Peterson v. City of Greenville, South Carolina Brief for Petitioners
Public Court Documents
October 1, 1962
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Brief Collection, LDF Court Filings. Peterson v. City of Greenville, South Carolina Brief for Petitioners, 1962. 3fb02d20-c19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/7d528f19-4d18-4bb8-8425-ee0914ab3387/peterson-v-city-of-greenville-south-carolina-brief-for-petitioners. Accessed May 17, 2025.
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In th e
(tart of tbr llnitih i>tatra
October Term, 1962
No. 71
J ames B ichard P eterson, Y vonne J oan E ddy, H elan
A ngela E vans, D avid B alph S trawder, H arold J ames
F owler, F rank G. S m it h , B obert Crockett, J ames
Carter, D oris D elores W right , and B ose M arie Collins,
Petitioners,
City op Greenville.
on writ op certiorari to the supreme court
OP SOUTH CAROLINA
BRIEF FOR PETITIONERS
J ack Greenberg
Constance B aker M otley
J ames M. N abrit, III
M ichael M eltsner
10 Columbus Circle
New York 19, N. Y.
M atthew J. P erry
L incoln C. J en k in s , J r .
Columbia, South Carolina
W illie T. S m ith
Greenville, South Carolina
Attorneys for Petitioners
L eroy Clark
W illiam T. Coleman , Jr.
W illiam B. M ing , Jr.
L ouis H. P ollak
Of Counsel
INDEX
PAGE
Opinion Below ...................... ........ .......... ......................... 1
Jurisdiction ........................ ................................................ 1
Constitutional and Statutory Provisions Involved __ 2
Questions Presented .................... ............. ....................... 3
Statement .............................. ........ ............................... ..... 5
Summary of Argument ............... ............. ........................ 9
A r g u m e n t ................... ............. ........................„ ...............~ 13
I. South Carolina in Enforcing Racial Discrimina
tion Has Denied to Petitioners the Equal Pro
tection of the Laws Secured by the Fourteenth
Amendment ................................ ......... ................. 13
A. Petitioners Exclusion From the Lunch Coun
ter, and Their Arrest and Conviction, Was
Required by an Ordinance of the City of
Greenville Which Compels Segregation in
Eating Facilities in Violation of Petitioners’
Rights to the Equal Protection of the Laws
as Secured by the Fourteenth Amendment 13
B. 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 .... 17
11
C. Certainly, at Least, the State May Not by
Its Police and Courts Enforce Such Segre
gation When It Stems Prom a Statewide
Custom of Segregation Which Has Been
Generated by State Law .......... ....................
D. A Fortiori, the State May Not Arrest and
Convict Petitioners for Having Violated a
Segregation Policy Which Stems Prom a
State Generated, Community Custom of
Segregation in Premises in Which the State
Is Deeply Involved Through Its Licensing
and Regulatory Powers ..............................
E. No Essential Property Right 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 ....... .............................. ...............
F. In Any Event the Convictions Below Must
Fall When, in Addition to the Foregoing,
South Carolina Has Failed to Protect Negro
Citizens in the Right to Equal Access to
Public Accommodations .............................. 38
II. The Decision Below Conflicts With Decisions
of This Court Securing the Right of Freedom
of Expression Under the Fourteenth Amend
ment to the Constitution of the United States 43
A. The Enforcement of the State and City
Segregation Policy and the Interference of
the Police Violated Petitioners’ Right to
Freedom of Expression .............................. 43
PAGE
22
28
31
I l l
PAGE
B. The Convictions Deny Petitioners’ Right to
Freedom of Expression in That They Rest
on a Statute Which Fails to Require Proof
That Petitioners Were Requested to Leave
by a Person Who Had Established Author
ity to Issue Such Request at the Time
Given ............................—................................. 47
Conclusion ................... ............-..............—- ............... -.........—- 51
T able op Cases
Abrams v. United States, 250 U. S. 616, 630 -------- ---- 43
Apex Hosiery Co. v. Leader, 310 U. S. 469 (1940) ------ 34
Bailey v. Patterson, 369 U. S. 31 ....— ..... -.... -........... 17
Baker v. Carr, 369 U. S. 186 ................ ....... ..............— 38
Baldwin v. Morgan, 287 F. 2d 750 (5th Cir. 1961) —.17,18
Barrows v. Jackson, 346 U. S. 249 .....................— 18, 34
Bob-Lo Exeurson Co. v. Michigan, 333 U. S. 2 8 ........... 31
Boman v. Birmingham Transit Co., 280 F. 2d 531 (5th
Cir. 1960) .................. ......... ........... -----.......... 16,17,18, 29
Breard v. Alexandria, 341 U. S. 622 .....— ....... ..... -.... 21
Brown v. Board of Education, 347 U. S. 483 ........... 16,17
Buchanan v. Warley, 245 U. S. 60 .................... ..... 16,18, 25
Burstyn v. Wilson, 343 U. S. 495 ................ ............... - 49
Burton v. Wilmington Parking Authority, 365 U. S.
715 ................... ............ ....... ............. 15,16,17,18, 30, 39, 42
In Re Carple’s Estate, 140 Misc. 459, 250 N. Y. S. 680
(Surr. Ct. 1931) .............................. .................-.... -...... 33
Casey v. Plummer, 353 U. S. 924 ............. .... ................ 18
IV
Catlette v. United States, 132 F. 2d 902 (4th Cir
1943) ............................................................... 39
Chaplinsky v. New Hampshire, 315 U. S. 568 ........... 49
Child Labor Tax Case, 259 U. S. 20 ..................... ........ 22
Civil Rights Cases, 190 U. S. 3 ...............11,12,18, 22, 39, 41
Clark v. Flory, 141 F. Supp. 248 (E. D. S. C. 1956) 24
Connally v. General Construction Co., 269 U. S. 385 49
Cooper v. Aaron, 358 U. S. 1 ..... ............... ....... ......... 17, 46
Corporation Comms. v. Transportation Committee, 198
N. C. 317, 151 S. E. 648 (1930) .................................. 33
D’Arcangelo v. D’Arcangelo, 137 N. J. Eq. 63, 43 A. 2d
169 (Ch. 1945) ......................................... 33
Davidson v. Wilmington Trust Co., 23 Del. Ch. 1, 2
A. 2d 285 (Ch. 1938) ..................................................... 33
Davis v. Schnell, 81 F. Supp. 872 (S. D. Ala. 1949),
aff’d 336 U. S. 933 .................................................... . 15
Derrington v. Plummer, 240 F. 2d 922 (5th Cir. 1956),
cert. den. sub nom. Casey v. Plummer, 353 U. S. 924 18
District of Columbia v. John R. Thompson Co., 346
U. S. 100 ............................................. 31
Dwyer v. Kuchler, 116 N. J. Eq. 426, 174 Atl. 154 (Ch.
1934) ................................................................................ 33
PAGE
Engel v. Vitale, 370 U. S. 421 ........ ...... .................... ...... 27
Evers v. Dwyer, 358 U. S. 202 __ _____ ____________ 17
Fay v. New York, 332 U. S. 261 ............................... . 20
In Re Forte’s Will, 149 Misc. 327, 267 N. Y. S. 603
(Surr. Ct. 1933) ........................ .................................... 33
I reeman v. Retail Clerks Union, Washington Superior
Court, 45 Lab. Rel. Ref. Man. 2334 (1959) ............... 46
Garner v. Louisiana, 368 U. S. 157 ....23, 28, 29, 43, 44, 48, 50
Gayle v. Browder, 352 IJ. S. 903 ..............................16,17
Gilbert v. Minnesota, 254 U. S. 325 .............................. 22
Guinn v. U. S., 238 U. S. 347 ................................ ...... . 15
In Be Haight’s Will, 51 App. Div. 310, 64 N. Y. S.
1029 (2d Dept. 1900) ..................................................... 33
Harmon v. Tyler, 273 IJ. S. 668 ____________ _______ 18
Hawke.v. Euyart, 30 Neb. 149, 46 N. W. 422 (1890) .... 33
Henneford v. Silas Mason Co., 300 U. S. 577 ......32
Henry v. Greenville Airport Comm’n, 284 F. 2d 631
(4th Cir. 1960) ............................. .......... .7................... 17
Hirabayashi v. United States, 320 U. S. 8 1 ................ 19
Holmes v. Atlanta, 350 U. S. 879 ............... ........... ...16,17
Holmes v. Connecticut Trust & Safe Deposit Co., 92
Conn. 507, 103 Atl. 640 (1918) ......... .......... .............. 33
Hudson County Water Co. v. McCarter, 209 U. S. 345 38
Klor’s Inc. v. Broadway-Hale Stores, 359 U. S. 207
(1959) ................................................... ........................... 34
Kovacs v. Cooper, 336 U. S. 77 .............. ........ .............. 21
Lambert v. California, 335 U. S. 225 .............................. 49
Lane v. Cotton, 1 Ld. Baym. 646, 1 Salk. 18, 12 Mod.
472 ............................................... .................................... 36
Lane v. Wilson, 307 U. S. 268 __________ ___________ 15
Lanzetta v. New Jersey, 306 U. S. 451 ______________ 49
Levitt & Sons, Inc. v. Division Against Discrimination,
31 N. J. 514, 158 A. 2d 177 (1960) .............................. 35
Louisiana State University and A. & M. College v.
Ludley, 252 F. 2d 372 (5th Cir. 1958), cert, denied
358 U. S. 819 ................................................................ 15
Lynch v. United States, 189 F. 2d 476 (5th Cir. 1951) 39
V
PAGE
VI
Maddox v. Maddox, Admr., 52 Va. 804 (1954) ............... 33
Marsh v. Alabama, 326 U. S. 501 .......................... 32, 37, 45
Martin v. Strothers, 319 U. S. 141 ............. ................21, 44
Massachusetts Comm’n Against Discrimination v.
Colangelo, 30 U. S. L. W. 2608 (Mass. 1962) ........... 35
Mayor, etc. of Baltimore v. Dawson, 350 U. S. 877 ....16,17
Miller v. Schoene, 276 U. S. 272 (1928) ...................... 36
Monroe v. Pape, 365 U. S. 167 ...................... ............. . 18
Morrissette v. U. S., 342 U. S. 246, 250 .......................... 50
Muir v. Louisville Park Theatrical Assn., 347 U. S.
