Abbot v. Thetford Brief Amicus Curiae on Appeal NAACP Legal Defense Fund

    I kt t h e

%>uptmt (Emit iif %  States
October Term, 1962 

No. 11

J ohn Thomas A vent, et al.,
Petitioners,

-- y.---

N orth Carolina.

ON WRIT OF CERTIORARI TO THE SUPREME COURT 

OF THE STATE OF NORTH CAROLINA

BRIEF FOR PETITIONERS

J ack Greenberg 
Constance B aker Motley 
J ames M. N abrit, III 

10 Columbus Circle 
New York 19, New York

L. C. B erry, J r.
W illiam A. Marsh, J r.
F. B. McK issick
C. 0 . P earson 
W. G. P earson
M. H ugh Thompson

Durham, North Carolina
Attorneys for Petitioners

D errick B ell
Leroy Clark
W illiam T . Coleman, J r .
Michael Meltsner 
W illiam R . Ming, J r .
Louis H. P ollak 
J oseph L. R auh 
H erbert 0 . R eid 

Of Counsel

JAMBS M. NAaartM-. lU



INDEX

PAGE

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

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

Constitutional and Statutory Provisions Involved.....  2

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

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

Summary of Argument........ .........................................  8

A rgument

I. North Carolina in Enforcing What Its Highest 
Court Has Denominated a “Clear Legal Eight 
of Racial Discrimination” Has Denied to Peti­
tioners the Equal Protection of the Laws Se­
cured by the Fourteenth Amendment ...............  12
A. Arrest, Conviction, and Sentence to Prison

for Trespass for Having Violated the S. H. 
Kress Co.’s Requirement of Racial Segrega­
tion at Its Public Lunch Counter Deny Peti­
tioners the Equal Protection of the Laws 
Secured by the Fourteenth Amendment...... 12

B. Certainly, at Least, the State May Not by
Its Police and Courts Enforce Such Segre­
gation When It Stems From a Community 
Custom of Segregation Which Has Been 
Generated bĵ  State Law.................. .............  17



n

PAGE

C. A Fortiori, the State May Not Arrest and
Convict Petitioners for Having Violated a 
Segregation Rule Which Stems Prom a State 
Generated, Community Custom of Segrega­
tion in Premises in Which the State Is 
Deeply Involved Through Its Licensing and 
Regulatory Powers.......................................  24

D. No Essential Property of S. H. Kress and
Co. Is Here at Issue; the Right to Make 
Racial Distinctions at a Single Counter in 
a Store Open to the Public Does Not Out­
weigh the High Purposes of the Fourteenth 
Amendment.................................................... 27

E. In Any Event the Convictions Below Must
Pall When, in Addition to the Foregoing, 
North Carolina Has Failed to Protect Negro 
Citizens in the Right to Equal Access to 
Public Accommodations ..............................  35

II. The Criminal Statute Applied to Convict Peti­
tioners Gave No Fair and Effective Warning 
That Their Actions Were Prohibited: Peti­
tioners’ Conduct Violated No Standard Re­
quired by the Plain Language of the Law; 
Thereby Their Conviction Offends the Due 
Process Clause of the Fourteenth Amendment 
and Conflicts With Principles Announced by
This Court...........................................................  39

III. The Decision Below Conflicts With Decisions of 
This Court Securing the Fourteenth Amend­
ment Right to Freedom of Expression....... ......  47

Conclusion ............      51



V

PAGE

Holmes v. Atlanta, 350' U. S. 879 ............................. ......  12
Holmes v. Connecticut Trust & Safe Deposit Co., 92

Conn. 507, 103 Atl. 640 (1918) ............................... .. 29
Hudson County Water Co. v. McCarter, 209 U. S.

345 ................................................................... ...........  34

Klor’s Inc. v. Broadway-Hale Stores, 359 TJ. S. 207
(1959) .........................................................................  31

Kovacs v. Cooper, 336 U. S. 77 ...................................  16
Kunz v. New York, 340 U. S. 290 ................................ 46

Lane v. Cotton, 1 Ld. Raym. 646, 1 Salk. 18, 12 Mod.
472, 485 ...................................................................... 32

Lanzetta v. New Jersey, 306 U. S. 451 ................. 41, 42, 44
Levitt & Sons, Inc. v. Division Against Discrimination,

31 N. J. 514, 158 A. 2d 177 (1960) ............................  31
Lorain Journal Co. v. United States, 342 U. S. 143

(1951) ......................................................................... 31
Lovell v. Griffin, 303 U. S. 444 ....................................... 44
Lynch v. United States, 189 F. 2d 476 (5th Cir. 1951) .... 35

Maddox v. Maddox, Admr., 52 Va. 804 (1954) ....... . 29
Mapp v. Ohio, 367 U. S. 643 ..........................................  17
Marsh v. Alabama, 326 U. S. 501 ........................28, 34,47
Martin v. Struthers, 319 U. S. 141.............. ..........16, 48, 49
Massachusetts Comm’n Against Discrimination v. Col-

angelo, 30 U. S. L. W. 2608 (Mass. 1962) .................  31
Mayor, etc. of Baltimore v. Dawson, 350 U. S. 877 ..... 12
McBoyle v. United States, 283 U. S. 25 .....................43, 45
Miller v. Schoene, 276 U. S. 272 (1928) ..................... 32
Monroe v. Pape, 365 U. S. 167....................................... 13
Morgan v. Virginia, 328 U. S. 373 ...... ............ ............  20
Muir v. Louisville Park Theatrical Assn., 347 U. S. 971, 

vacating and remanding, 202 F. 2d 275 ..................... 13



VI

PAGE

NAACP v. Alabama, 357 U. S. 449 ...... ..................24, 42, 49
Nashville C. & St. L. Ry. v. Browning, 310 U. S. 362 .... 18 
New Orleans City Park Improvement Assn. v. Detiege,

358 U. S. 5 4 ................................................................  12
N. Y. State Comm’n Against Discrimination v. Pelham 

Hall Apts. Inc., 10 Misc. 2d 334, 170 N. Y. S. 2d 750
(Snp. Ct. 1958)............................................................. 31

Nixon v. Condon, 286 U. S. 73 ...................................  26
N.L.R.B. v. American Pearl Button Co., 149 F. 2d 258

(8th Cir. 1945) ............................................................. 48
N.L.E.B. v. Babcock & Wilcox Co., 351 U. S. 105 (1955) 33
N.L.R.B. v. Fansteel Metal Corp., 306 U. S. 240 ......... 48

People v. Barisi, 193 Misc. 934 (1948) ........................  49
Pierce v. United States, 314 U. S. 306 ........     42
Poe v. Ullman, 367 U. S. 497 .......................................  18
Pollock v. Williams, 322 U. S. 4 ...................................  23
Porter v. Barrett, 233 Mich. 373, 206 N. W. 532 (1925) 30
Public Utilities Commission v. Poliak, 343 U. S.

451...................................... ........................................ 17, 26

Queenside Hills Realty Co. v. Saxl, 328 U. S. 80 (1946) 32

Railway Mail Ass’n v. Corsi, 326 U. S. 88.....................  27
In Re Ranney’s Estate, 161 Misc. 626, 292 N.. Y. S. 476

(Surr. Ct. 1936) .........................................................  29
Republic Aviation Corp. v. N.L.R.B., 324 U. S. 793 

(1945) ................  28,33,47-48

Saia v. New York, 334 U. S. 558 ...................................  46
St. Louis Poster Advertising Co. v. St, Louis, 249 U. S.

269 (1919) .......................    33
Schenck v. United States, 249 U. S. 47 ......................... 50
Schmidinger v. Chicago, 226 U. S. 578 ............................ 33



V II

PAGE

Screws v. United States, 325 U. S. 91.............................. 13
Semler v. Oregon State Board of Dental Examiners,

294 U. S. 608 (1935) ..................................................  33
Shelley v. Kraemer, 334 U. S. 1 ..............12,14, 28, 30, 33, 35
Smith v. California, 361 U. S. 147............................. ......  46
State Athletic Comm’n v. Dorsey, 359 U. S. 533 ..........  13
State Comm’n Against Discrimination v. Pelham Hall 

Apartments, 10 Misc. 2d 334,170 N. Y. S. 2d 750 (Snp.
Ct. 1958) ......................................................................  31

State of Maryland v. Williams, 44 Lab. Bel. Bef. Man.
2357 (1959) ..................................................................  49

State v. Clyburn, 247 N. C. 455, 101 S. E. 2d 295
(1958)......................................................................... 21, 40

State v. Johnson, 229 N. C. 701, 51 S. E. 2d 186 (1949) 21
Stanb v. Baxley, 355 U. S. 313......................................   42
Steele v. Louisville and Nashville B.R, Co., 323 U. S.

192..................................................................     26
Stromberg v. Calif., 283 U. S. 359 ................................44, 49

Taylor v. Louisiana, 370 U. S. 154...................... ....... . 13
Terry v. Adams, 345 U. S. 461 .......................................  35
Thomas Cusack Co. v. Chicago, 242 U. S. 526 (1917) 33
Thompson v. City of Louisville, 362 U. S. 199.............  41
Thornhill v. Alabama, 310 U. S. 88................ ............... 49
Truax v. Corrigan, 257 U. S. 312  ...... .................... ......  35
Turner v. Memphis, 369 U. S. 350 ....... .... .......................  13

United States v. Addyston Pipe & Steel Co., 85 Fed. 271
(6th Cir. 1898) aff’d 175 U. S. 211 (1899) ............... . 30

United States v. Beaty, 288 F. 2d 653 (6th Cir. 1961) .... 33
United States v. Cardiff, 344 U. S. 174 .......... ...........42, 43
United States v. Colgate, 250 U. S. 300 (1919) ............ . 31
United States v. Hall, 26 Fed. Cas. 79 ...... .............. . 36
United States v. L. Cohen Grocery Co., 255 U. S. 81 ....43, 44



V l l l

PAGE

U. S. v. Parke, Davis & Co., 362 U. S. 29 (1960) ..........  31
United States v. Weitzel, 246 U. S. 533 .....................43, 44
United States v. Wiltberger, 18 U. S. (5 Wheat.) 76 .... 43 
United Steelworkers v. N.L.R.B., 243 F. 2d 593 (D. C.

Cir., 1956) (Reversed on other grounds), 357 U. S. 357 48

Watehtower Bible and Tract Soc. v. Metropolitan Life
Ins. Co., 297 N. T. 339, 79 N, E. 2d 433 (1948) .........  16

Western Turf Assn. v. Greenberg, 204 U. S. 359 .........  27
Winterland v. Winterland, 389 111. 384, 59 N. E. 2d

661 (1945) .............................. ...................................... 29
Wolf v. Colorado, 338 U. S. 25 .......................................  17

F edekal S tatutes

Civil Rights Act of 1866, 14 Stat. 27 ............................  16
Civil Rights Act of 1875 ..............................................  37
Civil Rights Act of 1875, 18 Stat. 335 ......................... 16
Clayton Act, 15 U. S. C. §12, et seq..............................  30
Miller-Tydings Act amendment of §1 of the Sherman 

Act, 15 U. S. C. § 1 .....................................................  30
Robinson-Patman Act, 15 U. S. C. §13 et seq................  30
Sherman Anti-Trust Act, 15 U. S. C. §1 et seq.............  30
United States Code, Title 28, §1257(3) .........................  1
United States Code, Title 42, §1981 ............................  15
United States Code, Title 42, §1982 ............................  15

S tate S tatutes

Ark. Code Sec. 71-1803 .................................................. 45
Cal. Civil Code, §51 (Supp. 1961) ................................ 31
Cal. Civ. Code, sections 51-52 (Supp. 1961) ...... ..........  31



IX

PAGE

Cal. Health & Safety Code (See. 35740) .............. ......  31
Code of Ala., Title 14, Sec. 426 ...................................  45
Code of Virginia, 1960 Replacement Volume, Sec. 18.1-

173 ............................................................................... 45
Colo. Rev. Stat. Ann. sections 25—1—1 (1953).............. 31
Colo. Rev. Stat. Ann. sections 69-7-1 (Supp. 1960) ......  31
Conn. Hen. Stat. Rev. §53-35 (Supp. 1960) .................  31
Conn. Gen. Stat. Rev. sec. 53-35 (Supp. 1961) .............. 31
Conn. Gen. Stat. Rev. sections 53—35-36 ................   31
Conn. Stat. Rev. §53-35-35 ..............................................  31
Conn. Gen. Stat. (1958 Rev.) sec. 53-103 .....................  45
Constitution of North Carolina, Art. XIV, sec. 8 

(1868) .........................................................................  21

D. C. Code, sec. 22-3102 (Supp. VII, 1956) .................  45
D. C. Code Ann. sections 47—2901-04 (Supp. 1960) .... 31
Florida Code, sec. 821.01 ........................... ................... 45

Hawaii Rev. Code, sec. 312-1 .......................................  45

Illinois Code, sec. 38-565 ...........    45
Indiana Code, sec. 10-4506 ........................................... 45
Indiana Stat., secs. 10-901, 10-902 (Supp. 1962) ..........  31
Iowa Code Ann. sections 735.1-02 (1950) ..................... 31
Kansas Gen. Stat. Ann. sections 21-2424 (1949) ..........  31
Laws of Alaska Ann. 1958 (compiled), Cum. Supp.

