Shuttlesworth v Birmingham AL Brief for Respondent

    IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1962.
A i ' a: /..!■) _ y  AT l .A W

___________________ B 1 0 -514 IV,AS$0N1C BLDO.
1630 - 4 th AVENUE NORTH 

BIRMINGHAM, ALABAMA!
No. 67.

F. L. SHUTTLESWORTH and CHARLES BILLUPS,
Petitioners,

vs,

CITY OF BIRMINGHAM,
Respondent.

BRIEF FOR RESPONDENT.

WATTS E. DAVIS,
WILLIAM C. WALKER,
EARL McBEE,

600 City Hall Building, 
Birmingham, Alabama, 

Attorneys for Respondent,

St. Loras L aw  Pointing Co., Inc., 415 N. Eighth Street. CEntral 1-4477.



INDEX.

Page
Statement in opposition to constitutional and statu­

tory provisions involved ........................................   1

Statement in opposition to question presented for 
review .................................   2

Argument ......................................................................  4
I. Statutory provisions involved ...........................   4

II. Fourteenth Amendment does not require re­
versal of petitioners’ conviction .........................   6
A. There is evidence in the record upon which

petitioners’ conviction may be affirmed . . . .  6
B. Petitioners have not been deprived of consti­

tutionally protected freedom of assembly or 
speech ...............................................................    13

C. The ordinance for which petitioners were con­
victed is not so vague as to be constitution­
ally vulnerable ..............................................   15

Conclusion .......................................    16

Certificate of service .....................    17

Cases Cited.

Allen-Bradlev Local, etc., v, Wisconsin Employment 
Relations Board, 315 U. S. 740, at page 746, 62 S. Ct.
820, at page 824, 86 L. Ed. 1154 .............................  4

Browder v. Gayle, 142 F. Supp. 707 .................... .. 15
Bullock v. U. S., 265 F. 2d 683, cert, denied, 360 IT. S.

909, 932 ......................................    14



ii

Com. v. Randolph, 146 Pa. 83, 23 A. 388 ......... 13

Davis v. State, 36 Ala. App. 573, 62 So. 2d 224 .......... 11

Garner v. State of Louisiana, 82 S. Ct. 248
(1961) ...................................................................5,6,10,11

Gulf, M. & N. R. Co. v. Weldy, 8 So. 2d 249, 193 Miss.
59, 144 A. L. R. 930 ................................. .. .............. .. 5

Hancock v. Kelly, 81 Ala. 368, 2 So. 281 ................. ... 10

Jones v. State, 174 Ala. 53, 57 So. 31, 32 ......... 12

Kovacs v. Cooper, 336 U. S. 77, 88 .............................  14

Local No. 8-6, Oil, Chemical and Atomic Workers In­
ternational Union, AFL-CIO, v. Missouri, 80 S. Ct.
391, 361 U. S. 363, 4 L. Ed. 2d 373 ....................... .. 4

National Labor Relations Board v. Fansteel Metallur- 
gical Corporation, 306 U. S. 240 .................................  10

Ohio Bell Telephone Co. v. Public Utilities Commis­
sion, 301 U. S. 292, 302, 57 S. Ct. 724, 729, 81 L. Ed.
1093 .................................................................................. 5

Parsons v. State, 33 Ala. App. 309, 33 So. 2d 164 . . . .  12
Pruett v. State, 33 Ala. App. 491, 35 So. 2d 1 1 5 .......... 12

Southern Coal & Coke Co. v. Swinney, 149 Ala. 405,
42 So. 808 ............................................................................  10

State v. Bowers, 35 S. C. 262, 14 S. E. 488, 15 L. R. A.
199 ....................................................................................  13

State v. Bowles, 70 Kan. 821, 79 P. 726, 69 L. R. A. 176 13 
State v, Hampton, 210 N. C. 283, 186 S. E. 251............  13

Thompson v. City of Louisville, 362 U. S. 1 99 ..........7, 9,10

U. S. v. Peace Information Center, D. C., D. C. 1951,
97 Fed. Supp. 255 .............................................................  14

Williams v. Howard Johnson, 268 J. 2d 845 . . . . . . 15



Statutes Cited.

