 1961); 118 S.E. 2d 47. The opinion of the Supreme 
Court of North Carolina in this case also appears in the 
Petitioners’ Appendix attached to their Petition and Brief 
at p. la. The Petitioners erroneously attribute the opinion 
of the Supreme Court of North Carolina to “Mr. Justice Mal­
lard,” when the truth of the matter is that Judge Mallard is 
Judge of the Superior Court, which is a court of general 
jurisdiction, and he tried the case in the Court below, at the 
trial stage. The opinion of the Supreme Court of North Caro-



2

lina was written by Mr. Justice Parker, as will appear on p. 
6a of the Petitioners’ Appendix. The Judgment of the Su­
perior Court of Durham County, North Carolina, is not 
officially reported but appears in the State Record certified 
to this Court on p. 15.

JURISDICTION
The Petitioners invoke the jurisdiction of the Supreme 

Court of the United States pursuant to 28 U.S.C. 1257 (3). 
The Respondent, North Carolina, denies that this Court has 
been presented a sufficient basis in this case for the ex­
ercise of its jurisdiction.

QUESTIONS PRESENTED
The Respondent, North Carolina, will oppose the grant­

ing of the Writ herein sought by the Petitioners and for pur­
poses of argument the Respondent will assume that the 
questions presented by the Petitioners on p. 2 of their 
brief are the questions to be considered.

CONSTITUTIONAL PROVISION AND STATUTE 
INVOLVED

The Petitioners invoke Section 1 of the Fourteenth A- 
mendment to the Constitution of the United States.

The Petitioners also attack Section 14-134 of the General 
Statutes of North Carolina, the pertinent part of which is 
as follows:

“G.S. 14-134. Trespass on land after being forbidden. If 
any person after being forbidden to do so, shall go or enter 
upon the lands of another, without a license therefor, he 
shall be guilty of a misdemeanor, and on conviction, shall be 
fined not exceeding fifty dollars or imprisoned not more 
than thirty days.”

RESPONDENT'S STATEMENT OF THE CASE
The Record of this case before the Supreme Court of 

North Carolina (No. 654— 14th District—Fall Term, 1960)



3

has been certified to this Court by the Clerk of the Supreme 
Court of North Carolina, and we will refer to this Record 
(State Record) by the designation SR.

The Petitioners were each indicted by the Grand Jury of 
Durham County for a violation of G.S. 14-134 in that they 
committed a criminal trespass on the land and property of
5. H. Kress & Company, Owner, they having entered unlaw­
fully upon said premises and having willfully and unlaw­
fully refused to leave the premises after being ordered to do 
so by the agent and manager of S. H. Kress & Company. 
The indictments (SR-2) were all consolidated for the pur­
pose of trial (SR-15); the cases were tried and presented to 
the jury, and a verdict of guilty as to each Petitioner was 
returned. (SR-15) The Court pronounced judgment in the 
various cases which are shown on SR-15, and from these 
judgments the Petitioners each appealed to the Supreme 
Court of North Carolina.

This case is another facet of the demonstrations which 
have occurred in various states and which have been spon­
sored by the National Student Association, the Congress of 
Racial Equality (CORE), and the National Association for 
the Advancement of Colored People. The movement was 
dominated and led primarily by students of the colored race 
and some students of the white race and the objective was 
to move into various privately-owned stores and take charge 
of the lunch counters which the owners maintained and 
operated for customers of the white race and prevent the 
white customers from being served at these lunch counters.

According to the evidence of W. K. Boger, Manager of the 
Durham Store of S. H. Kress & Company, (SR-20) on May
6, 1960, all of the Petitioners came into the store located on 
West Main Street in Durham. The luncheonette was open 
for the purpose of serving invited guests and employees and 
signs were posted over and about the luncheonette depart­
ment stating that the department was operated for employ­
ees and guests only; there were iron railings which sep­
arated this department from the other departments in the



4

store, and the luncheonette department had chained en­
trances. (SR-21) The manager had a conversation with every 
one of the Petitioners, (SR-21) and he explained to them 
the status of the lunch counter and asked the Petitioners to 
leave. Before the Petitioners were seated at the lunch count­
er the manager asked them not to take these seats, and when, 
in spite of his directions and wishes, the Petitioners seated 
themselves at the lunch counter, the manager asked them 
to leave. (SR-21) The manager called an officer of the City 
Police Department and the officer asked the Petitioners to 
leave, and, upon their refusing to do so, each of the Peti­
tioners was arrested for trespassing upon the property.