971, vacating and remanding, 202 P. 2d 275 ........... 18
NAACP v. Alabama, 357 U. S. 449 ...................... 18, 27, 44
Nashville C. & St. L. By. v. Browning, 310 U. S. 362.... 23
N.L.R.B. v. American Pearl Button Co., 149 F. 2d 258
(8th Cir. 1945) ....... .................................. ................... 45
NLRB v. Babcock & Wilcox Co., 351 U. S. 105 (1955) 36
New Orleans City Park Improvement Assn. v. Detiege,
358 U. S. 54 ................................................................. 17
Nixon v. Condon, 286 U. S. 73 .................... ..................... 30
PAGE
People v. Barisi, 193 Misc. 934, 86 N. Y. S. 2d 277,
279 .................................................................................... 46
Poe v. Ullman, 367 U. S. 497 ........... ............. ................. 23
Pollock v. Williams, 322 U. S. 4 ................ ............. ....... 27
Porter v. Barrett, 233 Mich. 373, 206 N. W. 532 (1925) 34
Public Utilities Commission v. Poliak, 343 U. S. 451 ....22, 30
Queenside Hills Realty Co. v. Saxl, 328 U. S. 80 (1946) 36
In Re Ranney’s Estate, 161 Misc. 626, 292 N. Y. S. 476
(Surr. Ct. 1936) 33
PAGE
Saia v. New York, 334 U. 8. 558 ........... ...................... - 49
St. Louis Poster Advertising Co. v. St. Louis, 249
U. S. 269 (1919) ......................................................... 36
San Diego Bldg. Trades Council v. G-armon, 349 U. S.
236 .................................................................................... 45
Schenck v. U. S., 249 U. S. 52................ ........... ............. . 46
Schmidinger v. Chicago, 226 U. S. 578 ........................ - 36
Screws v. United States, 325 U. S. 91 — ...............-..... 18
Sellers v. Johnson, 163 F. 2d 877 (8th Cir. 1957), cert.
denied 332 U. S. 851 ......................... -.........................- 46
Sender v. Oregon State Board of Dental Examiners,
294 U. S. 608 (1935) ............. ................ .................... 36
Shelley v. Kraemer, 334 U. S. 1 ....17,18,19, 20, 31, 34, 37, 38
Smith v. California, 361 U. S. 147 ............................— 47
State Athletic Comm’n v. Dorsey, 359 U. S. 533 ........... 17
State of Maryland v. Williams, Baltimore City Court,
44 Lab. Eel. Eef. Man. 2357, 2361 (1959) .................. 46
Steele v. Louisville and Nashville E.E. Co., 323 U. S.
192 .................................................................................. 30
Stromberg v. California, 283 U. S. 359 .................... 43
Taylor v. Louisiana, 370 U. S. 154 .......................... 17,18
Terminiello v. Chicago, 337 U. S. 1 .......................... —- 46
Thomas Cusack Co. v. Chicago, 242 U. S. 526 (1917) 36
Thompson v. City of Louisville, 362 U. S. 199 ......... 50
Thornhill v. Alabama, 310 U. S. 88 ................~........ 43, 45
Turner v. Memphis, 369 U. S. 350 .............. ...............17,18
United States v. Addyston Pipe & Steel Co., 85 Fed.
271 (6th Cir. 1898), affd 175 U. S. 211 (1899) ....... 34
United States v. Beaty, 288 F. 2d 653 (6th Cir. 1961) 37
United States v. Colgate, 250 U. S. 300 (1919) ..... 34
V l l l
United States v. Hall, 26 Fed. Cas. 79 .................... 39
U. S. v. Parke, Davis & Co., 362 U. S. 29 (1960) .......... 34
United Steelworkers v. N.L.R.B., 243 F. 2d 593, 598
(D. C. Cir. 1956) ......................................................... 45
Watclitower Bible and Tract Soc. v. Metropolitan Life
Ins. Co., 297 N. Y. 339, 79 N. E. 2d 433 (1948) ....... 21
West Virginia State Board of Education v. Barnette,
319 U. S. 624, 633-634 ................................................. 43
Western Turf Assn. v. Greenberg, 204 U. S. 359 ......... 31
Wieman v. Updegraff, 344 U. S. 183 .............................. 47
Williams v. Hot Shoppes, Inc., 293 F. 2d 835 (D. C.
Cir. 1961) ................................................................. ..... . 16
Williams v. Howard Johnson’s Restaurant, 268 F. 2d
845 (4th Cir. 1959) ........................................ ................. 16
Winterland v. Winterland, 389 111. 384, 59 N. E. 2d 661
(1945) .......................... ..................................................... 33
Winters v. New York, 333 U. S. 507 .......................... 47, 49
Wolf v. Colorado, 338 U. S. 25 ...................................... 22
F ederal S tatutes
42 U. S. C. 1981 ........................... .......... ................ .......... 19
42 U. S. C. 1982 ......... .................................................... 19
Robinson-Patman Act, 15 U. S. C. §13 et seq.................. 34
Sherman Anti-Trust Act, 15 U. S. C. §1 et seq............... 34
S tate S tatutes
Colo. Rev. Stat. Ann. sections 25—1— 1 (1953) ........... 35
Conn. Gen. Stat. Rev. §53-35 .......... 35
Conn. Stat. Rev. §53-35 (Supp. 1960) ................ 35
PAGE
IX
D. C. Code Ann. sections 47—2901-04 (Supp. 1960) .... 35
Indiana Ann. Stat. sections 10—901-02 (Supp. 1960) 35
Iowa Code Ann. section 735.1 (1950) .............................. 35
Kansas Gen. Stat. Ann. section 21-2424 (1949) ........... 35
Mass. G. L. c. 151B, §4 (Supp. 1961) .................... 35
Mich. Stat. Ann. §28.343 ........... r.................................... 35
Miller Tydings Act Amendment of §1 of the Sherman
Act, 15 IT. S. C. §1 .................................................. . 34
Minn. Stat. Ann. section 327.09 (1947) ................ ......... 35
Minn. Stat. Ann. §§363.01-.13, as amended by L. 1961,
c. 428 to become effective 12/31/62 .......................... 35
Montana Rev. Codes Ann. section 64-211 (Supp. 1961) 35
Neb. Rev. Stat. sections 20—101, 102 (1943) .............. 35
N. H. Rev. Stat. Ann. §§354:1 (Supp. 1961) .................. 35
N. H. Rev. Stat. Ann. c. 354:1 (Supp. 1961) ............... 35
N. J. Stat. Ann. sections 10:1-2 to 10:1-7 (1960) ........... 35
N. M. Stat. Ann. sections 49—8—1-6 (Supp. 1961) ___ 35
N. Y. Civil Rights Law, section 40 ______ __ ______ _ 35
N. Y. Executive Law, §§290(9), 296(2) (Supp. 1962) 35
Ohio Rev. Code section 4112.02(6) (Supp. 1961) ....... 35
Ore. Rev. Stat. sections 30.670-.680, as amended by
L. 1961 c. 247 ......... ....................................................... 35
Pa. Stat. Ann. Tit. 18, section 4654, as amended by
Act No. 19 (1961) ......................................................... 35
Pa. Stat. Ann. Titl. 43, §953 (Supp. 1961) .................. 35
R. I. Gen. Laws §§11-24-1 to 11-24-6 (1956) .... .............. 35
S. C. A. & J. R. 1952 (47) 2223, A. & J. R. 1954 (48)
1695 repealing S. C. Const, art. 11 §5 (1895) ___ ____ 23
S. C. A. & J. R., 1956, No. 917 ...................................... 25
S. C. Code §5-19 (1952) ...................................... ............... 24
PAGE
X
S. C. Code §§12-1 to 12-1083 (1952) .............................. 28
S. C. Code §16-553 (1952) ............................................. 24
S. C. Code §20-7 to -8 (1952) ......................................... 24
South Carolina Code of Laws §21-2 (1957 Supp.) .... 23
S. C. Code §§25-51 et seq. (1952) .................................. 29
S. C. Code §§25-51, 52 ........................................... 29
S. C. Code §35-125 (1952) ............................................... 29
S. C. Code §35-126 (1952) ............................................... 29
S. C. Code §35-130 (1952) .............. 29
S. C. Code §35-133 (1952) ............................................... 29
S. C. Code §35-135 (1952) .......................................... 29
S. C. Code §§51-1, 2.1-2.4 (1957 Supp.) ...................... 24
S. C. Code §51-181-84 (1952) .......................... ......... . 25
S. C. Code §§52-53, 54 (1952) ...................... .......... . 29
S. C. Code §55-1 (1952) .................................................. 24
S. C. Code §58-551 (1952) ................................................ 24
S. C. Code §58-714, 715, 718-720 (1952) .................... . 24
S. C. Code §58-1331 (1952) ........ ................................. 24
S. C. Code §58-1332 (1952) ..... 24
S. C. Code §58-1334 (1952) ........... . 24
S. C. Code §58-1337, 1338 (1952) . 24
S. C. Code §65-1381-1391 (1952) ...................................... 29
S. C. Code §65-1382 (1952) .............. 29
S. C. Code §65-1401 (1952) ........................ 29
S. C. Code §§65-1421-1433 ......................... ............. . 29
S. C. Code §65-1449 (1952) ................ ............................. 29
S. C. Const, art. 3 §33 ............................ ........... ............. 24
S. C. Const, art. 11 §5 ................... ............... ................ 24
S. C. State Advisary Committee to the United States
Commission on Civil Rights, “ The 50 States Report,”
p. 566 (1961) ......... ....................................................... 25
South Carolina Code of Laws, 1952, §16-388 .................. 2
PAGE
X I
Vermont Stat. Ann. Tit. 13, sections 1451-52 (1958) .... 35
Wash. Rev. Code §§49.60.040, 49.60.215 (1962) ........... 35
Wis. Stat. Ann. section 942.04 (1958) ........... .............. 35
Wyoming Stat. §§6-83.1, 6-83.2 (Supp. 1961) ............... 35
City Ordinance
Code of Greenville, 1953, section 31-8 ...................... .2,13
E nglish S tatutes
Statute of Labourers, 25 Ed. I ll, Stat. I (1350) --------- 35
(1464), 4 Ed. IV, c. 7 ....................................................... . 36
(1433), 11 II. VI, c. 12 ..................................................... 36
(1357), 31 Ed. I ll, c. 10 ................................................. 36
(1360), 35 Ed. I l l .............................................................. 36
Other A uthorities
Abernathy, Expansion of the State Action Concept
Under the Fourteenth Amendment, 43 Cornell L.