City of Birmingham General Code, 1944, Section 369.. 1,4 
City of Birmingham General Code, 1944, Section

824 .................     .11,15,16
Code of Alabama 1940:

Title 7, Section 225 ..............    5
Title 14, Section 1 4 .................................................... • • H

Constitution of the United States, Fourteenth Amend­
ment .......................................................................... 2,14



IN THE

SUPREME COURT OF THE UNITED STATES,

OCTOBER TERM, 1962.

No. 67,

F, L, SHUTTLESWORTH and CHARLES BILLUPS, 
Petitioners,

vs,

CITY OF BIRMINGHAM,
Respondent,

BRIEF FOR RESPONDENT.

STATEMENT IN OPPOSITION TO CONSTITUTIONAL 
AND STATUTORY PROVISIONS INVOLVED.

Petitioners, for the first time since their arrest, now
contend before this Court that an alleged Section 369 of 
the General Code of the City of Birmingham of 1944- is 
involved in the instant controversy (p. 2). This section 
purportedly requires restaurant operators to provide sepa­
rate facilities for members of the white and colored races 
(ibid.).



Since Petitioners made no issue of any such ordinance 
in the state courts, your Respondent respectfully submits 
that any such ordinance is not an appropriate subject for 
controversy in this proceeding.

Respondent further urges that Section 1 of the Four­
teenth Amendment to the Constitution of the United 
States (p. 2) is in no way involved in this proceeding, since 
neither the aiding and abetting ordinance (Section 824), 
nor the trespass after warning ordinance (Section 1436), 
involve or are in any way predicated upon racial or other 
considerations finding protection in the Fourteenth Amend­
ment.

STATEMENT IN OPPOSITION TO QUESTION 
PRESENTED FOR REVIEW.

Petitioners present a single question for the review of' 
this Court (p. 3).

The question is predicated upon the supposition that 
“ Alabama has convicted petitioners" of inciting or aid­
ing or abetting another to go or remain on the premises 
of another after being warned not to do so.

Petitioners then propose for review by the Court the 
question of whether, in convicting and sentencing the 
petitioners, “ has Alabama denied liberty, including free 
speech, secured by the due process clause of the Four­
teenth Amendment?"

The State of Alabama is not a named party in the case, 
and so far as the City of Birmingham, the respondent 
named in this cause, is aware, no effort has been exerted 
at any time to make the State of Alabama a party. Since 
“ Alabama" was not a party to the case below, and is not 
a named party before this Court, the sole question pre­
sented here for review seems entirely and completey moot.



Petitioners take occasion to also predicate their question 
presented for review (p. 3) upon the hypothesis that “ a 
Birmingham ordinance requires racial segregation in 
restaurants” .

The petitioners’ reference to such an alleged ordinance 
is made here before this Court for the very first time since 
the arrest of the petitioners and is not an appropriate 
matter to be considered by this Court. To otherwise rule 
would deprive the state courts of an opportunity to pass 
upon the validity or non-validity of local laws and thereby 
circumvent the entire state appellate procedures.



4 —

ARGUMENT,

I,

Statutory Provisions Involved,

It is contended by petitioners that “ Section 369 (1944)”  
of the respondent’s city code is involved in the case now 
before the Court.

The alleged ordinance requires a restaurant operator to 
maintain certain partitions and entrances for white and 
colored persons in eating establishments (pp. 2, 10).

Assuming such to be true, the propriety of suggesting 
the ordinance for the first time in this Court is completely 
out of harmony with past decisions of this Court. In the 
case of Local No. 8-6, Oil, Chemical and Atomic Workers 
International Union, AFL-CIO, v. Missouri, 80 S. Ct. 391, 
361 U. S. 363, 4 L. Ed. 2d 373, this Court said, “ Constitu­
tional questions will not be dealt with abstractly. * * * 
They will be dealt with only as they are appropriately 
raised upon a record before us. * * * Nor will we assume 
in advance that a State will so construe its law as to bring 
it into conflict with the federal Constitution or an act of 
Congress.”  The foregoing quote was adopted from the 
earlier decision of this Court in Allen-Bradley Local, etc., 
v. Wisconsin Employment Relations Board, 315 IT. S. 740, 
at page 746, 62 S. Ct. 820, at page 824, 86 L. Ed. 1154,

The records before this Court clearly show that peti­
tioners have never placed before the state courts the mat­
ter of any such ordinance requiring separation of the 
races, although lengthy and detailed pleadings were inter­
spersed throughout all of the student sit-down cases 
(Gober et al., now here in No. 66), as well as the instant
case.



