Griffin v. Maryland Transcript of Oral Argument

    In The
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1963 •

WILLIAM L. GRIFFIN,
vs.

ET AL.,
Petitioners,

STATE OF MARYLAND
Respondent.

CHARLES F. BARR, ET AL., vs. CITY OF COLUMBIA
SIMON BOUIE AMD TALMADGE J. NEAL 

vs.
CITY OF COLUMBIA
ROBERT MACK BELL, ET AL. V S .  STATE OF MARYLAND
JAMES RUSSELL ROBINSON, ET AL., vs. STATE OF

FLORIDA

Washington, D. C.
October 15, 1963

No. 6

No. 9

No. 10

No. 12 
No. 60

917 G STREET, N.W. 
WASHINGTON 1, D. C.

c 4266 
J 4267 
) 4268 
(. 4269



Supreme Court
ed C O N T E N T S

ao

BB

ARGUMENT ON BEHALF OF JAMES RUSSELL ROBINSON, ET. AL. 
PETITIONERS,

By Alfred I. Hopkins
ARGUMENT ON BEHALF OF THE STATE OF FLORIDA,

By George R. Georgieff
ARGUMENT ON BEHALF OF AMICUS CURIAE 

By Mr. Spritzer
(AFTERNOON SESSION ~ p. 220)

ARGUMENT OF AMICUS CURIAE
By Mr. Spritzer (resumed)

REBUTTAL ARGUMENT ON BEHALF OF THE STATE OF 
MARYLAND, RESPONDENTS,

By Russell R. Reno, Assistant Attorney 
General, State of Maryland

REBUTTAL ARGUMENT ON BEHALF OF RESPONDENTS,
CITY OF COLUMBIA,

By John W. Sholenberger
REBUTTAL ARGUMENT ON BEHALF OF THE STATE OF 
FLORIDA, RESPONDENTS,

By George R. Georgieff, Assistant Attorney 
• General, State of Florida

REBUTTAL ARGUMENT IN BEHALF OF PETITIONERS 
By Mr. Jack Greenberg

PAGE

148

169

192

220

225

238

245

254



Mills #1 146

ed 1 IN THE SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1963

WILLIAM L. GRIFFIN, ET AL.,
Petitioners,

vs.
STATE OF MARYLAND,

Respondent

CHARLES F. BARR, ET AL. ,
Petitioners,

vs.
CITY OF COLUMBIA,

Respondent

SIMON BOUIE AND TALMADGE J. NEAL,
Petitioners,

vs.
CITY OF COLUMBIA,

Respondent

ROBERT MACK BELL, ET AL.,
Petitioners,

vs.
STATE OF MARYLAND,

No. 6

No. 9

No. 10

No. 12

Respondent
x



147
-x

JAMES RUSSELL ROBINSON, ET AL.,
Petitioners,

VS M

STATE OF FLORIDA,
Respondent

No. 60

-x
Washington, D. C.
Tuesday, October 15, 1963

Oral argument in the above-entitled matters came on 
for further hearing at 10:10 a.m.

PRESENT:
The Chief Justice, Earl Warren, and Associate Justices 

Black, Douglas, Clark, Harlan, Brennan, Stewart, White and 
Goldberg.

APPEARANCES:



148

P R O C E E D I N G S
The Chief Justice: No. 60, James Russell Robinson, et al.,

Appellants, versus the State of Florida.
The Clerk: Counsel are present.
The Chief Justice: Mr. Hopkins.

ARGUMENT ON BEHALF OF JAMES RUSSELL ROBINSON, ET AL.,
PETITIONERS,
By Mr. Alfred I. Hopkins

Mr. Hopkins. Mr. Chief Justice, may it please the Court, 
this is an appeal from the Supreme Court of the State of Florida 
which affirms certain criminal convictions by the Criminal 
Court of Record in Fort Dade County, Florida, involving 13
appellants.

The adjudication by the trial court was had pursuant to 
Section 509.141 of the Florida statutes. This chapter, or this 
section, is set forth on page 8 of the appendix of appellants ' 
main brief.

To begin with an analysis of the statute, so we will know 
what the case is about —  the statute is a rather unwieldy 
piece of legislation. It provides in essence, insofar as it 
is germane to this case, that if any person enter a restaurant, 
and if his presence or continued presence is, among other reasons, 
in the opinion of the management thought to be detrimental to 
the business, then the manager may request that this patron 
leave the premises. If the patron declines to leave, the



149

manager may then call the police. If he still declines to 
leave, he is deemed to be illegally on the preraises, and subject 
to arrest and conviction for a misdemeanor.

The statute also provides for certain other criteria of 
undesirability, such as persons being intoxicated, immoral, pro­
fane, lewd or brawling. But then at the end it has this rather 
generalized provision that any other person who in the opinion 
of the management -- the presence of such a person would be 
detrimental to the business, that person may be ejected from 
the premises.

Justice Goldberg: Doesn’t it say the continued presence
—  isn't that what it says? What is meant by the word at the 
end "any longer to entertain". Does this statute at all fit 
this case in any sense? Does this restaurant owner ever give 
any accommodations to these particular people?

Mr’. Hopkins: Not in terms of food. They were seated.
If I may explain from the beginning —

Justice Goldberg: They took seats.
Mr. Hoplins: They took seats.
Justice Goldberg: The reason I ask you that question —

I don’t want to interfere with your argument —  I thought that 
this statute, if you read it in accordance with its words, is 
obviously designed to cover a situation where a man might come 
in and then having been a guest, admitted and invited, do some­
thing or carry on in such a way that the owner decided that no



150

longer would they want him as a guest. And I did not believe 
that under the facts of this case that they were ever really a 
guest at the restaurant.

Am T. wrong in that, from the factual record?
Mr. Hopkins: I wish I had seen the point in the trial *

court. We did not raise that particular issue. But they were 
never served any food at all. What happened was this.

The appellant, constituting 18 persons, and being both 
Negroes and white persons in association with Negroes, entered 
into a department store in Miami, Florida, called Shell City. 
Shell City has 19 departments, one of which is a restaurant.
It serves the public, Negro and white alike, without discrimina 
tion in 18 of the departments. But in the restaurant, it draws 
the color bar.

Prior to the incident in question, which gave rise to 
these criminal prosecutions, there had been two other attempted 
sit-in demonstrations. They are mentioned very briefly in the 
record and the consequences of them are not set forth in the 
record.

On this particular day, which was in August 1960, the 
appellants walked into the restaurant, in this department store 
sat down at about five tables. They were not served when they 
sat down. They waited for service. They waited for about 
a half hour.

At the end of the half hour period, one of the appellants



151

got up from the table, walked over to a Mr. George McKelvey.
Mr. McKelvey is the Vice President of Shell City, and he is 
also the General Manager of the store.

The appellant asked Mr. McKelvey could he be served. Mr. 
McKelvey said no. The appellant asked why. He said, "I have 
nothing further to say to you."

At that point the appellant went back and joined the group 
and sat down.

Then Mr. McKelvey got on the phone and called the police 
and told them what was happening in his restaurant.

About 10 minutes later a policeman arrived, Sergeant John 
Suggs, of the Miami Police force. He then, with Mr. McKelvey, 
walked to each of the table. Mr. McKelvey again made his 
request to the appellant that they leave. They declined to 
leave. Whereupon, Sergeant Suggs took them all into custody.

Now, going back a step —  while they were in the restaurant, 
there were other persons, white persons, seated there and who 
were being served. That is clear from the record.

The manager of the restaurant testified at the trial that 
the reason for his refusal of service was the fact that the 
appellants were Negroes, or white persons in association with 
Negroes, and that in his opinion would make it detrimental to 
any longer entertain them.

So the source, the substance, the foundation of his reason 
for refusing to serve them was their color, or their association



152

with persons of color.
There is no evidence in the record that any of the appellants 

were engaged in any boisterous or noisy conduct. There is no 
evidence that they comported themselves in any fashion which 
would have included them in the other specific provisions of 
Section 509.151. They were peaceful at all times. There is no 
evidence in the record that there was any hostile crowd gathered 
around the group of appellants. There is no situation that 
would have erupted into violence, no indication of any kind 
of situation such as that .

The facts are essentially undisputed.
The appellants put on no evidence of their own. However, 

cross-examining Mr. McKelvey and his associate, Mr. Warren 
Williams, also a Vice President of Shellas City certain additional 
facts were adduced which I think should lead to a reversal of 
the judgments below.

Mr. Williams, when he was questioned, was asked why the 
appellants were refused service.

Justice Black: What page is that?
Mr. Hopkins: On page 28, Your Honor, between pages 28 to 30. 

I wanted to point out Mr. Williams' statement of the custom 
prevailing in Dade County, Florida, at that time. That was 
August of 1960, some three years and two months ago.

He indicated not once but on four different occasions that 
there was a custom in Dade County not to serve Negro and white



153

people in the same restaurant. And he indicated and said chat 
this custom forced him to do what he did.

If I may read some extracts from the record.
At the top of page 29, Mr. Williams answered the question 

of counsel. First the question.
"Do you know why these people were refused service at 

the restaurant"?
"Answer. Well basically,it is the policy of Shell‘s City 

not to serve colored people in our restaurant."
"Why?"
"Answer. That is based upon the customs, the habits, 

and what we believe to be the desire of the majority of the 
white people in this County."

Again, toward the bottom on page 29, in talking about why 
they discriminate, Mr. Williams again answers, "Well,it goes 
back to what is the custom, that is, the tradition of what is 
basically observed in Dade County would be the bottom of it.”

Justice Black: What is the precise point for which you
present this language?

Mr. Hopkins: At a later point in my argument, I wanted
to make this position, Your Honor —  that we have unconcra- 
dicted in the record a statement by the State's own witness that 
there is a custom prevalent —  was ac that time, of the white 
majority in Dade County which compelled the manager of the 
restaurant to segregate.



154

Justice Blade: You mean that if the sentiment of the
community can only he met by taking that course, that the 
Constitution would make that State action?

Mr. Hopkins: I base my position, Your Honor, on the dictum
of Just Bradley in the majority opinion of the civil rights 
cases. I grant you it is only a dictum. But he did say it.

If I may read from his statement set forth on page 27 of
•t.appellants! main brief, Mr. Justice Bradley said, "Civil rights 

such as are guaranteed by the Constitution against State aggres­
sion cannot be impaired by the wrongful acts of individuals un­
supported by State authority in the shape of lav;, customs, or 
judicial or executive proceedings."

Justice Black: I am asking this for my information. Has
this Court ever had occasion to distinguish between custom of 
the people as distinguished from the custom of the law enforce­
ment officers in the State, in long, continued legal practice —  

such as we had in the Tennessee case.
Mr. Hopkins: Your Honor, I have not found such a case.

There is a question in my mind as to what Justice Bradley meant, 
what the majority of the court meant. It is also a fact that 
one of the early civil rights acts, RS1983, uses the word 
"custom or law.”

Justice Black: You are relying on that?
Mr. Hopkins: I am suggesting that that statute repeats

the same language, and that may have been in the mind of the



155

framers of the 14th Amendment.
Justice Black: But that doesn't have any relevance in

your argument here insofar as you want co construe the 14th 
Amendment as saying that the custom of the people, or the pre­
vailing sentiment of the people shall be accepted as the lav; 
of the State.

Mr. Hopkins: I am suggesting that it may well have been,
the adopters, or the framers of the 14th Amendment, when they 
used the word "State" were thinking not simply of the agents 
of the people, that is, legislators, the administrators, the 
judges, but may well have been thinking of the body politic 
itself.

Por example —  and examples are rare in this field —  but 
in the case of Neal versus Delaware, the court was dealing 
with a provision of the constitution of the State of Delaware 
where the people of the State of Delaware had purported to 
disenfranchise or limit the franchise to white people. This 
is by way of analogy. But there was a state constitutional 
provision adopted by the people of the State. And the court 
stated —  the Supreme Court stated that that condition was 
void, because it was repugnant to the 15th Amendment to the 
Federal Constitution.

What I am getting at is this. It seems to me clear that 
the people of the state, if they act formally and politically, 
act in a political fashion through the legalism of a constitutional



156

provision, can constitute the state.
Justice Black: What percentage of the people had that

custom and sentiment? How would you find that out?
Mr. Hopkins: In this case v/e have the evidence. Mr.

Williams stated that it was the custom of the majority of the 
people.

Justice Black: That is a rather slender reed, is it not,
to rest a constitutional decision on —  as to whether the 
people —  as part of their legal system, that it has to be used 
to satisfy state lav;.

Mr. Hopkins: Mr. Justice Frankfurter indicated in Terry
and Adams, and again a dictum, that custom could have the force 
of lav; —  in fact, it is stronger than lav;.

Justice Black: I think he wrote to that effect in a case 
in Tennessee, with reference to the tax, where they had been 
taxing a railroad —  I have forgotten the name. But that was 
in line with our cases with reference to the jury, where the 
courts function so long in one way that you can say that that 
has become, some might say, the custom of the lav; enforcement 
officers and the state officials, and others might say its the 
custom of the people.

Mr. Hopkins: Your Honor, I do not bottom my case entirely
on that ground. But I do suggest it to the Court as a possible 
way of resolving this case.

As I say, authority seems to be slim or negligible. But I



157

do feel that I should bring that idea across to the Court, 
inasmuch as it is in the record, and no contradiction by any 
of the State's witnesses.

Justice Black: I was asking because I am familiar with
those cases. I am not criticizing you. Don't misunderstand.(2) fIs



Mills 
ao 1 (2)
fls. ed Mr. Hopkins: A further statement of the facts, insofar as

they involve the Florida restaurant and hotel licensing statute. 
Florida has, like many jurisdictions, elaborate regulations and 
statutory provisions governing the licensing of restaurants. 
Relevant provisions of our statute, Chapter 509., are set forth 
in the appendix to the appellant’s main brief.

The statute provides that no one may operate a restaurant 
unless he has a license. The statute provides for the establish­
ment of the Hotel and Restaurant Commission, which issues the 
licenses. This Commission is set up to encourage the public 
health, safety, and welfare -- safeguard, rather, the public 
health, safety, and welfare of the people of the State of 
Florida. No restaurant may be built vintil its building plans 
have first been approved

Justice Stewart: I suppose that is true of a house there,
too, isn’t it -- a home?

Mr. Hopkins: Yes, it is true.
Justice Stewart: You cannot build a house without a build­

ing permit.
Mr. Hopkins: My argument will be, or I will make it now, 

that the licensing requirements -- and this infusion of State 
activity into private enterprise -- would, in my view, be 
limited to places of public accommodation, places where signif­
icant community interests are affected. I would make the same 
kind of argument in this regard as counsel yesterday made with

158



ao 2 159

regard to the limit to which Shelley v. Kraemer should be 
extended. I would not suggest that Shelley v. Kraemer be 
extended to the privacy or intimacy of a home. I think the 
Court has the power, and certainly has in many other .fields of 
constitutional law, to limit the scope of certain of its doc­
trines; and I suggest that the licensing argument, which I will 
use as a brief label —  there is no reason to extend it to the 
home. It can be limited to places of public accommodation, or 
situations where significant public interests are affected.