Vol. Ill, sec. 65-5-112................ .................................  45

Mass. Code Ann. c. 266, sec. 120 ................................ 45
Mass. G. L. c. 151B, §§1, 4, 6 (Supp. 1961) .................  31
Mass. G. L. (Ter. Ed.) c. 272, sections 92A, 98 (1956),

c. 151B, sections 1-10.................................................. 31
Mich. Stat. Ann. 1954, Vol. 25, Sec. 28.820(1) ............ 45
Mich. Stat. Ann. §28-343 (Supp. 1959)............................  31



X

PAGE

Minn. Stat. Ann. section 327.09 (1947) ........................  31
Minn. Stat. Ann., 1947, Vol. 40, sec. 621.57 .................  45
Minn. Stat. Ann. §§363.01-.13, as amended by L. 1961,

c. 428 to become effective 12/31/62 ......................... 31
Mississippi Code, sec. 2411 ........................................... 45
Montana Rev. Codes Ann. section 64-211 (Supp. 1961) 31
Neb. Rev. Stat. sections 20-101, 102 (1943) .................  31
Nevada Code, sec. 207.200 ............................................  45
N. H. Rev. Stat. Ann. §§354.1-4, as amended by L. 1961,

c. 219 ........................................................................... 31
N. C. Gen. Stat., sec. 14-126........................................... 40
N. C. Gen. Stats., sec. 14-134 ................................2, 4, 39,40
N. C. Gen. Stat. sec. 14-234 ........................................... 40
N. C. G. S. 14-181............................................................. 21
N. C. G. S. 51-3 .............................................................  21
N. C. G. S. §55-79 .........................................................  25
North Carolina General Statutes, sec. 55-140 .............. 25
N. C. G. S. 58-267 .........................................................  21
G. S. 60-94 to 9 7 ............................................................. 20
N. C. G. S. 60-135 to 137 .............................................. 20
N. C. G. S. 60-139 .........................................................  21
N. C. G. S. 62-44 ............................................................  20
N. C. G. S. 62-127.71 .....................................................  20
N. C. G. S. 65-37 ............................................................  19
N. C. G. S. 72-46 .....      21
N. C. G. S. 90-212 ......    20
N. C. G. S. 95-48 ...............................................  21
N. C. G. S. §105-62 ..................................................... 25
N. C. G. S. §105-82 ........................................................  25
N. C. G. S. §105-98 .....................................................  25
N. C. G. S. §105-164.4-6 ...........    25
N. C. G. S. 105-323 ..............    19
N. C. G. S. 116-109..........................    19



PAGE

xi

N. C. G. S. 116-120...............................................    19
N. C. G. S. 116-124.....................................................  19
N. C. G. S. 116-138 to 142..............................................  19
N. C. Gr. S. 122-3-6 ...............................................    19
N. C. Gr. S. 127-6............................................................. 19
N. C. Gr. S. 134-79 to 84 ..................................................  19
N. C. G-. S. 134-84.1 to 84.9 .......................   19
N. C. G. S. 148-43 .........................................................  19
N. C. Gen. Laws, Cli. 130 (1957) ................   25
N. D. Cent. Code, section 12-22-30 (Snpp. 1961) ... .........  31
N. J. Stat. Ann. sections 10:1—2-7, section 18:25—5

(Snpp. 1960) ..............................................................  31
N. J. Stat. Ann. sec. 18:25-4 (Snpp. 1961) ...................  31
N. M. Stat. Ann. sections 49—8—1-6 (Supp. 1961) ........ 31
1ST. Y. Civil Eights Law, section 40-41 (1948), Execu­

tive Law, sections 292(9), 296(2) (Snpp. 1962) ......  31
N. Y. Executive Law, §§290-99 as amended by L. 1961, 

c. 414 .........    31

Ohio Code, sec. 2909.21 ..............................................  45
Ohio Eev. Code, sec. 4112.02(G) (Supp. 1961) ..........  32
Oregon Code, sec. 164.460 ........................ ..... ................ 45
Ore. Eev. Stat. sections 30.670-680, as amended by Sen­

ate Bill 75 of the 1961 Oregon Legislature .............. 32
Ore. Eev. Stat. sec. 659.033 (1959) ................................ 31
Pa. Stat. Ann. Tit. 18, section 4654, as amended by 

Act No. 19 of the 1961 Session of Pa. Gen. Assembly 32 
Pa. Stat. Ann. Titl. 43, §§951-63, as amended by Acts 

1961, No. 19 ...............................................    31

E. I. Gen. Laws Ann. sections 11-24-1 to 11-24-1-6 
(1956) .........   32

Vermont Stat. Ann. tit. 13, Sections 1451-52 (1958) .... 32



XU

PAGE

Wash. Eev. Code §49.60.030 (1957) ................................ 31
Wash. Eev. Code, Section 49.60.040 (1957) .................  31
Wash. Eev. Code, Sections 49.60.040, 49.60.215 (1962) 32 
Wis. Stat. Ann. Section 942.04 (1958) as amended

(Supp. 1962)................................................................  32
Wyoming Code, Sec. 6-226 ..............................................  45
Wyoming Stat., Sections 6-83.1, 6-83.2 (Supp. 1961) .... 32

City Ordinances

Burlington Code, Sec. 8-1 .......................    20
Charlotte City Code, Article I, Sec. 5 .......................... 20
Charlotte City Code, Ch. 7, Sec. 7-9, 7-56....................... 20
Lumberton Code, Sec. 7-19 ..........................................  20
Winston-Salem Code, Sec. 6-42...............................   20

E nglish S tatutes

Statute of Labourers, 25 Ed. Ill, Stat. I (1350) ..... 32
(1464), 4 Ed. IV., c. 7 ..............................................  32
(1433), 11 H. VI, c. 1 2 .......................................    32
(1357), 31 Ed. Ill, c. 10...............................................  32
(1360), 35 Ed. I l l  .........................................................  32

Other A uthorities

Abernathy, Expansion of the State Action Concept 
Under the Fourteenth Amendment, 43 Cornell L Q
375 ..............................................................................  38

Adler, Business Jurisprudence, 28 Harv. L. Eev 135 
(1914) .........................................................................  32



a n

PAGE
A. L. I., Restatement of the Law of Property, Div. 4, 

Social Restrictions Imposed Upon the Creation of
Property Interests (1944), p. 2121.............. ......... 29,30

A. L. I., Restatement of Torts, §867 (1939) ...............  17
Ballentine, “Law Dictionary” 436 (2d Ed. 1948) ........  45
Beale, The Law of Innkeepers and Hotels (1906) ......  32
“Black’s Law Dictionary” (4th Ed. 1951) 625 ............. 45
4 Blackstone’s Commentaries, Ch. 13, sec. 5(6) Wen­

dell’s Ed. 1850 ..................................... .............  u
Blodgett, Comparative Economic Systems 24 (1944) .... 28 
Browder, Illegal Conditions and Limitations: Miscel­

laneous Provisions, 1 Okla. L. Rev. 237 (1948) ......  30
Cong. Globe, 41st Cong. 2d Sess. p. 3611 (1870) ..........  37
Cong. Globe, 42d Congress, 1st Sess., p. 459 .............. 37
Cong. Globe, 42d Congress, 1st Sess., p. 483 (1871) .... 36
Cong. Globe, 42d Cong., 2d Sess., 383 ....................... . 17
Appendix to the Cong. Globe, 42d Congress, 1st Sess. 

p. 8 5 .............................................................  37
Cong. Rec., 43d Cong., 1st Sess. 412 (1874) .................  37
County of Durham Sanitary Code ......... ...................  25
Equal Protection of the Laws Concerning Medical 

Care in ..North Carolina, Subcommittee on Medical 
Care of the North Carolina Advisory Committee to 
the United States Commission on Civil Rights (un- 
dated) ......................................-.........-.... -__ _____ 19,20

Gray, Restraints on the Alienation of Property 2d ed 
1895, §259 ......................................................  __........ ' 30

Gray, The Rule Against Perpetuities, §201, 4th ed.,

Hale, Force and the State: A Comparison of “Politi­
cal” and “Economic” Compulsion, 35 Colum. L Rev 
149 (1935) ........................ .......... _____ 38



XIV

PAGE

Konvitz & Leskes, A Century of Civil Rights, 150 
(1961) ...................................................................... 27,38

Leach, Perpetuities in a Nutshell, 51 Harv. L. Rev. 638 
(1938) .........................................................................  30

Mund, “The Right to Buy—And Its Denial to Small 
Business,” Senate Document #32, 85th Cong. 1st 
Sess., Select Committee on Small Business (1957) .. 32

North Carolina Advisory Committee Report 18..........  21
North Carolina Advisory Committee to the United 

States Commission on Civil Rights, Statutes and 
Ordinances Requiring Segregation by Race, 23 
(March 9, 1962) ........................................................ lg? 21

Poliak, Racial Discrimination and Judicial Integrity:
A Reply to Professor Wechsler, 108 U. Pa. L. Rev. 1 
(1959)........  38

6 Powell, Real Property, 1J851, Restatement of Prop­
erty, §424 (1944) .........................................................  29

Rankin, The Parke, Davis Case, 1961 Antitrust Law 
Symposium, New York State Bar Association Sec­
tion on Antitrust Law 63 (1961) ................................  31

State Board of Health Laws, Rules and Regulations .. 25
United States Commission on Civil Rights, “The Fifty 

States Report” 477 (1961) .........................................  19

Woodward, The Strange Career of Jim Crow 47 
(1955) ........................................................................22,23



I n t h e

& u p r m ?  ( t a r t  n t  t l |?  'MixlUb J ita tT is
October Term, 1962

No. 11

J ohn Thomas A vent, el al., 

—v.—
Petitioners,

N orth Carolina.

ON WRIT OF CERTIORARI TO THE SUPREME COURT 

OF THE STATE OF NORTH CAROLINA

BRIEF FOR PETITIONERS

Opinion Below

The opinion of the Supreme Court of North Carolina 
(R. 73) is reported at 253 N. C. 580, 118 S. E. 2d 47 (1961).

Jurisdiction

The judgment of the Supreme Court of North Carolina 
was entered January 20, 1961 (R. 90). On April 4, 1961, 
time for filing a petition for writ of certiorari was extended 
by the Chief Justice to and including May 4, 1961 (R. 91). 
The petition was filed on that date. June 25, 1962, the peti­
tion for writ of certiorari was granted (R. 92). Jurisdiction 
of this Court is invoked pursuant to Title 28 United States 
Code Section 1257(3), petitioners having asserted below



2

and claiming here, denial of rights, privileges, and immuni­
ties secured by the Fourteenth Amendment to the Consti­
tution of the United States.

Constitutional and Statutory Provisions Involved

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

2. This case also involves North Carolina General Stat­
utes, §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.

Questions Presented

Petitioners have been arrested, convicted, and sentenced 
to prison for refusal to obey an order to leave the lunch 
counter in a store open to the public, including Negroes. 
This order was given to enforce a custom of the community, 
generated by a massive body of state segregation law. The 
premises are extensively licensed and regulated by the 
State of North Carolina and the City of Durham. North 
Carolina has failed to accord Negroes the right of equal 
access to public accommodations.

I.
A. May North Carolina, compatibly with the Fourteenth 

Amendment, make petitioners the target of a prosecution 
under its trespass laws when the articulated rationale of



3

the prosecution is, according to North Carolina’s highest 
court, to enforce “the clear legal right of racial discrimina­
tion” of the S. H. Kress Corporation!

B. Are not these criminal trespass prosecutions, in any 
event, incompatible with the Fourteenth Amendment be­
cause they constitute purposeful state enforcement of a 
custom of racial discrimination—a custom which is itself 
the carefully nurtured fruit of decades of segregation re­
quired by state law!

C. Is not the degree of supervision and control which 
the State of North Carolina and the City of Durham ex­
ercise over the S. H. Kress lunch counter business so ex­
tensive a form of state involvement that, given the circum­
stances of A and B, supra, North Carolina has failed in 
its obligation to afford equal protection of the laws!

D. In addition to considerations set forth above, is not 
the property right which S. H. Kress and Co. has asserted 
—the right to discriminate racially in a single portion of a 
store open to the general public—so inconsequential to the 
main core of its proprietary interest, that the State may 
not compatibly with the Fourteenth Amendment, enforce 
that right by its criminal laws!

E. In view of the fact that North Carolina denies pro­
tection to Negroes against racial discrimination in public 
accommodations, do not the circumstances set forth above 
establish a denial of equal protection of the laws!

II.

The trespass statute under which petitioners were con­
victed forbids only entry without license. Petitioners were 
invited to do business in the store and were ordered to



4

leave only because they sought nonsegregated service at 
the lunch counter, the only racially segregated counter in 
the store. The North Carolina Supreme Court has for the 
first time unambiguously held that the statute under which 
petitioners were convicted makes criminal refusal to leave 
after an invitation to enter. Does not this conviction, there­
fore, violate the due process clause of the Fourteenth 
Amendment in that the statute upon which it rests gave 
petitioners no fair and effective warning that their actions 
were prohibited?

III.

Is not North Carolina denying petitioners freedom of 
speech secured by the Fourteenth Amendment by using 
its criminal trespass laws as a device to stop petitioners 
from urging S. H. Kress and Company to abandon its 
discrimination practices ?

Statem ent

Petitioners, five Negro students from North Carolina 
College and two white Duke University students, were 
arrested for a “sit-in” demonstration at the S. II. Kress 
Department store lunch counter in Durham, North Carolina 
(K. 20-21). They were charged with trespass under North 
Carolina General Statutes, Chapter 14, Section 134, which 
prohibits going or entering upon land after being forbidden 
to do so (R. 1-10).