Q. 375.................................................................................. 42
Adler, Business Jurisprudence, 28 Harv. L. Rev. 135
(1914) .............................................................................. 35
A. L. I., Restatement of the Law of Property, Div. 4,
Social Restrictions Imposed Upon The Creation Of
Property Interests (1944), p. 2121.................................. 33
A. L. I., Restatement of Torts, §867 (1939).................. 22
Beale, The Law of Innkeepers and Hotels (1906)...... 36
4 Blackstone’s Commentaries, Ch. 13, Sec. 5(6) Wen
dell’s Ed. 1850................................................................. 22
Blodgett, Comparative Economic Systems 24 (1944) .... 32
Browder, Illegal Conditions and Limitations: Miscel
laneous Provisions, 1 Okla. L. Rev. 237 (1948)......... 33
PAGE
X ll
Cong. Globe, 41st Cong. 2d Sess. p. 3611...................... 41
Cong. Globe, 42nd Congress, 1st Sess., p. 483............. 40
Appendix to the Cong. Globe, 42d Congress, 1st Sess.,
p. 85.................................................................................. 41
Cong. Rec., p. 412, 43d Cong., 1st Sess. (Vol. 2, part 1)
(1874) .............................................................................. 40
Gray, Restraints on the Alienation of Property, 2d ed.
1895, §259.......................................................................... 33
Gray, The Rule Against Perpetuities, §201, 4th ed.,
1942 .................................................................................. 34
Hale, Force and the State: A Comparison of “ Politi
cal” and “ Economic” Compulsion, 35 Colum. L. Rev.
149 (1935) ............................ ............................. -............. 42
Konvitz & Leskes, A Century of Civil Rights, 150
(1961) .............................................................................. 42
Leach, Perpetuities in a Nutshell, 51 Harv. L. Rev.
638 (1938)........................................................................ 34
Mund, “ The Right to Buy—and Its Denial to Small
Business,” Senate Document #32, 85th Cong. 1st
Sess., Select Committee on Small Business (1957) 35
Poliak, Racial Discrimination and Judicial Integrity:
A Reply to Professor Wechsler, 108 II. Pa. L. Rev.
PAGE
1 (1959) ....................... ...................................... .......... . 42
6 Powell, Real Property 1(858.......................... ................. 33
I n TH E
(to rt of Hit Imttb Hiatts
October Term, 1962
No. 71
J ames E ichaed P eterson, Y vonne J oan E ddy, H elan
A ngela E vans, D avid R alph S trawder, H arold J ames
F owler, F rank G. S m it h , R obert Crockett, J ames
Carter, D oris D elores W right , and R ose M arie Collins,
Petitioners,
City of Greenville.
on w rit of certiorari to the supreme court
OF SOUTH CAROLINA
BRIEF FOR PETITIONERS
Opinion Below
The opinion of the Supreme Court of South Carolina
(R. 55) is reported at 122 S. E. 2d 826 (1961). The opinion
of the Greenville County Court is unreported but is set
forth in the printed record (R. 50).
Jurisdiction
The judgment of the Supreme Court of South Carolina
was entered November 10, 1961 and petition for rehearing
denied on November 30, 1961. The petition for certiorari
2
was filed on February 26, 1962 and granted by this court on
June 25,1962.
The jurisdiction of this Court is invoked pursuant to
Title 28, United States Code, Section 1257 (3), petitioners
having asserted below, and asserting here, deprivation of
rights, privileges and immunities secured by 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 Section 16-388, Code of Laws
of South Carolina, 1952, as amended 1960:
Any person :
(1) Who without legal cause or good excuse enters into
the dwelling house, place of business or on the premises of
another person, after having been warned within sis months
preceding, not to do so or
(2) who, having entered into the dwelling house, place
of business or on the premises of another person without
having been warned within sis months not to do so, and
fails and refuses, without good cause or excuse, to leave
immediately upon being ordered or requested to do so by the
person in possession, or his agent or representative,
Shall, on conviction, be fined not more than one hundred
dollars, or be imprisoned for not more than thirty days.
3. This case involves Section 31-8, Code of Greenville,
1953, as amended by 1958 Cumulative Supplement.
It shall be unlawful for any person owning, managing
or controlling any hotel, restaurant, cafe, eating house,
3
boarding bouse or similar establishment to furnish meals
to white persons and colored persons in the same room,
at the same table, or at the same counter; provided, how
ever, that meals may be served to white persons and colored
persons in the same room where separate facilities are
furnished. Separate facilities shall be interpreted to mean:
a) Separate eating utensils and separate dishes for
the serving of food, all of which shall be distinctly
marked by some appropriate color scheme or other
wise ;
b) Separate tables, counters or booths;
c) A distance of at least thirty-five feet shall be main
tained between the area where white and colored per
sons are served;
d) The area referred to in subsection (c) above shall
not be vacant but shall be occupied by the usual display
counters and merchandise found in a business concern
of a similar nature;
e) A separate facility shall be maintained and used
for the cleaning of eating utensils and dishes furnished
the two races.
Questions Presented
Petitioners have been arrested, convicted, and sentenced
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 City Ordinance and a com
munity custom generated by a massive body of state
segregation law. The premises are extensively licensed
and regulated by the State. South Carolina has failed
to accord Negroes the right of equal access to public ac
commodations.
4
I.
A. Whether a State may arrest and convict petitioners
of trespass where a City Ordinance required the policy of
excluding Negroes to be enforced?
B. May South Carolina, compatibly with the Fourteenth
Amendment, make petitioners the target of a prosecution
under its trespass laws when the rationale of the prosecu
tion is to enforce a claimed legal right of racial discrimina
tion of the S. H. Kress Corporation?
C. 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?
D. Is not the degree of supervision and control which
the State of South Carolina exercises over the S. H. Kress
lunch counter business so extensive a form of state involve
ment that, given the circumstances of A, B and C, supra,
South Carolina has failed in its obligation to afford equal
protection of the laws?
E. 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, en
force that right by its criminal laws?
F. In view of the fact that South 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?
5
A. Is not South 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 dis
crimination practices?
B. Is not freedom of speech impaired by failure to con
strue the statute under which conviction was obtained to
require notice that the request to leave the premises was
given by one who had established authority to issue such
request at the time given?
Statement
Petitioners, ten Negro students, were arrested for par
ticipating in a sit-in demonstration at the lunch counter of
the S. H. Kress and Company department store on August
9, 1960 (E. 8), in Greenville, South Carolina, a city which
by ordinance requires segregation in eating facilities (E.
11), were convicted of trespass in violation of Section
16-388, Code of Laws of South Carolina, 1952, as amended
1960, and sentenced to pay a fine of one hundred dollars
($100.00) or serve thirty (30) days in jail (E. 47).
At about 11:00 a.m. on August 9, 1960, petitioners en
tered the Kress department store and seated themselves
at the lunch counter (E. 36). The store services Negroes
in all departments except the lunch counter which is re
served for whites (E. 14, 22). Petitioners requested ser
vice and were told, “ I am sorry, we do not serve Negroes.”
White persons were seated at the counter and were being
served at the time. The manager of the store, Mr. West,
upon noting that petitioners had seated themselves at the
white lunch counter, approached them and requested,
II.
6
“ everybody to leave, that the lunch counter was closed”
(R. 19). He said his purpose in closing the counter at a
time when it ordinarily would be operated was to prevent
Negroes from using a lunch counter reserved for whites.
Mr. West was aware that the petitioners were participating
in a demonstration to secure service at the lunch counter
on an equal basis, as previous sit-in demonstrations had
been staged there by some of the petitioners. Further, peti
tioner Doris Wright had been in communication with him
to request service for Negroes, and during these communica
tions she was told of the near success of the demonstrations
and received a promise that no charges would be pressed
if the protests against segregated luncheon facilities were
continued (R. 38-39). Mr. West, in fact, did not request the
arrest of petitioners, nor did he sign the complaint against
them (R. 5,16-17).
Also, at about 11:00 a.m. Captain Bramlette of the Green
ville Police Department received a call that some colored
boys and girls were at the lunch counter. He knew that the
City of Greenville had an ordinance prohibiting colored and
white persons from being served at the same eating facili
ties (R. 10-11). He proceeded to the store, entered with
several policemen, and found two agents of the South Caro
lina Law Enforcement Department already present at the
lunch counter (R. 7). He noticed the ten petitioners seated
at the counter which could accommodate almost fifty-nine
persons (R. 7, 25). Although Mr. West made no request
of the officers to remove the petitioners, Captain Bramlette
arrested them a few minutes after the announcement was
made that the counter was closed (R. 8).1 The petitioners,
according to the testimony of the arresting officer and the
1 Four other Negro demonstrators were arrested, but their cases
were disposed of by the juvenile authorities (R. 7).
7
manager, were clean, neatly dressed, orderly, and used no
profanity (R. 12-13, 24).
A witness for the defense, Mr. Raymond Carter, who
was standing nearby during the demonstration, testified that
at the time Mr. West announced the closing of the counter,
the whites who were sitting remained seated but were not
arrested (R. 30). (This testimony was disputed by Mr.
West, who claimed that the whites who were sitting at the
counter removed themselves upon his announcement (R.
19).) Mr. Raymond Carter gave further testimony, sup
ported by Mr. West, that after petitioners were arrested
and escorted from the premises, counter service to whites
promptly was resumed (R. 23, 31).