Justice Goldberg: Well, by no stretch of the imagination
could a home be conceived of in the terms of this regulatory 
scheme which is designed, is it not, expressly for public food 
service, --

Mr. Hopkins: That's right.
Justice Goldberg: -- and that is where it comes to bear.
Mr. Hopkins: Mr. Justice Stewart was suggesting what about 

all the licensing laws, building permit laws.
Justice Stewart: And zoning laws, inspection laws, as

to plumbing and electricity and everything else. I presume they 
have that in Florida. They do in most of the States.

Mr. Hopkins: Yes, sir. But, as I say, I would limit the
application of the argument, or not extend it, to situations 
of actual privacy.

I would like to elaborate a little more on the statute, 
to indicate its scope, and indicate the extent to which the



160

State has involved itself in licensing restaurants.
They regulate fire escapes., exits, plumbing, ventilation, 

all the various safety precautions. They provide that no 
employee may be employed unless he has a health certificate.
The regulations which were adopted by the Commission pursuant 
to the statute go into minute detail, down to how much detergent 
must be put into a deep sink to properly cleanse pots and pans. 

So much for health and safety.
But the statute does not seem to stop there. In fact, it 

does not stop there.
The statute talks about the welfare of the people. 

Interestingly, in Section 509.032, on page 7 of the appendix, 
it states:

"The Commissioners shall be responsible for ascer­
taining that no establishment licensed by this Commission 
shall engage in any misleading advertising or unethical 
practices as defined by this chapter, and all other laws 
now in force or which may hereafter be enacted."
Similar to that provision, there is another provision 

on page 23 of the appendix that licenses may be revoked if 
gambling is carried on on the premises.

In addition, the regulations provide for achievement 
rating cards which are to be posted on the premises.

Justice Goldberg: What does that mean? "A" Restaurant,
"B" Restaurant, "C" Restaurant -- something like that?



ao 4 l6l

Mr. Hopkins: It is a big card that has points given for
their compliance with various health and safety provisions. I 
can show the Court an example of it.

Justice Black: Does your argument include the regulation
of a business or activity by the State to be treated for con­
stitutional purposes as though it were an actual State operation?

Mr. Hopkins: That would be my argument, Your Honor.
Justice Black: Then regulations for the home -- many of

those you mentioned are with reference to the home -- I have 
difficulty in distinguishing, constitutionally speaking, between 
ownership by a person and ownership by persons.

Mr. Hopkins: Let me, if I may, go back to the case of
Public Utilities Commission v. Pollack. That was the case of 
the radios playing in the busses and street cars here in the 
District of Columbia.

The Court, in the first part of its Opinion, stated that 
the Capitol Transit System, because of its regulation by the 
Public Utilities Commission, in placing these radios, and act­
ing in the way it did, acted in a governmental capacity; and 
that First Amendment rights or obligations were brought into play.

The Court said that it was not mere that there was a fran­
chise granted -- the Court stated that this was an enterprise 
regulated by a State agency. The Court went on to say that it 
deemed as particularly significant the fact that the Transit 
Company went to the Public Utilities Commission to get a ruling



ao 5 162
on this particular service.

Here I think if we had gone to the Florida Hotel Commis­
sion 1 or a rulings we would nave gotten the same answer neces­
sarily as we got from the Florida Supreme Court -- namely, 
that restaurant owners may discriminate.

But the important thing about the Pollack case, it seems 
to me, is that the Court has said that a regulated enterprise, 
VJhen ic acts in a field of significant public importance, 
public transportation, takes on characteristics of State 
acoion, or there is, to use the language of the Burton case, 
an interdependence between the State and private enterprise.

A similar case was Baldwin v. Morgan, a Fifth Circuit 
case, which dealt with the Terminal Building in Birmingham, 
a railroad terminal building. And the Fifth Circuit made the 
same kind of approach: that here is a facility serving a
public need, regulated by the City, and with this interdependence 
they could not discriminate against Negroes in the seating 
facilities.

I would suggest that if Capital Transit Company or some 
other public street railway system were to institute Jim Crow 
sc cups on its streetcars, that that would be unconstitutional.

I suggest --

Juscice Stewart: In both of those cases I suggest there
may be a difference, two differences. First, you are dealing 
with a monopoly, a regulated monopoly. And secondly,you are



163

dealing with instrumentalities of commerce; isn’t that true?
Mr. Hopkins: To meet the monopoly situation, the Court

said that Pollack in Pollack, that the fact that it had a 
franchise, presumably was given monopolistic powers, was unim­
portant. But even if the Court should consider it important, 
then it would seem that the monopoly situation would lead to an 
absurd result.

If you say that a monopoly, because it is a monopoly, can­
not discriminate, but 100 or 1500 restaurants, because they are 
not monopolies, can discriminate, then you get a very strange 
result.

Justice Stewart: My contention was only this: If you
have only one mass transportation monopoly, then this is the 
only way people can ride who need to use mass transportation.
If you had 1,500 or 2,000 restaurants in Dade County, Florida, 
presumably some of them will choose to serve only white people, 
some of them may choose to serve only Negro customers, some may 
choose to serve both.

Mr. Hopkins: But where the need is there, the need can
be as great and significant to the Negro who wants to eat in 
Shell's City or some other variety or department store, as the 
need for an equally important service or commodity such as 
transportation.

I do not see that food, in the middle of the day when you 
are hungry, is any less important than transportation. And the



ao 7 164

fact that there was only one enterprise that provides the com­
modity should not, in my mind, make a constitutional difference.

You have to have hundreds of restaurants in the community. 
The one transportation system can serve the whole community, 
can serve the purpose.

That is essentially the argument as to the licensing 
problem.

Justice Black: Your argument boils down, as I understand
it, to this: that since restaurants are licensed -- you leave
them in private ownership -- but the government has just as much 
power to regulate them as it would have if the government ex­
ercised governmental authority, as some nations do as to own 
all the property and decide how people shall use it, and with 
whom they shall associate.

Mr. Hopkins: They are already regulated in a great sense.
Justice Black: You would strike down the distinction,

as I understand it, under that argument. The mere fact that 
they are regulated gives the government a right to do these 
other things that you say, when it would not have that if they 
were not regulated.

Mr. Hopkins: I think it is the scope of the regulation,
which is vast here in this case.because, in addition to what I 
have mentioned, the government has visitation powers, to inspect

Justice Black: They can do that in any hotel, can't they?
Mr. Hopkins: They can. But I suggest — •



ao 8

Justice Black: Many people live in hotels and motels.
165

They are Just as strictly regulated as the others. Would it 
be held by the Constitution —  does that compel them to accept 
people into their hotel rooms they do not want., for whatever 
reason?

Mr. Hopkins: I think when the State has gone this far., 
and indicated this much of a concern and this much of a need 
for the State in adopting this kind of a comprehensive licens­
ing statute., that we have a situation which is analogous to the 
Burton problem. Burton v. Wilmington Parking Authority. The 
City needed that restaurant, otherwise its parking lot financing 
would have been in great jeopardy.

Justice Black: Which one is that?
Mr. Hopkins: Burton v. the Wilmington Parking Authority.
Justice Black: Who owned that property?
Mr. Hopkins: The property was owned by the City. But I

do not think that is the only distinction. I think there was 
a question of a public need, the public being dependent upon 
this particular facility,

I submit that the two can be related that the Court 
talked in terms of the extent —  the nonobvious ways in which 
the State has become involved in private enterprise, the degree 
to which one is interdependent with the other, a kind of 
partnership, if you will.

Justice Black: VJe have adopted in this nation, rightly



ao 9 166

or wrongly^ some people think one, some the other -- a system 
of private ownership of property. And you would obliterate 
that where the Government regulates it at all.

Mr. Hopkins: Only where there is a significant comrtvunity
interest at stake. I do not believe it is necessary to extend 
the rule, extend the doctrine to private situations. I think 
the Court can deal with this --

Justice Black: But you refer to private —  what we call
private ownership is ownership by somebody other than the 
Government. That is what is meant by the private system, is 
it not?

Mr. Hopkins: At that point I could bring up Marsh v.
Alabama.

Justice Black: Marsh v. Alabama has many other things in
connection with it that your situation does not.

Mr. Hopkins: The Capital Transit Company was, I assume,
a private enterprise. Yet in its operation in this particular 
respect it took on characteristics of a governmental activity. 
The Court went to great pains to go into that.

Justice Black: Suppose the Government could go so far
where it would be a governmental activity, in terms of contracts 
and so on, where the Government was actually doing it, and pur­
porting to put it in somebody else's hand is that the argu­
ment?

Mr. Hopkins: My argument is that this degree of interde-



ao 10 167

rbSfls

pendence --
Justice Black: —  has "been reached here.
Mr. Hopkins: -- has been reached here. I think, as a

matter of constitutional adjudication that this would not pose 
the impossible job for the Court in drawing lines. A classic 
example would be the State regulation of interstate commerce —  

how much is too much; when does a burden become undue. It is 
a difficult, paradoxical problem, every time that problem arises. 
But the Court meets it, and I believe the Court can meet it in 
this kind of situation.



#3 168

rb-1 That same approach, juridical approach in the field of 

public accommodations tilth regard to a licensing law, I think 
should be applied with regard to the Shelly & Kraemer doctrine, 
which I have not had time to talk about here this morning, but 
I adopt the same views as my colleagues from the NA ACP —  that 
we do not have to get that far that we get into the club or the 
private home; that we deal with the scope of the indignity, 
the scope of the indignity, and the'scope of the humiliation 
visited upon upon a great mass of part of our public, the Negro 
citizens —  indignity and humiliation which is visited upon them 
every day in every community in the South, and hundreds of 
restaurants and in hotels„

I think it is that —  the scope of the problem should 
indicate where a line must be drawn today.

In Burton vs. Wilmington Parking Authority the Court indicated 
that there was a problem of examining the facts of each case.
And the multitude of facts that existed in the Eurton case led 
to a conclusion of state action.

I suggest that the multitude of involvements of the state 
in the restaurants and the community at large, and of the Nation, 
if you will, require a finding of significant state action in this 
case, substantial as to bring the action within the proscription 
of the Fourteenth Amendment. And I do not believe that hypo­
thetical situations of the home need concern us.

Thank you.



169
The Chief Justice: Hr. C-eorgieff.

ARGUMENT ON BEHA IE OF THE STATE OF FLORIDA 
BY GEORGE R. GEORGIEFF

Mr. Georgieff; Mr. Chief Justice, may it please the Court,
I think by the time this day Is over you will have had quite 
enough of these cases*

So I will be very limited in my reply.
First, I would like to clear away several things. Basically 

I agree with the statement of facts that gave rise to the action 
that you are about to review here —  with several exceptions.

First, you will find nothing in this record to indicate 
that Shell's City's Restaurant was licensed by any political 
subdivision of the State of Florida. There is not a trace of 
it anywhere.

You will also find —
Justice Goldberg: What do you mean by that? Are we to

assume, since you have generally applicable statutes which 
require licensing, that this concern was operating without a 
license?

Mr. Georgieff: No. Eut we are not free to assume that it
was .

Justice Goldberg: Isn't the logical presumption to be that
people comply with the laws of your state in licensing?

Mr. Georgieff : I agree that that would be a logical pre­
sumption. But in any case we are confronted with the record that



“3 170

v/e have here. It would have beer a simple matter to establish 
that there were or were not.

Justice Goldberg: Was that an Issue that was ever contro­
verted in the litigation, that this was a licensed establishment?

Mr. Georgieff; No, sir.

Justice Goldberg: Well then, why should we take time to
consider that?

Mr. Georgieff; it is a factor in the case, Just as are the 
situations brought up by counsel here.

Justice Goldberg: I don't follow you. Are you saying it
was not licensed?

Mr. Georgieff: I cannot say that, since I don't know, sir.
Justice Goldberg: Then you are not saying that your laws

do not apply, your licensing do not apply?
I«jr 0 Georgieff: I will say this. I assume that they were.

And if they do apply, and I am sure they do, the chances are 
Shell's City was a licensed establishment.

Justice Goldberg: Well, it undoubtedly was, wasn't it?
Mr. Georgieff : I assume it was.

Sergeant Suggs, when he went around the tables, with Mr.
MeKeIvey and Mr. Williams, both of whom were vice presidents and 
one a manager of the restaurant, after these people were asked to 
leave by Mr. McKeivey at each table, Sergeant Suggs asked them 
or suggested that they should leave before anything else followed. 
When they declined, it was then that he arrested them for the



171

commission of this act. which resulted in the criminal action 
being brought against them.

So in that respect it is somewhat similar to the case you 
heard yesterday in which the police declined to do anything and 
required the individual to go down and make his complaint before 
the magistrates' court.

Now, there has been a question raised here about whether 
customs of a community should form the basis for your conclusion 
that this amounts to state action here, and if it does, you 
should then turn around and condemn what happened in Florida in 
this case.

Now, I think that there is a fair reason why you cannot 
equate customs to state action in this case.

You cannot impose your sanctions against the people of Dade 
County if they feel that they prefer generally not to associate 
in restaurants with Negroes —  the white people, that is.

Nov;, I do not for one moment suggest that either Mr.
McKelvey or Mr. Williams, whoever it happens co be, are free to 
determine for this Court what the general belief, feeling, or 
custom is in Dade County. There are over a million people in 
metropolitan Dade County right now,

I hesitate to think that Mr. Williams is qualified to pass 
on this. But even if he is, you could only impose sanctions 
based upon this custom if the government of Dade County or Florida

or the City of Miami were to abdicate any duty that it had under



5
172

your constitution and our own, for that matter, based upon
this custom,,

If they found, because of what people believe they thought, 
that they would not desire to turn around and arrest anybody for 
failing to serve a Negro, and if that became their policy, then 
I would expect that you would strike it down, based upon the 
custom as developed by the act, failure to act of the law enforce­
ment or the government of the state*

Justice Goldberg: Generally, suppose.your statute, carrying
out your argument ~~ suppose your statute had provided, as It 
does, that the restaurant shall be licensed as a public food 
service establishment; but the section had said, "Recognizing 
the custom against service to I&groes, no restaurant owner shall 
be required to serve colored people." "Shall be required." Would 
.you think that would ba a valid statute?

Mr. Georgieff : No, sir .
Justice Goldberg: Well, then, suppose the statute was

changed and it said "No restaurant shall be required to serve 
an undesirable person which shall include" if he was of the 
opinion "colored people". What about that?

Mr. Georgieff: It is a little different.
Justice Goldberg: Much different? Your first answer would

encompass that, would it not?
Mr, Georgieff: I am on tenterhooks, Mr, Justice Goldberg,

You see, when you add the affirmative mention of a class of



•b~6 173

people or a creed —  take your pick* it doesn't matter —  then 
you begin to evidence by your legislative acts and opinion some 
official opinion to which you can direct a complaint.

Justice Goldberg: So your answer would have to be in the
second instance that it would be invalid.

Mr. Georgieff: More nearly invalid than valid —  if you
make that mention.

Justice Goldberg: Now take the third one. Suppose then
you do not define who the undesirable class is., but you apply it 
in your criminal case to what the owner has defined. That is 
your case here.

Mr. Georgieff: Yes, sir. What was your question?
Justice Goldberg: Well, isn't it in practical effect the

same thing?
Mr. Georgieff: No, sir.
Justice Goldberg: Aren't you recognizing by law the custom

by permitting the owner then through the law to enforce the custom?
Mr. Georgieff: It is not in my view, sir.
Justice Goldberg: Why not?
Mr. Georgieff: I will tell you why, sir„ If we do away

with 509.141 and wipe it off the books, you are nevertheless 
confronted either with common law trespass, or the statute we have.