The Petitioner Frank McGill Coleman is a member of the 
white race, a student at Duke University, and was engaged 
in concerted action with the colored Petitioners. The Peti­
tioner Joan Harris Nelson is a freshman at Duke University 
and is apparently a white person. All of the actions of the 
Petitioners show that they had previously discussed what 
they would do and how they would operate in making this 
demonstration and in creating a situation which would 
afford a test case for the colored Petitioners.

The evidence of the State, as well as the evidence of the 
Petitioners, establishes certain facts, as follows:

(1) That prior to the sit-in demonstrations which re­
sulted in the present arrests and indictments of the Peti­
tioners, the Petitioners had counsel and had consulted 
counsel while the demonstration was in its organizational 
process. (SR-38)

(2) The Petitioners had previously been engaged in 
picketing this store and in urging a boycott unless their 
demands for luncheon service were met. (SR-37, 41, 42, 44, 
48, 49, 50.)

(3) It is clear from the evidence of Callis Napolis Brown 
(SR-46) that there was an organization for this purpose, 
that the organization had leaders, and that a meeting was



5

held on the night before May 6, 1960, and it was decided and 
planned to make a purchase in some other part of the store 
before going down and attempting to secure lunch counter 
service. (SR-46)

(4) Purchases were made by these defendants according 
to this previously agreed upon design or plan. (SR-36, 40, 
43, 45, 48, 49)

(5) It is plain that the Petitioners expected and anticipat­
ed that they would not be served at the lunch counter and 
that they intended to remain until they were arrested. It is 
also clear that they solicited the aid of the two white stu­
dents for the purpose of having an entering wedge into the 
seats of the lunch counter and for the purpose of confusing 
the situation by having the white students purchase the food 
and give it to the colored students.

(6) It is further clear that counsel had been consulted 
and cooperated in all these movements even to the point 
of providing bonds for the Petitioners after they were ar­
rested. (See SR. 39, where Lacy Carrole Streeter testified: 
“I left the matter of a bond to my attorneys. I employed my 
attorneys in February. I started consulting with my attor­
neys in February. I kept them retained until May 6, I960.”)

ARGUMENT

THE STATE PROSECUTION DID NOT DEPRIVE P E T I­
TIONERS OF ANY RIGHTS PROTECTED BY THE 
FOURTEENTH AMENDMENT.

Petitioners in their Brief assert several propositions relat­
ing to race discriminations prohibited by the Fourteenth 
Amendment about which there is no contest and which do 
not come within the ambit of the issues to be resolved in 
this case. Some of these propositions, about which there is 
no controversy, are as follows:



6

(1) The Respondent admits that action by the judicial
branch of a state government can be such a type of state 
action that offends against the prohibitory provisions of 
the Fourteenth Amendment (SH ELLEY v. KRAEMER, 334 
U. S. 1; BARROWS v. JACKSON, 346 U. S. 249; Race Rela­
tions Law Reporter, Vol. 1, No. 3, pp. 613, 622). We still
think there is such a thing as valid state action by the
judicial branch of a state government.

(2) The Respondent admits that the provisions of the
Fourteenth Amendment extend to and reach the conduct of 
state police officers (MONROE v. PAPE, No. 39, Oct. Term, 
1960, Feb. 20, 1961; SCREWS v. UNITED STATES, 325
U. S. 91). We deny that it extends to and reaches valid
conduct of state police officers exercised under valid state 
authority.