On May 6, 1960, petitioners, some of whom in the past 
had been regular customers, bought small stationery items 
at counters on the first floor of the Kress Department Store 
(R. 35, 39, 41-43, 46, 47, 48). Negroes and whites were 
served without discrimination in all fifty departments ex-



5

cept at the lunch counter portion where patrons sit (R. 22- 
23). There Negroes were barred, although a “stand-up” 
section serviced whites and Negroes together (R. 22-23). 
After making their purchases, petitioners proceeded to the 
basement through the normal passageway bordered by an 
iron railing, and took seats at the lunch counter (E. 37, 40, 
42, 44, 46, 47, 48). No signs at any entranceway or counter 
barred or limited Negro patronage (R. 22-23). A sign in 
the basement luncheonette limited it to “Invited Guests 
and Employees Only” (R. 23). No further writing eluci­
dated its meaning; but the manager testified that while 
invitations were not sent out, white persons automatically 
were considered guests, but Negroes and whites accom­
panied by them were not (R. 22).

The racial distinction was based solely on the custom 
of the community: The manager testified, “It is the policy 
of our store to wait on customers dependent upon the 
custom of the community . . .  It is not the custom of the 
community to serve Negroes in the basement luncheonette, 
and that is why we put up the signs ‘Invited Guests and 
Employees Only’” (R. 23). He further stated that if 
Negroes wanted service, they might obtain it at the back 
of the store or at a stand-up counter upstairs (R. 22).

As petitioners took seats, the manager approached and 
asked them to leave (R. 21). One petitioner, Joan Nelson 
Trumpower, a white student, had already received and 
paid for an order of food (R. 42). When she attempted to 
share it with Negroes on either side of her, the manager 
asked her to leave (R. 23, 42). He never identified himself, 
however, as the manager or as a person with authority 
to ask them to leave (R. 42).

While petitioners remained seated awaiting service, the 
manager called the police to enforce his demand (R. 21).



6

An officer promptly arrived and asked them to leave (E. 
21). Upon refusal the officer arrested them for trespass 
(R. 21). At all times petitioners were orderly and, when 
arrested, offered no resistance (R. 22, 26).

Petitioners were members of an informal student group 
with a program of protesting segregation (R. 36, 41, 43, 
44). They had organized and led picketing at the store to 
protest its policy of fully accepting the business of Negro 
patrons while refusing them service at the sit-down lunch 
counter (R. 36, 40-41, 44-45). The picketing occurred at 
various times from February 1960 until the arrest on 
May 6, 1960 (R. 44). Some of the petitioners had requested 
and had been denied service on previous occasions at the 
lunch counter, and on the day of the arrests, they con­
tinued to request service in hope that their protests would 
be successful (R. 37, 40-41, 49). On the previous day peti­
tioners attended a meeting to discuss the sit-in demonstra­
tions, where it was agreed that they would trade in the 
store as customers as in the past, and then seek service 
on the same equal basis at the lunch counter (R. 49).

They were indicted for trespass in the Superior Court 
of Durham County, the indictments stating that each peti­
tioner

“with force and arms . . .  did unlawfully, willfully, 
and intentionally, after being forbidden to do so, enter 
upon the land and tenement of S. H. Kress and Co., 
store . . . said S. IT. Kress and Co., owner being then 
and there in actual and peaceable possession of said 
premises under the control of its manager and agent, 
W. K. Boger, who had, as agent and manager, the 
authority to exercise his control over said premises, 
and said defendant after being ordered by said W. K. 
Boger, agent and manager of said owner, S. H. Kress



7

and Co., to leave that part to the said store reserved 
for employees and invited guests, willfully and unlaw­
fully refused to do so knowing or having reason to 
know that . . . [petitioner] had no license therefor, 
against the form of the statute in such case made and 
provided and against the peace and dignity of the 
state.”

Each indictment identified each petitioner as “CM” (colored 
male), “WM” (white male), “CF” (colored female), or 
“WF” (white female) (E. 2, 3, 5, 6, 7, 9, 10). Petitioners 
made motions to quash the indictments raising defenses 
under the Fourteenth Amendment to the United States 
Constitution. These were denied (E. 11-15). To the in­
dictments they entered pleas of not guilty (E. 15).

Various federal constitutional defenses were made 
throughout and at the close of trial, but were overruled 
(E. 12, 15, 26-34, 50, 66-67). Petitioners were found guilty 
(E. 15-16). Petitioners Coleman, Phillips, and CalLis Napo- 
lis Brown were sentenced to 30 days imprisonment in the 
common jail of Durham County to work under the super­
vision of the State Prison Department (E. 17-18). Peti­
tioner Streeter was sentenced similarly to 20 days (E. 19). 
Petitioner A vent was sentenced to 15 days in the Durham 
County jail (E. 16). Prayer for judgment was continued 
in the cases of Shirley Mae Brown and Joan Harris Nelson 
Trumpower (E. 16, 17).

Error was assigned again raising and preserving federal 
constitutional defenses (E. 67-69), and the case was heard 
by the Supreme Court of North Carolina, which affirmed 
the convictions on January 20, 1961 (Clerk’s Certificate 
following Court’s Opinion).



Summary of Argument

I.

The court below held that it was enforcing “the clear legal 
right of racial discrimination of the owner.” But, while in 
some circumstances there may be a personal privilege to 
make racial distinctions, its limit is reached when the 
person exercising it turns to the state for assistance. Judi­
cial and police action are no less forbidden State action 
when invoked to enforce discrimination initiated by an indi­
vidual. Any suggestion that private rights, in the sense 
that they invoke considerations of privacy, are involved is 
farfetched. Kress’s has been open to the public in general. 
The management did not assert the corporation’s own pref­
erence for a segregation policy, but rather the custom of 
the community. While considerations of privacy may be 
meaningful in determining the reach of some constitutional 
liberties, in this case the right to freedom from State im­
posed racial discrimination is not in competition with any 
interest the State might have in protecting privacy.

At the very least, however, the State may not enforce 
racial discrimination which expresses deep-rooted public 
policy. The record here conclusively shows that this is what 
happened in this case. Such customs are a form of State 
action. But beyond this the segregation customs in this 
case were generated by a host of State segregation laws. 
The North Carolina Advisory Committee to the United 
States Commission on Civil Bights has concluded that, “so 
long as these compulsory statutes are on the books, some 
private citizens are more than likely to take it upon them­
selves to try to enforce segregation.” Scholarship estab­
lishes the crucial role which government, politics, and law 
have played in creating segregation customs.



9

But the State-enforced, State-created community custom 
of segregation in this ease is even more invidious because 
it has taken place in an establishment in which the State 
has been deeply involved by requiring extensive licensing 
and regulation. State involvement in such an enterprise 
precludes State enforcement of segregation therein by 
means of arrests and prosecutions for trespass.

The holding below that the State merely was in a neutral 
fashion enforcing an inalienable, sacred, property right is 
clearly incorrect. States can, and have, constitutionally 
forbidden property owners to discriminate on the basis of 
race in public accommodations. North Carolina has not 
inhibited itself from requiring racial segregation on private 
property. The more an owner for his advantage opens his 
property for use by the public in general, the more do his 
rights become circumscribed by the constitutional and stat­
utory rights of those who use it.

Property is a bundle of rights and privileges granted by 
the State. That portion of the rights which constitute 
Kress’s property, which Kress asserts here, and which the 
State has enforced is to control the conduct and association 
of others. This type of property right historically has never- 
been unrestrained throughout the whole range of efforts 
to assert it. Restraints on that power are but a manifesta­
tion of the fact that law regularly limits or shapes property 
rights where they may have harmful public consequences. 
Other characteristics of the asserted right to racially dis­
criminate in this case are that no claim of privacy has been 
intruded upon; that petitioners sought only to use the prem­
ises for their intended function; that segregation was re­
quired only in a single part of an establishment open to the 
general public, to which petitioners were admitted and in 
which they were invited to trade freely except at the lunch 
counter in question. This separable sliver in the entire



10

complex of powers and privileges which constitutes Kress’s 
property is hardly entitled to legal protection when it col­
lides with the Equal Protection Clause of the Fourteenth 
Amendment, whose purpose was an end of discrimination 
against the Negro.

Moreover, the Civil Rights Cases assumed that the State 
law provided “a right to enjoy equal accommodations and 
privileges . .. one of the essential rights of the citizen which 
no state can interfere with.” The failure to provide such 
rights can deny the equal protection of the laws. One mem­
ber of the Court which decided the Civil Rights Cases pre­
viously had written that denial included omission to pro­
tect as well as the omission to pass laws for protection. 
Legislators concerned with the scope of the Fourteenth 
Amendment expressed similar views. The Civil Rights 
Cases were decided on the assumption that the States in 
question protected those rights. It is doubtful that the 
result would have been the same if then, as today in North 
Carolina, the States actively interfered with the right of 
equal access to public facilities. No State may abdicate its 
responsibilities by ignoring them; and where a State by its 
inaction has made itself a party to the refusal of service and 
has placed its power and prestige behind discrimination, 
convictions such as those obtained in this case must fall.

II.

The statute applied to convict petitioners was unreason­
ably vague and thereby offends the due process clause of 
the Fourteenth Amendment in that although the statute, 
by terms, prohibits only the act of going on the land of 
another after being forbidden to do so, the court below has 
expansively construed the law to cover petitioners’ act of 
remaining on the property after being directed to leave. 
This strained construction of the plain words of the law



11

converts tlie common English word “enter” into a word of 
art meaning “trespass” or “remain” and transforms the 
statute from one which fairly warns against one act into a 
law which fails to warn of conduct prohibited. The law is 
invalid as its general terms do not represent a clear legis­
lative determination to cover the specific conduct of peti­
tioners, which is required where laws deter the exercise of 
constitutional rights.

III.

The conviction violates petitioners’ right to freedom of 
expression as secured by the due process clause of the 
Fourteenth Amendment against state infringement. Peti­
tioners’ action here, a sit-in, is a well recognized form of 
protest and was entirely appropriate to the circumstances, 
including the use to which the privately owned property in­
volved had been dedicated by the owner. There were no 
speeches, picket signs, handbills, or other forms of expres­
sion which might possibly be inappropriate to the time and 
place. There was merely a request to be permitted to pur­
chase goods in the place provided for such purchases. The 
expression was not in such circumstances or of such a 
nature as to create a clear and present danger of any sub­
stantive evil the State had a right to prevent. The arrests 
improperly stifled a protest against racial discrimination.



12

A R G U M E N T

I.
North Carolina in Enforcing What Its Highest Court 

Has Denominated a “Clear Legal Right of Racial Dis­
crimination” Has Denied to Petitioners the Etpial Pro­
tection of the Laws Secured by the Fourteenth Amend­
ment.

A. Arrest, Conviction, and Sentence to Prison for  Tres­
pass for H aving Violated the S. H. K ress Co.’s R e­
quirem ent o f Racial Segregation at Its Public Lunch  
Counter D eny Petitioners the Equal Protection o f  
the Laws Secured by the Fourteenth Am endm ent.

In affirming the conviction below the North Carolina Su­
preme Court has twice said that it was merely enforcing 
“the clear legal right of racial discrimination of the owner” 
(R. 82, 83). One need turn no further than to Shelley v. 
Kraemer, 334 U. S. 1, to see that it has been plain—if any 
constitutional doctrine can be called plain—that there is 
no “clear legal right of racial discrimination.” To the con­
trary, while in some circumstances there may be a personal 
privilege of making racial distinctions, the limit of that 
privilege certainly is reached when the perspn exercising 
it turns to state instrumentalities for assistance. Racial 
discrimination is constitutionally inadmissible when “the 
State in any of its manifestations has been found to have 
become involved in it.” Burton v. Wilmington Parking Au­
thority, 365 U. S. 715, 722.1

1 Segregation has been forbidden in schools, Brown v. Board of 
Education, 347 U. S. 483; Cooper v. Aaron, 358 U. S. 1; parks and 
recreational facilities, Mayor, etc. of Baltimore v. Dawson, 350 TJ. S. 
877; Holmes v. Atlanta, 350 U. S. 879; New Orleans City Park 
Improvement Ass’n v. Detiege, 358 U. S. 54; and airports, Turner



13

“ [I]t has never been suggested that state court action 
is immunized from the operation of [the Fourteenth Amend­
ment] . . . simply because the act is that of the judicial 
branch of the state government.” Shelley v. Kraemer, 334 
U. S. at 18. See also Barrows v. Jackson, 346 U.S. 249; 
N.A.A.C.P. v. Alabama, 357 U. S. 499, 463. Police action 
which segregates denies Fourteenth Amendment rights. 
Taylor v. Louisiana, 370 U. S. 154; Baldwin v. Morgan, 287 
F. 2d 750 (5th Cir. 1961); Boman v. Birmingham Transit 
Co., 280 F. 2d 531, 533 n. 1 (5th Cir. 1960); see also Monroe 
v. Pape, 365 U. S. 167; Screws v. United States, 325 U. S. 
91. “Nor is the Amendment ineffective simply because the 
particular pattern of discrimination, which the State has 
enforced, was defined initially by the terms of a prior agree­
ment. State action, as that phrase is understood for the 
purposes of the Fourteenth Amendment, refers to exertions

v. Memphis, 369 TJ. S. 350; Henry v. Greenville Airport Comm’n, 
284 F. 2d 631 (4th Cir. 1960).