Justice Goldberg: Common law trespass —  i3 that criminal
trespass in your state?

Mr. Georgieff: Yes. Now, in those cases an owner of private



174

property exercises whatever he pleased as his reason to evict 
someone from his premises . If you leave it to him — •

Justice Goldberg: Let me go back there. Are you saying in 
your state you could be indicted for common lav/ trespass 
indicted? I am not talking about civil actIon.

Mr. Georgieff : Well, no, sir, I will tell you why.
Indictments invariably are returned in capital cases.

Justice Goldberg: Can you be arrested and convicted for
the offense of "common law trespass" in your state?

Mr* Georgieff: Yes.
Justice Goldberg: Pardon?
Mr. Georgieff: I'm sorry. I said yes, sir.
Justice Goldberg: You did say that.
Mr. Georgieff: Yes, sir.
Now, assuming that that is so, and it is, if you allow a man

who has a farm, a home, take your pick, whatever it is, he has
some private property —  if you allow him to determine who he shall 
have on his premises, and if he shall have them, and for how long, 
and for any reason, then does it matter that you take a section and 
create it, and you codify that which you already have extended to 
hirr, as, let's say, your majesty of the law, so that he doesn*t
have to take it into his own hands —  I fail to see any difference.
I agree depending upon how you approach it —  if you go backwards 
from your illustrations, you might come to the conclusion that 
if it does not make any difference, since custom is the basis ~~



rb~8 175

# 4 f Is

that "basically we go forward from poor beginnings to more 
sophisticated ones * And if we say to the people who own business 
establishments "If you feel" *—  and who is better qualified, 
knowing his clientele "that the continued presence of someone 
here is going to be offensive to your business and will prove 
detrimental," and you allow it to an ordinary citizen in his 
home, I do not see any difference between the two.

It is one that you extend as a matter of right and law for 
many years, centuries, perhaps, and now one that you simply draw 
forth in specific terms in relation to business establishments.



176

MILLS(4) 
jt-1

I don't know, sir, that that answers your question, but 
I hope it does.

Mow, I would like to first, in Marsh vs. Alabama —  that 
seems to be one in which there was almost a complete abdication. 
The people were denied the right to voice their expression as 
guaranteed by the First Amendment.

Now, I do not know what the velocity of this court was 
when you said what you did in Marsh. But I mentioned chat part 
of it might have been a real fear that if you did not reverse 
Marsh, that it would be a simple matter for the states to turn 
over all their communities to private individuals, and they 
would rule them as they like, by company towns.

Now, if that is real, it might foe a reason, I don't know. 
But I would like to dwell on Shelley as the basis for the re­
quest on the part of these appellants that you should imple­
ment what you did there in this case.

Now, there has been so much written about Shelley vs. 
Kraemer that I suppose it ill behooves me to speak of it. But 
in any case, I know the one thing that you did not say about 
Shelley —  you did not say that the person who sold to Shelley 
had to sell to him. All you did say was once Shelley earned 
the lawful right entitled to that property, it was not proper, 
under the Constitution of the United States, for the State of 
Missouri to deprive him of the right to the anjoyraent of that
property.



177

Nov;, he had earned it by a free sale by the party who 
had owned it, and he merely sought to enjoy that right.

If these people who came into Shell's City's Restaurant 
had been successful in securing services from the management —

Justice Black: Did they have a contract with him?
Mr. Georgieff: They had nothing, sir. Nov;, had they

been able to secure services from them i:n exchange for their 
money, you would have the situation that you do in Kraeraer.
If he sold them the food and then said, "Look, wait a minute, 
you cannot eat this food in here. You can take it, but you 
cannot eac it in here, because we do not allow that" —  based 
on custom —  then you would have the comparable situation as 
reflect in Shelley. But you do not have that here. All you 
have is somebody who says "l want to guarantee, not only chat 
I can contract, but that when I do, it will be as I wish it 
to be."

Justice Goldberg: Doesn't your statute authorize the
restaurant owner, after he has sold the food, to change his 
mind and give him back his money and say, "Get out"?

Mr. Georgieff: Yes, sir, if something occurs.
Justice Goldberg: Well, what if he just decides in his

opinion, he changes his mind, thinks it will be detrimental 
to his business in his opinion. Wouldn't the statute author­
ize under those circumstances?

Mr. Georgieff: Well, sir, I am at a loss now. We do not



173

have any decision which explains this statute.
Justice Goldberg: But the statute on its face would

purport to do that.
Mr. Georgieff: Well, there are some who say it would. I

am not certain it would. I assume that the most I can say in 
honesty, not departing from my position or doing harm to that 
of the appellants, is that if he were to put the people back 
in the position that they were before they came in, that is to 
say gave them back their money, and there were a genuine basis 
upon which he could conclude that they were detrimental, I 
take it chat is possible under the statutes.

Justice Goldberg: That is a question which bothers me.
If you look at your statute, which I find in Appendix VIII of 
the brief for appellant —  if criminal information is filed, 
and the charge is that you were intoxicated, can you defend 
against that by showing you were not?

Mr. Georgieff: If I should assume so.
Justice Goldberg: How can you defend against this par­

ticular criminal information?
Mr. Georgieff: That i3 not a defense that was ever raised

or a point that was raised at any stage of the proceedings in 
this case, Your Honor.

Justice Goldberg: Well, what would you think?
Mr. Georgieff: What would I think? You would have to

demonstrate, I suppose —  well, as a matter of fact I dare say



179
that by the provisions of the statute, the very statute, 
assuming that it is correctly quoted here —  I do not have any 
reason to believe it is not —  if you leave it to management, 
as you do in ordinary cases of trespass, there is no way. How 
do you explain to somebody who does not want you in his home 
chat you belong there? You don't.

Justice Goldberg: He says, "Get out".
Mr. Georgieff: That's right. And based upon —
Justice Goldberg: But here you are trying a person on a

criminal charge for an opinion of undesirability which pre­
sumably in this record was never articulated.

Mr. Georgieff: We do that every day in an ordinary tres­
pass, sir. That results in criminal action. It doesn't always, 
but it may.

Justice Goldberg: I don't follow you here. You said in
your original criminal action of trespass you try him because 
the owner has said, "Get out", and that is the basis of the 
trespass charge. Here that is not the basis. Here the basis 
is the opinion of the proprietor that he is not desirable. Is 
that correct?

Mr. Georgieff: Is that not the basis of the private
owners order to get out —  his own opinion that he doesn’t v/ant 
him there? I do not mean to question Your Honor. Don't mis­
understand. But I do not see how we can separate the two.

Isn't it opinion that generates in order to leave?



180

5 However arbitrary?
Justice Stewart: The basis is not the "Get out", the

basis is the refusal to leave after being told to get out.
Mr. Georgieff: Of course it is. Mo question about it.

And it is in 823 as well. You become a trespasser after 
notice, as opposed to one who simply enters on a property.

Justice Stewart: I suppose it is conceivable chat in a
defense for a trespass charge you could say "He did not tell 
me to get out" or "While he said ic, he really did not mean 
it" this is at least possible.

Mr. Georgieff: Perhaps it is, Your Honor.
Nov/, as I say, putting these two side by side you simply 

have an open legislative announcement as to one, whereas to 
the other it has been something that has developed over the 
years.

Nov/, if I, both as a private homeowner and as a restaurant 
operator, decide as to the same person, one, that I do not want 
him in my house once he is in there, and I tell him to leave 
and I no longer want him in my restaurant and I tell him to 
leave, I fail to see the difference.

Now, if there is, perhaps I can go further towards answer­
ing your question, Mr. Justice Goldberg.

Justice Goldberg: General, what puzzles me about your
whole statute —  if your construction is correct, then why the 
necessity for all the prior language in the statute, about



l8l

intoxication and other practices —  because your theory 
then would be that the owner may just say, "Get out" for no 
reason whatsoever, and never express it, and the statute 
would govern. Then in effect you are imputing through your 
legislature a concept —  having enacted a statute which de­
fines specific reasons against which a man can defend in a 
criminal case, you are now imputing a broad provision that 
for any reason, disregarding anything —  and then my question 
is how you can ever defend against the criminal intoxication 
charge by showing you are not intoxicated, because then it 
could be said that the owner in his opinion did not want you 
just because you were you.

In other words, I am raising this question, which may 
not have been raised. It is raised in the vagueness argument 
—  not exactly in these terms. Is it not to be read logically 
that the undesirable person is a person of the character, of 
the people who are specified —  not just undesirable at large. 
Mien you have a series of proscriptions in a statute which 
defines why a person is to be excluded —  and then you have a 
general one of undesirability, isn't the only way this
could be read in the criminal statute is undesirable in the 
context of the prior definition?

Mr. Georgieff: I do not think so, sir.
Justice Black: How did the court read it?
Mr. Georgieff: They did not read it at all. They simply



182
said on its face it w a 3  valid *

Justice Black: It was never under discussion?
Mr. Georgieff: No, sir.
Justice White: Did they affirm the conviction?
Mr. Georgieff: They did, sir. Inasmuch as there was no

question as to evidence, they stated, and I think you will 
find in their opinion, it is in the appendix, that since the 
only point raised was the validity of 509.141, that they con- 
eluded on its face it was totally color-blind.

Now, I do not know what went into their deliberations.
But they did not discuss the matters chat I brought up here.

Now, if I may, Mr. Justice Goldberg —
Justice Harlan: Don't we have to take the construction

of the statute by the Florida court as a matter of state lav;
-- that this statute means a man can exclude anybody for any 
reason he wants?

Mr. Georgieff: That is correct.
Justice Harlan: Then we are bound by that construction.
Mr. Georgieff: I would think you would.
If I may, Mr. Justice Goldberg, in answer to your question 

—  it is by nature —  by the nature of the property that the 
statute breaks down into four sections. And in the fourth one 
you get co the section which says "and any other person".

Nov;, I would assume that in ordinary circumstances, wher­
ever you might be, that these enumerated areas or situations



183

8 would probably provide a valid basis for anybody to act in
defense of themselves, their property, and so forth.

Nov;, when you get to the other, the area where it is 
left to the individual, it is because it is private property 
that they have to extend to him some latitude.

If the only reasons you could were for those enumerated, 
there would be enough paper in the world to write out all the 
reasons. You have got to leave something to an individual, as 
you do in ordinary trespass, as you do in other situations.
If you do not, then you will wind up in a helpless morass. You 
either enumerate beyond belief, or you leave it totally with­
out mention.

(5) Now, I do not pretend to know why they bothered to say
it the way they did in the legislature, but I assume they had 
a valid reason. And so far of course it has not been changed 
except by an insubstantial alteration by the 1961 legislature.

But it seems to me that if you do not allow some latitude 
for an individual to determine what, in his view, is going to 
be detrimental, even if it be this, however vague you may 
consider it to be, then there isn't anything chat you can 
give. If he is not drunk, if he is not brawling, if he is 
not offensive or abusive, then theoretically you cannot put 
him out even if you are offended by it, and even though you 
know it will be detrimental.

Justice Goldberg: The language is much broader than that.



184

"indulge in any language or conduct" which shall disturb the 
peace and so on.

Mr. Georgieff: I understand. There are parts of it
which are quite broad. I do not know how specific we could 
be and still have anything that was workable.

Justice Goldberg: Has this been construed by your Supreme
Court on its last phase of it and on this case?

Mr. Georgieff: No, sir. And then only on its face.
There has been no construction of it as such.

I might add, though, that these individuals, whatever we 
may personally think about the conduct that resulted —  one 
thing they knew for certain, they were neither of the enumera- 
tive things. I do not think there is any doubt about that.
The fact is that they were planning to do this very thing, 
which is .apart from what we are discussing here.

But now the question of whether this is tate action.
There has been the hue and cry raised that they were in­

formed against by the office of the State Attorney, that they 
were sentenced by a judge in the criminal court of record, 
that the district court of appeal acted on it, the Florida 
Supreme Court acted on it, and the Attorney General is now a 
part of it —  though by lav; we are required to be.

Any criminal action in the State of Florida, as is prob­
ably true in most of the jurisdictions, including the District 
of Columbia, is brought by some prosecuting arm of the Executive



135

Branch. I fail to see how this type of action makes it state 
action.

I further fail to see how Sergeant Suggs, when he arrested 
them, after a refusal to leave, in the face of this legislation, 
was doing anything but what he was required to do as a part of 
his duties as a law enforcement official.

Now, if he is given the ability, the duty, the responsi­
bility, the choice to decide whether a given act is or is not, 
then we do not need this court or any other court, because 
our police officers can decide what is a crime, then we do not 
need any courts. And before too much longer, if they become 
proficient at it, we won’t need any laws.

But the point is the legislation, as.' it exists, until you 
have had a chance to review and pass upon it, is valid. And 
we have got to presume that if you refuse to leave after you 
have been asked in accordance with the statute, and this was 
in the presence of a police officer who asked them, and even 
suggested that they leave before he arrested them, then they 
have committed those acts which, if they result in a conviction, 
constitute a misdemeanor of which they ultimately were found 
guilty by the trier of facts.

Now, custom is one thing; police action is another.
Any crime that is committed results in some type of 

prosecution, I would hope.
Nov;, admittedly there are times when choices are made as



136

to which way to go. But that is not done by law enforcement; 
that is done by prosecution and/or the court, which is the 
proper place for it to repose.

But it is idle to say that because all of these circum­
stances which led to the case findings its way here, that 
becomes state action. The state did not advocate anything. 
They had a statute which simply says that people are going to 
be allowed to exercise the right over their property, and 
therefore who flies into the face of this request after it has 
been in accordance therewith is guilty if it results in a 
trial and a finding of guilt.

Nov;, there was a reluctance yesterday on the part of some 
people to enter into the question of whether this approach is 
religion. I am not so reluctant. I do not see how you can 
avoid it.

Let us assume, if you will, that in a given ceremony in 
a Jewish synagogue you have four Catholics come in carrying 
crucifixes who sit themselves in the front row. This is an 
open and public indicia of a difference of creed which is of­
fensive to the Jewish populace and to the Rabai. What can he 
do?

Well, I suppose he could ask them to leave. But if they 
decline, what could he do? Could he force them to leave?
Force them to get out? Could he call the police. I think you
should be free to



187
12 Nov;, the difference between creed and color is absolutely

nothing, if you look at the Constitution that assures the 
guarantees. And yet here we do not have anything different, 
not in the slightest.

If you say to me that these people cannot be discrimin­
ated against by private citizens who hold themselves out to 
serve the public, I say to you that there isn't any reason why 
the Rabai should not be permitted to call upon lav; enforcement.

Justice Douglas: Of course, there you have the First
Amendment. Up to now, the businesses have not been included 
in the First Amendment.

Mr. Georgieff: That is true, sir.
Well, it is not all as I would have it, you understand. I 

realize that. And yet it seems to me chat when you get to the 
area of the differences between creed, condition of servitude, 
color and so on, I cannot bring myself to believe that we can 
effectively separate it when it suits us and bind it when it
doesn't.

Nov;, let's take the situation —
Justice Black: It was argued yesterday that this did

violate their rights under the First Amendment, that they had 
a right to go into the store and stay there whether they wanted 
them to go or stay or not, in order that they might advocate 
their views about their opposition to segregation.