—  0

Petitioners argue that an Alabama statute requires that 
ordinances of the City of Birmingham be judicially recog­
nized (p. 9—Footnote 5). Respondent agrees that its ordi­
nances are judicially noticeable, but only in appropriate 
instances.

Bearing in mind that judicial notice is a rule of evidence 
rather than a rule of pleading, Gulf, M. & N, R. Co. v. 
Weldy, 8 So. 2d 249, 193 Miss. 59, 144 A. L. R. 930, the 
suggested ordinance, to have served some defensive pur­
pose (see Code of Alabama (1940), Title 7, Section 225), 
would of necessity have had to be incorporated into a plea 
or answer to the complaint. If then, after the supposed 
ordinance was properly made an issue in the trial below, 
petitioners sought judicial notice by the Court, rules of 
evidence making it unnecessary to prove by evidence the 
existence of such an ordinance would have been entirely 
applicable. The record before the Court clearly demon­
strates, of course, that petitioners did not place the ques­
tion of such ordinance before the lower court, nor was 
any assignment of error directed to the proposition before 
the state appellate court (R. 41, 42).

This question is not a new one for this Court. In the 
recent case of Garner v. State of Louisiana, 82 S. Ct. 248 
(1961), Mr. Chief Justice Warren, in delivering this 
Court’s opinion, stated, “ There is nothing in the records 
to indicate that the trial judge did in fact take judicial 
notice of anything. To extend the doctrine of judicial no­
tice to the length pressed by respondent * * * would be 
‘ to turn the doctrine into a pretext for dispensing with a 
trial’ ” , citing Ohio Bell Telephone Co. v. Public Utilities 
Commission, 301 U. 8. 292, 302, 57 S. Ct. 724, 729, 81 
L. Ed. 1093. The foregoing opinion further recited the 
inherent danger of a court taking upon itself the preroga­
tive of unsolicited judicial notice in the absence of insert­
ing same into the record by saying a party, “ * * * is de­



6

prived of an opportunity to challenge the deductions 
drawn from such notice or to dispute the notoriety or 
truth of the facts allegedly relied upon.”

In light of the Garner opinion, supra, and in light of 
the fact that the record discloses nowhere that the court 
below, either upon solicitation of counsel or otherwise, 
took or refused to take judicial notice of any such ordi­
nance, and further, that no assignment of error before 
the state appellate court made any reference whatever to 
the existence of such an ordinance, thereby affording the 
state appellate court an opportunity to rule on any ques­
tion relating to the validity of the ordinance, your re­
spondent respectfully urges that no constitutional or other 
questions dependent upon such an ordinance are properly 
before this Court for review. To rule otherwise would 
completely dispense with the need for filing pleadings 
since the Court would be required, under petitioners’ 
theory, to at all times be alert to every ordinance of the 
City of Birmingham and to place them in issue whenever 
same might be applicable, thereby placing the burden 
upon the Court to, in effect, act as counsel for the person 
in whose favor the ordinance might operate.

II.

Fourteenth Amendment Does Not Require Reversal 
of Petitioners’ Conviction.

A. There is evidence in the record upon which petition­
ers’ conviction may be affirmed.

Petitioners argue that “ there is no evidence in the rec­
ord on which these convictions may be affirmed”  (p. 7).

An examination of the record reveals that on the eve­
ning of March 30, 1960 James Gober (one of the partici­
pants in the sit-downs) went to Rev. Shuttlesworth’s house



—  I

(R. 23, 27, 28); there were several people present (R. 28); 
Rev. Shuttlesworth and Rev. Billups were there (ib id ); 
the meeting was in the living room of Rev. Shuttles­
worth’s house (ibid); Rev. Shuttlesworth participated in 
the discussion about the sit-downs (ibid); Rev. Shuttles­
worth asked for volunteers to participate in the sit-downs 
(ibid); someone in the meeting made up a list (R. 30); 
Rev. Billups came to his (James Albert Davis, a partici­
pant in the sit-down demonstrations) school in a car and 
carried him to Rev. Shuttlesworth’s house (R. 31); in 
response to Rev. Shuttlesworth asking for volunteers to 
participate in the sit-downs, James Albert Davis volun­
teered to go to Pizitz at 10:30 and take part in the sit- 
downs (ibid) ; that Rev. Shuttlesworth made the announce­
ment that he would get them out of jail (R. 31, 32); that 
James Gober, James Albert Davis, and other boys attend­
ing the meeting at Rev. Shuttlesworth’s house participated 
in sit-downs in downtown stores on March 31, 1960 (R. 33).