Segregation requirements have been prohibited in privately 
sponsored athletie contests, State Athletic Comm’n v. Dorsey, 359 
U. S. 533; and in connection with privately owned transportation 
facilities, Gayle v. Browder, 352 U. S. 903; Evers v. Dwyer, 358 
XT. S. 202; Bailey v. Patterson, 369 U. S. 31; Taylor v. Louisiana, 
370 U. S. 154; Baldwin v. Morgan, 287 F. 2d 750 (5th Cir. 1961); 
Boman v. Birmingham Transit Co., 280 IX 2d 531 (5th Cir. 1960). 
A State law construed to authorize discrimination by privately 
owned restaurants was thought to be “clearly violative of the 
Fourteenth Amendment” by Mr. Justice Stewart, concurring in 
Burton v. Wilmington Parking Authority, 365 TJ. S. 715, 727. 
Three dissenting Justices agreed this would follow if that were a 
proper construction of the law, 365 XT. S. 715, 727, 729. State laws 
requiring segregation in the use and occupancy of privately owned 
property were invalidated in Buchanan v. Warley, 245 TJ. S. 60, 
and Harmon v. Tyler, 273 XT. S. 668.

Among the numerous cases forbidding segregation in publicly 
owned but privately leased facilities, see Burton v. Wilmington 
Parking Authority, 365 XJ. S. 715; Turner v. Memphis, 369 TJ. S. 
350; Muir v. Louisville Park Theatrical Ass’n, 347 XJ. S. 971, vacat­
ing and remanding, 202 F. 2d 275; Derrington v. Plummer, 240 
F. 2d 922 (5th Cir. 1956), cert. den. sub nom. Casey v. Plummer, 
353 TJ. S. 924.



14

of state power in all forms.” Shelley v. Kraemer, 334 U. S. 
at 20. See also Burton v. Wilmington Parking Authority, 
365 U. S. 715, 722.

In the Civil Rights Cases, 109 U. S. 3, 17, this Court held 
outside the Amendment’s scope individual action “unsup­
ported by State authority in the shape of laws, customs, or 
judicial or executive proceedings” or “not sanctioned in 
some way the State,” 109 U. S. at 17. The opinion re­
ferred to “State action of every kind” inconsistent with 
equal protection of the laws, id. at 1 1 ; to “the operation of 
State laws, and the action of State officers executive or 
judicial,” id. at 11. Repeatedly, the opinion held within the 
scope of the Fourteenth Amendment “State laws or State 
proceedings,” id. at 11; “some State action,” id. at 13; “acts 
done under State authority,” id. at 13; “State action of 
some kind,” id. at 13; and the opinion pointed out that 
States are forbidden to legislate or act in a particular 

way,” id. at 15. The Fourteenth Amendment is “addressed 
to counteract and afford relief against State regulations or 
proceedings,” id. at 23.

Racial discriminations “are by their very nature odious 
to a free people whose institutions are founded upon the 
doctrine of equality.” Hirabayashi v. United States, 320 
U. S. 81, 100. Certainly in this case the State is more 
deeply implicated in enforcing that racism so odious to our 
Constitution than it was m Shelley v. Kraemer. For here 
the State has not merely held its courts open to suitors who 
would seek their aid in enforcing discrimination, but has 
taken an active initiative in prosecuting petitioners crimi­
nally and sentencing them to prison terms.

Moreover, petitioners here assert not merely the general­
ized constitutional right found in the equal protection clause 
of the Fourteenth Amendment to be free from racial dis-



15

crimination. 42 U. S. C. 1981 provides: “ ‘All persons 
within the jurisdiction of the United States shall have the 
same right in every State and Territory to make and en­
force contracts, * * # and to the full and equal benefit of all 
laws and proceedings for the security of persons and prop­
erty as is enjoyed by white citizens * * * . ” ’ 42 U. S. C. 1982 
provides: “ ‘All citizens of the United States shall have 
the same right, in every State and Territory, as is enjoyed 
by white citizens thereof to * * * purchase * * * real and 
personal property.’ ” Referring to similar statutory provi­
sions involving jury service, this Court has declared: “ ‘For 
us the majestic generalities of the Fourteenth Amendment 
are thus reduced to a concrete statutory command when 
cases involve race or color which is wanting in every other 
case of alleged discrimination.’” Fay v. New York, 332 
U. S. 261, 282-283.

The opinion below stresses that Kress’s is “a privately 
owned corporation” and “in the conduct of its store in 
Durham is acting in a purely private capacity” (R. 77). 
But “private” is a word of several possible meanings. To 
the extent that concepts of privacy play a part in defining 
rights here at issue, Kress’s privacy should be seen as it 
really is. Any suggestion that some exception to the Shelley 
rule should be made for a corporation which has sought 
state aid in enforcing racial discrimination in its enterprise 
open to the general public for profit, because somehow the 
inviolability of a private home may be impaired, is with­
out merit. This prosecution is not asserted to be in aid of 
any'interest in privacy of the property owner, for it has 
opened the store to the public in general. Moreover, the 
proprietor has not expressed its preference, rather it has 
sought state aid to enforce the custom of the community. 
Were a state to enforce a trespass law to protect a real 
interest in some private aspect of property a different



16

result might be required because of the importance of the 
right of privacy which finds firm support in the decisions 
of this Court. Examples where such countervailing con­
siderations have applied are cases such as Breard v. Alex­
andria, 341 U. S. 622, 626, 644, and Kovacs v. Cooper, 336 
U. S. 77. On the other hand a case such as Martin v. 
Struthers, 319 IT. S. 141, is an instance where even con­
siderations of privacy did not overcome a competing con­
stitutional right like freedom of religion.2 In this case the 
right to freedom from state imposed racial discrimination 
does not compete with any interests the state may have in 
protecting privacy.3

2 And see Watchtower Bible and Tract Soc. v. Metropolitan Life 
Ins. Co., 297 N. Y. 339, 79 N. E. 2d 433 (1948), in which the New 
York courts distinguished between the right to solicit in the streets 
of a large scale housing project and to go, without invitation, into 
the hallways to visit private apartments.

3 To weigh considerations of privacy in a case involving racial 
discrimination would comport with the views of the framers of 
the Fourteenth Amendment. During the debate on the bill to 
amend the Civil Rights Act of 1866, 14 Stat. 27, which served as the 
precursor to the Civil Rights Act of 1875, 18 Stat. 335, Senator 
Sumner distinguished between a man’s home and places and facili­
ties of public accommodation licensed by law: “Each person, 
whether Senator or citizen, is always free to choose who shall be his 
friend, his associate, his guest. And does not the ancient proverb 
declare that a man is known by the company he keeps? But this 
assumes that he may choose for himself. His house is his ‘castle’; 
and this very designation, borrowed from the common law, shows 
his absolute independence within its walls; * * * but when he leaves 
his ‘castle’ and goes abroad, this independence is at an end. He 
walks the streets; but he is subject to the prevailing law of Equal- 'v 
ity,- nor can he appropriate the sidewalk to his own exclusive use, 
driving into the gutter all whose skin is less white than his own!
But nobody pretends that Equality in the highway, whether on 
pavement or sidewalk, is a question of society. And, permit me to 
say that Equality in all institutions created or regulated by law is 
as little a question of society.” (Emphasis added). After quoting 
Holingshed, Story, Kent, and Parsons on the common law duties 
of innkeepers a,nd common carriers to treat all alike, Sumner then 
said: “As the inn cannot close its doors, or the public conveyance 
refuse a seat to any paying traveler, decent in condition, so must it



17

B. Certainly, at Least, the State May Not by Its Police 
and Courts Enforce Such Segregation When It Stems 
From a Community Custom of Segregation Which 
Has Been Generated by State Law.

Certainly, at the very least, the well established rule— 
that states may not enforce racial discrimination—dis­
cussed in part I, applies where the racial segregation is 
not a matter of private choice, but expresses deep-rooted 
public policy.

That segregation was a “custom of the community” (E. 
22) is stated expressly in the record, although one hardly 
need turn there to learn a fact concerning conditions in 
society so well known. Child Labor Tax Case, 259 U. S. 20, 
27 (Chief Justice Taft). Kress’s manager, however, made 
clear that the store’s segregation policy was merely that of 
the community.

It is the policy of our store to wait on customers de­
pendent upon the customs of the community. . . .W e 
have a stand-up counter on the first floor, and we serve 
Negroes and whites at that stand-up counter. We also 
serve white people who are accompanied by Negroes 
at the stand-up counter. . . . Even if Negroes aecom-

be with the theater and other places of public amusement. Here are 
institutions whose peculiar object is the ‘pursuit of happiness,’ 
which has been placed among the equal rights of all.” Cone. Globe 
42d Cong., 2d Sess. 382-383 (1872).

It is not unreasonable that considerations of privacy should 
weigh so heavily. The right of privacy against intrusion on one’s 
premises or into one’s personal affairs, 4 Blaekstone’s Commentaries 
Ch. 13, §5 (6) (Wendell’s ed. 1850), was recognized at common law, 
and is recognized generally in American law’. See A. L. I., Restate­
ment of Torts, §867 (1939). This Court has recently reiterated that 
the due process clause protects privacy against intrusion by the 
States. Mapp v. Ohio, 367 U. S. 643, 654, 655; Wolf v. Colorado, 
338 U. S. 25, 27-28. Cf. Gilbert v. Minnesota, 254 U. S. 325, 336 
(Justice Brandeis dissenting); Public Utilities Comm’n v. Pollalt 
343 U. S. 451, 464, 468.



18

panied by white people were orderly at our luncheon­
ette because of the policy of the community we would 
not serve them, and that was our policy prior to May 
16, 1960. . . .  It is not the custom of the community 
to serve Negroes in the basement luncheonette, and 
that is why we put up the signs, “Invited Guests and 
Employees Only” (E. 22-23).

The Civil Rights Cases speak of “customs having the 
force of law,” 109 U. S. 3, 16, as a form of state action.4 
Here, as in Garner v. Louisiana, 368 U. S. 157, “segregation 
is basic to the structure of . . . [the state] as a community; 
the custom that maintains it is at least powerful as any 
law.” (Mr. Justice Douglas concurring, at 181).6

But this custom of North Carolina is not separate from 
law. It has roots in and tills interstices of a complex net­
work of state mandated segregation. The North Carolina 
Advisory Committee to the United States Commission on 
Civil Eights has concluded that “so long as these compul­
sory statutes are on the books, some private citizens are 
more than likely to take it upon themselves to try to en­
force segregation.” 6

Most of this law was enacted about the turn of the 
twentieth century.7 These state and city imposed require-

4 See also 109 U. S. at 21: “long custom, which had the force of 
law. . . ”

5 This Court has recognized that “ ‘Deeply embedded traditional
ways of carrying out state policy . . . ’—or not carying it out—‘are 
often tougher and truer law than the dead words of the written 
tex t. Nashville C. & St. L. R. Co. v. Browning, 310 U S 362 369 ” 
Poe v. Tillman, 367 U. S. 497, 502. ’
. 6 A discussion and presentation of this legislation may be found 
in North Carolina Advisory Committee to the United States Com­
mission on Civil Rights, Statutes and Ordinances Requiring Segre­
gation by Race (March 9, 1962) (mimeographed) (hereafter 
cited as North Carolina Advisory Committee).

7 North Carolina Advisory Committee 23.



19

ments govern not only activities furnished by the state but 
privately-owned facilities as well. The subordinate role to 
which the segregation laws relegate Negroes is well illus­
trated by the national guard statute, N. C. Gen. Stat. §127-6: 
“No organization of Colored Troops shall be permitted 
where White troops are available, and while permitted to 
be organized, colored troops shall be under command of 
white officers.”

W7hile the state has repealed statutes requiring segrega­
tion in the public schools, school segregation continues to 
be enforced by other means.8 Mental institutions,9 orphan­
ages,10 and schools for the blind and deaf,11 must be segre­
gated as must prisons,12 and training schools.13

Separate tax books must be kept for white, Negro, Indian 
and corporate taxpayers.14

State law requires racial distinctions where municipali­
ties take possession of existing cemeteries.16 Some city

8 Under the North Carolina Pupil Assignment Law “without a 
single exception, the boards have made initial assignment of white 
pupils to previously white schools and Negro children to previously 
Negro schools.” United States Commission on Civil Rights, The 
Fifty States Report 477 (1961).

9 G. S. 122-3-6.
10 G. S. 116-138 to -142.
11 G. S. 116-109, -120, -124.
12 G. S. 148-43.
13 G. S. 134-79 to -84; G. S. 134-84.1 to -84.9. On the various forms 

of segregation in health care, among patients as well as professional 
personnel, in public as well as private facilities, see Equal Protec­
tion of the Laws Concerning Medical Care in North Carolina, Sub­
committee on Medical Care of the North Carolina Advisory Com­
mittee to the United States Commission on Civil Rights (undated) 
(mimeographed).

14 G. S. 105-323.
15 G. S. 65-37.



20

ordinances designate particular cemeteries for colored per­
sons and specific burial grounds for white citizens ;16 others 
note simply that places of interment are to be marked for 
Negroes or for Caucasians.17 Separate funeral homes must 
be maintained throughout the state.18

Municipalities also have enacted legislation requiring 
segregation. For example, a Charlotte ordinance, Article I, 
Section 5, Charlotte City Code, delineates the metes and 
bounds of the area within which its Negro police have au­
thority. See North Carolina Advisory Committee to the 
United States Commission on Civil Eights, op. cit. supra, 
at 3. The Director of the Department of Conservation and 
Development, while not requiring segregation in state 
parks, discourages Negroes from enjoying white facilities. 
Id. at 8.