Mr. Georgieff: Well, Your Honor, I was out of the room



188

13 for sometime. It is possible that I missed that argument, Mr.
Justice Black. But I think they do have that right. I chink 
you have said that many times over.

Justice Black: That gets down to this question: Do they
have a right to appeal on the First Amendment —  do you also 
have the right to go to a place where there is a valid lav;, 
assuming it is valid, that you could not go, to interfere 
with somebody else who is exercising the right of free speech? 
Do you have the right to go there to do it, or must you go 
somewhere else?

Mr. Georgieff: Well, sir, they have the right to go into
Shell’s City Restaurant. But once the management determined 
that they no longer wanted them in there, they did not have 
the right to remain.

Justice Black: That is what 1 am talking about. You have
no right to be at a place. Does the First Amendment guarantee 
people to go to places where under the lav; they cannot other­
wise go on the grounds that they have got to be allowed to 
advocate their views wherever they please, whenever they please 
and however they please?

Mr. Georgieff: Mot in my view, sir.
I might add, which I did mean to implement —  by saying 

there wasn’t any evidence there was a license in this case.
But I have set out in my brief the fact that automobiles are 
probably the most licensed thing in the state, and probably



189

14 in most states. I would like someone to tell me why it be­
comes different when you apply it to an automobile. If you 
are going to use that as your criteria —  now, again, as I 
say, we cannot separate it when it suits us for our argument 
and then bind it together when it doesn't. If you are going 
to say that licensing requirements form a satisfactory basis 
on which you should conclude that there is sufficient 3tate 
control to make it state action, then I submit that every car 
that is driven in the state of Florida drives as a result of 
state action. Every home that is occupied by anybody. We 
have got a homestead exemption law that says that if I be­
come a pauper, default on every debt, that they can do every­
thing they like to me, but they cannot take my home from me. 
Now, that is a recognition by the state that they are going 
to assure my castle to me.

Now, if they go that far, which is even further than 
what they have done here by a long shot, does it not follow 
that they have a right to tell me who I shall and who I shall 
not have in my home? Or that anybody may come in that suits
his fancy?

Now, I will agree, and there is a similarity. I think we 
will all agree that someone has a right to come to my door and 
ask of me what he will, i may either reply or tell him to go 
on about his business —  just as in Shell's City here. They 
came upon the premises, sought to do business with these



190
15 people. They were declined the right to do so, and they were

asked to leave. It is not at all different from what I might 
do in my home, or you, or anybody else.

Now, if we extend that on the theory of the licensing re­
quirement, I submit that there is no end to it. You can go on 
ad infinitum.

Nov;, I do not pose a threat —  that is foolish. I would 
not suggest these things are going to happen tomorrow or the 
next day or any day after that. But if you are going to put 
it within the legal framework that they say you should use as 
one of the bases, then I say don't separate it as to the 
others which you know will be there one day.

Justice Goldberg: General, is it clear from this record,
as I look it, and as the government contends, that they were 
never cold why they should leave?

Mr. Georgieff: They were not told why. But the statute
contemplates that they need not be told why. It only requires 
that if management had the opinion, that is all is necessary.

Nov;, I hasten to add, if Your Honors please, that the 
point raised by the brief of Amicus is one which is totally 
foreign to this case.

Justice Goldberg: Would you say a word about that before
you conclude your argument?

Mr. Georgieff: I was reserving some time for that.
Justice Goldberg: Any time that fits your argument.



191

16 Mr. Georgieff: Based upon the positions which have been
presented by counsel for the appellant here, and the total 
non-applicability of Shelley, certainly not even Shelley vs. 
Stengel, which gives people a right to contract, under the 
Court of Appeals decision, it seems to me that unless you are 
ready to determine that an ordinary citizen in the pursuit of 
his rights —  now, he doesnlt have property rights, he has 
personal rights to handle this property the way it suits him. 
Unless you are ready to determine, and determine that these 
rights shall no longer be his own —  and unless you are ready 
to upset the civil rights cases, I think that the only result 
can be that you affirm the Florida Supreme court and deny this 
appeal.

(6)



# 6
rb-1 The Chief Justice: Mr, Spritzer,

ARGUMENT BY AMICUS CURIAE 
BY MR. SPRITZER

Mr. Spritzer,* Mr. Chief Justice, may it please Your Honors, 
in addressing myself to the five cases which are before the 
Court, I shall attempt to first set forth the general approach 
which we follow, one which is common to all of the cases, I then 
propose, if Your Honors please, to discuss the Florida case, 
which stands in our view somewhat apart from the others, because 
its statute is unique.

Then I would like to turn to the specific arguments which 
were made in the South Carolina and Maryland cases, which from 
the standpoint of our analysis at least we may consider somewhat 
as a group.

After setting forth the arguments I have outlined, I shall 
also attempt to state briefly why I think the points that we 
argue were adequately comprehended by the arguments made in the 
state courts, and why in any event they are here.

let me say in that connection at the outset that even if 
this Court should conclude, in one or more of these cases, that 
the point which is argued in the amicus brief was not sufficiently 
presented, not presented with sufficient explicitness in the state 
courts, it does not follow from that, or would not follow from 
that that the issue drops out of the case, as was suggested 
yesterday.

192



rb-2 193

In the Avent case, which was here last term, the case 
was obviously within the jurisdiction of this Court because 
various constitutional arguments were raised and duly preserved.

However, the petitioner in that case did not raise at any 
stage of the litigation an argument based on an allegation that 
the City of Durham, which was the place where he was convicted, 
had an ordinance requiring segregation„

Indeed, he had made no attempt to prove the existence cf 
such an ordinance.

Nonetheless, this Court having jurisdiction of the case 
concluded that that issue ought to be considered, It vacated 
the judgment, accordingly, and remanded the case to the Supreme 
Court of North Carolina in the light of its decision in one of 
the companion cases.

Having jurisdiction of these cases, this Court has it within 
its power, under the certiorari jurisdiction, tl make such 
disposition as the justice of the case may require.

Let me also say at the outset that our brief does not address 
itself, and I shall not in oral argument address myself, to the 
broad and undeniable very serious and important question whether 
there should be a re-definition of the concept of state action 
for purposes of administering the provisions of the Fourteenth 
Amendment.

I need hardly to dwell upon the rule so often emphasized 
by the Court that it will not ordinarily reach broad constitu~



~3 194

tional issues if more limited principles are disposited. 
Particularly so, I take it, where those more limited principles 
are themselves well settled*

We "believe that these cases fal under that precept.
In this connection, I would alsd say that we are mindful 

of the fact that the President is seeking at this very time, and 
that the Congress is considering legislation —  of course national 
in scope —  which, if it were adopted would be directed at the 
very problems which underlie this kind of litigation*

Before leaving these preliminaries, I would also remind 
the Court that the Solicitor General has expressed his readiness 
in his brief, should the Court, contrary to our present expecta­
tion, find that the grounds of reversal which we urge are not 
dispositive —  his readiness to address himself further at the 
suggestion of the Court to the broader constitutional issues 
which have been moved*

Now, in each of these cases, of course, as the Court has 
heard at length, a group of Negro citizens, in some instances 
accompanied by white sympathizers, unsuccessfully sought service 
at a private place of business open generally to the public.

In all of the cases, as v ie read these records, the petitioners 
were Invitees. In none of the cases had they received any warning 
before coming on the premises that they were not to enter.

Yet in four of the cases, excluding only Florida, we deal 
with statutes which on their face condemn nothing more than entry



rb-4 195

after warning not to enter.

Justice Goldberg: What about the Maryland statute that
also says cross over?

Mr* Spritzer: I do not read it as adding anything* and
neither did the Maryland courts* The Maryland courts in these 
cases decided the issue before it solely on the basis that these 
people had entered without notice., but that the statute covered 
remaining after notice to leave as well as entering after notice 
not to enter,

I shall attempt to develop that further when I get to that 
phase. Your HonorP

Now, the Florida statute of course does proscribe remaining 
after notice to leave. It imposes such a duty, however, only 
when the entrant has behaved objectionably* by engaging in 
specified types of misconduct, or when his presence is found 
detrimental to business.

As has already been stated by the parties to that case* the 
Florida appellants were never told that their exclusion was based 
upon any one of the limited statutory grounds which alone would 
their act of remaining an offense —  even though they made 
repeated inquiry as to why they were being directed to leave.

Broadly* then* we shall argue on all of these cases that 
there was a denial of due process* a lacic of adequate warning 
from the statute, that the conduct subsequently charged as unlaw­
ful was in fact a violation of the state criminal law.



-5
196

We are not, of course, questioning the role of the state 
Supreme Court in interpreting state statutes0 We are dealing 
with the constitutional right of fair notice or fair warning.

Justice Goldberg; Does that mean that in all future cases 
you would regard fair warning to he given., hut that in this 
series of cases fair warning is not given? 13 that the necessary 
import of your argument?

Mr. Spritzer: I think a different question would arise
if the statute had previously been interpreted. We do not have 
that question here, because these statutes, as I shall develop, 
were interpreted for the first time in what we regard as this 
novel fashion in the cases now here.

Justice Goldberg: Where do you find that distinction drawn
in the decisions of this Court? The reason I mention that is 
you cite Amsterdam a few pages prior to that, his note on vague­
ness, and he says quite the contrary, summarizing the Court's 
decision. He says "if the Supreme Court in passing on these 
penal statutes has invariably allowed them the benefit of what­
ever clarifying gloss state courts may have had in the course 
of litigation in the very case at bar," citing a number of 
decisions in this Court. And that seems to me to reach the whole 
basis of your argument, doesn't it?

Mr, Spritzer; If adequate notice in the constitutional 
sense were provided by the conviction rather than by the statute, 
then the concept of fair notice to my mind would disappear. I



rb~6
would reject that completely*

Justice Goldberg: You disagree with that analysis of the
cases ?

Mr, Spritzer; I do. I am not speaking in reference —  

with reference to the particular cases which he cites, "because 
I do not know the context from which that comes. But I certainly 
"believe that if a statute on its face fails fairly to give any 
warning, that it would "be a destruction of the whole concept 
of protection which the due process clause has been set to 
guarantee, to say that that notice is adequately provided when 
the judge — •

Justice Goldberg: What about National Dairy?
Mr, Spritzer: Well, National Dairy for one thing involved

the requirement of scienter, specific knowledge by the defendant. 
There is no basis for saving that there was any scienter in this 
case. So I think that falls into a quite different category*

I would lilce to make this general observation before getting 
further into the specifics of these cases,, as to why we think it 
is eminently proper to read these statutes with a scrutinizing 
eye and to apply here with purposeful strictness the requirement 
of fair notice.

In the first place of course we are dealing with criminal 
statutes. These are not simply acts relating to the laws of 
property. And this Court has said in Kline vs. Prink Dairy —
I do not know whether this would fit into Mr, Amsterdam's analysis

197



198

that the Fourteenth Amendment imposes upon the state an 
obligation to frame its criminal statute so that those to 
whom they are addressed may know precisely what standard of 
conduct is required.

The state is obliged, in its statute.
oecor.dly, we are not dealing with conduct which by any 

stretch of the imagination is inherently or morally wrong. The 
people involved in these cases were casing what is no more than 
common bread in the life of the community.

In uhe Barr case, the testimony of one of the defendants 
I think epitomizes the feeling that one gets from a reading of 
these records . He was on the stand, explaining what happened 
when he sought service at the drugstore counter. He says that 
a white lady was occupying the adjoining place at the counter.
And uhen he goes on —  I will use his words —  "She sat there 
and began eating just as if I was a human being sitting beside 
here, which I was,"

We agree with Professor Frimes1 observation that in applying 
the rule against vagueness or overbroadness, something should 
depend on the moral quality of the conduct.

A third reason why the statutes should be carefully scrutinized 
in their application is the petitioners here wer engaging in a 
peaceful and orderly protest against discrimination.

As I**. Justice Harlan observed in his opinion in the. Garner 
case, such a demonstration is as much a part of the free trade in*



rb-8

Ideas as is verbal expression.
Justice Iferlan: Of course you have to recognise that was

in the context of a situation where the record shows that the 
demonstration was going on with the owner's consent,

Mr. Spritzer; Yes. I would add, nonetheless —  I do not 
think the force of the point is destroyed by Your Honor's correct 
observation —  that my point here is that a vague statute is a 
threat to the exercise of such First Amendment rights also.
Because if the citizen cannot be sure when his conduct falls 
within a statutory ban,more than likely he will timidly force 
his right to express what the lav; does not or cannot prevent.

There is another side I think to that coin —  through the 
overzealous policeman —  this is an invitation to the abuse of 
power or to discriminatory enforcement. I think it apparent 
that the misuse of authority to arrest or to order an exclusion 
or to order dispersion may effectively deny the exercise of 
First Amendment rights, whatever the ultimate disposition of the 
matter should it go to court.

Through all of these reasons, then, we urge that the statutes 
involved in these cases should be sustained in their application 
only if they give clear forewarning that the conduct ultimately 
charged was of a prohibitive kind.

Let me turn, then, without further delay to the specifics 
of the Florida case„

The counsel in that case have already referred to the statute.

199



200
It is set forth also In the government's brief, beginning at 
page 18.

I would like to take a moment to stress once again the 
structure of that statute.

The first numbered paragraph provides in substance that 
the proprietor or the manager of a hotel, ressturant, apartment 
house, motor court, and various other establishments, shall have 
the right to remove a guest who is intoxicated, immoral, profane, 
lewed, brawling; also one who engages in language calculated 
to disturb the peace and comfort of other patrons, or to damage 
the reputation of the establishment.

And then finally the management is authorized to require 
the departure of one who in its opinion is a person whom it would 
be detrimental to his business to serve.

Now, I think by plain, I would say, necessary implication 
this statute says that there is no way to remove one who is not 
obnoxious in his conduct and whose presence is detrimental to 
the operation of the business»

It does not confer the right to exclude a patron of an 
inn or a restaurant for any reasonc If that were the purpose, 
there would have been no reason for the statute,, There were 
already criminal trespass laws in the State of Florida.

We do not think it authorizes, for example, exclusion for 
reasons of racial prejudice.

Justice Black: Suppose that conclusion was made because the



rt>-10

owner thought it would be detrimental to his business, in his 
opinion.

Mr. Spritzer: Then I thinlc that it would meet the terms
of the statutes, yes, sir.

Nov;, it was not —  well, let me pause a minute before getting 
to the information.

As the Court has heard, and I v/ould emphasize again, the 
invitees of this establishment, the eighteeen Negroes and whites 
who walked in, were permitted to sit down —  and who sat there 
for some half hour, were not told at any point, that they made 
repeated inquiries, as to why they were being excluded. It was 
stated for the first time by the management that his reason for 
excluding the group was that he considered their presence detri­
mental to his business.

It was not charged of course, that the appellants had engaged 
in any objectionable c o n d u c t I t  was alleged only In the 
information that the manager was of the opinion, when he ordered 
the appellants to leave, that serving them would be detrimental 
to the restaurant.

201

# 7 fls



Mills #7 
ed 1 I say therefore, that we have here a case in which there 

is no objective standard by which the appellants could tell 
if they were being excluded for a reason permissible under the 
statute.

Justice Stewart: Well, the statute makes it a subjective
standard, does it not? That is, the fourth category of the 
statute.