(3) We admit that there can be unlawful state action by 
a police officer acting under “color of law” where a state 
has enacted a Civil Rights statute which prohibits the denial 
of accommodations or privileges to a person because of color 
in places of amusement or in restaurants. (VALLE v. STEN­
GEL, CCA-3, 176 F. 2d 697, 701). We think the rule can 
be different where a state has no such statute.

(4) We admit that where a state grants a franchise to a 
public utility there cannot be discrimination in the use of 
facilities or services furnished the patrons because of color 
nor can the state enforce such discriminations by delegating 
the power to make rules or by criminal sanctions (BOMAN 
v. BIRMINGHAM TRANSIT CO., CCA-5, 280 F. 2d 531; 
BOWDER v. GAYLE, 142 F. Supp. 707, aff’d 352 U. S. 903; 
FLEMING v. SOUTH CAROLINA ELEC. & GAS CO., CCA- 
4, 224 F. 2d 752). We deny that this rule applies to business 
under private ownership.

(5) We admit that all citizens, white and colored, have 
the right to contract, acquire and own property, are entitled 
to security of person and property, and to inherit, purchase, 
lease, hold and convey real and personal property as set 
forth in R.S. 1977, 42 USC 1981, and R.S. 1978, 42 USC



7

1982. We do not admit that any person, white or colored, 
can be constitutionally forced to sell any private property 
or product to another person, or that one person is forced 
to negotiate with another person in or about any property 
or business transaction.

(6) We admit that there is an abundance of legal author­
ity to the effect that a state or a subdivision of a state which 
operates restaurants or other facilities, or operates play­
grounds or parks, or facilities of this nature, cannot by the 
device of a lease to private persons or firms discriminate 
against colored persons who desire to use such facilities, and 
that “the proscriptions of the Fourteenth Amendment must 
be complied with by the lessee as certainly as though they 
were binding covenants written into the agreement itself.” 
(BURTON v. WILMINGTON PARKING AUTHORITY, 29 
U. S. Law Week 4317, No. 164, Oct. Term 1960, April 17, 
1961; DERRINGTON v. PLUMMER, CCA-5, 240 F. 2d 922; 
CITY OF GREENSBORO v. SIMKINS, CCA-4, 246 F. 2d 
425; DAWSON v. BALTIMORE, CCA-4, 220 F. 2d 386, aff’d 
350 U. S. 877).

(7) We don’t think the cases on discrimination in public 
schools have anything to do with this case, but we admit 
there can be no state action which supports racial discrimi­
nation in this field and as set forth in the cases of BROWN 
v. BOARD OF EDUCATION, 347 U. S. 483, BOLLING v. 
SHARPE, 347 U. S. 497, and COOPER v. AARON, 358 U. S. 
1 .

Our contentions and the concepts that we believe to be 
sound have been fully stated by Mr. Justice Parker in 
STATE v. AYENT et als., 253 N. C. 580 (N. C. Advance 
Sheets No. 6, issued Feb. 15, 1961), 118 S. E. 2d 47, Peti­
tioners’ Appendix p. 2a. The matter has been considered 
by the law review writers (47 Virginia Law Review—No. 1, 
Jan. 1961, p. 1; 46 Virginia Law Review - 1960 - p. 123; 15 
U. of Miami Law Review - No. 2 - 123; Race Relations Law 
Reporter, Vol. 5, No. 3 - Fall 1960 - p. 935; 1960 Duke Law 
Journal 315).



8

We assert that private citizens or persons have the right 
to practice private discrimination for or against each other. 
This runs all through the fabric of society and life. Clubs, 
lodges and secret societies will accept some as members and 
reject others. The country club people do not associate with 
the people that live in slum areas and across the railroad 
track. The people of some races will have no dealings with 
people of other races. Discriminations are practiced inside 
the race group. The colored insurance men, doctors and 
bankers do not have social affairs that are open to the cot­
ton and cornfield Negroes. We further assert that any color­
ed citizen can refuse to transact business with a white per­
son or to have him on his business premises and the rule 
applies in reverse. Up to the present time, in private busi­
ness, no man has been compelled to sell his product, goods 
or services to another unless he desired to so do. The rea­
sons or motives that prompt his choice of action are irrele­
vant. The same private rights in the use and enjoyment of 
property are available to all. The protection of these private 
rights is not an “indiscriminate imposition of inequalities”. 
As said by Mr. Justice Holmes (TERMINAL TAXICAB CO. 
v. KUTZ, 241 U. S. 252, 256):