Mr. West testified that he instructed one of the store’s
employees to call the police; but when petitioners’ counsel
attempted to ascertain whether there was any pre-arrange
ment or agreement between the store and the police to
secure the arrest of the demonstrators, the court denied
permission to proceed (R. 22-23). Mr. West stated that he
closed the lunch counter because of a Greenville city ordi
nance requiring racial segregation in eating facilities and
local custom:
Q. Mr. West, why did you order your lunch counter
closed? A. It’s contrary to local custom and it’s also
the ordinance that has been discussed (R. 23).
On cross examination, Captain Bramlette, the arresting
officer, evidenced confusion as to whether defendants were
arrested because they violated Greenville’s ordinance re
quiring segregation in eating facilities or the State of South
Carolina’s trespass statute:
Q. Did the manager of Kress’, did he ask you to place
these defendants under arrest, Captain Bramlette? A.
He did not.
8
Q. He did not! A. No.
Q. Then why did you place them under arrest! A.
Because we have an ordinance against it.
Q. An ordinance! A. That’s right.
Q. But you just now testified that you did not have
the ordinance in mind when you went over there! A.
State law in mind when I went up there.
Q. And that isn’t the Ordinance of the City of
Greenville, is it! A. This supersedes the order for
the City of Greenville.
Q. In other words, you believe you referred to an
ordinance, but I believe you had the State statute in
mind! A. You asked me have I, did I have knowledge
of the City Ordinance in mind when I went up there
and I answered I did not have it particularly in my
mind, I said I had the State Ordinance in my mind.
Q. I see and so far this City Ordinance which re
quires segregation of the races in restaurants, you at
no time had it in mind, as you went about answering
the call to Kress’ and placing these people under ar
rest! A. In my opinion the state law was passed
recently supersedes our City Ordinance (R. 16-17).
This “ State law” is the trespass statute petitioners were
charged with violating. Previously, Captain Bramlette had
testified that he thought the State’s trespass statute ex
pressly mentioned “ sit-ins” (R. 15).
Kress and Company is a large nationwide chain which
operates junior department stores (R. 20). The Greenville
branch has fifteen to twenty departments, sells over 10,000
items, and is open to the general public (R. 21). Negroes
and whites are invited to purchase and are served alike
with the exception that Negroes are not served at the lunch
counter which is reserved for whites (R. 14, 22). Kress’
9
national policy is “ to follow local customs” with regard
to serving Negroes and whites at its lunch counters (R. 21).
Petitioners were tried and convicted in the Recorder’s
Court of Greenville before the City Recorder, sitting with
out a jury, and sentenced to pay a fine of one hundred
dollars ($100.00) or serve thirty (30) days in the city jail
(R. 2).
Petitioners appealed the judgment of Recorder’s Court
to the Greenville County Court, which dismissed the appeal
on March 17,1961 (R.2).
The Supreme Court of South Carolina entered its judg
ment, affirming the judgment and sentences below on No
vember 10, 1961, and denied rehearing on November 30,
1961 (R. 59, 62).
Summary of Argument
I.
Despite a City Ordinance requiring segregation in eating
facilities which compelled the store manager to refuse ser
vice to Negro petitioners, the Supreme Court of South
Carolina held it was only neutrally enforcing the property
right of the owner of a department store. But segregation
enforced by legislation violates the rights of petitioners
to the equal protection of the laws. Secondly, while in some
circumstances there may be a personal privilege to make
racial distinctions it cannot apply when segregation is re
quired by law and, moreover, its limit is reached when the
person exercising it turns to the State for assistance.
Judicial and police action are no less forbidden State ac
tion when invoked to enforce discrimination initiated by
an individual. Any suggestion that private rights, in the
sense that they invoke considerations of privacy, are in
10
volved is farfetched. Kress’s has been open to the public
in general. The management did not assert the corpora
tion’s own preference for a segregation policy, but rather,
as stated explicitly in the record, the policy of a City Ordi
nance and the custom of the community. While considera
tions of privacy are meaningful in determining the reach
of some constitutional liberties, the right in this case, to
freedom from State imposed 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 including a City Ordinance compelling segregation in
eating facilities. Scholarship establishes the crucial role
which government, politics, and law have played in creat
ing segregation customs.
But the State-enforced, State-created community custom
of segregation in this case is even more vicious 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 pre
cludes 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 a property right does not decide this case.
States can and have constitutionally forbidden property
owners to discriminate on the basis of race in public ac
commodations. South Carolina has not inhibited itself from
requiring racial segregation on private property. The
11
more an owner for Ms advantage opens Ms property for
use by the public in general, the more do his rights become
circumscribed by the constitutional and statutory 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
manifestation of the fact that law regularly limits or shapes
property rights where they may have harmful public con
sequences. Other characteristics of the asserted right to
racially discriminate in this case are that no claim of
privacy has been intruded upon; that petitioners sought
only to use the premises for their intended function; that
segregation was required only in a single part of an es
tablishment 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 sliver
in the entire complex of powers and privileges which con
stitutes Kress’s property is hardly entitled to legal protec
tion when it collides 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 the States
provided “ a right to enjoy equal accommodations and privi
leges . . . 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 protect
12
as well as the omission to pass laws for protection. Legis
lators concerned with the scope of the Fourteenth Amend
ment expressed similar views. The Civil Rights Cases were
decided on the assumption that the States in question pro
tected those rights. It is doubtful that the result would
have been the same if then, as today in South 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 convictions violate petitioners’ rights to freedom of
speech and expression as secured by the due process clause
of the Fourteenth Amendment against state infringement.
Petitioners’ action here, a sit-in, is a well recognized form
of protest and was entirely appropriate to the circum
stances, including the use to which the private property
involved had been dedicated by the owner. The property
owner implicitly consented to the expression and did not
seek the intervention of the criminal process. There were
no speeches, picket signs, handbills, or other forms of ex
pression which might possibly be inappropriate to the time
and place. There was merely a request to be permitted to
purchase 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.
The statute applied to convict petitioners was unreason
ably vague and thereby offends the due process clause of
13
the Fourteenth Amendment. The statute was construed by
the Court below to uphold convictions obtained without
proof that petitioners were requested to leave by a person
who had established authority to issue such request at the
time given. If in the circumstances of this case freedom
of speech and expression are to be curtailed, petitioners
have a right to expect reasonable notice of such a rule in
the statute under which the convictions were obtained.
A R G U M E N T
I.
South Carolina in Enforcing Racial Discrimination
Has Denied to Petitioners the Equal Protection of the
Laws Secured by the Fourteenth Amendment.
A. Petitioners’ Exclusion From the Lunch Counter, and
Their Arrest and Conviction, Was Required by an
Ordinance of the City of Greenville Which Compels
Segregation in Eating Facilities in Violation of Peti
tioners’ Rights to the Equal Protection of the Laws
as Secured by the Fourteenth Amendment.
Although petitioners were formally charged and con
victed of trespass, in actuality the “ trespass” consisted
solely of violating the City of Greenville’s affirmative re
quirement of racial segregation. This legal requirement of
segregation is expressed in Section 31-8, Code of Green
ville, 1953, as amended 1958 Cumulative Supplement, see
supra pp. 2-3, making it unlawful “ to furnish meals to white
persons and colored persons in the same room, or at the
same table, or at the same counter” unless “ separate eat
ing utensils . . . dishes . . . tables, counters or booths” are
provided and “ a distance of at least thirty-five feet shall
be maintained between the area where white and colored
persons are served” (R. 49).
14
In short, the City of Greenville determined that peti
tioners’ conduct would be unlawful even if the department
store had consented to serve them at the lunch counter.
G. W. West, the Manager of the department store, testi
fied explicitly that exclusion of Negroes from the lunch
counter, and the closing of the counter when petitioners
sought service, was necessary because of the City Ordinance
requiring segregation in eating facilities (R. 23).2 Captain
Bramlette, the arresting officer, was unclear as to the dis
tinction between the City Ordinance requiring segregation
and the State trespass statute (R. 15-17).
On this record, it is clear that Kress and Company would
have been willing to cope with the controversy within the
realm of social and economic give and take absent the
Ordinance of the City of Greenville requiring segregation
and the force of local customs supported by the City and
the State of South Carolina, see infra pp. 22-28.
Prior to this demonstration, petitioners had been told
by Store Manager West that he would not press charges
if petitioners attempted to sit-in at the lunch counter (R.
38). Although a store employee called the police (R. 22),
petitioners were not permitted at the trial, to ascertain
if this was due to prearrangement (R. 22, 23). West did
not request the arrest of petitioners, nor did he sign the
complaint against them (R. 5, 16, 17).
If, as the manager testified, S. H. Kress & Company
maintained the policy of segregation because of the Ordi
nance then there can be no other conclusion than that the
City, by the Ordinance and by arrest and criminal convic
2 Mr. West testified at R. 23:
“ Q. Mr. West, why did yon order your lunch counter
closed? A. It’s contrary to local customs and it’s also the
ordinance that has been discussed.”
15
tion, has “place [d] its authority behind discriminatory
treatment based solely on color . . . ” Mr. Justice Frank
furter, dissenting in Burton v. Wilmington Parking Au
thority, 365 U. S. 715, 727. The City Ordinance is no ab
stract exhortation but obligatory by its terms, to which
were attached criminal sanctions, and it is uncontradicted
that S. H. Kress & Company chose a policy of racial segre
gation because of the Ordinance.
Petitioners’ arrest and conviction result, therefore, di
rectly from the formally enacted segregation command of
the City of Greenville, South Carolina, and not (so far as
this record indicates) from any individual or corporate
business decision or preference of the management of the
store to exclude Negroes from the lunch counter. What
ever the choice of the property owner may have been, here
the City made the choice to exclude petitioners from the
property through its segregation Ordinance. This City
segregation policy was enforced by petitioners’ arrests, con
victions and sentences in the South Carolina courts.
The Supreme Court of South Carolina dismisses refer
ence to the City segregation Ordinance by stating “ The
Ordinance was made a part of the record upon request of
defendants’ counsel but defendants were not charged with
having violated any of its provisions” (R. 59). But, the
Constitution forbids “ sophisticated as well as simple-
minded modes of discrimination.” Lane v. Wilson, 307
U. S. 268, 275.3 In fact, the very existence of the Ordinance
placed the “power” and “prestige” of the State behind
3 Racial segregation imposed under another name often has been
condemned by this Court. Guinn v. U. S., 238 U. S. 347; Lane v.