North Carolina has also undertaken extensively to regu­
late so-called “private” relationships. There remains on 
the books of North Carolina (although invalid in view of 
decisions of this Court, Morgan v. Virginia, 328 U. S. 373; 
Gayle v. Browder, 352 U. S. 903) a statute requiring racial 
segregation in passenger trains and steam boats. G. S. GO- 
94 to -97. The Utilities Commission is directed by G. S. 
62-44 and G. S. 62-127.71 to require separate waiting rooms. 
Street cars must by statute be boarded white from the 
front and colored from the rear. G. S. 60-135 to -137. The 
Corporation Commission has been upheld in requiring en­
forced segregation on motor buses. Corporation Comm’n 
v. Transportation Committee, 198 N. C. 317, 320, 151 S. E. 
648, 649 (1930). In that opinion Judge Clarkson emphasized

16 Charlotte City Code, eh. 7, sec. 7-9, 7-56; Sec. 7-19 of the Lum- 
berton Code; Sec. 8-1, Burlington Code.

17 Sec. 6-42, Winston-Salem Code; Sec. 7-9, Charlotte City Code.
18 G. S. 90-212.



21

that separation or segregation “has long been the settled 
policy” of North Carolina. See G. S. 60-139; State v. John­
son, 229 N. C. 701, 51 S. E. 2d 186 (1949).

Persons engaged in businesses employing more than two 
males and females must segregate on the basis of race in 
toilet facilities. G. S. 95-48. See G. S. 72-46 (1941). Per­
sons operating restaurants and other food handling estab­
lishments are required to obtain a permit from the State 
Board of Health. G. S. 72-46. The State Board inspector’s 
official form contains as one of the criteria on which res­
taurants are graded the factor of whether toilet facilities 
are “adequate for each sex and race.” North Carolina Ad­
visory Committee Report 18.

Fraternal orders may not be authorized to do business in 
North Carolina if white and colored persons are members 
of the same lodge. G. S. 58-267.

Marriage is forbidden between persons of the Negro and 
white races by the Constitution of North Carolina, Art. 
XIV, §8 (1868); G. S. 14-181 and G. S. 51-3.

Various statutes and ordinances throughout North Caro­
lina require segregation in taxicabs, carnivals, other places 
of amusement, and restaurants. North Carolina Advisory 
Committee Report 15, 17-20. Among these ordinances is 
one of the City of Durham requiring that in public eating 
places where persons of the white and colored races are 
permitted to be served, there shall be private, separate 
rooms for the accommodation of each race. Id. at 18.19

19 The state did not rely on the ordinance at trial, nor was it 
adverted to on appeal. Heretofore, the North Carolina Supreme 
Court has declined to notice municipal ordinances not introduced 
into evidence at trial. See State v. Clyburn, 247 N. C. 455, 101 
S.E. 2d 295 (1958).



22

C. Vann Woodward has written of the relative recency 
of the segregation system in America:

Southerners and other Americans of middle age or 
even older are contemporaries of Jim Crow. They 
grew up along with the system. Unable to remember 
a time when segregation was not the general rule 
and practice, they have naturally assumed that things 
have ‘always been that way.’ Or if not always, then 
‘since slavery times,’ or ‘since The War,’ or ‘since 
Reconstruction.’ Some even think of the system as 
existing along with slavery. Few have any idea of the 
relative recency of the Jim Crow laws, or any clear 
notion of how, when, and why the system arose. Wood­
ward, The Strange Career of Jim Crow, vii-viii (1955).

Even after the end of Reconstruction and during the 
so-called period of “Redemption” beginning around 1877, 
the rigid segregation system characteristic of later years 
had not become the rule. The history of segregation makes 
clear that during* the early years after Reconstruction 
Negroes were unsegregated in many public eating estab­
lishments in the South. Id. at 18-24. The Jim Crow or 
segregation system became all-pervasive some years later 
as a part of the aggressive racism of the 189Q’s and early 
1900’s, including Jim Crow laws passed at that time, which 
continued until an all-embracing segregation system had 
become the rule. In this way law shaped custom. Id. at 
ch. II.

Professor Woodward writes:
At any rate, the findings of the present investigation 

tend to bear out the testimony of Negroes from various 
parts of the South, as reported by the Swedish writer 
G-unnar Myrdal, to the effect that ‘the Jim Crow stat­
utes were effective means of tightening and freezing—



23

in many cases instigating—segregation and discrimina­
tion.’ The evidence has indicated that under conditions 
prevailing in the earlier part of the period reviewed 
the Negro could and did do many things in the South 
that in the latter part of the period, under different 
conditions, he was prevented from doing. Id. at 90-91. 

# # # # #
It has also been seen that their [Negroes] presence 

on trains upon equal terms with white men was once 
regarded as normal, acceptable, and unobjectionable. 
Whether railways qualify as folkways or stateways, 
black man and white man once rode them together and 
without a partition between them. Later on the state- 
ways apparently changed the folkways—or at any rate 
the railways—for the partitions and Jim Crow cars 
became universal. And the new seating arrangement 
came to seem as normal, unchangeable, and inevitable 
as the old ways. And so it was with the soda fountains, 
eating places, bars, waiting rooms, street cars, and 
circuses. Id. at 91-92.

Thus the system of segregation in places of public ac­
commodations, has from the beginning been a product of 
government, politics, and law.

This Court has recognized how law may work its effect 
in ways other than requiring obedience to statutory text. 
In Pollock v. Williams, 322 U. S. 4, the Court discharged 
the petitioner on a writ of habeas corpus because a statu­
tory presumption had induced a plea of guilty:

The State contends that we must exclude the prima 
facie evidence provision from consideration because 
in fact it played no part in producing this conviction. 
Id. at 13.

#  #  *  #  *



We cannot doubt that the presumption provision had 
a coercive effect in producing the plea of guilty. Id. 
at 15.

And see—Engel v. Vitale, 370 U. S. 421, 431 (indirect co­
ercive pressure upon religious minorities). As was said in 
N.A.A.C.P. v. Alabama, 357 U. S. 449, 463, “The crucial 
factor is the interplay of governmental and private action, 
for it is only after the initial exertion of state power . . . 
that private action takes hold.” 20

Therefore it hardly can be urged that the management 
was acting privately, unsanctioned by the state. Apart from 
state support of management’s decision to segregate, that 
decision itself represented the policy of North Carolina 
induced and nourished by its laws. As Mr. Justice Douglas 
wrote in Garner v. Louisiana, 368 U. S. 157, 181, the pro­
prietor’s “preference does not make the action ‘private,’ 
rather than ‘state,’ action. If it did, a minuscule of private 
prejudice would convert state into private action. More­
over, where the segregation policy is the policy of a state, 
it matters not that the agency to enforce it is a private 
enterprise.”

C. A  F o r t io r i ,  the State May Not Arrest and Convict P eti­
tioners for H aving Violated a Segregation Rule  
W hich Stem s From  a State Generated, Com m unity 
Custom o f Segregation in Prem ises in W hich the 
State Is D eeply Involved T hrough Its L icensing and 
R egulatory Powers,

The nature of the State’s involvement—demonstrated by 
extensive regulation and licensing—in the premises where

20 This Court has struck down state action which would enable 
private individuals to seek reprisals against persons opposed to 
racial discrimination, N.A.A.C.P. v. Alabama, 357 U. S. 449. A 
fortiori, the link between state requirements of segregation and the 
conduct it fosters—not merely permits—should be recognized.



25

petitioners were arrested for violating the state-generated 
community custom shows even further the invalidity of the 
judgment below. This discrimination has been enforced in 
an area of public life with which the State is so intimately 
involved that Kress’s lunch counter business is by law 
required to be extensively licensed and regulated. The 
very publicness of the enterprise is demonstrated not only 
by the fact that Kress serves the general public, but by 
the interest which the State has demonstrated in that ser­
vice. In addition to the detailed regulation of business cor­
porations (including foreign corporations)21 North Carolina 
law requires various licenses,22 imposes taxes,23 and author­
izes state and local health regulation24 of this type of 
business. As Mr. Justice Douglas wrote in Garner v. Louisi­
ana, 368 U. S. at 183-84:

A state may not require segregation o f. the races on 
conventional public utilities any more than it can seg­
regate them in ordinary public facilities. As stated by 
the court in Boman v Birmingham Transit Co. (CA 
5 Ala) 280 F2d 531, 535, a public utility “is doing some-

21 North Carolina General Statutes, §55-140.
22 A state license is required for the operation of a soda fountain 

G. S. §55-79 or a chain store G. S. §105-98. A license is required for 
all establishments selling prepared food G. S. §105-62. Separate 
licenses are required to sell other items, such as tobacco products, 
G. S. §105-85 or records and radios, G. S. §105-82.

23 Retail stores must collect sales and use taxes for the state to 
keep their licenses to do business (G. S. §105-164.4-6).

^  State law establishes an overlapping pattern of health regula­
tions for restaurants. See N. C. Gen. Laws, Ch. 130 (1957). Section 
13 of this chapter authorizes each county to operate a health de­
partment ; local boards of health can make rules and regulations 
“not inconsistent with state law,” Sec. 17(b). Both the State Board 
of Health and the Durham County Board of Health prescribe rules 
applicable to food service establishments. See State Board of 
Health Laws, Rules and Regulations; County of Durham Sanitary 
Code, Sec. 1.



26

thing the state deems useful for the public necessity or 
convenience.” It was this idea that the first Mr. Justice 
Harlan, dissenting in Plessy v Ferguson, . . . ad­
vanced. Though a common carrier is private enter­
prise, “its work” he maintained is public. Id., at 554. 
And there can be no difference, in my view, between one 
kind of business that is regulated in the public interest 
and another kind so far as the problem of racial seg­
regation is concerned. I do not believe that a State 
that licenses a business can license it to serve only 
whites or only blacks or only yellows or only browns. 
Race is an impermissible classification when it comes 
to parks or other municipal facilities by reason of the 
Equal Protection Clause of the Fourteenth Amend­
ment.

In Public Utilities Comm’n v. Poliak, 343 U. S. 451, 
this Court found sufficient governmental responsibility to 
require decision of a Fifth Amendment due process claim 
where the principal governmental involvement was a deci­
sion by a regulatory body to do nothing about private 
activity (radio broadcast on streetcars) it could have pro­
hibited. The lunch counter in this case is also regulated 
by government, although perhaps not so closely as the 
streetcar company in Poliak. But this case has an element 
that the Poliak case did not, i.e., that government has done 
so much to encourage racial segregation in public life that 
it must share responsibility for the discriminatory rule.

And see Steele v. Louisville and Nashville R.R. Co., 323 
U. S. 192; Nixon v. Condon, 286 U. S. 73; Betts v. Easley, 
161 Kan. 459, 169 P. 2d 831. In each of these cases, state 
initiative and licensing in establishing and maintaining the 
enterprise led to a holding or implication that the Fifth 
or Fourteenth Amendments forbid racial discrimination.



27

Here, indeed, is a case where the State “to some sig­
nificant extent” in many meaningful “manifestations has 
been found to have become involved. . . . ” Burton v. 
Wilmington Parking Authority, 365 IT. S. 715, 722.

D. No Essential Property of S. H. Kress and Co. Is H ere 
at Issue; the Right to Make Racial Distinctions at a 
Single Counter in a Store Open to the Public Does 
Not Outweigh the High Purposes of the Fourteenth 
Am endm ent.

The highest court of North Carolina has attempted to 
differentiate this case from others which have refused to 
sanction state enforcement of racial discrimination by as­
serting that it was merely neutrally enforcing a “funda­
mental, natural, inherent and inalienable” (R. 81) private 
property right, allegedly “ ‘a sacred right, the protection of 
which is one of the most important objects of government’ ” 
(R. 81). Referring to the claimed right to exclude peti­
tioners the court below held, “white people also have 
constitutional rights as well as Negroes, which must be 
protected, if our constitutional form of government is not 
to vanish from the face of the earth” (R. 84).

This description of the property right cannot withstand 
analysis. First, the court below dealt with the alleged right 
of the property owner to racially discriminate as if it were 
inviolate, when actually, states can prohibit racial discrim­
ination in public eating places without offending any con­
stitutionally protected property rights.25 And though the 
laws violate the Fourteenth Amendment, North Carolina 
has hardly hesitated in imposing the requirement of racial

•25 See Western Turf Ass’n v. Greenberg, 204 TJ. S. 359; Bailway 
Mail Ass’n v. Corsi, 326 U. S. 88; District of Columbia v. John R. 
Thompson Co., 346 U. S. 100; Bob-Lo Excursion Co. v. Michigan, 
333 U. S. 28; Konvitz & Leslies, A Century of Civil Rights 172-177 
(1961).



28

segregation on private property owners.26 Thus, of course, 
the asserted property right to treat the races as one desires 
on his property is very far indeed from an absolute or an 
inalienable right and has not even been so regarded by 
North Carolina. “ [T]he power of the State to create and 
enforce property interests must be exercised within the 
boundaries defined by the Fourteenth Amendment.” Shelley 
v. Kraemer, 334 U. S. 1, 22, citing Marsh v. Alabama, 326 
U. S. 501. Indeed, the Court said in Marsh v. Alabama, 
supra, at 506, that constitutional control becomes greater 
as property is more public in its use:

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. Cf. Eepublic 
Aviation Corp. v. Labor Board, 324 IT. S. 793, 798, 802, 
n. 8.