The foregoing facts and events are substantially as 
stated in petitioners’ brief. There being no dispute as to 
the facts, the crux of the matter resolves itself around the 
question of whether these facts constituted “ any evi­
dence”  upon which the state court could conclude that Rev. 
Shuttlesworth or Rev. Billups had in any manner incited, 
aided or abetted another to go upon the premises of Pizitz 
Department Store, or any other store, and remain thereon 
“ after being warned not to do so” ; or, as stated by peti­
tioners in brief, is the record “ barren of any evidence”  of 
such fact, as in Thompson v. City of Louisville, 362 U. S. 
199.

To answer this question, may we direct the Court’s 
attention to available facts as shown by the record and 
as admitted by petitioners. Petitioners have informed this 
Court that the current wave of sit-downs is nothing new 
(p. 9). (The complaints in the instant cases were tiled



8

October 11, 1960.) Petitioners asserted in the state courts 
that sit-downs are “ well recognized symbols”  (see Peti­
tion for Certiorari in Gober et ah, a companion case, now 
before the Court in No. 66, p. 17, 1st paragraph). Peti­
tioners assert and quote authority for the proposition that 
sit-downs “ are by their inherent and manifest nature a 
protest against racial discrimination”  (p. 10).

Petitioners inform us that the participants in the sit- 
downs were at all times peaceful (pp. 10, 11); that under 
the alleged Section 369 of the respondent’s City Code 
restaurant operators were required to furnish certain par­
titions and separate entrances for white and colored races 
(p. 2). The record shows that Rev. Shuttlesworth asked 
“ for volunteers to participate in the sit-down strikes”  
(R. 31); Davis “ volunteered to go to Pizitz (department 
store) at 10:30 and take part in the sit-down demonstra­
tions” ; that Rev. Shuttlesworth “ participated in the dis­
cussion about the sit-down demonstrations”  (R. 28) and 
announced “ he would get them out of jail”  (R. 31, 32).

Admittedly, the participants were peaceful. Certainly 
they were not to be arrested for breaching the peace. The 
operators of the eating establishments, not the customers, 
were punishable under the alleged ordinance pertinent to 
restaurants. Certainly the state court should not have 
assumed that the customer was to be arrested for the op­
erators’ shortcomings, if any, under some newly alleged 
ordinance which was never injected into the case from 
the time of the arrest of the petitioners until after the 
case had left the state courts; especially is this true in the 
absence of any showing by petitioners that the eating- 
establishments failed to comply with such ordinance by 
failure to provide partitions, etc. The obvious arrest 
contemplated was the arrest which would ensue when the 
participants in the sit-downs refused to leave when re­
quested to do so. While respondent submits there is no



other conceivable interpretation to be placed upon the 
assurance of getting the participants out of .jail, if the 
state court had any reason whatever to assume from the 
evidence this to be true, then the rule of the Thompson 
case, supra, has been overcome.

But going further, it must be remembered that sit- 
downs were an established fact of life when petitioners 
were tried in the state court. Petitioners tell us they pre­
dated by far the instant trials (p. 9), which, of course, 
is a commonly known fact. Petitioners say “ sit-downs” 
are a “ well recognized symbol” ; that by good authority 
“ sit-downs” are known to have “ inherent and manifest”  
characterizations. At Rev. Shuttlesworth’s meeting, “ sit- 
downs” were discussed (R. 28); volunteers were solicited 
to participate in “ sit-down demonstrations” (ibid); one 
Davis volunteered to take part in the “ sit-down demon­
strations” (R. 31).

From every indication, everyone at Rev. Shuttlesworth’s 
meeting knew what a “ sit-down” was. Legal periodicals 
are presumed to know what a “ sit-down” is; “ sit-downs” 
had “ well recognized”  attributes. National and local 
publications had sensationalized them with detailed ac­
counts. Not once in the trial court did counsel for peti­
tioners offer any objection to use of the term “ sit-down”  
as being vague or undefinable. Neither they nor any of 
the witnesses were mystified by the use of the term but 
appeared to the contrary to be quite familiar with it. 
Everyone is apparently presumed to know what a “ sit- 
down”  is except the Alabama courts, when they say a sit- 
down is “ a form of trespass after warning”  and “ denotes 
a violation of both State law, and especially of Section 
1436 of the City Code, supra”  (R. 43, 44).