Wilson, supra; Davis v. Schnell, 81 F. Supp. 872 (S. D. Ala. 1949),
aff’d 336 U. S. 933; and see Louisiana State University and A. & M.
College v. Ludley, 252 F. 2d (5th Cir. 1958), cert, denied 358
U. S. 819.
16
racial discrimination. Burton v. Wilmington Parking Au
thority, 365 U. S. 715, 725.
By enacting first, that persons who remain in a restaurant
when the owner demands that they leave are “ trespassers,”
and then enacting that restaurants may not permit Negroes
to remain in white restaurants, South Carolina has very
clearly made it a crime (a trespass) for a Negro to re
main in a white restaurant. The manager of Kress’s ad
mits as much when he testified that the lunch counters were
closed and petitioners asked to leave because of the Ordi
nance (R. 23).
This case thus presents a plain conflict with numerous
prior decisions of this Court invalidating state efforts to
require or authorize racial segregation. Buchanan v.
Warley, 245 U. S. 60; Brown v. Board of Education, 347
U. S. 483; Gayle v. Browder, 352 U. S. 903, aff’g 142 F.
Supp. 707, 712 (M. D. Ala. 1956); Holmes v. City of Atlanta,
350 U. S. 879; Mayor and City Council of Baltimore v.
Dawson, 350 U. S. 877; State Athletic Commission v. Dorsey,
359 U. S. 533; cf. Burton v. Wilmington Parking Authority,
365 U. S. 715, 727. Note the dissenting opinion of Judges
Bazelon and Edgerton in Williams v. Hot Shoppes, Inc.,
293 F. 2d 835, 843 (D. C. Cir. 1961) (dealing primarily with
the related issue of whether a proprietor excluding a Negro
under an erroneous belief that this was required by state
statute was liable for damages under the Civil Rights A ct;
the majority applied the equitable abstention doctrine).
Indeed, Williams v. Howard Johnson’s Restaurant, 268
F. 2d 845, 847 (4th Cir. 1959) relied upon by the Supreme
Court of South Carolina below, indicated that racial segre
gation in a restaurant “ in obedience to some positive pro
vision of State law” would be a violation of the Fourteenth
Amendment. See also Boman v. Birmingham Transit Com,-
17
pany, 280 F. 2d 531 (5th Cir. 1960); Baldwin v. Morgan,
287 F. 2d 750 (5th Cir. 1961).
B. Arrest, Conviction, and Sentence to Prison for Tres
pass for Having Violated the S. H. Kress Co.’s Re
quirement of Racial Segregation at Its Public Lunch
Counter Deny Petitioners the Equal Protection of
the Laws Secured by the Fourteenth Amendment.
In affirming the conviction below the Supreme Court of
South Carolina held it was enforcing the right of a pro
prietor to select the clientele he will serve on “purely per
sonal grounds” (R. 58). While in some circumstances there
may be a personal privilege of making racial distinctions,
the limit of that privilege certainly is reached when the
person exercising it turns to state instrumentalities for as
sistance. There is no clear legal right of racial discrimina
tion. Shelley v. Kraemer, 334 U. S. 1. Racial discrimina
tion is constitutionally inadmissible when “the state in any
of its manifestations has been found to have become in
volved in it.” Burton v. Wilmington Parking Authority,
365 U. S. 715, 722.4
4 Segregation has been forbidden in schools, Brown v. Board of
Education, 347 IT. S. 483; Cooper v. Aaron, 358 U. S. 1; parks and
recreational facilities, Mayor etc. of Baltimore v. Dawson, 350
U. 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
v. Memphis, 369 U. S. 350; Henry v. Greenville Airport Comm’n,
284 F. 2d 631 (4th Cir. 1960).
Segregation requirements have been prohibited in privately
sponsored athletic 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
U. 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 F. 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 U. S. 715, 727. Three
dissenting Justices agreed this would follow if that were a proper
18
“ [I]t has never been suggested that state court action
is immunized from the operation of [the Fourteenth
Amendment] . . . 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 TJ. S. 249; N.A.A.C.P. v. Alabama, 357 IT. S. 499, 463.
Police action which segregates denies Fourteenth Amend
ment rights. Taylor v. Louisiana, 370 IT. S. 154; Baldwin
v. Morgan, 287 F. 2d 750 (5th Cir. 1961); Boman v. Birming
ham Transit Co., 280 F. 2d 531, 533, note 1 (5th Cir. 1960) ;
see also Monroe v. Pape, 365 IT. S. 167; Screws v. United
States, 325 IT. 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 agreement. State action, as that phrase
is understood for the purposes of the Fourteenth Amend
ment, refers to exertions of state power in all forms.”
Shelley v. Kraemer, 334 IT. S. at 20; see also Burton v.
Wilmington Parking Authority, 365 IT. 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 by the State” 109 IT. S. at 17. The opinion referred
to “ State action of every kind” inconsistent with equal pro
construction of the law, 365 U. S. 715, 727, 729. State laws requir
ing segregation in the use and ocrapancy of privately owned prop
erty were invalidated in Buchanan v. Warley, 245 U. S. 60; and
Harmon v. Tyler, 273 U. S. 668.
Among the numerous cases forbidding segregation in publicly
owned but privately leased facilities, see Burton v. Wilmington
Parking Authority, 365 U. S. 715; Turner v. Memphis, 369 U. S.
350; Muir v. Louisville Park Theatrical Ass’n, 347 U. 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 U. S. 924.
19
tection of the laws, id. at p. 11; to “ the operation of State
laws, and the action of State officers executive or judicial,”
id. at p. 11. Repeatedly, the opinion held within the scope
of the Fourteenth Amendment “ state laws or state pro
ceedings,” 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 in 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 the initiative in arresting and prosecuting petitioners
criminally and sentencing them to fines or prison terms.
Moreover, petitioners here assert not merely the gen
eralized constitutional right found in the equal protection
clause of the Fourteenth Amendment to be free from racial
discrimination. 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
enforce contracts, and to the full and equal benefit of all laws
and proceedings for the security of persons and property
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 provisions in-
2 0
volving 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 business” (E. 58). 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 corpora
tion which has sought state aid in enforcing racial discrim
ination in its enterprise open to the general public for
profit, because somehow the inviolability of a private home
may be impaired, is without 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. And the lunch counter was not closed after
petitioners were seated in order to exert any claim of
privacy but to conform with local law (R. 23). As soon as
petitioners were arrested by the police and removed, the
lunch counter was reopened (R. 23). For this reason, the
suggestion of the Supreme Court of South Carolina that
a business is “ not devoted to public use” once an individual’s
“ implied license to enter” is revoked is not sound (R. 58, 59).
Moreover, the proprietor here has not expressed its pref
erence, 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 prop
erty a different 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 coun
tervailing considerations have applied are cases such as
2 1
Breard v. Alexandria, 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 U. S. 141, is an instance where even
considerations of privacy did not overcome a competing
constitutional right like freedom of religion.5 In this case,
the right to freedom from state imposed racial discrimina
tion does not compete with any interest the state may have
in protecting privacy.6
5 And see Watchtower Bible and Tract Soc. v. Metropolitan Life
Ins. Go., 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.
6 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 in
troduced in the Senate by Charles Sumner of Massachusetts on
December 20, 1871, to amend the Civil Bights Act of 1866, 14 Stat.
27, which served as the precursor to the Civil Bights Act of 1875,
18 Stat. 336, Senator Sumner distinguished between a man’s home
and places and facilities 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 Equality; 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 on the highway,
whether on pavement or sidewalk, is a question of society. And,
permit me to say that Equality in all institutions created or regu
lated by law is as little a question of society” (emphasis added).
After quoting Holingshead, Story, Kent, and Parsons on the com
mon law duties of innkeepers and 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 be with the theater and other places of public
amsuement. Here are institutions whose peculiar object is the ‘pur
suit of happiness,’ which has been placed among the equal rights of
all.” Cong. Globe, 42d Cong., 2d Sess., 382-383 (1873).
It is not unreasonable that considerations of privacy should weigh
so heavily. The right of privacy against intrusion on one’s premises
22
C. 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 B, applies where the racial segregation is
not a matter of private choice, but expresses deep-rooted
public policy.
That segregation was the custom of the community is
stated expressly on 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, 37.
Kress’s manager, however, made clear that the store’s seg
regation policy was merely that of community law and
custom (R. 23).
Q. Mr. West, why did you order your lunch counter
closed! A. It’s contrary to local customs and it’s also
the ordinance that has been discussed.
Q. As I understand then further, that you are say
ing that the presence of Negroes at your lunch counter
was contrary to customs! A. Yes, sir.
The Civil Rights Cases speak of “ customs having the
force of law,” 109 U. S. 3, 16, as a form of state action.7
or into one’s personal affairs, 4 Blackstone’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., Restatement
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; W olf 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. Poliak, 343 U. S.
451, 464, 468.
7 See also 109 U. S. at 21 “ long custom, which had the force of
law.”
23
Here, as in Garner v. Louisiana, 368 U. S. 157, “ [segrega
tion is basic to the structure of . . . [the state] as a com
munity; the custom that maintains it is at least powerful
as any law.” (Mr. Justice Douglas concurring at 181.)s
Custom in South Carolina is not separate from law.
As indicated by the Greenville segregation ordinance, cus
tom and law are interdependent. Custom has roots in and
fills the interstices of a complex network of state man
dated segregation. State and city imposed requirements
govern not only activities furnished by the state but pri
vately-owned facilities as well. The subordinate role to
which the segregation laws relegate Negroes is well illus
trated by §40-452, South Carolina Code of Laws, 1952,
making it unlawful for white and colored employees in
textile factories to (a) work together in the same room,
(b) use same entrance or -exit, (c) use and occupy same
pay windows, (d) use same stairway or window at the
same time, and (e) use at any time same lavatories, toilets,
drinking water, buckets, pails, cups, dippers or glasses.