Of course, the Fourteenth Amendment does not forbid a 
state to assist in the enforcement of property rights as 
such. Indeed, for an obvious example, the state has an 
obligation not to engage in or assist in the invasion of the 
privacy of the home. Considerations of privacy, discussed 
in more detail, supra, pp. 15-16, offer one useful basis 
for distinguishing between permissible and impermissible 
types of state action.

Since ‘‘property or ownership” is, as Mr. Justice Cardozo 
has written, a “bundle of privileges,” Henneford v. Silas 
Mason Co., 300 U. S. 577, 582, or as stated elsewhere, “a 
group or bundle of rights” given by the state, Blodgett, 
Comparative Economic Systems 24 (1944), it matters a

26 See pp. 20 to 21, supra, citing North Carolina laws requiring 
segregation on private property.



29

great deal which of the rights or privileges constituting 
Kress’s property was enforced in this prosecution. Various 
characteristics of the property interest demonstrate that 
this case should not depart from the general rule that 
states may not support racial discrimination.

The asserted property interest is but a claimed right to 
control the conduct and associations of others. But this 
claimed right is clearly separable from other incidents of 
ownership of the property such as fixing prices, choosing 
merchandise for sale, setting hours of business, selling the 
business or closing it down, to name but a few.

The power to regulate the conduct and associations of 
others has never been an unrestrained property right. 
Illustrations include limitations that the law has placed 
on those who would use their property to control the con­
duct of donees, as by requiring divorce or separation,27 or 
with respect to marriage,28 restrictions compelling separa­
tion of a child from its parents,29 and requirements con­
trolling certain personal habits.30

27 Provisions requiring divorce or separation were held void in : 
Dwyer v. Kuchler, 116 N. J. Eq. 426, 174 Atl. 154 (Ch. 1934) ; 
In Be Haight’s Will, 51 App. Div. 310, 64 N. Y. S. 1029 (2d Dept! 
1900) ; Davidson v. Wilmington Trust Co., 23 Del. Ch. 1, 2 A. 2d 
285 (Ch. 1938); Winterland v. Winterland, 389 111. 384,’59 N. E. 
2d 661 (1945); Hawke v. Euyhart, 30 Neb. 149, 46 N. W. 422 
(1890) ; Cruger v. Phelps, 21 Misc. 252, 47 N. Y. S. 61 (Sup. Ct. 
1897).

28 Certain marriage clauses have been held ineffective, 6 Powell, 
Beal Property 1(851; A. L. I., Restatement of Property, §424 
(1944) ; Maddox v. Maddox, Adm’r, 52 Va. 804 (1954).

29 Restrictions which compel the separation of a minor child from 
itsjparent have not been viewed with favor, 6 Powell, Real Property 
P.58, at 64; In Be Carple’s Estate, 140 Misc. 459, 250 N. Y. S. 680 
(Surr. Ct. 1931) ; In Be Forte’s Will, 149 Misc. 327, 267 N. Y. S. 
603 (Surr. Ct. 1933); In Be Banney’s Estate, 161 Misc. 626, 292 
N. Y. S. 476 (Surr. Ct. 1936).

30 Holmes v. Connecticut Trust & Safe Deposit Co., 92 Conn. 507, 
103 Atl. 640 (1918) (condition that conveyee’s husband abstain



30

The power to impose restraints on alienation has been 
severely limited by courts and legislatures.31 Restrictive 
covenants have been limited by common law.32 Their en­
forcement in courts of equity33 and courts of law34 has been 
forbidden by the Fourteenth Amendment where race was 
the reason for the restriction. And, of course, the rule 
against perpetuities is of ancient lineage.35

A business man is not always free to set his own prices. 
Fair trade acts on the one hand, approved by the Miller- 
Tydings Act amendment of §1 of the Sherman Act, 15 
U. S. C. §1, require some businessmen to sell at fixed prices. 
Anti-trust concepts on the other hand, originating in the 
common law, Apex Hosiery Co. v. Leader, 310 U. S. 469 
(1940); United. States v. Addyston Pipe & Steel Co., 85 
Fed. 271 (6th Cir. 1898), aff’d, 175 U. S. 211 (1899), and 
embodied in the statutes of the United States, Robinson- 
Patman Act, 15 U. S. C. §13 et seq.; Clayton Act, 15 U. S. C. 
§12 et seq.; Sherman Anti-Trust Act, 15 U. S. C. §§1 et seq., 
have condemned price discrimination, price fixing, and con­
spiracies to fix resale prices. The right to select customers

from tobacco and liquor held void) ; cf. D’Arcangelo v. D’Arcangelo, 
137 N. J. Eq. 63, 43 A. 2d 169 (Ch. 1945) (legatee must employ 
testator’s brother as bus driver, at designated salary for a corpora­
tion in which legatee had received an interest; invalidated).

31 Gray, Restraints on the Alienation of Property §259 (2d ed. 
1895); A. L. I., Restatement of Property, Div. 4, Social Restrictions 
Imposed Upon the Creation of Property Interests 2121 (1944) ; 
Browder, Illegal Conditions and Limitations: Miscellaneous Provi­
sions, 1 Okla. L. Rev. 237 (1948).

32 Porter v. Barrett, 233 Mich. 373, 206 N. W. 532 (1925).
33 Shelley v. Kraemer, 334 U. S. 1.
34 Barrows v. Jackson, 346 U. S. 249.
85 Gray, The Rule Against Perpetuities §201 (4th ed. 1942) ■ 6 

Powell, Real Property, fff759-827; Leach, Perpetuities in a Nutshell, 
51 Harv. L. Rev. 638 (1938).



31

has also been curtailed by the antitrust laws,36 as well as 
common law, and even the right of a single trader has 
been greatly limited.37

Numerous statutes limit property holders in their power 
to refuse to sell or rent on grounds of race or color38 or to 
refuse to serve patrons in public accommodations on the 
grounds of race or color.39 Historically, the right to select

86 riot’s v. Broadway-Hale Stores, 359 IT. S. 207 (1959), Lorain 
Journal Co. v. TJ. S., 342 U. S. 143 (1951).

37 United States v. Colgate, 250 U. S. 300 (1919); See U. S. v. 
Parke, Davis <& Co., 362 IT. S. 29 (1960); Rankin, The Parke, Davis 
Case, 1961 Antitrust Law Symposium, New York State Bar Asso­
ciation Section on Antitrust Law 63 (1961).

88 Cal. Health & Safety Code §35740; Mass. G. L. c. 151B, 
§6 (Supp. 1961) ; N. J. Stat. Ann. §18:25-4 (Supp. 1961) ; Wash. 
Rev. Code §§49.60.030, 49.60.040 (1957); Cal. Civil Code, §51 
(Supp. 1961); Colo. Rev. Stat. Ann. §§69-7-1, to 69-7-7 (Supp.
1960) ; Conn. Stat. Rev. §53-35 (Supp. 1960) ■ Mass. Gen. L. c. 
151B, §4 (Supp. 1961), as amended by Acts, 1961, c. 128; Minn. 
Stat. Ann. §§363.01-. 13, as amended by L. 1961, c. 428 to become 
effective in 12/31/62; Ore. Rev. Stat. §659.033 (1959); N. H. Rev. 
Stat. Ann. §354:1 (Supp. 1961); N. Y. Executive Law, §290 
(Supp. 1962); Pa. Stat. Ann., tit. 43, §953 (Supp. 1961). Cases 
holding some of the ordinances and statutes constitutional are: 
Levitt & Sons, Inc. v. Division Against Discrimination, 31 N. J. 
514, 158 A. 2d 177 (1960) ; Mass. Comm’n Against Discrimination 
v. Colangelo, 30 U. S. L. W. 2608 (Mass. 1962) ; State Comm’n 
Against Discrimination v. Pelham Hall Apartments, 10 Misc. 2d 
334, 170 N. Y. S. 2d 750 (Sup. Ct. 1958).

39 Cal. Civil Code, §§51-52 (Supp. 1961); Colo. Rev. Stat. Ann. 
25—1—1 et seq. (1953) ; Conn. Gen. Stat. Rev. §53-35 (Supp.
1961) ; D. C. Code §47-2901 et seq. (Supp. I960); Indiana Stat. 
Ann. §§10-901, 10-902 (Supp. 1962) ; Iowa Code Ann. §735.1 
(1950) ; Kansas Gen. Stat. Ann. §21-2424 (1949) • Mass. Gen. L. 
c. 272, §§92A, 98 (1956) ; Mich. Stat. Ann. §28.343 (Supp. 1959); 
Minn. Stat. Ann. §327.09 (1947) ; Mont.' Rev. Codes §64-211 
(Supp. 1961); Neb. Rev. Stat, §§20-101, 102 (1943); N. H. Rev. 
Stat. Ann. §354:1 (Supp. 1961); N. J. Stat. Ann. §§10:1-2 to 
10:1-7 (1960) ; N. M. Stat. Ann. §§49-8-1 to 49-8-6 (Supp. 1961) ; 
N. Y. Civil Rights Law §40 (1948), Executive Law, §§292(9), 
296(2) (Supp. 1962); N. D. Cent. Code, §12-22-30 (Supp. 1961);



32

customers has been limited by common law and statute.40 
It is well known that innkeepers and carriers do not have 
freedom arbitrarily to select or reject patrons. Beale, The 
Law of Innkeepers and Hotels (1906).

The foregoing limitations on the power to control the 
conduct and associations of others describe particular ex­
amples of the general principle that “property rights” are 
not “sacred” and “inalienable” in the sense that common 
law, statute, and constitution may not limit or shape them 
where they have harmful public consequences. Further 
examples indicate different aspects of this thoroughly set­
tled, fundamental legal truth. Property owners have been 
compelled to destroy valuable cedar forests which harbored 
fungus threatening neighboring apple orchards,41 to spend 
funds to install fire extinguishing equipment,42 to limit the

Ohio Rev. Code §4112.02(G) (Supp. 1961); Ore. Rev. Stat. 
§§30.670-.680, as amended by L. 1961 e. 247; Pa. Stat. Ann., tit. 18, 
§4654, as amended by Act No. 19 (1961); R. I. Gen. Laws §§11-24-1 
to 11-24-6 (1956) ; Vt. Stat. Ann., tit. 13, §§1451, 1452 '(1958) ; 
Wash. Rev. Code, §§49.60.040, 49.60.215 (1962); Wis. Stat. Ann. 
§924.04 (1958), as amended (Supp. 1962); Wyo. Stat. §§6-83.1, 
6-83.2 (Supp. 1961).

40 Mund, “The Right to Buy—And Its Denial to Small Business,” 
Senate Document #32, 85th Cong., 1st Sess., Select Committee on 
Small Business (1957) ; Adler, Business Jurisprudence, 28 Harv. 
L. Rev. 135 (1914) ; Statute of Labourers, 25 Bd. Ill, Stat. 1 
(1350) (no one could refuse to practice his calling to whomsoever 
applied). The following statutes penalized a businessman’s refusal 
to serve all comers: (1357), 31 Ed. Ill, e. 10 (vietualers); (1360), 
35 Bd. I l l  (fishermen); (1433), 11 Hen. YI, c. 12 (eandlers) ; 
(1464), 4 Bd. IV, c. 7 (shoemakers) ; Lane v. Cotton, 1 Ld. Raym. 
646, 655; 1 Salk. 18, 19; 12 Mod. 472, 485 (“If a man takes upon 
himself a public employment, he is bound to serve the public as 
far as the employment extends; and for refusal an action 
lies. . . ”).

41 Miller v. Schoene, 276 U. S. 272 (1928).
42 Queenside Hills Realty Co. v. Saxl, 328 U. S. 80 (1946).



33

size of billboards,43 and to make loaves of bread a certain 
size.44 Moreover, employers have been compelled to allow 
labor organizational activities to be conducted on their 
property.45 And only recently, property holders have been 
forbidden to use their property in a way which would, in 
the course of a program of racial discrimination, intimidate 
their lessees in the exercise of the franchise, United States 
v. Beaty, 288 F. 2d 653 (6th Cir. 1961).

Other facets of the claimed property right to discriminate 
on the basis of race in these circumstances are clearly 
separable from the core of Kress’s interest in its business. 
In addition to the fact that no privacy has been intruded 
upon, the asserted property right did not seek to protect 
the premises from use alien to their intended function. 
Petitioners sought only to purchase and consume food in 
an area provided for such activity. The asserted right to 
exclude expressed only a preference for racial segregation 
and not any objection to petitioners* demeanor or conduct. 
And this was not a private choice. It expressed community 
custom. The capricious nature of the discrimination was 
highlighted by the fact that this same store served food 
to Negroes and to whites accompanying them if they were 
standing, but not if they were seated (Pt. 22). As in Shelley 
v. Kraemer, 334 U. 8. 1, 10, the restriction did not limit 
the type of use made of the premises, nor the type of per­
son or conduct permitted thereon except to refer to race.

Moreover, the property interest enforced below attempted 
only to achieve discrimination in a store thrown open by

43 Semler v. Oregon State Board of Dental Examiners, 294 TJ. S. 
608 (1935); St. Louis Poster Advertising Co. v. St. Louis, 249 TJ. S.' 
269 (1919) ; Thomas Cusack Co. v. Chicago, 242 U. S. 526 (1917).'

44 Schmidinger v. Chicago, 226 U. S. 578.
45N.L.R.B. v. Babcock <& Wilcox Co., 351 IT. S. 105 (1955); Re­

public Aviation Corp. v. N.L.R.B., 324 TJ. S. 793 (1945).