“It is true that all business, and for the matter of that, 
every life in all its details, has a public aspect, some 
bearing on the welfare of the community in which it is 
passed. But however it may have been in earlier days 
as to the common callings, it is assumed in our time 
that an invitation to the public to buy does not neces­
sarily entail an obligation to sell. It is assumed that an 
ordinary shopkeeper may refuse his wares arbitrarily 
to a customer whom he dislikes * *

This court carefully stated (SH ELLEY v. KRAEMER, 
334 U. S. 1):

“That Amendment erects no shield against merely priv­
ate conduct, however discriminatory or wrongful.” (cit­
ing in the note: UNITED STATES v. HARRIS, 106 
U. S. 629; UNITED STATES v. CRUIKSHANK, 92 U. S. 
542.)



9

In BOYNTON v. VIRGINIA, 5 L. ed. 2d 206, ______
U. S . _______, this Court said:

“We are not holding that every time a bus stops at a 
wholly independent roadside restaurant the Interstate 
Commerce Act requires that restaurant service be sup­
plied in harmony with the provisions of that Act.”

But if there existed another vital, and primary constitu­
tional principle that required that restaurant service be 
supplied by the roadside restaurant to a colored man, then 
there would seem to be no reason why this Court should 
pass it by and not settle the question.

The State Statute here under consideration is an old 
statute and has been passed upon by the Supreme Court 
of North Carolina many times. It appears in the State code 
as G. S. 14 - 134 and we refer the Court to certain cases, as 
follows: STATE v. CLYBURN, 247 N. C. 455, 101 S. E. 2d 
295; STATE v. COOKE et als., 246 N. C. 518, 98 S. E. 2d 885; 
STATE v. GOODSON, 235 N. C. 177, 69 S. E. 2d 242; ARM­
STRONG v. ARMSTRONG, 230 N. C. 201, 52 S. E. 2d 362; 
L EE  v. STEWART, 218 N. C. 287, 10 S. E. 2d 804; STATE 
v. BAKER, 231 N. C. 136, 56 S. E. 2d 424. See also cases 
cited in annotation to Sec. 14 - 134 in General Statutes of 
North Carolina, and the 1959 Supplement thereto. A related 
statute is G. S. 14 - 126 which is as follows:

“No one shall make entry into any lands and tenements, 
or term for years, but in case where entry is given by 
law; and in such case, not with strong hand nor with 
multitude of people but only in a peaceable and easy 
manner; and if any man do the contrary, he shall be 
guilty of a misdemeanor.”

This statute was borrowed from English law and in sub­
stance is 5 Richard II, c. 8, and in fact it would appear that 
this statute and the one under consideration are formulations 
of the common law.



10

The statute now attacked by Petitioners is a neutral sta­
tute and has no connection with the color of persons. We 
challenge the Petitioners to trace the reported decisions and 
show that in its judicial administration it has been applied 
to colored persons and not to white persons. It is available 
to the colored man if a white man will not leave his premises 
when requested to do so.

The implied invitation to the general public to come into 
a shop or store can lawfully be revoked. On this aspect of 
the case the Supreme Court of North Carolina (253 N. C. 
580, 588) said:

“In an Annotation in 9 A.L.R., p. 379, it is said: ‘It 
seems to be well settled that, although the general pub­
lic have an implied license to enter a retail store, the 
proprietor is at liberty to revoke this license at any time 
as to any individual, and to eject such individual from 
the store if he refuses to leave when requested to do 
so.’ The Annotation cites cases from eight states sup­
porting the statement. See to the same effect, BROOK- 
SIDE-PRATT MIN. CO. v. BOOTH, 211 Ala. 268, 100 
So. 240, 33 A.L.R. 417, and Annotations in 33 A.L.R. 421”.