Mr. Spritzer: I agree.
Justice Stewart: Explicitly makes it subjective.
Mr. Spritzer: Yes. Their obligation to leave depended

entirely upon the subjective determination by the manager that 
their continued presence would be detrimental to business, hnd 
I say further that since the manager adamantly refused to state 
his reason when asked to do so, that the appellant had no means 
whatever of ascertaining whether he had a reason recognized by 
Florida law or some reason which was not recognized by Florida 
lav/.

Justice Stewart: I should think —
Mr. Spritzer: Such as racial prejudice.
Justice Stewart: I should think the very request to leave

inherently —
Mr. Spritzer: Shows that he wishes them to leave.
Justice Stev/art: That in his opinion —
Mr. Spritzer: That he wishes them to leave.
Justice Stewart: Subjectively.

202



203

ed2 Mr. Spritzer: But the trespass statute in Florida, unlike
this statute, gives a right to have people leave for any reason. 
This statute implies clearly that a patron of a restaurant or 
hotel cannot be excluded for any reason. Therefore, it is not 
enough to say "leave". The question is whether he is ordering 
them to leave, since the people are charged with the violation 
of this statute, for a reason which Florida says is a permissible 
reason.

Justice Black: The statute itself says he doesn‘t have
to tell them a reason.

Mr. Spritzer: The statute says after notice. It does not
say —

Justice Black: First notify that he no longer desires
to entertain them.

Mr. Spritzer: Yes. I would assume that if he was notify­
ing someone who was obviously intoxicated to leave, that perhaps 
he would have to say no more.

Justice Black: The statute says notify such guests of
the hotel or apartment house that he no longer desires to 
entertain them. That is all it says. I am not saying it should 
not. But how can you escape the fact that that is what it says? 
That is the only duty it imposes.

Mr. Spritzer: Well, my argument is that the statute to
give notice, where it depends upon a subjective determination, 
must also be read to require, to escape constitutional objection -



ed3 204
to require that the basis of that determination be known to 
the person whose conduct would be made criminal.

Justice White: Mr. Spritzer, there is a written notice
specified in the statute, if the owner wants to use it.

Mr. Spritzer: There is. That is presumably designed for
the situation of overnight guests in the hotel.

Justice White: Whatever it happens to be designed for,
there is a specific notice which would satisfy the statute.
And that notice is singularly lacking in any explanation for 
the request to leave.

Mr. Spritzer: I assume that in the case where somebody°s
conduct is measurably by an objective standard, as in the 
case of most of the reasons for exclusion —

Justice White: But in this statute, you think this would
not be an adequate statutory notice —  it would be adequate 
only in the cases you have just mentioned.

Mr. Spritzer: Where the conduct itself is proscrib d in 
the statute itself. In other words, I am suggesting that if 
my criminality under a State law depends upon someone else1s 
believing something, and if contrary-wise I am acting entirely 
within my rights under the State law, if he believes something 
else, then surely due process at the least must require that 
liability does not attach until I am informed what he does in 
fact purport to believe.

Putting it concretely, if the manager had answered the



205
inquiry put to him by these appellants and had said, "I want 
you to leave because I do not like Negroes", I would say that 
it would seem clear that was not an offense as prescribed by 
the statute, or at least that no one reading this statute could 
so conclude.

How then, could these appellants know that by the simple 
act of their continued presence they were committing an offense 
under this law?

Justice Harlan: You would have a somewhat different
case, wouldn’t you, if the statute read,"who in the reasonable 
opinion of the management". Then you would have had a so-called 
objective standard. The statute does not say that.

Mr. Spritzer: I am not suggesting that the statute re­
quires that the managers opinion, if he held one, that some­
one's presence would be detrimental to business need be one 
that was rationally determined. Maybe it would be foolishly 
determined and it still might satisfy the statute.

I do say that the statute on its face accords the right 
to the patron of establishments of this type to come on such 
premises and to remain there, unless they are excluded for a 
reason specifically set forth in the statute. And I say further 
that these appellants could not know that the manager purported 
to have a reason which Florida lav; would say was a sufficient 
reason under this statute when the only basis would be a sub­
jective determination which you refuse to communicate.



ed 5 206
Justice White: Don't you really accept the fact that

notice here wa3 adequate under the statute —  was all the 
notice the statute required, and your real point at least for 
us must he that if that is true the statute is unconstitutional.

Mr. Spritzer: My basic point is that if you read the
statute otherwise, that it certainly runs afoul of the require­
ments of forewarning.

Justice Harlan: By the same token, why aren't the tres­
pass statutes unconstitutional?

Mr. Spritzer: They do not require or limit the owner
to have a particular reason for exclusion.

Justice Harlan: But Justice White just pointed out to you
what was done here does satisfy the terms of the statute, and 
your argument is that even so it is unconstitutional.

Mr. Spritzer: I do not read the statute as being satisfied 
by a directive to leave without any explanation in circum­
stances where there is no objective conduct which comes within 
the statute.

Justice Harlan: Apart from the language of the statute,
Mr. Spritzer, the State court has construed it that way in 
this case.

Mr. Spritzer: The State court has said in one word that
this statute was non-discriminatory.

Justice Harlan: That assumes certainly that the statute
was complied with.



207

ed 6 Mr. Spritzer: I go further and say whether one can read
the opinion as assuming that or no —  I say further that the 
statute, if so construed, fails to provide any forewarning to 
the appellants who were excluded that they could be excluded 
for such reason.

Justice Harlan: Then I come bacic to the question as to
why the trespass statutes on the same argument are not con­
stitutional.

Mr. Spritzer: The trespass statutes do not make the
conduct criminal, depending upon the reason, depending upon the 
conduct of the particular persons who are on the premises.

Justice Harlan: Nor does this statute, in the last clause.
Mr. Spritzer: Well, so viewed I would disagree with your

interpretation of the statute, because I think the fair reading 
of this statute is that one can only lose his right to remain 
on the premises for specified reasons, and the thrust of the 
last clause, as I see it, is that the manager must have a 
permissible reason, if the appellants have no basis lor knowing 
whether the reason which the manager entertains is a persmissible 
one under Florida law or not —  if the appellants cannot know 
whether they are within their rights in remaining, or whether 
the manager is violating the statute by directing them to leave, 
because he has an impermissible reason —  then I do not think 
they have received the notice.

Justice White: If he had written out the notice just .



ed 7 208
exactly as the statute requires and handed it to them, you 
would still make the same argument.

Mr. Spritzer: I would interpret the statute, the written
form of notice doubtless, to cover the cases in which the 
appellants have engaged in conduct which is already made known 
because it is specifically proscribed in the statute. Whether 
it is designed to apply to a restaurant or not is of course 
questionable also.

Justice Black: Are you asking that we send the case back
to Florida to take a new look at the statute, or that we our­
selves reconstrue the statute as meaning what you now say it
means?

Mr. Spritzer: I was talking in terms of what the statute
appears to say in relation to the question whether it gives 
fair warning, which is ultimately the constitutional issue of 
due process.

Justice Black: You have not been asking that we construe
the statute as you think they should have construed it.

Mr. Spritzer: No, I am not.
Justice Black: Then we are bound to reach your constitu­

tional question as to vagueness.
Mr. Spritzer: Yes, and I have been referring to the

language of the statute only in relation to the constitutional 
issue as to whether it gives warning.

Justice Goldberg: Mr. Spritzer, does your argument mean



209

that the proprietor has to state in terms of the statute 
itself the ultimate conclusion? Let me put this case to you,, 
the trail judge put. He said, as I read his opinion, that he 
often has been excluded because he did not wear a tie. Nov/, 
suppose that the restaurant owner had a rule based upon his 
opinion that it was detrimental to his business to have cus­
tomers who did not wear ties. Suppose he came in and he said 
—  without a tie, and the restaurant owners said, “You cannot 
come in because you are not wearing a tie". And then it is 
prosecuted under this statute. Is there fair warning?

Mr. Spritzer. It seems to me to suffice for purposes of 
this case, Your Honor, to point out that it is fully agreed 
that there was nothing indecorous, in the comment of the appellants 
in this case. But they did not fit within any of the described 
categories —  brawling, obscene, and so on. That the only 
basis conceivable for their exclusion under the statute would 
have been the manager believed that their mere presence would 
be detrimental to his business.

In these circumstances I would say that when they put to 
him, by specific inquiry, the question why they were being 
required to leave, and he refused to answer, I would say that 
in these circumstances they had no way of knowing that they 
were committing an offense by remaining —  because it was at 
least as likely, viewed from their standpoint at the time, that 
he was excluding them for what I would have considered clearly



ed9 210

f Is

an impermissible reason under the statute, namely, racial 
prejudice. That was at least as fairly inferable as the 
explanation which he volunteered for the first time ac the 
trial of the case, namely, that he thought it would be bad 
for business.



211
Mills 
ao 1 (8) 
fls. ed

Justice Black: In effect, you are asking us to escape
one constitutional question by holding a State statute uncon­
stitutional on another ground.

Mr. Spritzer: it is certainly a constitutional issue also.
It is a familiar and traditional constitutional issue -- whether 
che statute gives fair notice that conduct is criminal.

Justice Douglas: Are you raising that question in each of
these cases?

Mr. Spritzer: I will go to the point now, if Your Honor
prefers. I had planned to deal with it after setting forth my 
specific arguments in the Maryland and South Carolina cases, to 
get to that question.

Justice Brennan: If I may say so myself, I notice time is 
fleeting. I do hope that you will get to the issues.

Mr. Spritzer: I will. I would like to repeat, before I 
leave Your Honor's question, that I think it is necessarily within 
the jurisdiction of the Court in all of the cases snd the basis 
that I indicated earlier in my discussion of the Avent case -- 
because even if the Court should conclude that this issue was 
not raised, that these issues were not raised, with sufficient 
explicitness in the State Court, this Court may consider whether 
it should dispose of the case by reaching a broader constitu­
tional issue which is tendered, or whether it should remand the 
case for further consideration of the more limited issue by the 
State tribunals, as was done in the Avent case.



212
ao 2 Now, turning to the entry after warning statutes, the 

South Carolina statute is in our brief at page 8 and provides 
that the entry upon lands of another after notice from the owner 
or tenant shall be a misdemeanor.

Now, from context which I have omitted, the statute appears 
to refer to open lands rather than business practices. But 
whether or not it is so restricted, it plainly requires, ac- 
cording to its terms, an advance notice.

In the Barr and Bouie cases, in both of which the peti­
tioners were indisputably invitees at the time of entry into 
the drug store, the County Court dealt with this —  that was 
the intermediate court of appeals —  by citing a civil case 
which states that one who refuses to depart when ordered to do 
so is a trespasser ab initio.

The instant cases, however, do not Involve the common law 
of trespass; they involve a criminal statute prohibiting a 
precise act -- entering after warning or notice not to enter.

Justice Goldberg: General, wouldn't we be blind to the
actual facts in all of these cases if we closed our eyes to 
what was happening; that in all of these cases the proprietor 
did not want to serve Negroes, demonstrations were going on 
against this, that the petitioners in all cases knew that they 
were not invited for the particular service that they desired; 
and that, knowing this, they nevertheless entered upon the 
premises ?



213

ao 3 Would not we be blind to close our eyes to those obvious
facts ?

Mr. Spritzer: I think that the petitioners may well have
supposed that they would not be welcomed in these establishments. 
I think, as Justice Black indicated yesterday in the discussion, 
the operation of these criminal laws does not depend on whether 
the persons entering would have reason to think they might not 
be welcome. They would depend upon a specific notice or warning 
not to enter. No such warning was given in any of these cases.

I think also Justice Frankfurter addressed himself to this 
kind of problem in the Garner case, in his Opinion, and he sug­
gested there that one has a right to presume, even though he 
has not been welcomed in the past, that an owner may change his 
policies if nonviolently challenged. Experience, he said, 
teaches that such modifications do occur. And I would say that 
these cases teach that.

As we were told yesterday, in at least two of these estab­
lishments, the Glen Echo Amusement Park and the Eckerd Pharmacy 
in Columbia, they voluntarily changed their practices. And I 
think it a fair supposition that in an instance such as these, 
the efforts to obtain service played a prominent role in that 
change.

Justice Goldberg: Am I wrong in my recollection of the
record, that in at least two of these cases the petitioners

themselves picketed with signs saying that ’'This restaurant does



214
ao 4 not serve Negroes."?

Mr. Spritzer: The record does not show that these petition
ers, so far as I am aware., picketed.

Justice Goldberg: I thought I read that.
Mr. Spritzer: It does show that there v.’ere pickets outside

Whether the petitioners were involved does not appear. Indeed., 
in the Bell case in Baltimore, the picketing began only after 
the refusal to serve.

Now, there was picketing in the Glen Echo case. I do not 
recall anything to indicate, one way or the other, whether the 
particular petitioners involved in those cases --

Justice Goldberg: I thought it was the Glen Echo case.
Mr. Spritzer: My recollection may be wrong.
Now, I would like to say also about the Maryland cases, 

that there is no question that the Maryland courts affirmed the 
convictions on the basis that these statutes could be read, 
although in terms they prohibited entry after warning, as if 
they said remaining after notice.

Justice Harlan: That is true in all of the cases?
Mr. Spritzer: Yes. It was suggested, I think, in the 

Maryland cases that they had actual notice. This is not —  I 
do not think the record bears that out. But, in any event, it 
is not the basis of the Court's disposition, because the Trial 
Court in the Griffin case, Record 73, stated:

"The evidence shows the defendants have trespassed



215
ao 5 upon this corporation’s property, not by being told not 

to come on it, but after being on the property they were 
told to get off." That was in the Griffin case.
In the Bell case, the Court of Appeals disposed of the 

statutory question simply by reference to its decision in Griffin.
In other words, the Maryland Courtsconsistently have taken 

the view that these convictions were valid, that these statutes, 
though in terms they forbade entry after warning, could be read, 
according to the Court’s interpretation, to forbid remaining 
after notice to leave.

I have indicated earlier -- I cannot take the time now to 
develop the point —  that Maryland and South Carolina construed 
these statutes in that manner for the first time in these cases, 
though theretofore the requirement of strict notice had been 
strictly imposed.

We have also noted in our briefs that the jurisprudence 
of other States and the statutes of other States have tradition­
ally drawn a distinction between a statute which proscribes 
entry after warning, in a statute which comprehensively 
proscribes what would be taken in by civil trespass, or which 
deals in separate categories with entry after warning or remain­
ing after notice to leave.

Let me, without attempting to elaborate our contentions 
in these cases further, turn to the matter of how and to what 

extent these issues were presented in the State courts.



ao 6 Now, in the Griffin and Bell cases, certainly the parties
presented to the Court the question whether this statute, which 
proscribed only entry after warning, could be applied to their 
c onduc t.

In presenting the question, they did not take the further 
step and say if the statute is read to apply to this conduct, 
it would offend the due process clause of the Fourteenth Amend­
ment, because it would not give clear forewarning.

They did argue vigorously that the statutes did not apply 
by their terms. And the Maryland courts, both the lower courts 
and the Court of Appeals, considered that issue.

The parties also placed emphasis on the fact that they 
were invitees. They also claimed the benefits of the due process 
clause. But I must, in candor, state that the arguments based 
upon the due process clause were cast in terms of State aid 
of discrimination, or the doctrine of Shelley v. Kraemer, 
rather than any specific reference to the matter of statutory 
notice.