Bearing in mind that the petitioners were tried in the 
absence of'a  jury at their own behest, the trial court had

—  9 —



10

every latitude granted by law to jurors. The court had 
not only the authority, but a duty imposed by law to 
draw all reasonable inferences from the facts in evidence, 
in the light of common knowledge, common sense and 
human experience in arriving at its verdict. Southern Coal 
& Coke Co. v. Swinney, 149 Ala. 405, 42 So. 808; Hancock 
v. Kelly, 81 Ala. 368, 2 So. 281. Certainly no rational jury 
would have assumed after Rev. Shuttlesworth’s discus­
sion of the sit-downs and his promise to get the partici­
pants out of jail, that they were simply to walk to the eat­
ing counters, ask to be served, and leave the premises 
when requested to do so. The state court would have been 
remiss had it not concluded from the promise to free the 
participants in the sit-downs that they were to be defiant 
of the property owners’ directive to leave and remain 
seated at the luncheon counters, as was so demonstrably 
shown to be the case in Gober et al., now before the court 
as a companion case (No. 66). But again, this Court is 
not here concerned with the wisdom of the state court’s 
finding, or the sufficiency of the evidence, Garner, supra, 
but with whether it was based upon any evidence, as re­
quired by the Thompson case, supra.

Conceding for the sake of argument alone that the state 
court might have reached a different conclusion as to the 
effect of the evidence, certainly there was an abundance 
of evidence to support its finding as distinguished from 
the Thompson case.

The analogy of these eases by the Alabama Court of 
Appeals to the sit-down strikes in National Labor Rela­
tions Board v. Fansteel Metallurgical Corporation, 306
U. S. 240, seems so patently applicable as to warrant no 
argument from respondent in its support, except to say that 
nothing that has heretofore been before the courts offers 
a better parallel. Each attracted great attention to its 
cause, and each invaded the rights of others.



11 —

As to the part played in the sit-downs by Rev. Billups, 
the record reveals that he went to the school of one of the 
participants in the sit-downs and carried him to the meet­
ing* wherein the sit-downs were discussed (R. 31), and 
wherein volunteers were solicited to participate in the 
sit-downs (ibid). It cannot be assumed that he was not 
part and parcel of the scheme to stage the sit-downs in 
the absence of some evidence that he recused himself in 
some fashion. The record reveals that he did not testify 
and thereby avail himself of an opportunity to negative 
or otherwise explain his presence and participation in the 
meeting, as well as his procuring persons to attend the 
meeting.

Mr. Chief Justice Warren, in the Court’s opinion in 
Garner v. State of Louisiana, 82 S. Ct. 248, 253 (1961), 
stated, “ We, of course, are bound by a state’s interpreta­
tion of its own statute and will not substitute our judg­
ment for that of the state’s when it becomes necessary to 
analyze the evidence for the purpose of determining 
whether that evidence supports the findings of a state 
court.' ’

While there has been no occasion for the Alabama ap­
pellate courts to interpret Section 824 of the City’s Code, 
a very similar state statute, Section 14 of Title 14, Code 
of Alabama, 1940, says in part as follows: “ * * * And all 
persons concerned in the commission of a crime, whether 
they directly commit the act constituting the offense, or 
aid or abet (emphasis supplied) its commission, though 
not present, must hereafter be indicted, tried and punished 
as principals, as in the case of misdemeanors.”

The foregoing state statute has been construed by the 
state courts on many occasions. Davis v. State, 36 Ala. 
App. 573, 62 So. 2d 224, states, “ The words ‘ aid and abet’ 
comprehend all assistance rendered by acts or words of



— 12 —

encouragement or support. * * * Nor is it necessary to 
show prearrangement to do the specific wrong complained 
of.” (Emphasis supplied.)

In Pruett v. State, 33 Ala. App. 491, 35 So. 2d 115, the 
Court said, “ Aid and abet comprehend all assistance ren­
dered by acts or words of encouragement * * citing 
Jones v. State, 174 Ala. 53, 57 So. 31, 32.

Alabama has further ruled, “ The participation in a 
crime and the community of purpose of the perpetrators 
need not be proved by direct or positive testimony, but 
may be inferred from circumstantial evidence.”  Parsons 
v. State, 33 Ala. App. 309, 33 So. 2d 164.