In South Carolina “ Schools are segregated from gram
mar school up through college. Pupils are assigned to
their respective schools by race.” 8 9 State appropriations are
inoperative for schools from or to which students transfer
as a result of court order.10
8 This Court has recognized that “ ‘Deeply embedded traditional
ways of carrying out state policy . . . ’— or not carrying it out— ‘are
often tougher and truer law than the dead words of the written
text.’ Nashville C. & St. L. B. Co. v. Browning, 310 U. S. 362, 369” ;
Poe v. Tillman, 367 U. S. 497, 502.
9 Report of the South Carolina State Advisory Committee to the
United States Commission on Civil Rights, “ The 50 States Report”
p. 564 (1961). S. C. Const, art. 11 §7 compels racial segregation
in schools.
10 South Carolina Code of Laws §21-2 (1957 Supp.). See also
S. C. A. & J. R. 1952 (47) 2223, A. & J. R. 1954 (48) 1695 repealing
24
State law requires segregation at circuses and travelling
shows j11 in prisons and chain gangs ;12 on steam ferries
and in railroad cars ;13 in station restaurants or eating
places ;14 on street cars where Negroes are to be seated
in the rear15 and when standing are to be kept as far from
whites as practicable;16 Negroes and whites must separate
on interurban cars17 or may he sentenced to work on the
county chain gang.18 It is a crime in South Carolina to
give a colored person custody of a white child.19 Marriage
of one of African descent to one who is not of African
descent is prohibited.20 Such a marriage is void and sub
jects the parties to criminal penalties.21 The South Caro
lina park system is segregated by statute.22 When a statute
prohibiting joint use of parks in cities of over 60,000 in
population was declared unconstitutional in Clark v. Flory,
S. C. Const, art. 11 §5 (1895) which required legislature to main
tain free public schools; S. C. Code §§21-761 to -779 (regular school
attendance) repealed by A. & J. R. 1955 (49) 85; §21-238 (1957
Supp.) (school officials may sell or lease school property whenever
they deem it expedient) ; §21-230(7) (local trustees may or may not
operate schools).
11 S. C. Code §5-19 (1952).
12 S. C. Code §55-1 (1952).
13 S. C. Code §§58-714, 715, 718-720 (1952).
14 S. C. Code §58-551 (1952).
15 S. C. Code §58-1331 (1952).
16 S. C. Code §58-1332 (1952).
17 S. C. Code §58-1334 (1952).
18 S. C. Code §§58-1337,1338 (1952).
19 S. C. Code §16-553 (1952).
20 S. C. Const, art. 3 §33.
21 S. C. Code §§20-7 to -8 (1952).
22 S. C. Code §§51-1, 2.1-2.4 (1957 Supp.).
25
141 F. Supp. 248 (E. D. S. C. 1956),23 a new statute imme
diately closed the park in question.24 Public libraries are,
with two exceptions, segregated and in some localities
“ Negroes who enter publicly supported libraries that are
reserved for whites are subject to a fine . . . [or] . . .
imprisonment.” 25 The extent and persistence of local seg
regation cases in South Carolina generally and Greenville,
South Carolina, in particular, can be judged from a trial
warrant dated April 5, 1962, in which the City charged a
Negro with the crime of violating “ Sec. 31.10, the Code of
City of Greenville S. C. 1953 Be Unlawful for Colored
person to occupy Residence in White Block.” 26 Cf.
Buchanan v. Warley, 245 U. S. 60 (1914).
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 recon
struction.” 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. Woodward, The
Strange Career of Jim Crow, pp. vii-viii (1955).
23 S. C. Code §§51-181-84 (1952).
24 S. C. A. & J. R., 1956, No. 917.
25 Report of the South Carolina State Advisory Committee to the
United States Commission on Civil Rights, “ The 50 States Report,”
p. 566 (1961).
26 City of Greenville Trial Warrant No. 179, City v. Robinson.
26
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 1890’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
Gunnar Myrdal, to the effect that ‘the Jim Crow stat
utes were effective means of tightening and freezing
—in many cases instigating—segregation and discrim
ination.’ The evidence has indicated that under condi
tions prevailing in the earlier part of the period re
viewed the Negro could and did do many things in the
South that in the latter part of the period, under dif
ferent 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
27
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, 430 (“ indirect co
ercive pressure upon religious immunities” ). 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.” N.A.A.C.P. v. Alabama, 357
U. S. 449, 463.27
27 This Court has struck down state action which would enable
private individuals to seek reprisals against persons opposed to ra
cial discrimination, N.A.A.C.P. v. Alabama, 357 U. S. 449. A for
tiori, the link between state requirements of segregation and the
conduct it fosters— not merely permits— should be recognized.
28
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 a City ordi
nance and the policy induced and nourished by the laws of
South Carolina. As Mr. Justice Douglas wrote in Garner
v. Louisiana, 368 U. S. 157, 181, the proprietor’s “pref
erence does not make the action ‘private’ rather than ‘state,’
action. If it did, a minuscule of private prejudice would
convert state into private action. Moreover, where the
segregation policy is the policy of a state, it matters not
that the agency to enforce it is a private enterprise.”
D. A F ortiori, the State May Not Arrest and Convict Peti
tioners for Having Violated a Segregation Policy
Which Stems From a State Generated, Community
Custom of Segregation in Premises in Which the
State Is Deeply Involved Through Its Licensing and
Regulatory Powers.
The nature of the State’s involvement—demonstrated by
extensive regulation and licensing—in the premises where
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 re
quired 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 service.
In addition to the detailed regulation of business corpora
tions (including foreign corporations)28 South Carolina
28 S. C. Code §§12-1 to 12-1083 (1952).
29
law requires and authorizes various licenses,29 imposes
taxes,30 and requires state and authorizes local health regu
lation31 of this type of business. As Mr. Justice Douglas
wrote in Garner v. Louisiana, 368 U. S. at 183-84:
A state may not require segregation of 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
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. 163 US at
29 Chain stores are licensed by the state, S. C. Code §§65-1381-
1391 (1952). S. C. Code §§25-51, 52 (1952), authorizes towns and
cities to regulate, license and inspect restaurants and lunch coun
ters. When city or town ordinances are not complied with, the
license may be revoked and the licensee subject to criminal penal
ties, S. C. Code §§52-53, 54 (1952). Respondents’ Opposition to Pe
tition for Writ of Certiorari, p. 5, is, therefore, incorrect when it
states: “ The only license it [Kress & Company] is dependent upon
is the continued good will of the buying public.”
30 South Carolina law requires a license tax, S. C. Code §65-1382
(1952). Retail stores collect a sales tax (Chain Store Tax), S. C.
Code §65-1401 (1952) and are required to keep and preserve records
of gross receipts, S. C. Code §65-1449 (1952). In addition, South
Carolina has a use tax which applies to retailers, S. C. Code §§65-
1421-1433 (1952).
31 State law prescribes comprehensive regulations for places where
food is to be served. See Rules and Regulations, S. C. Code, Title 7,
pp. 593-596. Restaurants are inspected and graded, Ibid, at pp. 593-
4; must display the grade received on health inspection, Ibid, at
p. 593; keep outside doors screened, S. C. Code §35-125 (1952);
furnish a clean towel and individual soap (use of roller towels pro
hibited) S. C. Code §35-126 (1952); clean refrigerators and venti
late kitchens, S. C. Code §35-130 (1952); cover garbage in barrels
or galvanized iron cans, S. C. Code §35-133 (1952). Restaurant em
ployees must receive a physical examination before employment,
S. C. Code §35-135 (1952). Local regulation is authorized by S. C.
Code §§25-51 et seq. (1952).
30
554. And there can be no difference, in my view, be
tween one kind of business that is regulated in the pub
lic interest and another kind so far as the problem of
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 rea
son of the Equal Protection Clause of the Fourteenth
Amendment.
In Public Utilities Comm’n v. Poliak, 343 IT. S. 451, this
Court found sufficient governmental responsibility to re
quire 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 IJ. 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.
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 U. S. 715, 722.
31
E. No Essential Property Right of S. H. Kress and Co.
Is Here at Issue; the Right to Make Racial Distinc
tions at a Single Counter in a Store Open to the
Public Does Not Outweigh the High Purposes of
the Fourteenth Amendment.
The highest court of South Carolina attempted to dif
ferentiate this case from others which have refused to
sanction state enforcement of racial discrimination hy as
serting that it was merely neutrally enforcing (E. 57, 58)
a “ right of those in control of private property” (E. 58)
irrespective of color. The court defined the property right
as “ the liberty to revoke [the implied] license [to enter]
at any time” (E. 58).
By failing to analyze the property right in question,
however, the court, in effect, assumed that the right of the
property owner to racially discriminate was inviolate.
States can, of course, prohibit racial discrimination in
public eating places without offending any constitutionally
protected property rights.32 And though the laws violate
the Fourteenth Amendment, South Carolina and the City
of Greenville here imposed the requirement of racial seg
regation on private property owners.33 Thus, of course,
the asserted property right to treat the races as one desires
on his property is very far indeed from an absolute right
and has not even been so regarded by South 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
32 See Western Turf Ass’n v. Greenberg, 204 U. S. 359; Railway
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 & Leskes, A Century of Civil Rights, 172-
177 (1961).
33 See pp. 24 to 25, supra, citing South Carolina laws requiring
segregation on private property and R. 49 setting forth Greenville’s
segregation in eating facilities ordinance.
32
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.
Republic Aviation Corp. v. Labor Board, 324 U. 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. 20-21, 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
great deal which of the rights or privileges constituting
Kress’s property was enforced in this prosecution. Vari
ous 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
33
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. Il
lustrations include limitations that the law has placed on
those who would use their property to control the conduct
of donees, as by requiring divorce or separation,34 or with
respect to marriage,35 restrictions compelling separation of
a child from its parents,36 and requirements controlling cer
tain personal habits.37
The power to impose restraints on alienation has been
severely limited by courts and legislatures.38 Restrictive
34 Provisions requiring divorce or separation were held void in :
Dwyer v. Kuchler, 116 N. J. Bq. 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. B. 2d
661 (1945); Hawke v. Euyhart, 30 Neb. 149, 46 N. W. 422 (1890);
Cruger v. Phelps, 21 Mise. 252, 47 N. Y. S. 61 (Sup. Ct. 1897).