I think it is perfectly plain that the Maryland courts 
considered the meaning and the substance of their statutes, 
when the argument was made to those courts that the statute 
did not apply to the conduct involved. And one could hardly 
conceive that a Court which has just said, "This statute applies 
to such-and-such conduct, despite the words which might lead 
one to conclude otherwise" would then turn around and say, "VJe

216



217
ao 7 have now adopted such a strange and bizzare construction of 

the statute that it is unconstitutional from the standpoint 
of the Fourteenth Amendment.11

So, in substance, certainly the Maryland Court has con­
sidered whether this statute may be applied to this conduct.

Justice Black: Suppose the Court should disagree with you
as to one of the cases. What would you say, then, would be the 
weight of your argument as to reaching this second constitutional 
question in the other cases?

Mr. Spritzer: I am not sure that I understood what Your
Honor meant by the second.

Justice Black: Suppose the Court should decide that the
statute in Florida was not ambiguous. It would still have to 
decide the other cases. What would your argument be about what 
they should be decided on?

Mr. Spritzer: Well, the other cases are the Maryland and
South Carolina cases. I would say they should clearly be decided 
or can properly be decided on the basis that those entry after 
warning statutes failed to give adequate notice,consistent with 
the Fourteenth Amendment, that remaining as distinguished from 
entering after notice to leave constituted an offense.

Justice Black: However, if we were to decide the other,
it would cut out the ground of your argument that we could 
thereby escape decision of the constitutional question.

Mr. Spritzer: I assume that if the Court reached a broad



218

ao 8 Issue, if it found it necessary or appropriate to reach a broad 
issue in the Florida case, that issue you might well be dispos­
itive of in the other cases also.

It depends, I would suppose, on which broad issue and how 
broadly the broad issue was decided.

But I think from the standpoint of broader contentions made
Justice Black: I am unable to follow your measurement be­

tween the narrow and the broad issue. But that is beside the 
point.

Mr. Spritzer: I have been speaking as a narrower issue,
perhaps such a more familiar issue, the question of whether a 
statute gives adequate notice as to the criminal conduct which 
it forbids. I have used "narrower" in that sense.

Justice Harlan: I would like to ask you a question. This
is prompted by what my brother Black asked you.

Assuming that the Court does reach in one or more of these 
cases what you call the broader issues, is the Government re­
questing an opportunity to —  the Solicitor General requesting 
an opportunity to file a brief on those issues or to be heard 
further orally on those issues, or are you leaving the question 
as to whether the Court asks for that?

Mr. Spritzer: I would think that is for the Court to
decide. The intention was to express, of course, the complete 
readiness of the Government to submit further briefing or arg\i- 
ment, if the Court should so desire.



219

ao 9

end Mills; 
Cohen fls.

Justice Harlan: That answers my question.
Justice Black: It is not your intention that the Court

postpone these cases until next year., is it, in order to have 
an opportunity to argue again, in case there is disagreement 
with this argument?

Mr. Spritzer: I think our answer, Your Honor, would be
that we certainly would feel that it is for the Court and the 
Court alone to decide whether any further briefing or argument 
would be helpful. We do not mean to imply any view as to what 
the Court would find most expedient from the standpoint of con­
ducting its business.

The Chief Justice: It is time for lunch. But I think
the Court probably would like to hear a few more minutes of 
argument, and whether the other cases are properly here. Suppose 
you take ten minutes when we come back, and the appellees may 
have ten minutes also.

(Whereupon, at 12:00 noon a luncheon recess was taken, 
thb Court to reconvene at 12:30 p.m., the same day.)



Cohen #1 220
rb~l AFTERNOON SESSION

12:03 P,M.
The Chief Justice: Mu, Srpitzer, you may continue.
ISr. Spritzer, Than you, Your Honor, I shall make it 

very brief.
ARGUMENT OF AMICUS CURIAE,
BY MR. SPRITZER —  resumed

Mr. Spritzer. As to the two South Carolina cases, counsel 
for the state agrees In his brief that the question of the 
application of the application of the South Carolina entry 
after notice statute to the kind of conduct charged in these 
cases was presented to the trial court and to the intermediate 
Court of Appeals.

The County Court in that case did discuss the issue whether 
this statute could be applied to one who had permission as to 
the time he entered and concluded that it could.

The state's contention is that this question was not 
adequately presented to the State Supreme Court.

Now, as to the disposition by the State Supreme Court, 
in the Barr case, as was mentioned yesterday, the South Carolina 
court stated that the exceptions which were presented to it in 
terms of a prima facie case, not having been made out, and as 
the phrase was used In South Carolina, the corpus delicti not 
having been proved, the South Carolina court said in the Barr 
case that those assignments of error were too general.



rb~2 221

Nonetheless, In the Bouie case which was a companion 
case, as ai*gued in the South Carolina courts, it was decided 
some weeks after the Barr case, the court refers to identical 
assignments of error, the language is the same and it does 
go on to say on the merits that the trespass statute applies0 
However, in a third case which was argued with these two cases, 
the Charleston vs. Mitchell case involving alleged violation

*'*'*»v '■  /of the same statute In Charleston, in that case, the Supreme 
Court of South Carolina discusses specifically the question 
that the statute with which we are concerned in Barr and Bouie
can be applied to the conduct of the kind charged here, or

*

rather it is defective bdcause of the uncertainty or vagueness 
of its application.

The South Carolina Supreme Court in the Charleston vs. 
Mitchell case resolves this question of vagueness in favor of 
these statefs contentions.

Now, the Mitchell case was decided it was not only 
argued, as I understand it, before the South Carolina Supreme 
Courc with the Earr and Bouie cases, it was actually decided 
a day before Barr and some weeks before Bouie, so that I take 
it there could be no question that the South Carolina Supreme 
Court was fully aware and that it did consider, when it had all 
of these cases under advisement, the issue whether these statutes 
may fairly be applied to entry which was made without warning 
or without notice.



222
Justice Brennan: Do you know when the Mitchell case came

here?

Mr, Spritzer: It is pending on petition now.
Justice Erennan: When was petition filed?
Mre Spritzer: Lately, I "believe. I don‘t know the date.

The number of the case is cited in the index to our "brief, Ycur 
Honor.

Justice Clark: Are the assignments about the same?
Mr. Spritzer: No, there is a much more specific assignment

of error in the Mitchell case in relation to vagueness —  the 
question of vagueness.

Justice White, In Bouie I gather the point that you are 
talking about was argued in the brief at some length, even 
though the assignment may not have been,

Mr. Spritzer: I think the brief concentrated largely on
the resisting of arrest point, but I would have to refresh 
my recollection.

That brings me to the —  this brings me back to the 
Florida case. It is perfectly clear from the assignment of error 
in this case what the Florida appellants claimed that they were 
excluded for a reason which was not permissible under the statute. 
It is also clear, however, that they, related this thing to a 
contention based upon Shelley vs, Kraemer rather than to a 
contention in terms of adequate forewarning by the statute.
The Court can refer very readily to the assignment of error



223
■in that case for itself, at page 9 of the Florida Record*

Perhaps I should say one further word, if I may, about 
the essence of our forewarning contention in relation to the 
Florida case.

I don't know that I have made our position on that as clear 
as I should like,

We start with the point that this statute by any fair 
reading necessarily implies to a person who wants to know what 
is forbidden and what is not forbidden, that he has a right to 
go to a motel or hotel or restaurant, that he cannot be excluded 
at will, but can only be excluded for one of a limited number of 
reasons specified in the statutes.

Starting from that we question whether one who has done 
no act which is described as specified as objectionable under 
the statute can be held to have adequate notice that he is in 
violation in circumstances where his being in violation depends 
on whether the proprietor means one thing or another, and the 
proprietor fails to indicate which, and it is not fairly 
inferable which.

In those circumstances we say persons who are in the 
restaurant have no way of telling whether they are engaged in 
conduct which is protected by this Florida statute —  because 
this statute doesn’t give a right to exclude for any reason,
as the criminal trespass law does. It gives the owner of that

%
type of establishment a much narrower right to exclude.



224
lie question whether in these circumstances he can tell 

whether he is being excluded for a permissible reason or one 
which is not recognized under Florida law. And in those circum—  

stances., we think that he has no way of knowing that he has 
engaged in conduct which is forbidden by the statute.

Nov;, the written form of notice for this I think can 
certainly not be given a reading so broad as to convert what is 
apparent throughout the statute, as a statute which only grants 
limited rights of exclusion to the owner — .that written form 
of notice provision cannot be read as meaning that the proprietor 
can exclude for any reason.

lie think that in circumstances where the reason is not 
apparent and cannot be known and circumstances where the persons 
on the premises ask the reason, that they cannot be held criminal 
if they are not even told whether the manager of the establishment 
purports to have a reason for exclusion which is recognized by 
Florida law.

Justice White: I would make the same argument —  do you
have the same argument as to the last section of the statute?

Mr. Spritzer: In circumstances where there is no way of
knowing or ascertaining whether there is a permissible reason or 
not „

Justice Shite: You would make the same argument if the
fifth reason wasn't there, wouldn*t you?

¥sc. Spritzer : Yes .



rb~6 225

Justice White : And as long as the notice to leave is not
accompanied by a reason —

Mr. Spritzer: In circumstances where there is no way of
knowing or ascertaining whether there is a permissible reason 
under the lav;,

Justice White : There would be no way of knowing the
reason the manager was excluding them for this unless he told 
them.

Mr« Spritzer: I suppose if I were engaging in a fight
or was drinking in the establishment —

Justice White: You might have some differences of
opinion as to whether you were drunk or not.- People like that 
usually do.

Mr. Spritzer: One might and I am not reaching the
question whether there would be any other circumstances in which 
the manager would be obliged to give a reason„ I am suggesting 
that at least in circumstances where the behavior is unimpeachable* 
that the manager has a duty to advise of the reason and putting 
it in constitutional terms* that the persons there cannot know 
that they are committing an offense under the terms of the 
statute if they are not given a reason,,

The Chief Justice: Mr. Reno.
REBUTTAL ARGUMENT ON BEHALF OF THE STATE OF 
MARYLAND* RESPONDENTS*
BY RUSSELL R. RENO* ASSISTANT ATTORNEY GENERAL*
STATE OF MARYLAND



rto-7
226

fls

Mr* Reno: Mr. Chief Justice, and may it please the Court.
Before addressing myself to the vagueness arguments, the doctrine 
as it has "been argued by the Solicitor General, let me, at the 
risk of repeating ourselves, once again reaffirm the position 
of the State of Miryland that insofar as the Bell case is 
concerned, which is No. 12, vie feel that it gives abundantly 
clear that the conduct which took place in that case was deary 
covered by the Maryland Trespass Statute*

As you know, the Maryland statute applies to not only 
entry upon, but also to crossing over*

Now, in the Beil case the Bell defendants entered the lobby 
of Hooper's Restaurant in Baltimore.



COHEN(2)
jt-l

This lobby has been described as being just past the 
door, the revolving door to the premises and it is a differ­
ent level from the restaurant area., the eating area of the 
restaurant. It is separated by four steps. One must go up 
four steps to the eating area and one must go down some 
stairs to get to the grille in the basement.

The Bell defendants at first congregated in this lobby. 
The hostess who testified that she was the one who gave people 
their seats in the restaurant —  that this was not the type 
restaurant where you could take your own seat —  stood at the 
top of the stairs and she told them, "I am sorry, but we 
haven11 integrated as yet".

The defendants replied, "Well, you mean you are not going 
to seat us?"

The hostess replied, "Well, that's right. That's Mr. 
Hooper's orders."

Thereupon colloquy ensued between the Bell defendants or 
one of the group and the hostess and Mr. Warfel the manager 
while they were speaking, the five defendants rushed past.
In other words, the lower court opinion was to brush past the 
hostess and the manager, crossed over into the eating area 
of the restaurant and took places and seats. Some of them, 
instead of going up the four steps and crossing over into the 
eating area of the restaurant went down some steps into the 
basement area. But I think that it can be fairly stated the

227



228

statute contemplates this sort of conduct. This is crossing 
over as that term is used within the Maryland statute. There­
fore we respectfully suggest that at least so far as the Bell 
case is concerned, the void argument which the Solicitor 
General makes could not apply.

Justice Goldberg: Mr. Spritzer indicated, didn't he, in
his argument, that the Supreme Court of Maryland did not rely 
upon crossing over?

Mr. Reno: Sir, I don't think we can make that statement.
I will say this —  when the Supreme Court —  the Court of 
Appeals of Maryland, which is our lowest court heard the Bell 
case, the Griffin case had already been decided. Nov;, I must 
be frank to admit that Griffin is a refusal to leave case. It 
is not an entry case, if you consider entry in the very limited 
sense which it is being argued by the Solicitor General.

The opinion in the Bell case is quite short when it deals 
with this subject. It simply cites Griffin as authority.

Justice Goldberg: It does say something. It says some­
thing a little more than the Solicitor General I think indi­
cated .

Mr. Reno: This is certainly true. But may I make this
point: I don't think that we can criticize the Court of
Appeals for Maryland for being less specific than what by 
hindsight v;e may now wish they had been. My reason for say­
ing this is because the appellants, the Bell appellants, when



229
they argued that case before the Maryland Court of Appeals 

were not nearly as specific as perhaps the Solicitor General 
would now wish that they could have been. Certainly the 
specificity required in the Maryland Court of Appeals certainly 
should be proportional to the specificity of the argument-' 
presented to them. Frankly, the arguments presented to them 
on that appeal were not finely drawn as they are now attempt­
ing to be drawn in this court.

So your point is a good one. But I think that is the 
answer to it.

Justice White: Even if the crossing over provision were
not in the statute, I suppose you would argue that entering 
one part of the premises from another part of the premises 
was a literal compliance with the statute.

Mr. Reno: That is true, sir. That entry need not be
from the outer boundaries of the property. I can be from 
the lobby into the restaurant area.

Nov/, on the void for vagueness doctrine, which is asserted 
by the Solicitor General, to the extent that it is applicable 
at all to the Maryland cases, it would, we submit, only apply 
in the Griffin case.

The Chief Justice: Does it apply to Griffin?
Mr. Reno: No, sir. And I shall now try to explain to

you why I don't believe it applies.
First of all, let me state the reasons that I can see for



230
4 the growth of this doctrine.

One reason that it has grown —  one reason that has been 
enunciated on occasion by this court is what the text writers 
refer to as the "mousetrap reason". The criminal defendant 
who is faced with an ambiguous statute, he doesn't know how 
to govern his conduct under the statute because it is ambigu­
ous, he does something and then he finds himself in the 
criminal courts of the state being prosecuted. So that from 
the point of view of the criminal defendant this is one reason 
asserted for the doctrine.

The second reason which has been asserted for the doctrine, 
and the reason which I submit is the crucial reason and the 
real reason, and the one that is most often employed, is that 
vague statutes, ambiguous and vague statutes make for irregular 
and irratic law enforcement by police officers and by judges 
and juries. Because if they have cases which deal with statutes 
that don't have standards written into them, the jury itself is 
not in the position of drawing the standards. And different 
juries may draw different standards in different cases.