While the state statute differs from the city law pri­
marily in the fact that the word “ incite”  is not found 
in the state statute, the net effect of the inclusion of the 
word ‘ ‘ incite ’ ’ in the city law could do no less than enlarge 
the scope of the city’s ordinance beyond that of the state 
statute.

The salient features of the Alabama decisions, supra, are 
that acts or words of encouragement are sufficient to bring 
an offender within the scope of the statute; that it is not 
necessary to show prearrangement to do the specific wrong 
complained of; and that the community of purpose may 
be inferred from circumstantial evidence.

Petitioners contend, “ Moreover, there is no evidence in 
this record to sustain a finding that these volunteers did 
in fact remain on the premises of another after being duly 
warned not to do so.”  While your respondent does by no 
means concede this to be a fact, the argument has no 
effect upon the question of whether petitioners incited or 
urged someone to violate a city ordinance. As mentioned 
earlier, the state statute does not include the word 
“ incite” ; consequently, there are no prior Alabama deci-



si oris on the point. However, it has been many times held 
that one inciting or soliciting another to commit an offense, 
even though the solicitation is of no effect and the offense 
counseled is not committed, is nonetheless guilty. State 
v. Bowles, 70 Kan. 821, 79 P. 726, 69 L. R. A. 176; State 
v. Hampton, 210 N. C. 283, 186 S. E. 251, citing R. C. L.; 
Com. v. Randolph, 146 Pa. 83, 23 A. 388: State v. Bowers, 
35 S. 0. 262, 14 S. E. 488, 15 L. R. A. 199. Many of the 
decisions declare inciting or soliciting the commission of 
an offense to be a common law offense. In the instant case, 
the inciting* is specifically punishable by city ordinance. 
It can hardly be rationally maintained that the offense of 
inciting another is dependent upon the occurrence of some 
subsequent event over which the inciter may in fact be 
incapable of exercising any control. Only his acts can 
determine his guilt, and not the acts of others at some 
future date.

B, Petitioners have not been deprived of constitutionally 
protected freedom of assembly or speech.

Petitioners, in addressing this question, lay great em­
phasis upon the fact that the meeting place for the dis­
cussion of the sit-downs was in a home (p. 11). While 
this line of argument may undoubtedly in many quarters 
present some emotional appeal, the home offers little cloak 
of immunity unless the proscribed acts are required by 
law to be done in a public place. To dwell upon the sub­
ject of the utility of the home as a desirable or non-de­
sirable place for the formulation of plans to perpetrate 
offenses against the public good will serve no useful pur­
pose discernable to the respondent, and since petitioners 
offer no authority to the contrary, the fact that the offense 
charged was committed in one of the petitioners’ homes 
will not be enlarged upon, other than to stipulate same 
to be true.



This Court, in Kovacs v. Cooper, 336 U. S. 77, 88, stated: 
“ To enforce freedom of speech in disregard of the rights 
of others would be harsh and arbitrary in itself.”

In U. S. v. Peace Information Center, D. C., D. C. 1951, 
97 Fed. Supp. 255, the court stated: “ It is an elementary 
principle, however, that freedom of speech is not absolute 
and unlimited, but is bounded by the rights of others than 
the speaker. For example, no one may disseminate ob­
scene matter in the name of freedom of speech. No one 
is permitted to make a statement that may incite a riot 
or create a panic. No one may urge or advise the com­
mission of a crime. No one may justify fraudulent or de­
ceptive advertising * * *. Many a crime is committed 
purely by word of mouth, such as obtaining money by false 
pretenses, extortion * * *. This list may be multiplied 
ad infinitum.”

“ The right of free speech is not absolute and this 
amendment (14th) to the Federal Constitution does not 
confer the right to persuade others to violate the law.”  
Bullock v. U. S., 265 F. 2d 683, cert, denied, 360 U. S. 909, 
932.

Petitioners argue they should be permitted to incite a 
violation of lav7 where same does not “ produce a clear 
and present danger of serious substantive evil that rises 
far above public inconvenience, annoyance, or unrest”  
(pp. 11, 12). If the constitutional guaranty afforded one’s 
property does not exceed the criterion of “ inconvenience, 
annoyance, or unrest” , as laid down by petitioners, it 
would appear that private ownership of property is not 
merely on its way out, but forever gone as one of our most 
cherished heritages.