35 Certain marriage clauses have been held ineffective— 6 Powell,
Beal Property 1J851; A. L. I., Restatement of Property, j[849, n. 1,
§424 (1944); Maddox v. Maddox, Adm’r, 52 Va. 804 (1954).
86 Restrictions which compel the separation of a minor child from
its parent have not been viewed with favor, 6 Powell, Beal Property
1)858, 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).
37 Holmes v. Connecticut Trust <& Safe Deposit Co., 92 Conn. 507,
103 Atl. 640 (1918) (condition that conveyee’s husband abstain
from tobacco and liquor held v o id ); 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).
38 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, p. 2121 (1944) ;
Browder, Illegal Conditions and Limitations: Miscellaneous Pro
visions, 1 Olda. L. Rev. 237 (1948).
34
covenants have been limited by common law.39 Their en
forcement in courts of equity40 and courts of law41 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.42
A business man is not always free to set his own prices.
The 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.
§12e£ 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
has also been curtailed by the antitrust laws,43 as well as
common law, and even the right of a single trader has been
greatly limited.44
Numerous statutes and ordinances limit property hold
ers in their power to refuse to sell or rent on grounds of
39 Porter v. Barrett, 233 Mich. 373, 206 N. W. 532 (1925).
40 Shelley v. Kraemer, 334 U. S. 1.
41 Barrows v. Jackson, 346 U. S. 249.
42 Gray, The Rule Against Perpetuities §201 (4th ed. 1942) ; 6
Powell, Real Property, |j759-827; Leach, Perpetuities in a Nutshell,
51 Harv. L. Rev. 638 (1938).
43 Klor’s v. Broadway-Hale Stores, 359 U. S. 207 (1959) ; Lorain
Journal Co. v. Z7. S., 342 U. S. 143 (1951).
44 United States v. Colgate, 250 IT. S. 300 (1919) ; See U. S. v.
Parke Davis <& Co., 362 U. S. 29 (1960) ; Rankin, The Parke, Davis
Case, 1961 Antitrust Law Symposium, New York State Bar As
sociation Section on Antitrust Law 63 (1961).
35
race or color45 or to refuse to serve patrons in public ac
commodations on the grounds of race or color.46 Histor
ically, the right to select customers has been limited by
common law and statute.47 It is well known that innkeepers
45 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, e. 128; Minn.
Stat. Ann. §§363.01-. 13, as amended by L. 1961, e. 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 Rail Apartments, 10 Misc. 2d
334, 170 N. Y. S. 2d 750 (Sup. Ct. 1958).
46 Cal. Civil Code, §§51-52 (Supp. 1960); 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. 1960) ; 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) ;
Ohio Rev. Code §4112.02 (G) (Supp. 1961); Ore. Rev. Stat.
§§30.670-.680, as amended by L. 1961 c. 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) ; Yt. 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).
47 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 Ed. I l l , Stat. 1
(1350) (no one could refuse to practice his calling to whomsoever
applied). The following statutes penalized a businessman’s refusal to
36
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 absolute 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 settled, fundamental
legal truth. Property owners have been compelled to de
stroy valuable cedar forests which harbored fungus threat
ening neighboring apple orchards,48 to spend funds to
install fire extinguishing equipment,49 to limit the size of
billboards,50 and to make loaves of bread a certain size.51
Moreover, employers have been compelled to allow labor
organizational activities to be conducted on their property.52
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
serve all comers: (1357), 31 Ed. I l l , c. 10 (victualers); (1360), 35
Ed. I l l (fishermen); (1433), 11 Hen. VI, c. 12 (candlers) ; (1464),
4 Ed. IV, c. 7 (shoemakers) ; Lane v. Cotton, 1 Ld. Raym. 646, 655;
1 Salk. 18, 19; 12 Mod. 472, 484 ( “ 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 . . . ” ).
48 Miller v. Schoene, 276 U. S. 272 (1928).
49 Queenside Hills Realty Co. v. Saxl, 328 U. S. 80 (1946).
50 Sender v. Oregon State Board of Dental Examiners, 394 U. S.
608 (1935) ; St. Louis Poster Advertising Co. v. St. Louis, 249 U. S.
269 (1919); Thomas Cusack Co. v. Chicago, 242 U. S. 526 (1917).
51 Schmidinger v. Chicago, 226 U. S. 578.
52 N.L.R.B. v. Babcock & Wilcox Co., 351 U. S. 105 (1955); Re
public Aviation Corp. v. N.L.R.B., 324 U. S. 793 (1945).
37
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 discrim
inate 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 Negroes
and whites alike in fifteen to twenty departments selling
over 10,000 items with the sole exception that Negroes are
not served at the lunch counter which is reserved for
whites (E. 14, 20-22). As in Shelley v. Kra-emer, 334 U. S. 1,
10, the restriction did not limit the type of use made of the
premises, nor the type of person 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
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.
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
3 8
stroys the whole bundle of rights. That result would be
contrary to the entire genius of 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
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 Cty.
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
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. Kraenter, 334 IT. S. 1, 22.
F. In Any Event the Convictions Below Must Fall When,
in Addition to the Foregoing, South Carolina Has
Failed to Protect Negro Citizens in the Right to Equal
Access to Public Accommodations.
Here, however, we have more than the elements set
forth above— State arrest, conviction and prison term;
implementation of a community custom of racial segrega
tion generated by state law; enforcement of an odious
property right of minor consequence to the owner; elab
39
orate state initiative and involvement in establishment and
maintenance of the enterprise. Here the State has failed
to provide what the Civil Bights Cases assumed the States
did provide: “ a right to enjoy equal accommodation and
privileges,” 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 re
fusal to act can deny the equal protection of the laws.
Burton v. Wilmington Parking Authority, 365 U. S. 715,
725; Terry v. Adams, 345 IT. S. 461, 469; Truax v. Cor
rigan, 257 U. 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,53 for the phrase, no state shall
deny equal protection, refers even more naturally to state
inaction 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.
Cas. 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
53 See, generally Mr. Justice Harlan dissenting in Civil Rights
Cases, 109 U. S. 3, 26-62.
4 0
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
Wilson 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 protec
tion shall be provided for all persons.
2. That a failure to enact the proper laws for that pur
pose, 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.54
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.55
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 citizens
54 Cong. Globe, 42nd Congress, 1st Sess., p. 483 (1871).
55 Cong. Rec., 43d Cong., 1st Sess. 412 (1874).
41
from depriving by force any of their fellow citizens
of these rights.56 (Emphasis added.)
This view is endorsed by the opinion in the Civil Rights
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 ac
commodation without racial discrimination:
We have discussed the question presented by the law
on the assumption that a right to enjoy equal accomoda
tions and privileges in all inns, public conveyances and
places of public amusement, is one of the essential
rights of the citizen which no state can abridge or in
terfere 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
appears? (109 U. S. at 24). (Emphasis added.)
56 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 Rep
resentative 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 im
dividuals violating the rights of others. Cong. Globe, 42d Congress,
1st Sess. 459.
42
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 pri
vate individuals when, as he presumed, the States were
exercising their responsibilities toward the goal of eliminat
ing racial discrimination. While he concluded in the nega
tive, it is extremely doubtful that the result would have
been the same if a state had been found to be in effect
sanctioning private discrimination by laxity in this regard.
See Konvitz & Leskes, A Century of Civil Rights 150
(1961); Abernathy, Expansion of the State Action Con
cept Under the Fourteenth Amendment, 43 Cornell L. Q.
375, 376; Hale, Force and the State: A Comparison of
“Political” and “Economic” Compulsion, 35 Colum. L. Rev.
149, 184 (1935); Poliak, Racial Discrimination and Judicial
Integrity: A Reply to Professor Wechsler, 108 IT. Pa. L.
Rev. 1, 21 (1959).
This case, therefore is like Burton v. Wilmington Park
ing Authority, 365 U. S. 715, 725:
[T]he Authority could have affirmatively required
Eagle to discharge the responsibilities under the Four
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 positively and negatively sanctioned the racial segre
gation which gave rise to this case.
43
II.
The Decision Below Conflicts With Decisions of This
Court Securing the Right of Freedom of Expression
Under the Fourteenth Amendment to the Constitution
of the United States.
A. The Enforcement of the State and City Segregation
Policy and the Interference of the Police Violated
Petitioners’ Right to Freedom of Expression.
Petitioners were engaged in the exercise of free ex
pression, by verbal and nonverbal requests to the manage
ment for service, and nonverbal requests for nondiscrimina-
tory lunch counter service, implicit in their continued
remaining in the dining area when refused service. As Mr.
Justice Harlan wrote in Garner v. Louisiana-. “We would
surely have to be blind not to recognize that petitioners
were sitting at these counters, when they knew they would
not be served, in order to demonstrate that their race was
being segregated in dining facilities in this part of the
country.” 368 U. S. at 201. Petitioners’ expression
(asking for service) was entirely appropriate to the time
and place at which it occurred. They did not shout or
obstruct the conduct of business. There were no speeches,
picket signs, handbills or other forms of expression in the
store possibly inappropriate to the time and place. Rather
they offered to purchase in a place and at a time set aside
for such transactions. Their protest demonstration was a
part of the “ free trade in ideas,” Abrams v. United States,
250 U. S. 616, 630, Holmes, J., dissenting, within the range
of liberties protected by the Fourteenth Amendment, even
though nonverbal. Stromberg v. California, 283 U. S. 359
(display of red flag) ; Thornhill v. Alabama, 310 U. S. 88
(picketing); West Virginia State Board of Education v.
4 4
Barnette, 319 U. S. 624, 633-634 (flag salute); N.A.A.C.P.
v. Alabama, 357 U. S. 449 (freedom of association).
Questions concerning freedom of expression are not re
solved merely by reference to the fact that private property
is involved. The Fourteenth Amendment right to free ex
pression on private property takes contour from the cir
cumstances, in part determined by the owner’s privacy,
his use and arrangement of his property. In Breard v.
Alexandria, 341U. S. 622, 644 the Court balanced the “house
holders’ desire for privacy and the publisher’s right to
distribute publications” in the particular manner involved,
upholding a law limiting the publisher’s right to solicit on
a door-to-door basis. But cf. Martin v. Struthers, 319 U. S.