34

the owner to the general public (including Negroes) for his 
own business advantage (Cf. Marsh v. Alabama, 326 U. S. 
501, 506). The specific area within the store in dispute,
i.e., the lunch counter, was a public part of the premises 
and an integral part of a single commercial establishment 
serving the public. Though a sign at the counter stated 
“Invited Guests and Employees Only” (K, 23), in practice 
the category of “Invited guests” was meant to include the 
entire white public, except whites accompanying Negroes 
(K. 22-23).

Consequently, the property interest enforced below is 
simply a claimed right to enforce racial discrimination in 
very particular circumstances. It obviously is not true that 
refusal to enforce this asserted incident of ownership de­
stroys the whole bundle of rights. That result would be 
contrary to the entire genius or our jurisprudence.

The premise that Kress owns the property does not 
lead to the ultimate logical extreme that it may absolutely 
control the conduct and associations of others in the store.

Mr. Justice Holmes has written that “All rights tend 
to declare themselves absolute to their logical extreme. Yet 
all in fact are limited by the neighborhood of principles of 
policy which are other than those on which the particular 
right is founded, and which become strong enough to hold 
their own when a certain point is reached.” Hudson County 
Water Co. v. McCarter, 209 U. S. 345, 355. Only last term, 
Mr. Justice Frankfurter, dissenting, pointed out the in­
dubitable truth that “An end of discrimination against the 
Negro was the compelling motive of the Civil War Amend­
ments. The Fifteenth expresses this in terms and it is no 
less true of the Equal Protection Clause of the Fourteenth.” 
Baker v. Carr, 369 U. S. 186, 285-86. In the case at bar 
Kress’s property is limited by the Fourteenth Amendment



35

and does not reach the constitutionally untenable logical 
extreme that the states may aid the store in upholding 
racism. “The Constitution confers upon no individual the 
right to demand action by the State which results in the 
denial of equal protection of the laws to other individuals.” 
Shelley v. Kraemer, 334 U. S. 1, 22.

E. In Any Event the Convictions Below Must Fall When, 
in Addition to the Foregoing, North Carolina Has 
Failed to Protect Negro Citizens in the Might to 
Equal Access to Public Accommodations.

Here, however, we have more than the elements set forth 
above—State arrest, conviction and prison term; imple­
mentation of a community custom of racial segregation 
generated by state law; enforcement of an odious property 
right of minor consequence to the owner; elaborate state 
initiative and involvement in establishment and mainte­
nance of the enterprise. Here the State has failed to pro­
vide what the Civil Rights Cases assumed the States did 
provide: “a right to enjoy equal accommodation and priv­
ileges,” which this Court termed “one of the essential rights 
of the citizen which no state can interfere with.” 109 U. S. 
at 19.

This Court has recognized that States’ failure or refusal 
to act can deny the equal protection of the laws. Burton 
v. Wilmington Parking Authority, 365 U. S. 715, 725; 
Terry v. Adams, 345 U. S. 461, 469; Truax v. Corrigan, 257 
IT. S. 312; see Lynch v. United States, 189 F. 2d 476 (5th 
Cir. 1951); Catlette v. United States, 132 F. 2d 902 (4th 
Cir. 1943).

Indeed, it is questionable whether the verbal concept of 
“state action” in equal protection cases rests on more than 
a misunderstanding,46 for the phrase, no state shall deny

46 See, generally Mr. Justice Harlan dissenting in Civil Rights 
Cases, 109 U. S. 3, 26-62.



36

equal protection refers even more naturally to state inac­
tion than to state action.

Mr. Justice Woods, a member of the majority in the Civil 
Rights Cases, stated in United States v. Hall, 26 Fed. Gas. 
79, 81 (No. 15,282 1871):

Denying includes inaction as well as action, and deny­
ing the equal protection of the laws includes the omis­
sion to protect, as well as the omission to pass laws 
for protection.

His concurrence with the majority in the Civil Rights Cases 
may, therefore, be explained by his agreement with their 
assumption that remedies against the discrimination in 
those cases existed under state law.

This indeed was a view held by some of the legislators 
concerned with the scope of the Amendment at or around 
the time of its passage. For example, Representative Wil­
son of Indiana in debates on the Enforcement Act of April 
20, 1871, 17 Stat. 13, argued that the states were under an 
obligation to assure equality and that failure to do so was 
a denial of equal protection:

1. The provisions ‘no State shall deny’ and ‘Congress 
shall have power to enforce’ mean that equal pro­
tection shall be provided for all persons.

2. That a failure to enact the proper laws for that 
purpose, or a failure to enforce them, is a denial of 
equal protection. (Emphasis added.)

3. That when there is such a denial Congress may 
enact laws to secure equal protection.47

47 Cong. Globe, 42nd Congress, 1st Sess. 483 (1871).



37

Representative Lawrence in debates on the Civil Rights 
Act of 1875 stated:

What the State permits by its sanction, having the 
power to prohibit, it does in effect itself.48

Senator Pool in debates on the Enforcement Act of May 
31, 1870, 16 Stat. 140, argued that:

. . . but to say that it shall not deny to any person the 
equal protection of the law it seems to me opens up 
a different branch of the subject. It shall not deny by 
acts of omission, by a failure to prevent its own citi­
zens from depriving by force any of their fellow- 
citizens of these rights.49 (Emphasis added.)

This view is endorsed by the opinion in the Civil Bights 
Cases, for that decision was based on the assumption that 
the states in question would provide remedies securing to 
their citizens the right of access to places of public accom­
modation without racial discrimination:

We have discussed the question presented by the 
law on the assumption that a right to enjoy equal ac­
commodations and privileges in all inns, public con­
veyances, and places of public amusement, is one of

48 Cong. Rec., 43d Cong., 1st Sess. 412 (1874).
49 Cong. Globe, 41st Cong., 2d Sess. 3611 (1870).
Other contemporary congressmen also suggested that state in­

action may be as culpable as action; In a speech delivered by 
Representative Bingham of Ohio, the framer of the key phrases in 
Section One, it was repeatedly stated that the Fourteenth Amend­
ment granted Congress the power to act on individuals and could 
provide relief against the denial of rights by the states whether by 
“acts of omission or commission.” Appendix to the Cong. Globe, 
42d Congress, 1st Sess. 85. Representative Coburn of Indiana said 
that a state could deny equal protection by failing to punish in­
dividuals violating the rights of others. Cong. Globe, 42d Congress, 
1st Sess. 459.



38

the essential rights of the citizen which no state can 
abridge or interfere with (109 U. S. at 19). (Emphasis 
added.)

#  #  *  #  #

Can the act of a mere individual, the owner of the 
inn, the public conveyance or place of amusement, 
refusing the accommodation, be justly regarded as 
imposing any badge of slavery or servitude upon the 
applicant, or only as inflicting an ordinary civil injury, 
properly cognizable by the laws of the State, and 
presumably subject to redress by those laws until the 
contrary appearsf (109 U. S. at 24). (Emphasis 
added.)

Mr. Justice Bradley’s entire opinion was concerned with 
the question whether the Fourteenth Amendment had con­
ferred on Congress the power to regulate the acts of private 
individuals when, as he presumed, the States were exer­
cising their responsibilities toward the goal of eliminating 
racial discrimination. While he concluded in the negative, 
it is extremely doubtful that the result would have been 
the same if a state had been found to be in effect sanction­
ing private discrimination by laxity in this regard. See 
Konvitz & Leskes, A Century of Civil Bights 150 (1961); 
Abernathy, Expansion of the State Action Concept Under 
the Fourteenth Amendment, 433 Cornell L. Q. 375, 376; 
Hale, Force and the State: A Comparison of “Political” 
and “Economic” Compulsion, 35 Colum. L. Bev. 149, 184 
(1935); Poliak, Racial Discrimination and Judicial In­
tegrity: A Reply to Professor Wechsler, 108 U. Pa. L. Bev 
1, 21 (1959).

This case, therefore, is like Burton v. Wilmington Park­
ing Authority, 365 IT. S. 715, 725 :

[T]he Authority could have affirmatively required 
Eagle to discharge the responsibilities under the Four-



39

teenth Amendment imposed upon the private enter­
prise as a consequence of state participation. But no 
State may effectively abdicate its responsibilities by 
either ignoring them or by merely failing to discharge 
them whatever the motive may be. . . . By its inaction 
. . . the State . . . has not only made itself a party to 
the refusal of service, but has elected to place its 
power, property and prestige behind the admitted dis­
crimination.

For here in an area in which the State is deeply involved 
it has both positively and negatively sanctioned the racial 
segregation which gave rise to this case.

II.
The Criminal Statute Applied to Convict Petitioners 

Gave No Fair and Effective Warning That Their Actions 
Were Prohibited: Petitioners’ Conduct Violated No 
Standard Required by the Plain Language of the Law; 
Thereby Their Conviction Offends the Due Process 
Clause of the Fourteenth Amendment and Conflicts With 
Principles Announced by This Court.

Petitioners were convicted under North Carolina General 
Statute, §14-134, which provides:

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.

Although the statute in terms prohibits only going on the 
land of another after being forbidden to do so, the Sujjreme 
Court of North Carolina has now construed the statute to



40

prohibit also remaining on property when directed to leave 
following lawful entry (R. 82). Stated another way, the 
statute now is applied as if “remain” were substituted for 
“enter.” Expansive judicial interpretation of the statute 
began by a statement in State v. Clyburn, 247 N. C. 455, 
101 S. E. 2d 295 (1958) (a case in which defendants deliber­
ately ignored racial signs posted outside an ice cream parlor 
and also refused to leave upon demand),50 92 years after 
enactment of the law.51

The instant case is the first unambiguous holding under 
§14-134 which convicts defendants who went upon property 
with permission and merely refused to leave when directed.

Without a doubt petitioners and all Negroes were welcome 
within the store—apart from the basement lunch counter. 
The arresting officer stated that, “The only crime committed 
in my presence, as I saw it, was their failure and refusal to 
leave when they were ordered to do so by the manager” 
(R. 26). There were no discriminatory signs outside the 
store (R. 23). No sign forbade Negroes and white persons 
who accompany Negroes to sit at the lunch counter; the sign 
said merely “Invited Guests and Employees Only” (R. 23). 
Whatever petitioners’ knowledge of the store’s racial policy 
as it had been practiced, there was no suggestion that they

50 In the Clyburn opinion, and here, the State Court explained 
construction of §14-134 by reference to analogous construction of a 
statute prohibiting forcible entry and detainer (N. C. Gen. Stat. 
§14-126), which had been construed to apply to peaceful entry fol­
lowed by forcible opposition to a later demand to leave. The court 
held that “entry” was synonymous with “trespass” in both statutes 
(§14-126 and §14-234). (§14-134 does not use the word “entry” ; it 
states “go or enter upon.”)

The facts of the Clyburn case are summarized in the opinion 
below in this case (R. 79).

51 The Statute was first enacted in 1866. North Carolina Laws, 
Special Session, Jan., 1866, C. 60.



41

had ever been forbidden to go to the lunch counter and 
request service. The Court’s conclusory statement that de­
fendants “entered” (trespassed) “after having been for­
bidden to do so” (R. 88), was simply a holding that defen­
dants’ acts in failing to leave when directed violated the 
statute.

Absent the special expansive interpretation given §14-134 
by the North Carolina Supreme Court, the case would 
plainly fall within the principle of Thompson v. City of 
Louisville, 362 U. S. 199, and would be a denial of due proc­
ess of law as a conviction resting upon no evidence of guilt. 
There was obviously no evidence that petitioners entered the 
premises “after having been forbidden to do so,” and the 
conclusion that they did rests solely upon the special con­
struction of the law.

The due process clause of the Fourteenth Amendment 
requires that criminal statutes be sufficiently express to 
inform those who are subject to them what conduct on their 
part will render them criminally liable. “All are entitled 
to be informed as to what the State commands or forbids.” 
Lansetta v. New Jersey, 306 U. S. 451, 453.

The basic function of the proscription against “vague­
ness” is to ensure that a defendant at the time of his acts 
is sufficiently apprised by the state law that these acts are 
forbidden. The whole thrust of the doctrine, therefore, con­
cerns a right to fair warning at a time prior to the state 
court’s interpretation of the statute under which the prose­
cution was had. There must, therefore, be some limits set 
to the range permitted to construction if the right to fair 
warning is not to be seriously curtailed. Judicial construc­
tion often has been permitted to cure criminal statutes of the 
vice of vagueness, but these have been constructions which 
confine, not expand, statutory language. Cf. ChaplinsJcy v.



42

New Hampshire, 315 U. S. 568, with Herndon v. Lowry, 301 
U. S. 242. The more the construction expands a statute and 
varies from what is reasonably predictable by the plain 
words, the more it should be open to a charge of vagueness 
in the application. In its present posture, the trespass stat­
ute has been so judicially expanded that it could not have 
given fair and effective warning of the acts it now prohibits. 
Rather by expansive interpretation the statute now reaches 
more than its words fairly and effectively define. This 
Court, by adjudging the construction vague in the applica­
tion does not usurp the function of the state court as the 
ultimate arbiter of the meaning of state statutes. It merely 
prevents an ad hoc statement of the posture of state law 
from acting to deprive the defendants of fair notice required 
by the due process clause of the Fourteenth Amendment. 
This Court has in the past exercised such residual control 
over construction of state law which unreasonably threat­
ened defendants with a loss of their constitutional rights. 
N. A. A. C. P. v. Alabama, ex rel. Patterson, 357 U. S. 449; 
Staub v. Baxley, 355 U. S. 313.