Leaving aside the question of void-for-vagueness, the in­
terpretation of the highest appellate Court of a state should 
be accepted by the Federal Courts (AMERICAN FEDERA­
TION OF LABOR v. WATSON, 327 U. S. 582; PH ILLIPS v. 
UNITED STATES, 312 U. S. 246; HIGHLAND FARMS 
DAIRY v. AGNEW, 300 U. S. 608).

The Petitioners have not cited any case dealing with priv­
ate discrimination which supports their position, and indeed 
they cannot do so. Up to the present time the Courts that 
have considered the matter support our position (STATE 
v. CLYBURN, 247 N. C. 455, 101 S. E. 2d 295; WILLIAMS 
v. HOWARD JOHNSON’S RESTAURANT, 268 F. 2d 845; 
SLACK v. ATLANTIC W HITE TOWER SYSTEM, INC., 
181 F. Supp. 124, aff’d 284 F. 2d 746; see also cases cited 
in opinion of Supreme Court of North Carolina in this case, 
and in law review articles cited supra).



11

As we see the matter, up to the present time, wherever 
the prohibitions of the Fourteenth Amendment have been 
invoked there has been a clear, established right to be pro­
tected from state action or from any discrimination aided 
or assisted by state action. Up to the present time in this 
case the Petitioners are starting from a position where they 
have no clear, established right to be protected by constitu­
tional guarantees. They are asking the Court to invent, create 
or conjure up the claimed right and then say it is entitled 
to the protection of the Fourteenth Amendment. If it shall 
be said that the State court cannot exert its power to protect 
the property rights of either race but will leave the parties 
to their own devices, or to the exercise of personal force, 
then the result will be something that neither the white or 
colored race really desires.

II

THE STATE STATUTE IS NOT UNCONSTITUTIONAL 
FOR UNCERTAINTY AND VAGUENESS.

The Petitioners’ next attack on the statute comes under 
the so-called void-for-vagueness doctrine. Here we enter into 
a field of constitutional law which it seems to us is measured 
entirely by subjective tests.

There is one thing sure however—the Petitioners were 
engaged in a previously organized campaign and there is 
strong reason to believe from the evidence that they had 
the advice of counsel. The Supreme Court of North Carolina 
has construed G. S. 14 - 134 many times to include the situ­
ation where a person enters upon lands or premises without 
protest and is later told by the owner or proprietor to leave 
the premises. The case of STATE v. CLYBURN, 247 N. C. 
455, 101 S. E. 2d 295, was decided on January 10, 1958, and 
Petitioners and their counsel had ample warning of this 
construction of the statute. We have heretofore cited above 
many cases in which the Supreme Court of North Carolina 
has construed the statute. This Court has said in substance 
that impossible standards of definition are not required and



12

that it is sufficient if the language “conveys sufficiently 
definite warning as to the proscribed conduct when measur­
ed by common understanding and practices.” On this point, 
see ROTH v. UNITED STATES, 354 U. S. 476, and see an­
notation in 1 L. ed 2nd, p. 1511.

This State statute is certainly no more vague or uncertain 
than 18 USCA 242, which reads as follows:

“Whoever, under color of any law, statute, ordinance, 
regulation, or custom, willfully subjects, or causes to 
be subjected, any inhabitant of any State, Territory, 
or District to the deprivation of any rights, privileges, 
or immunities secured or protected by the Constitution 
and laws of the United States, or to different punish­
ments, pains, or penalties, on account of such inhabitant 
being an alien, or by reason of his color, or race, than 
are prescribed for the punishment of citizens, shall be 
fined not more than $1,000.00, or imprisoned not more 
than one year, or both.”

This Court reviewed the statute and its history and up­
held the statute against an attack based on unconstitutional 
vagueness in SCREWS v. UNITED STATES, 325 U. S. 91.