141, where different kinds of interests led to a correspond
ing difference in result. Moreover, the manner of asser
tion and the action of the State, through its officers, its
customs and its creation of the property interest are to be
taken into account.
In this constitutional context it is crucial, therefore,
that the stores implicitly consented to the protest and did
not seek intervention of the criminal law. For this case
is like Garner v. Louisiana, supra, where Mr. Justice Har
lan, concurring, found a protected area of free expression
on private property on facts regarded as involving “ the
implied consent of the management” for the sit-in demon
strators to remain on the property. Petitioners informed
the management that there would be a protest and received
assurance that the management would not resort to the
criminal process. Petitioners were not asked to leave the
counter until the police arrived and the manager talked
with the police. Petitioners were not permitted, at the
trial, to inquire if the request to leave was arranged by the
police (E. 22, 23). It does not appear that anyone connected
with the store signed an affidavit or complaint against
45
petitioners. The police officer proceeded immediately to
arrest the petitioners without any request to do so on
the part of anyone connected with the store.
In such circumstances, petitioners’ arrest must be seen
as state interference in a dispute over segregation at this
lunch counter, a dispute being resolved by persuasion and
pressure in a context of economic and social struggle be
tween contending private interests. The Court has ruled
that judicial sanctions may not be interposed to discrim
inate against a party to such a conflict. Thornhill v. Ala
bama, supra; San Diego Bldg. Trades Council v. Garmon,
349 U. S. 236.
But even to the extent that the store may have acquiesced
in the police action a determination of free expression
rights still requires considering the totality of circum
stances respecting the owner’s use of the property and the
specific interest which state judicial action supports. Marsh
v. Alabama, 326 U. S. 501.
In Marsh, this Court reversed trespass convictions of
Jehovah’s Witnesses who went upon the privately owned
streets of a company town to proselytize, holding that the
conviction violated the Fourteenth Amendment. In Re
public Aviation Corp. v. N.L.R.B., 324 U. S. 793, the Court
upheld a labor board ruling that lacking special circum
stances employer regulations forbidding all union solicita
tion on company property constituted unfair labor prac
tices. See Thornhill v. Alabama, supra, involving picketing
on company-owned property; see also N.L.R.B. v. American
Pearl Button Co., 149 F. 2d 258 (8th Cir. 1945); United
Steelworkers v. N.L.R.B., 243 F. 2d 593, 598 (D. C. Cir.
1956), reversed on other grounds, 357 U. S. 357, and com
pare the cases mentioned above with N.L.R.B. v. Fansteel
Metal Corp., 306 U. S. 240, 252, condemning an employee
46
seizure of a plant. In People v. Ba-risi, 193 Misc. 934, 86
N. Y. S. 2d 277, 279 (1948) the Court held that picketing
within Pennsylvania Railroad Station was not a trespass;
the owners opened it to the public and their property rights
were “ circumscribed by the constitutional rights of those
who use it.” See also Freeman v. Retail Clerks Union,
Washington Superior Court, 45 Lab. Rel. Ref. Man. 2334
(1959); and State of Maryland v. Williams, Baltimore City
Court, 44 Lab. Rel. Ref. Man. 2357, 2361 (1959).
In the circumstances of this case the only apparent state
interest being subserved by these trespass prosecutions is
support of the property owner’s discrimination, which the
manager testified was caused by the State’s segregation
custom and policy and the express terms of the City Ordi
nance. This is the only “ interest” that the property owner
can be found to have asserted.
Where free expression rights are involved, the question
for decision is whether the relevant expressions are “ in
such circumstances and . . . of such a nature as to create
a clear and present danger that will bring about the sub
stantive evil” which the State has the right to prevent.
Schenck v. United States, 249 IT. S. 52. The only “ sub
stantive evil” sought to be prevented by these trespass
prosecutions is the stifling of protest against the elimina
tion of racial discrimination, but this is not an “ evil” within
the State’s power to suppress because the Fourteenth
Amendment prohibits state support of racial discrimina
tion. See Cooper v. Aaron, 358 U. S. 1; Terminiello v.
Chicago, 337 U. S. 1; Sellers v. Johnson, 163 F. 2d 877
(8th Cir. 1957), cert, denied 332 U. S. 851.
47
B. The Convictions Deny Petitioners’ Right to Freedom
of Expression in That They Rest on a Statute Which
Fails to Require Proof That Petitioners Were Re
quested to Leave by a Person W ho Had Established
Authority to Issue Such Request at the Time Given.
In the courts below petitioners asserted that the statute
in question denied due process of law secured by the Four
teenth Amendment to the Constitution of the United States
in that it did not require that the person requesting them
to leave the lunch counter establish his authority to make
the demand. Although this issue was pressed below, the
Supreme Court of South Carolina failed to construe the
statute to require proof that the person who requested
them to leave establish his authority.
If in the circumstances of this case free speech is to be
curtailed, the least one has a right to expect is reasonable
notice in the statute under which convictions are obtained,
to that effect. Winters v. New York, 333 U. S. 507. Here,
absent a statutory provision that the person making the
request to leave be required to communicate that authority
to the person asked to leave, petitioners, in effect, have
been convicted of crime for refusing to cease their pro
tests at the request of a person who could have been a
stranger. The stifling effect of such a rule on free speech
is obvious. See Wieman v. Updegrdff, 344 U. S. 183; Smith
v. California, 361 U. S. 147.
The vice of lack of fair notice was compounded where,
as here, petitioners were convicted under a statute which
designated two separate crimes, see supra p. 2, and a
warrant which failed to specify under which section the
prosecution proceeded (R. 5, 2, 3). Moreover, the warrant
and the trial court stated that petitioners were charged with
“ trespass after warning” (R. 2) (Section (1) of the Stat
ute speaks of being “warned” ; Section (2) “without having
4 8
been warned” ), but the prosecution offered no proof that
petitioners had been “warned” within six months as re
quired by Section (1) and apparently proceeded on the
theory that Section (2) of the statute was involved.
This record is barren of any attempt by the City of
Greenville to prove that the person who requested peti
tioners to leave identified his authority to do so to petition
ers, and the courts of South Carolina, although urged by
petitioners, failed to require such proof. While one of the
petitioners brought out, when questioned by her own coun
sel, that she had spoken to the manager previously,57 there
is no evidence that the other petitioners knew the authority
of the person who gave the order to leave. With rights
to freedom of expression at stake, the City should be re
quired to provide clear and unambiguous proof of all the
elements of the crime. Identification of authority to make
the request to leave is all the more important because of
the active role played by the police in this case, for if the
police were enforcing segregation clearly petitioners had
a right to remain at the counter. Garner v. Louisiana,
supra.
No one ordinarily may be expected to assume that one
who tells him to leave a public place, into which the pro
prietor invited him and in which he has traded, is authorized
to utter an order to leave when no claim of such authority
is made. This is especially true in the case of a Negro seat
ing himself in a white dining area in Greenville, South
Carolina—obviously a matter of controversy and one which
any stranger, or the police of a city with a segregation
ordinance, might be expected to volunteer strong views. If
the statute in question is interpreted to mean that one must
leave a public place under penalty of being held a criminal
57 She also testified that the police, not the manager, gave the
order for petitioners to leave (R. 37, 41).
49
when so ordered to do so by a person who later turns
out to have been in authority without a claim of authority
at the time, it means as a practical matter, that one must
depart from public places whenever told to do so by any
one ; the alternative is to risk fine or imprisonment. Such
a rule might be held a denial of due process. Cf. Lambert v.
California, 335 U. S. 225. But if such is the rule the statute
gives no fair warning, Winters v. New York, supra; Burstyn
v. Wilson, 343 U. S. 495; Saia v. New York, 334 U. S. 558;
Chaplinsky v. New Hampshire, 315 U. S. 568. Absent such
notice, petitioners surely were entitled to assume that one
may go about a public place under necessity to observe
orders only from those who claim with some definiteness
the right to give them.
Indeed, as a matter of due process of law, if it is the
rule one must obey all orders of strangers to leave public
places under penalty of criminal conviction if one uttering
the order later turns out to have had authority, petitioners
are entitled to more warning of its harshness than the stat
ute’s text affirmed. Cf. Connolly v. General Construction
Co., 269 U. S. 385; Lametta v. New Jersey, 306 U. S. 451.
Otherwise many persons-—like these petitioners—may be
held guilty of crime without having intended to do wrong.
This Court has said, however, that :
The contention that an injury can amount to a crime
only when inflicted by intention is no provincial or
transient notion. It is as universal and persistent in
mature systems of law as belief in freedom of the
human will and a consequent ability and duty of the
normal individual to choose between good and evil.
Morrissette v. U. S., 342 U. S. 246, 250.
5 0
Morrissette, of course, involved a federal statute as treated
in the federal courts. But it expresses the fundamental view
that scienter ought generally to be an element in criminality.
See Sayre, Public Welfare Offenses, 33 Columbia L. Rev.
55, 55-6 (1933). The pervasive character of scienter as an
element of crime makes it clear that a general statute like
the ordinance now in question, in failing to lay down a
scienter requirement, gives no adequate warning of an
absolute liability. Trespass statutes like the one at bar
are quite different from “public welfare statutes” in which
an absolute liability rule is not unusual. See Morrissette
v. United States, supra, 342 IT. S. at 252-260.
On the other hand, however, if South Carolina were to
read a scienter provision into this ordinance for the first
time—which it has failed to do although the issue was
squarely presented in this case—the lack of the necessary
element of guilt, notice of authority, would require reversal
under authority of Garner v. Louisiana, supra; Thompson
v. City of Louisville, 362 TJ. S. 199.
5 1
CONCLUSION
For the foregoing reasons, it is respectfully submitted
that the judgments below should be reversed.
Respectfully submitted,
J ack G reenberg
Constance B aker M otley
J ames M. N abrit, III
M ichael M eltsner
10 Columbus Circle
New York 19, N. Y.
M atthew J. P erry
L incoln C. J en k in s , Jr.
Columbia, South Carolina
W illie T. S m ith
Greenville, South Carolina
Attorneys for Petitioners
L eroy Clark
W illiam T. Coleman , Jr.
W illiam R. M in g , J r .
L ouis H . P ollak
Of Counsel
1
V