Nov;, this is a particular problem for this court, I chink, 
in dealing with appeals from state courts, because the scope 
of your review of state court decisions I think is somewhat 
more limited than it is of the review of decisions which come 
out of the district courts. This is not the case of any lack 
of power. Well, it is I guess, because it is a lack of power



231
5 on your part. The problem is, you must take the statutes as

they are construed by the state courts. You must deal with 
them as the state construes them. However, when you get a 
statute from the district court, you may construe that statute 
just so. And as a result, I think it can be fairly said chat 
in many instances a statute which to me is a vague statute 
as been upheld by this court v;hen ic is a federal statute.
But if that statute had been a state statute, you might have 
required the void for vagueness doctrine to strike it down, 
and the reason being there is more opportunity for abuse when 
you have a state vague statute because the actual facts may be 
somewhat hidden by the standards by the jury or by the con­
struction that a court may apply, that make good judicial re­
view by you not as effective as it might be in a district court 
case.

Nov;, these I think are two reasons for ambiguity and I 
submit that the second reason is the one that is most important 
to this case.

Nov;, there are two types of ambiguity as I see it. One of 
them 1 would refer to as the resolvible ambiguity. Noyj, this 
is the one I think we have in this case.

This is the one, for example, that was presented in the 
ALFORD case, which was cited in our brief, where the crime was 
a crime to build a fire in or near timber upon the public do­
main. The person who broke the fire was faced with a statute,



232

and you could not tell from the statute whether the prohibi­
tion was against building a fire near timber on the public 
domain —  whether the fire had been on the public domain/ or 
whether the prohibition was building a fire near the public 
domain. In other words, the question was not clear whether 
the fire had to be on the public domain to constitute a crime.

Now, that man v/as faced with what is referred to as the 
"mousetrap" situation there. He didn't know what to do. The 
court, however, construed that statute as saying that the 
reference was to timber upon the public domain, and that it 
would be a crime for a fire to be over the domain or near it.

That interpretation resolved the ambiguity in the statute. 
Now, forever after that a person who was faced with this 
statute would know that it meant building a fire next to the 
public domain. So this is an example of a resolvable ambigu­
ity. And this is what I suggest we have in the Maryland situ­
ation in the Griffin case. I am not conceding that there is 
an ambiguity in the statute. But if there was one, it certainly 
was resolved by the Maryland case and forever aftewards, 
trespasses in restaurants will know that even though they are 
lucky enough to get into the door of the restaurant without 
being told to leave, once they are there, and they are asked 
to leave and they don't, that this is encompassed within the 
Maryland trespass statute. So I would submit that the Maryland 
lav; is of the resolvable ambiguity type.



233

7 Now, the other type of ambiguity, I guess, I would refer
to as the omnibus ambiguity. This is the kind of ambiguity 
that is not resolved by judicial decision but which continues 
on from case to case, one which is inhearently devoid of 
standards, one of which it is difficult to assign standards to. 
Now, that I think is the worst kind of ambiguity to have be­
cause that is the kind that leads to eratic lav; enforcement in 
subsequent cases, because the jury has to draw the standards, 
if no standards have been placed on it by the state courts.
This was the type ambiguity, I would submit, that can be found 
in Cline vs. Frink Dairy Company which permitted commissions 
in the restraint of trade where the sellers intended to mark 
the product at a reasonable price, products which could not 
otherwise be so marked. There was a case where the words 
"reasonable price" I would submit is best not susceptible of 
accurate standards being attached to it, and one which would 
be of the omnibus ambiguity type, and would be struck down.

Nov;, I hav'e already given you the example of the ALFORD 
case. This is a resolvable ambiguity, but it was a "mousetrap" 
type case. This man was "mousetrapped". But this, neverthe­
less said this was not void for vagueness and permitted the 
conviction to stand.

Nov;, I cite this case as authority for the proposition 
that the "mousetrap" reason for void for vagueness is not the 
one that this court is really concerned with. I am not going



234

S to suggest chat it is not a concern at all to the court, but
it is not a primary one. The primary situation where this 
court is called upon to adopt the void for vagueness doctrine 
is one where you have an omnibus ambiguity, one which con­
tributes to subsequent "mousetrapping" of a potential de­
fendant, and one which is likely to give rise to erratic law 
enforcement, particularly in state courts on subsequent oc­
casions .

Other ambiguous statutes which have been upheld, even 
though the "mousetrap" factor is present, Vandanny Petroleum 
Company which involved —  prohibited the unreasonable waste 
of natural gas.

(3)



Cohen #3 235

ed 1 Now, on its face that seems like a somewhat ambiguous 
statutory reference. But the court would apply the judicial 
gloss to that statute —  they said they would interpret un­
reasonable waste in the context of that amount of gas. which 
was necessary to lift crude oil to the surface from the ground. 
Once the statute was given that standard, it became permissible 
or possible, with almost mathematical certainty through the 
application of engineering formulas, for a person to determine 
exactly how much natural gas —  what was an what was' not waste. 
So there we see and have a judicial gloss which resolves the 
ambiguity, even though the initial defendant was trapped in 
that case —  this Court nevertheless refused to apply the void 
for vagueness doctrine.

Now, let me make a few comments about the free speech 
argument which Mr. Spritzer raised in his brief on the ambiguity 
point. He pointed out that when you are dealing with areas 
of free speech, this Court is more like3y to apply the void 
for vagueness doctrine than you might otherwise apply it in 
some other situation. I think as an abstract proposition this 
is probably true. But I don’t think chat this case is a free 
speech case of the type that the court would apply the void 
for vagueness doctrine, or at least not based on your past 
performance in this area. It seems to me that the void for 
vagueness doctrine in the free speech areas are one which would 
be applied where you had the unresoluble, omnibus ambiguity



236
type which might conceivably include within its criminal 
scope certain areas of permissible free speech. This might 
discourage the person from exercising his free speech for fear 
of being dragged through the criminal courts of the state.
But even more important, a person exercising free speech properly, 
when he is tried, in the course of his trial, particularly if 
this is done in the State court, with an omnibus type statute, 
he may find himself convicted in a situation where this court, 
because of its more limited scope of review of State court 
decisions, cannot give this man redress. So in that situation, 
where you have omnibus vague statutes that deal in the area 
of free speech, then this Court I think is likely to apply the 
void for vagueness doctrine but I submit this is not the sort 
of case we have here. I think we have a resoluble ambiguity 
situation and which would not be a proper one for the employ­
ment of that doctrine.

Now, let me make another comment about Mr. Spritzer's 
void for vagueness argument with respect to free speech.

I think —  this is difficult to articulate —  but it 
appears to me that the ideal way which these people are trying 
to disseminate by means of these sit-in*demonstrations that 
they should be permitted to eat in unsegregated restaurants —  

this is the idea they are seeking to communicate.
Now, what Mr. Spritzer wants us to do is for this Court 

to recognize the validity of that ideal. He says that they



237
should he permitted to do —  to have the language they are 
seeking to secure by their free speech otherwise they would be 
denied this free speech. This may be so, but it seems to me 
the place to present chat argument is to make the constitutional 
argument before this Court, that refusing to seat Negroes in 
restaurants is a violation of this free speech. Well, this is 
not being done in this case. Instead, he seeks to apply the 
void for vagueness doctrine which I think he would say would 
avoid the necessity of making a decision on that issue.

In short, he is, I think, asking us to presuppose that 
Negroes have a right to be on the premises. This is the issue 
which is the primary issue in this case which is being asserted 
by the appellants in this case. They think they do have a right. 
If that is the case, then that is the issue that should be 
decided, and it should not be avoided by attempted application 
of the void for vagueness doctrine.

Thirdly, on the question of free speech, I think this court 
must take into account the other opportunities which these 
people had to exercise their free speech rights. There was 
the sidewalk in front of Hooper's Restaurant, that is the area 
in front, ancl of course the front of Glen Echo —  in fact, the 
record shows that picketing was carried on there. And this 
would, I think, give them opportunity to communicate their ideas 
to the people within the Park as they came out and within the 
restaurant as they came out. So that this is not like the



238
company tov/n —  people spend I suppose 90 per cent in their 
own home town. If you cannot get in there to talk to them, 
it is unlikely that you would ever be able to communicate your 
ideas to them. When you are dealing with restaurants and 
amusement parks, this only consumes a very small fraction of 
per cent of every day life. He must get in and out of the place. 
If you can contact him at the gate I would think this would 
satisfy the requirements of free speech.

I see my time is up. I would only make one further com­
ment. As Justice Goldberg has already alluded to, there is a 
comment, I chink —  it is a lav; review note that appears in 
3.09 University of Pennsylvania Law Review that deals with this 
void for vagueness subject, the thesis which I enunciated today, 
certainly not original with me. They are explored at great 
length in that note which I would call to your attention.

Thank you.
The Chief Justice: Mr. Sholenberger.

REBUTTAL ARGUMENT ON BEHALF OF RESPONDENTS,
CITY OF COLUMBIA,
By John W. Sholenberger

Mr. Sholenberger: Mr. Chief Justice and if it please the
Court, in dealing with this question of vagueness, that has 
been raised by the Solicitor General, it seems to me that we 
take the position that this question is being raised when it 
was not raised properly before the South Carolina State Supreme



239

Court, and also that it was not properly raised by the exceptions 
to this Court.

Now, this question as to vagueness was argued in our argu­
ment in chief yesterday and in other arguments yesterday. How­
ever, in that connection, I would like to call the Court's 
attention to the language of our statute which is in the Bouie 
and Barr cases. The statute, among other things, reads as 
follows:

"After notice from the owner or tenant prohibiting such 
action, shall be a misdemeanor and be punishabled by a fine 
not to exceed $100 and hard labor not exceeding 30 days."

Nov/, certainly under that language of the statute and 
under the decisions of our supreme court in Bouie and Barr 
cases, the Court must have considered that the action taken in 
these two cases by a proprietor of a drug store did constitute 
trespass on the part of the parties that failed to leave upon 
request.

I call your attention to State versus Bradley, 126 South 
Carolina, 528, 128, Southeastern, 240 that is not contained in 
the brief. In that case our supreme court, a very old case, 
they did state by dicta, that a property owner had the right 
to demand a person —  demand a person to leave his premises 
after the person had made a lawful entry. Failure to leave 
was a misdemeanor. I should say, I am sorry, that it was a 
person who made an unlawful entry.



240
ed 6 That is exactly what we have had in these cases. I am 

not going to attempt, nor do I think it is the City3s position 
that we are going to attempt to determine and go into the 
philosophy, psychology of ideas and reasons for a proprietor 
of a drug store to refuse to serve colored people in the lunch 
counter section of the drug store or a variety store. However, 
as a lav; enforcement officer I, and our police department are 
interested in keeping the peace of our City, keeping the tran­
quility and peace of the City. Nov;, what are the basic interests 
involved in a trespass lav;?

One, to keep the peace and two, to protect private property. 
The State or nation cannot exist without these two basic 
principles being upheld. Race has no part in these two basic 
principles nor does religion or other things. The statutes 
involved in our cases in Columbia have no element of racial 
discrimination. They protect a white person just as well a 
Negro person or any other person, regardless of his race or 
creed.

The City of Columbia at the time when the Barr and Bouie 
cases believed that under the Constitution a proprietor or owner 
of a place of business had the right to order anyone from the 
premises in order to protect and preserve the peace. That 
belief did not necessarily concern itself with a Negro or any 
other person whom the owner or proprietor deemed undesirable.
The City Government at the time these cases arose was not



241

concerned with racial segregation as such. It was concerned 
with the safety, good order and peaceful tranquility in the 
community. It is time we stopped and tried to understand that 
no individual or class of people only are under the lav;. To 
remain in an establishment after being asked to leave, in my 
opinion, is a violation of our trespass law and as it stood 
on the books at the time of these cases and that should continue 
to be the lav; of the land. I think Justice Goldberg has answered 
the question in regard to whether or not these people had 
noticed this morning and in our question to the Solicitor 
General:s argument, and I believe that we have to recognize 
that these people did have notice, that all of them had notice 
in addition to that after that they had additional notice to 
leave.

My conception of this trespass law is a basic. American 
freedom and way of life. If we forget this principle both 
colored and white will suffer the loss of this freedom.

To digress for a moment, let us assume that a proprietor 
in an establishment does not desire my presence or a Negro’s 
presence or anybody else’s presence and they refuse to leave 
upon request. He grabs up a shotgun and a death results.
Now, certainly, that is the kind of a situation that a trespass 
lav; is designed to prevent, and certainly, instead of that man 
•caking the right of self-help to get the person off his premises, 
it is right and just and proper that he call upon a police



e<38 2 4 2

officer to enforce the trespass law. I cite that case to you 
because it happened in Columbia, South Carolina on our main 

ao #4 fls street on October 4, 1963.



243

The Chief Justice: On your main street?
Mr, Sholenherger: Yes, sir; in a restaurant on our main

street.
The Chief Justice: In a restaurant?
Mr, Sholenherger: Yes. A Greek ran it. He has been there

for years, and it was patronized by the general public.
There is mentioned in Judge Crews' order of Richland 

County —  that was the intermediate appellate court —  that 
there are Negro eating establishments in the City of Columbia 
that do not serve white people. I know, from my own knowledge, 
from prosecuting in the Recorder's Court on occasion, that our 
police department recently arrested and convicted two white 
women who attempted to enter a Negro restaurant in a Negro sec­
tion of our city, and the arrest request was made by the Negro 
proprietor.

Now, I say to this Court ivith all due respect that, again 
I repeat and reiterate, that this trespass law protects every­
body -- not just the white man or not just the Negro, but 
everybody.

The Chief Justice: May I ask what you have to say to the
argument South Carolina has declared its policy of segregation, 
and that is the State in its action is following out the mandate 
of the State. If not specifically in this action, certainly by 
implication, because of the other statutes that they have 
enumerated here, such as circuses, traveling shows, on steam



244
2 ferries and carrier station restaurants or eating places, street­

cars, and where they even require them to remove themselves as 
far as possible from white people, if white people are on those 
streetcars and on buses, State Parks, the State having closed 
their parks?

Mr. Sholenberger: Some of our politicians made that
statement.

The Chief Justice: All of your politicians made those
laws, though. Those laws are on those books.

Mr. Sholenberger: Yes, sir, Mr. Chief Justice, they are
on our books, but most of them are outmoded and not abided by.
For instance, we have integration on our buses. V/e have inte­
gration on our trains.

The Chief Justice: Most of these were reenacted in 1962?
Mr. Sholenberger: It might have been. A lot of times

before our code codifiers don't take out things that they should 
take out because they are outmoded and not used any more. But 
certainly because of the State having a certain number of 
statutes on its books that do tend to restrict the color or 
the race does not necessarily establish that as a custom of the 
people as a whole.

After all, the people establish custom, not the law, not 
the Legislature. And the law follows the customs that are 
established by the people because we elect people that make 
the lavj. Certainly, I do not think that that —



ao 3 The Chief Justice: So, no matter what your laws -- no
matter what laws your State might pass, you say that because 
the people are responsible for that through their customs, 
that the State is not chargeable with any discriminatory laws?

Mr, Sholenberger: No, sir, and I do not think it would be
State action for a police officer to arrest in a strictly tres­
passer —  somebody has to protect people from the trespasser, 
and it is far better to get a police officer to do it than 
attempt to take the law into our own hands, and possibly kill 
somebody.

The Chief Justice: That wasn't really the question I
asked. But if you have answered it, it is all right.