Construing and applying federal statutes this Court has 
long adhered to the principle expressed in Pierce v. United 
States, 314 U. 8. 306, 311:

. . .  judicial enlargement of a criminal act by interpreta­
tion is at war with a fundamental concept of the com­
mon law that crimes must be defined with appropriate 
definiteness. Cf. Lansetta v. New Jersey, 306 U. S. 451, 
and cases cited.

In Pierce, supra, the Court held a statute forbidding false 
personation of an officer or employee of the United States 
inapplicable to one who had impersonated an officer of the 
T. Y. A. Similarly, in United States v. Cardiff, 344 U. S. 
174, this Court held too vague for judicial enforcement a



43

criminal provision of the Federal Food, Drug, and Cosmetic 
Act which made criminal a refusal to permit entry or in­
spection of business premises “as authorized by” another 
provision which, in turn, authorized certain officers to enter 
and inspect “after first making request and obtaining per­
mission of the owner.” The Court said in Cardiff, at 344 
U. S. 174,176-177:

The vice of vagueness in criminal statutes is the treach­
ery they conceal either in determining what persons are 
included or what acts are prohibited. Words which are 
vague and fluid (cf. United States v. L. Cohen Grocery 
Co., 255 U. S. 81) may be as much of a trap for the 
innocent as the ancient laws of Caligula. We cannot 
sanction taking a man by the heels for refusing to grant 
the permission which this Act on its face apparently 
gave him the right to withhold. That would be making 
an act criminal without fair and effective notice. Cf. 
Herndon v. Lowry, 301 U. S. 242.

The Court applied similar principles in McBoyle v. United 
States, 283 U. S. 25, 27; United States v. Weitzel, 246 U. S. 
533, 543, and United States v. Wiltberger, 18 IT. S. (5 
Wheat.) 76, 96. Through these cases runs a uniform appli­
cation of the rule expressed by Chief Justice Marshall:

It would be dangerous, indeed, to carry the principle, 
that a case which is within the reason or mischief of a 
statute, is within its provisions, so far as to punish 
a crime not enumerated in the statute, because it is 
of equal atrocity, or of kindred character, with those 
which are enumerated (Id. 18 IT. S. (5 Wheat.) at 96).

The cases discussed above involved federal statutes con­
cerning which this Court applied a rule of construction 
closely akin to the constitutionally required rule of fair and



44

effective notice. This close relationship is indicated by the 
references to cases decided on constitutional grounds. The 
Pierce opinion cited for comparison Lametta v. New Jersey, 
supra, and “cases cited therein,” while Cardiff mentions 
United States v. L. Cohen Grocery Co., supra, and Herndon 
v. Lowry, supra.

On its face the North Carolina trespass statute warns 
against a single act, i.e., going or entering upon the land of 
another “after” being forbidden to do so. “After” connotes 
a sequence of events which by definition excludes going on 
or entering property “before” being forbidden. The sense 
of the statute in normal usage negates its applicability to 
petitioners’ act of going on the premises with permission 
and later failing to leave when directed.

But by judicial interpretation “enter” was held synony­
mous with “trespass,” and, in effect, also with “remain.” 
Here a legislative casus omissus was corrected by the court. 
But as Mr. Justice Brandeis observed in United States v. 
Weitzel, supra at 543, a casus omissus while not unusual, 
and often undiscovered until much time has elapsed, does 
not justify extension of criminal laws by reference to legis­
lative intent.

Moreover, that the indictments specified both that peti­
tioners had entered after having been forbidden and also 
that they refused to leave after being ordered to do so, does 
not correct the unfairness inherent in the statute’s failure 
specifically to define a refusal to leave as an offense. As 
this Court said in Lametta v. New Jersey, supra:

It is the statute, not the accusation under it, that pre­
scribes the rule to govern conduct and warns against 
transgression. See Stromberg v. California, 283 U. S. 
359, 368; Lovell v. Griffin, 303 IT. S. 444.



45

Petitioners do not contend for an unreasonable degree of 
specificity in legislative drafting. Some state trespass laws 
have specifically recognized as distinct prohibited acts the 
act of going upon property after being forbidden and the 
act of remaining when directed to leave.52

Converting by judicial construction the common English 
word “enter” into a word of art meaning “trespass” or 
“remain,” has transformed the statute from one which 
fairly warns against one act into a law which fails to apprise 
those subject to it “in language that the common word will 
understand, of what the law intends to do if a certain line 
is passed” (McBoyle v. United States, 283 IJ. S. 27). Nor 
does common law usage of the word “enter” support the 
proposition that it is synonymous with “trespass” or “re­
maining.” While “enter” in the sense of going on and taking 
possession of land is familiar (Ballantine, “Law Dictionary” 
436 (2d Ed. 1948), “Black’s Law Dictionary” (4th Ed. 
1951), 625), its use to mean “remaining on land and refusing 
to leave it when ordered off” is novel.

It must be noted, too, that petitioners’ request for service 
was part of a protest against racial discrimination and as

52 See for example the following state statutes which do effec­
tively differentiate between “entry” after being forbidden and 
“remaining” after being forbidden. The wording of the statutes 
varies but all of them effectively distinguish between the situation 
where a person has gone on property after being forbidden to do 
so, and the situation where a person is already on property and 
refuses to depart after being directed to do so, and provide sepa­
rately for both situations: Code of Ala., Title 14, §426; Compiled 
Laws of Alaska Ann. 1958, Cum. Supp. Vol. Ill, §65-5-112; Arkan­
sas Code, §71-1808; Gen. Stat. of Conn. (1958 Rev.), §53-103; D. C. 
Code §22-3102 (Supp. VII, 1956); Florida Code, §821.01; Rev. 
Code of Hawaii, §312-1; Illinois Code, §38-565; Indiana Code, 
§10-4506; Mass. Code Ann. C. 266, §120; Michigan Statutes Ann. 
1954, Vol. 25, §28.820(1); Minnesota Statutes Ann. 1947, Vol. 40, 
§621.57; Mississippi Code §2411; Nevada Code, §207.200; Ohio 
Code, §2909.21; Oregon Code, §164.460; Code of Virginia, 1960 
Replacement Volume, §18.1-173; Wyoming Code, §6-226.



46

such an exercise of free speech. This Court has in many 
instances held a statute more amenable to an attack of 
vagueness where its construction creates a danger of en­
croachment on the right of free speech and threatens to 
deter its legitimate exercise. Saia v. New York, 334 U. S. 
558; Cantwell v. Connecticut, 310 U. S. 296; Runs v. New 
York, 340 U. S. 290. To avoid an undue restriction on free 
speech, where it is an incident of conduct, the statute must 
clearly define the prohibited activity; consequently, the 
scope of construction must have less latitude. An interpre­
tation completely unpredictable by the plain language of 
the statute, which is used to bring petitioners’ protest with­
in the ambit of prohibited conduct cannot but have such an 
“inhibiting effect on speech.” Smith v. California, 361 U. S. 
147,151.

As construed and applied, the law in question no longer 
informs one what is forbidden in fair terms, and no longer 
warns against transgression. This failure offends the stand­
ard of fairness expressed by the rule against expansive 
construction of criminal laws and embodied in the due 
process clause of the Fourteenth Amendment.



47

III.

The Decision Below Conflicts With Decisions of This 
Court Securing the Fourteenth Amendment Might to 
Freedom of Expression.

Petitioners were engaged in the exercise of free expres­
sion by means of verbal requests to the management and 
the requests implicit in seating themselves at the counter 
for nonsegregated lunch counter service. Their expression 
(asking for service) was entirely appropriate to the time 
and place in which it occurred. Certainly the invitation to 
enter an establishment carries with it the right to discuss 
and even argue with the proprietor concerning terms and 
conditions of service so long as no disorder or obstruction 
of business occurs.

Petitioners did not shout, obstruct business, carry picket­
ing signs, give out handbills, or engage in any conduct 
inappropriate to the time, place and circumstances. And, 
as is fully elaborated above, supra, pp. 15-16, there was no 
invasion of privacy involved in this case, since the lunch 
counter was an integral part of commercial property open 
up to the public.

This Court and other courts on numerous occasions have 
held that the right of free speech is not circumscribed 
by the mere fact that it occurs on private property. The ex­
istence of a property interest is but one circumstance to 
be considered among many. In Marsh v. Alabama, supra, 
for example, this Court overturned the trespass conviction 
of Jehovah’s Witnesses who went upon the premises of a 
company town to proselytize holding that such arrest and 
conviction violated the Fourteenth Amendment. In Re­
public Aviation Corp. v. National Labor Relations Board,



48

324 IT. S. 793, the Court upheld the validity of the National 
Labor Relations Board’s ruling that lacking special cir­
cumstances that might make such rules necessary, employer 
regulations forbidding ail union solicitation on company 
property regardless of whether the workers were on their 
own or company time, constituted unfair labor practices.53

In Martin v. Struthers, 319 U. S. 141, this Court held 
unconstitutional an ordinance which made unlawful ringing 
doorbells of residences for the purpose of distributing hand­
bills, upon considering the free speech values involved— 
“ [d]oor to door distribution of circulars is essential to 
the poorly financed causes of little people,” at p. 146— 
and that the ordinance precluded individual private house­
holders from deciding whether they desired to receive the 
message. But effecting “an adjustment of constitutional 
rights in the light of the particular living conditions of the 
time and place”, Breard v. Alexandria, 341 U. S. 622, 626, 
the Court, assessing a conviction for door-to-door commer­
cial solicitation of magazines, contrary to a “Green River” 
ordinance, concluded that the community “speak [ing] for 
the citizens,” 341 U. S. 644, might convict for crime in the 
nature of trespass after balancing the “conveniences be-

53 See also N.L.B.B. v. American Pearl Button Co., 149 F. 2d 258 
(8th Cir., 1945) ; United Steelworkers v. N. L. B. B., 243 F. 2d 593, 
598 (D. C. Cir., 1956) (reversed on other grounds) 357 U. S. 357. 
(“Our attention has not been called to any case under the Wagner 
Act or its successor in which it has been held that an employer can 
prohibit either solicitation or distribution of literature by em­
ployees simply because the premises are company property.

Employees are lawfully within the plant, and nonworking time 
is their own time. If Section 7 activities are to be prohibited, 
something more than mere ownership and control must be shown.”) 

Compare N.L.B.B. v. Fansteel Metal Corp., 306 U. S. 240, 252 
(employees seized plant; discharge held valid: “high-handed pro­
ceeding without shadow of legal right”) .



49

tween some householders’ desire for privacy and the pub­
lisher’s right to distribute publications in the precise way 
that those soliciting for him think brings the best results.” 
341 U. S. at 644. Because, among other things, “ [subscrip­
tion may be made by anyone interested in receiving the 
magazines without the annoyances of house to house can­
vassing,” ibid., the judgment was affirmed.

Similarly, following an appraisal of the speech and 
property considerations involved, a Baltimore City Court, 
State of Maryland v. Williams, 44 Lab. Eel. Eef. Man. 
2357, 2361 (1959), has on Fourteenth Amendment and 
Labor Management Relations Act grounds, decided that 
pickets may patrol property within a privately owned shop­
ping center. See also People v. Barisi, 193 Misc. 934, 86 
N. Y. S. 2d 277, 279 (1948), which held that picketing within 
Pennsylvania Station was not trespass; the owners opened 
it to the public and their property rights were “circum­
scribed by the constitutional rights of those who use it” ; 
Freeman v. Retail Clerks Union, Washington Superior 
Court, 45 Lab. Eel. Eef. Man. 2334 (1959), which denied 
relief to a shopping center owner against picketers on his 
property, relying on the Fourteenth Amendment.

The liberty secured by the due process clause of the Four­
teenth Amendment insofar as it protects free expression 
is not limited to verbal utterances, though petitioners here 
expressed themselves by speech. The right comprehends 
picketing, Thornhill v. Alabama, 310 II. S. 88; free distri­
bution of handbills, Martin v. Struthers, 319 U. S. 141; 
display of motion pictures, Burstyn v. Wilson, 343 U. S. 
495; joining of associations, N.A.A.C.P. v. Alabama, 357 
U..S. 449; the display of a flag or symbol, Stromberg v. 
California, 283 IT. S. 359. What has become known as a 
“sit in” is a different but obviously well understood symbol, 
a meaningful method of communication and protest.



50

In the circumstances of this case, the only apparent state 
interest being preserved was that of maintaining the man­
agement’s right to exclude Negroes from the lunch counter. 
The management itself sought nothing more. But as Justice 
Holmes held in Schenck v. United States, 249 U. S. 47, 52, 
the question 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 sub­
stantive evil” that the state has a right to prevent.

The state has no interest in preserving such discrimina­
tion and certainly has no valid interest in suppressing 
speech which is entirely appropriate to the time and place 
and does not interfere with privacy, when the speech urges 
an end to racial discrimination imposed in accordance with 
the customs of the community.



51

CONCLUSION

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

Respectfully submitted,

J ack Greenberg 
Constance B aker Motley 
J ames M. Nabrit, III 

10 Columbus Circle 
New York 19, New York

L. C. B erry, J r.
W illiam A. Marsh, J r.
F. B. McK issick

C. 0 . P earson 
W. G. P earson

M. H ugh Thompson

Durham, North Carolina
Attorneys for Petitioners

D errick B ell
L eroy Clark

W illiam T . Coleman, J r .
Michael Meltsner 
W illiam R. Ming, J r.
Louis H. P ollak 
J oseph L. R auh 
Herbert 0 . R eid 

Of Counsel