For other causes in which statutes have been upheld 
against such an attack see: BEAUHARNAIS v. ILLINOIS, 
343 U. S. 250, COLE v. ARKANSAS, 338 U. S. 345, W IL­
LIAMS v. UNITED STATES, 341 U. S. 97, UNITED 
STATES v. WURZBACH, 280 U. S. 396.

As a practical matter, an ordinary layman has trouble with 
any statute no matter how precise its standards of conduct 
and no matter how clear it may be in the informational pro­
cess. Statutes really are written for lawyers to read and to 
form opinions and advise clients thereon, and the statute 
now under attack when considered with the constructions 
of the highest appellate Court of the State clearly informs 
Counsel for Petitioners what the consequences could be.

There must be some latitude in statutory language be-



13

cause statutes are drafted for the most part in an attempt 
to take care of unanticipaed situations as well as those that 
may be in contemplation when the drafting process is first 
initiated. In NASH v. UNITED STATES, 229 U. S. 373, Mr. 
Justice Holmes summed up the situation as follows:

“But, apart from the common law as to the restraint of 
trade thus taken up by the statute, the law is full of 
instances where a man’s fate depends on his estimating 
rightly, that is, as the jury subsequently estimates it, 
some matter of degree. If his judgment is wrong, not 
only may he incur a fine or a short imprisonment, as 
here; he may incur the penalty of death.’

This question has also been written about extensively by 
the law review writers and in closing this portion of the 
argument we cite a few of these articles but this is not to 
be construed by the Court as meaning that we approve all 
the criticisms and conclusions of the authors (109 University 
of Pennsylvania Law Review - No. 1, November 1960 - p. 67, 
62 Harvard Law Review 77, 40 Cornell Law Quarterly 195).

Ill

THE STATUTE AS ADMINISTERED DOES NOT VIO­
LATE THE CONSTITUTIONAL PROTECTION OF 
FREEDOM OF SPEECH.

We assume here that the Petitioners are dealing with the 
principles of the First Amendment insofar as they may be 
incorporated in the Fourteenth Amendment. The evidence 
shows that Petitioners exercised their right of free speech 
to the fullest extent. Petitioners and their adherents had 
for days been exercising their right to protest and the right 
of freedom of speech by writings and slogans on placards 
which they carried up and down the streets in front of the 
stores. This was certainly true in the AVENT case and in 
both cases there is no evidence to show that they had been 
restrained in any manner in the exercise of this right. The 
use of the streets and sidewalks of the town and city con-



14

cerned had been utilized by Petitioners in the AYENT case 
and there is no reason to believe that any restraints would 
have been placed upon Petitioners in the exercise of free 
speech in any proper place. Of course, free speech is not a 
mighty shield that insulates a person from liability in all 
types of criminal conduct. Such a logic would extend free 
speech as a protection from the penalty of murder and would 
act as a complete and conclusive defense for the commission 
of all criminal acts. This is explained by a paragraph in 
KOVACS v. COOPER, 336 U. S. 77, where this Court said:

“Of course, even the fundamental rights of the Bill of 
Rights are not absolute. The SAIA case recognized that 
in this field by stating ‘The hours and place of public 
discussion can be controlled.’ It was said decades ago 
in an opinion of this Court delivered by Mr. Justice 
Holmes, SCHENCK v. UNITED STATES, 249 U. S. 47, 
52, 63 L. Ed 470, 473, 39 S Ct 247, that: ‘The most 
stringent protection of free speech would not protect 
a man in falsely shouting fire in a theatre and causing 
a panic. It does not even protect a man from an in­
junction against uttering words that may have all the 
effect of force.’

“Hecklers may be expelled from assemblies and relig­
ious worship may not be disturbed by those anxious 
to preach a doctrine of atheism. The right to speak one’s 
mind would often be an empty privilege in a place and 
at a time beyond the protecting hand of the guardians 
of public order.”