It cannot but be of interest to note the frequency with 
which petitioners voice approval of the constitutional 
guaranty of freedom of assembly and speech and concur-

—  14 —



—  15 —

rentlv ignore that provision of the Fourteenth Amend­
ment stating: “ Nor shall any state deprive any person 
of life, liberty or property (emphasis supplied) without 
due process of lawn”  Notwithstanding that the framers 
of our Constitution thought it appropriate to guarantee 
property rights in the same breath with “ life” and “ lib­
erty” , petitioners argue that deprivation of property 
rights does not meet the level of a “ substantive evil which 
the state has the power to prevent”  (p. 12).

The case of Williams v. Howard Johnson, 268 J. 2d 845, 
clearly denounces petitioners’ parody on the Fourteenth 
Amendment in affirming that a privately owned restaurant 
(not involved in interstate commerce) is at liberty to deal 
only with such persons as it may elect.

Browder v. Gayle, 142 F. Supp. 707, further affirms the 
proposition that one may share his property or business 
with those whom he may elect unimpaired by the Four­
teenth Amendment.

Evidently, court decisions place higher regard upon the 
rights of property owners than do petitioners, and your 
respondent respectfully submits that the right of free as­
sembly and free speech does not flood in every direction 
to the defeasance of the constitutional rights of others.

C. The ordinance for which petitioners were convicted 
is not so vague as to be constitutionally vulnerable,

Petitioners were convicted for a violation of Section 
824 of the General City Code of Birmingham of 1944, 
which reads as follows:

“ Section 824. It shall be unlawful for any person 
to incite, or aid or abet in the violation of any law 
or ordinance of the city, or any provision of state 
law, the violation of which is a misdemeanor.”



16

In discussing the vague character of Section 824, peti­
tioners’ sole argument addressed to the question is that 
the ordinance does not “ give fair warning to a defendant 
of what acts are prohibited”  (p. 13). A scant perusal of 
Section 824 of respondent’s code reveals that the aiding 
or inciting of another to violate any law or ordinance of 
the City is a violation of Section 824. It appears to your 
respondent that one would have to consciously blind him­
self to the clear import of the words in the ordinance to 
lack full and complete understanding of their meaning. 
Vour respondent submits that for the ordinance to be any 
clearer the entire General City Code would have to be 
recopied into Section 824, and this might not necessarily 
lend additional clarification. Respondent submits that the 
ordinance is neither vague, equivocal or difficult of full 
understanding, but to the contrary is clear and concise in 
every detail.

CONCLUSION.

For the foregoing reasons, the petitioners’ convictions 
by the Alabama courts should be affirmed.

Respectfully submitted,

WATTS E. DAVIS,

WILLIAM C. WALKER,

EARL McBEE,
Attorneys for Respondent.

600 City Hall Building, 
Birmingham, Alabama.



—  17 —

Supreme Court of the United States.

October Term, 1962.

F, L. Shuttlesworth and Charles Billups,
Petitioner,

vs.
No, 67.

City of Birmingham.
Respondent,

CERTIFICATE OF SERVICE.

I, Earl McBee, one of the Attorneys for Respondent, City 
of Birmingham, and a member of the Bar of The Supreme 
Court of the United States, hereby certify that on the
............ day o f .............................. , 1962, I served a copy of
Respondent’s Brief in the above-styled and numbered 
cause on Jack Greenberg and on Constance Baker Motley, 
Attorneys for Petitioners, by depositing the same in a 
United States Post Office or mail box, with air mail post­
age prepaid, addressed to them at their post office address, 
namely, 10 Columbus Circle, New York 19, New York, and 
on the following respective Attorneys of Record for Peti­
tioners, whose addresses are known to Respondent, by de­
positing the same in a United States Post Office or mail 
box, witji first-class postage prepaid, addressed to Arthur
D. Shores, 1527 5th Avenue North, Birmingham, Alabama; 
Orzell Billingsley, Jr., 1630 4th Avenue North, Birming­
ham, Alabama; Peter A. Hall, Masonic Temple Building, 
Birmingham, Alabama; Oscar W. Adams, Jr., 1630 4th 
Avenue North, Birmingham, Alabama, and J. Richmond 
Pearson, 415 North 16th Street, Birmingham, Alabama.

EARL McBEE,
Attorney for Respondent.



C t i Z E l l  B I L L I N G ,
JR-

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