In the case of MILK WAGON DRIVERS UNION v. 
MEADOWMOOR DAIRIES, 312 U. S. 287, 61 S. Ct. 552, 85 
L. ed 836, the Court sustained an injunction against picket­
ing where there was a history of past violence against a 
plea of freedom of speech and distinguished the case from 
that of THORNHILL v. ALABAMA, cited by the Petition­
ers, and said:

“This is precisely the kind of situation which the Thorn­
hill opinion excluded from its scope. ‘We are not now



15

concerned with picketing en masse or otherwise con­
ducted which might occasion such imminent and ag­
gravated danger . . .  as to justify a statute narrowly 
drawn to cover the precise situation giving rise to the 
danger.’ 310 U. S. 105, 84 L. Ed. 1104, 60 S. Ct. 736. We 
would not strike down a statute which authorized the 
courts of Illinois to prohibit picketing when they should 
find that violence had given to the picketing a coersive 
effect whereby it would operate destructively as force 
and intimidation. Such a situation is presented by this 
record. It distorts the meaning of things to generalize 
the terms of an injunction derived from and directed 
towards violent misconduct as though it were an ab­
stract prohibition of all picketing wholly unrelated to 
the violence involved.”

We shall not burden the Court with further citations from 
case law but it is sufficient to say that the injuctions 
sustained by this Court in labor disputes where violence 
and destruction of property were involved are certainly not 
constitutionally invalid because those who were engaged in 
picketing carried banners and mottoes and other writings 
in the exercise of communications and freedom of speech.

The case of MARSH v. ALABAMA, supra, is no excep­
tion to this rule. The defendants in the MARSH case were 
distributing religious literature and engaged in talking to 
persons on the streets of a company-owned town. They were 
not in stores interfering with the businesses of private pro­
prietors. The Supreme Court of the United States simply 
said that where a company owned the streets and sidewalks 
the people of the town were compelled to use them in com­
munity affairs, that these streets and sidewalks were con­
stitutionally dedicated to the public in the same manner as 
the streets of a municipal corporation.



16

IV

CONCLUSION

This Court in these cases is being asked to take a step 
which has never before been taken with reference to the use 
and enjoyment of property rights. To grant the request of 
the Petitioners opens the door to the socialization of all 
property and would mean that while a proprietor may 
have the privilege of holding the bare legal title yet the 
property would be subjected by the State to so many social 
demands that it would be almost analogous to property 
held in the corporative state organized and administered 
for awhile by Mussolini. Petitioners realize that their logic, 
as derived from their premises, leads to great extremes and 
they try to hedge against these extremes. For example, must 
the Petitioners be given entrance to the office of the man­
ager and must they be allowed to go to the stockroom? 
Suppose the clerks tell Petitioners that they do not have 
certain articles and the Petitioners think they can find some 
of the articles in the stockroom, can they go to the stock- 
room over the p r o t e s t  of the management? Suppose 
private properietors are compelled to sell to Petitioners, at 
what price must they sell? If a private properietor sold 
articles or food to his friends at no cost or at a cheaper 
rate than usual, would this violate Petitioners’ civil rights? 
Under their own theory, why should not Petitioners be 
allowed to enter into any private home they desire so long 
as they say that they are protesting and exercising free 
speech? The Petitioners’ request should not be granted un­
less the Court thinks we should have a completely socialized 
state. There should be left to an individual some property 
rights that he can call his own or else why should we have 
the institution of private property. We ask the Court not 
to take such a step and in this connection we again remind 
the Court of the langauage this Court used in civil rights 
cases (109 U.S. 3) when it said:

“When a man has emerged from slavery, and by the aid
of beneficient legislation has shaken off the inseparable



17

concomitants of that state, there must be some stage 
in the progress of his elevation when he takes the rank 
of a mere citizen, and ceases to be the special favorite of 
the laws, and when his rights, as a citizen or a man, 
are to be protected in the ordinary modes by which other 
men’s rights are protected.”

Respectfully submitted,

T. W. BRUTON
Attorney General of North Carolina

RALPH MOODY
Assistant Attorney General

Justice Building 
Raleigh, North Carolina

Counsel for the State of North Carolina 
Respondent