Mr. Georgieff.
REBUTTAL ARGUMENT ON BEHALF OF THE STATE OF FLORIDA,

RESPONDENTS,
BY GEORGE R. GEORGIEFF, ASSISTANT ATTORNEY GENERAL,

STATE OF FLORIDA
Mr, Georgieff: Mr. Chief Justice, may it please the Court,

I think what Mr.Spritzer probably insisted on more than his 
claim of vagueness was, that these people weren't told why the 
management had made up its mind that it didn't want to continue 
to have them there. If that is what it means, if that is what 
he means, I would like to suggest that if we have to give a 
reason that is acceptable to the people to whom you give the 
notice to leave, that literally you deprive him of the right to

245



246

ao 4 make an independent judgment that satisfies him in the circum­
stances .

Apart from the fact that this was never presented below, 
and you can read the assignment of error forty times if you like, 
if you find in that assignment of error in any position taken by 
these people before any of the Florida courts that had this case, 
anything that remotely resembles an argument based on vagueness, 
you go ahead and do it, but I defy you to find it there.

But to get back to this -- if he says it is vague, I submit 
that it cannot be vague. If he contends, on the other hand, 
that they should have been given a reason, a reason legally 
before they can be held accoiintable for not having left, then 
I quarrel with that seriously.

If we do not have to have a reason to eject somebody from 
our home, and that is based exclusively on what I or you con­
sider to be a good enough reason, it may be the most terrible 
in the world, but if it satisfies you, you have the undeniable 
right to eject him with whatever force, if necessary. We presume 
that you would call the police.

Now, if this statute purports to do the same for a manager 
or owner of a business house, hotel, restaurant, whatever It may 
be if he has to give these people a reason,then it may well be 
that they will disagree with that as a valid reason and remain —  

putting that man in the position of having to resort to something
else.



Now, to the person who is drunk, brawling, et cetera, as 
Mr. Justice White observed, he has an opinion that he may not 
be drunk. It may well be that these people will have a reason -- 
will have reason to believe that what the management considers a 
valid reason is not, to them, one. So you leave that in a 
position where it cannot be resolved.

There are areas where we don't find situations set out in 
those enumerated by the legislation. I would imagine a situa­
tion would be where, suppose I ran a restaurant and a man had 
been there and had robbed me some months before and I remembered
who he was, but he had not been apprehended. So he is dressed%
immaculately, behaved beautifully, was white. I had no reason 
under the enumerated sections to eject him or to ask him to 
leave. But I would say that in my mind —  in my independent 
judgment I had a reason to ask him to leave, to wit, a well 
earned fear that he might rob me again.

So I ask him, but I don't tell him why. . So I don't put 
him on notice. The man may take off and flee. So I call the 
police and he comes up and says, "Look, it is true you told me 
to leave, because you considered that my presence would be 
detrimental to your business, but you did not tell me why."
Well, he can find out why during the course of the trial.

If he doesn't fall within the enumerated group, then he 
knows when he enters that if for any reason that satisfies me 
as a private owner I no longer wish to have him there, that is



248
ao 6 not the crime, not my decidding it. The crime is his refusal 

to leave when I have made that subjective determination which 
is no different than you encounter in your home.

Justice Harlan: Do you think this statute cuts down, as
Mr. Spritzer argues, the application of the general trespass 
statutes with respect to this class of establishment?

Mr. Georgieff; I do not, sir.
Justice Harlan: What is the purpose of this statute?
Mr. Georgieff: Well, I imagine that under the Hotel and

Restaurant Commission's authority, they will consider the ques­
tions raised -- naturally, because of the atmosphere. I could 
not deny that. That would be foolish. They wanted something, 
something specifically dealing with these places of public ac­
commodation, to wit, hotels and restaurants.

I cannot tell you precisely what was argued before the 
legislative committees when they entertained this legislation 
in the nature of a bill. Bit I can tell you that it is always 
insisted on by the owners, who presented a substantial lobby, 
asking for something, not so much limited to themselves as 
particularly spelling out what their rights were under these 
things.

That is to say, if they had to go under 823, or whatever 
it was, would it be a situation where therewould do a lot of 
litigation involved —  do you come within this? If you read 

the general trespass statute you are pretty well limited to



249

ao 7

5 fls.

premises, et cetera. They figure if you spell it out to be 
hotels, motels, restaurants, or places of public accommodation, 
you are still left with the general public and with the general 
trespass statute.

But now we have something specifically directed to us 
which sets it out.

Now, in those three sections -- those first three sections 
where they spell out a number of things, you donrt fall within 
the general trespass statute. It is only under subsection 4 
that you come within it —  I mean the "or any other patron or 
person."

Justice White: Was your general trespass statute an
entry after warning type, of what?

Mr, Georgieff: It is both.
Justice White: You.r general trespass?
Mr. Georgieff: Yes, sir. In other words, it covers a

situation where you enter without authority and you are asked 
to leave, and you don't. So it is covering both, in effecg.



250Cohen #5 
rb-i Co it is covering both, in effect,

Nov/, invariably, most of the times it occurs that the 
person is v/anted to leave and he doesn't. That is just a 
practical thing but it covers those situations.

Justice Black: When was the statute passed?
Mr, Georgieff: 1959, sir, I believe, It may have been

1957. I think it was 1959 and it has been amended in 1961 but 
that amendment is not here since this action occurred before then.

Justice Black: Does the amendment in any vzay relate to
this?

Mr. Georgieff: I don't believe so, I don't think so,
Mr. Justice I-Eirlan, I don't know if I answered your 

question.
Justice Harlan: I wonder if these cases could have been

prosecuted under your general trespass statute?
Mr, Georgieff: I think they perhaps could have, I believe

they could have, I don't know why any particular selection was 
made here except that it would a restaurant as such and there was 
this statute,

I suppose on chance reflection I gues3 we would have been 
less assailable had vie done it under the general trespass statute. 
But it seems to me if the reason for allowing, lot's say, the 
objector —  in both circumstances it didn't matter,, In other 
words, the. legislative rationale I cannot begin to explain to 
you. A lot of times --



Justice Earlan: Let me ask you this question. Was this
251

statute resistance to the segregation decisions of this Court?
Mr0 Georgieff: I honestly do not believe that it was.
Justice Earlan: You mentioned 1959., 1950.
Mr, Georgieff: Well,, I think —  I happen to know that

Florida has been relatively free from any substantial demonstra­
tions. I am happy to report this.

Of course there is no guarantee that that is a condition 
that would have a long life. But we have been relatively free 
from that sort of thing. And certainly in the Greater Miami 
area there has been precious little of it, if indeed any. And 
so whatever difference it makes, Shell's City Restaurant is 
now integrated.

I have not seen it that way but it is represented to me 
by competent people that it is.

I do not believe that it was designed to resist integration. 
Our schools are integrated. All facilities, all transportation

V

facilities in interstate commerce are integrated as you must know 
from your decision. Eastern Shore from Palm Beach on down, 
aside from private clubs which may exist has no segregation 
policy, either announced or otherwise.

Now, that doesn't guarantee that each establishment invites 
anyone in particular, but I would say generally speaking, you 
would find nothing to evidence an overall policy or whatever it 

is. Go I realize I have taken a long time to perhaps not say a



great deal, but I think I am honestly telling you that I don't 
believe it was designed for integration.

If it was, it failed in that respect.
Justice liarlan: I was Just curious as to why the statute

along with the trespass statutes, 'which X assume from what you 
said earlier wouldn’t have covered this situation.

Mr. Georgief f: Well, as I say, aside from the wishes —
aside from the wishes of the people, the people to whom it seemed 
to be directed, I cannot give you a reason other than that, Maybe 
that it is a more foolish wish than a wise one, I have often 
been confronted with legislation that I would rather not have 
there. This doesn’t happen to be one since it does fall, except 
for the enumerations exactly within the confines of the trespass.

Justice Goldberg: Your general trespass statute —  is

your general trespass statute cited in any of the briefs?
Mr. Georgieff: I think it is cited in both of them.
Justice Goldberg: Is it quoted? .
Mr. Georgieff : I have not quoted it. I think counsel for

the appellants may have. I am not certain, sir.
To the suggestions by the Solicitor General that in the 

atmosphere of legislation which is enacted in Congress, I might 
say if you were to decide that you wanted to strike down all these 
convictions, and say that this was state action, you still would 
not avoid the very real possibility of self-help. So lest anyone 
suggest that your action would do away with the need for

252



253
Congressional enactment, don’t you believe it. You may "be 
faced with the situation where v/e are all going to wear a 
pistol to handle our differences in defense of our private 
property *

I suggest if you do not find that this is state action and 
I don’t want you to decide it, if I have any right to say, please 
don't decide on vagueness or anything, I put it to you squarely.
If you find this is the state action, then by all means have at it. 
If you do not, then say so and let us lcnovi whether a citizen 
may enjoy his property as he is meant to enjoy it.

If you diminish the rights of those who do on it in order 
to bestow rights on another group, then do you not diminish the 
whole In every regard?

Now, if that is sound, and if this is logical, then by all 
means do affirm the action of the Florida Supreme Court.

I think that you won't have any difficulty in reaching 
that conclusion if you view this as I submit you should, that 
the State of Florida did nothing more here than respond to a 
call for help which a citizen is empowered to do, and that they 
Insist he did.

They don't want him to take the situation into his own hands. 
They do for him what he ought not to do. If you are going to 
say that he must do it himself, then we are In a viorse position
than we were before.

Thank you.



The Chief Justice: Mr, Greenberg.
REBUTTAL ARGUMENT IN BEHALF OF PETITIONERS 
BY MR, JACK GREENBERG

Mr. Greenberg: Mr. Chief Justice, may it please the Court,
this is a rebuttal argument in Barr and Bouie vs. South Carolina 
and the Bell vs. Maryland.

I think it is Important at this stage of the case to focus 
on what these cases are really all about. During the argument 
yesterday and today and in previous cases of this sort there has 
been considerable discussion about hypothetical disdomination.
The discussion of that problem and the whole area of whimsical 
irrational discrimination is virtually nowhere a real problem 
and certainly nowhere a problem connected with any of these cases. 
Such a case arose and so the law and the courts would not be 
concerned with it,

Eut the pattern of rational disermination is characteristic 
of great sections of our country and this is a problem that 
the Fourteenth Amendment Is designed to deal with.

The current throughout these cases —
Justice Black: Why do you say sections?
Mr. Greenberg: TSfell, it is throughout the country, Mr.

Justice Black ~~ there was the implication. In some sections 
of the country it takes different forms, it is more prevalent 
than other sections,

In some sections of the country it is dealt with by

254



positive state legislation. States make eff o r t  to deal w i t h

it* Ho ocher sections of the country encourage it. We feel 
that it is a Constitutional difference.

The current throughout these five cases and in questions 
posed by the courts and argued by opposing counsel has been the 
issue whether the proprietor of the amusement park, the luncheon 
counter or restaurant has the right to select his customers.
And if not, what in the Constitution deprives him of that right? 
But we respectfully submit to the Court that these cases involve 
the question of whether these criminal convictions .should be 
affirmed or reversed.

When we speak of right in such a context, what we mean is, 
can the proprietor invoice the full machinery of the state police 
the prosecutor, the courts and so forth to impose criminal 
sanctions on the Negro citizens who seek service in places of 
public accommodation open to all except Negroes.

In that sense of the word "right”, that question as I have 
put it, and that question alone is involved here* We are net 
tallcinp; about homes, churches, car pools and so forth. We are 
talking about places of public accommodation.

Even in connection with the problem of the home, we have 
suggested to the Court that a reasonable limitation on the 
doctrine can be found in the Constitutional considerations, and 
I don't think it is to be assumed, to paraphrase Nr.Justice 
Holmes in a case in which it was suggested that the power



to tax involves the power to destroy —  that should the 
proposition he put to this Court that a decision saying that 
a Negro cannot he arrested for sitting at a luncheon counter, 
that such a conviction cannot he reversed because then the 
home vjould he invaded, the answer would he, I am certain not 
so long as this Court sits.

This case is not even like Barton vs. Wilmington Farking 
Authority in which the plaintiff sought an injunction to compel. 
To he sure, we have expressed the view and argued it in brief 
that a Negro has. a. Fourteenth Amendment right to he serviced 
in a place of public accommodation, or to he more precise, a 
Fourteenth Amendment right not to he denied service because of 
his race. And we have found that right suggested in our brief 
and argue in at least three different places.

The fact that the state is involved to a significant degree, 
the fact that the refusal stems from a community right custom 
generated and shaped by state law and so forth —  we have argued 
that any right, a right in the opinion of a proprietor to he 
able to exclude a Negro who refused to give him service, if 
upheld by the state constitutes a denial of equal protection by 
the law*

Furthermore it states, I say there is this obligation —  

the states have an obligation —  they have an obligation which 
the civil rights cases assume they had to fulfill and continue 
to fulfill to protect the Nsgro in the circumstances.



rb-8 257

# 6 fis

Justice White: lie. Greenberg, I take it your position
docs include the proposition that the proprietor is privileged 
to exclude, but the Negro has the right to enter the restaurant 
and be served, and that he would have and should have recourse 
to the state or have some remedy in the courts to enforce that 
right?

Nr. Greenberg: Yes, I think the civil rights cases properly
assume that either by state legislation or state common law that 
such a right would be recognized'and upheld.

Justive White: I thought the case said whether or not there
is such a right is a different question which we need not decide.

Nr. Greenberg: That it says we decide these cases on the
assumption that such a right exists.



Cohen #6 258

ed 1 Justice White: Exactly.. And if there was such a right
then the case gave an answer to it. If there was no such a 
right, there was no occasion for the opinion at all.

Mr. Greenberg: I am not certain that I catch the force
of your question or your comment.

Justice White: I am just suggesting the court in that
case did not decide —

Mr. Greenberg: It did not decide the question.
Justice White: It was quite a different question.
Mr. Greenberg: We get into the question of what cases 

hold and what they mean. I think it is important to seek the 
assumptions. They proceeded on the basis that the court 
thought it was deciding a case in the context of a State law 
or State common law doctrine which protects Negroes.

How that obligation is to be enforced is not the question 
here now. Congress certainly, we submit, could enact legisla­
tion to do that, but a fortiori a Negro seeking service under 
such circumstances should not be subject to arrest, prosecution, 
conviction and so forth.

The proposition we chiefly urge and, indeed, the only
proposition —

Justice Harlan: If your proposition is correct —
(unintelligible)

Mr. Greenberg: No, Your Honor, because the federal legis­
lation would provide a remedy. It would permit the attorney



ed 2

General to bring a suit. There is a question to which I am 
not certain that I have the answer to whether Title 42,
Section 1983 which uses the term under color of lav; in the 
jurisdictional sense is co~extensive with State action, con­
sequently whether such a Negro could file an action to compel 
service in the Federal Courts under existing Federal jurisdictional 
legislation. I don't know. But I say this certainly means 
Congress could enact a statute conferring such jurisdiction on 
the Fsderal Courts. But the only proposition we are hearing 
today is these criminal convictions cannot stand and they cannot 
stand, we submit, because State enforcement of a businessman's 
racial prejudice cannot co-exist with Shelley versus Kraemer.
These cases are criminal cases and because they involve the 
prejudices acted out in the public arean, they follow a fortiori 
in Shelley. To say that the State acts neutrally in enforcing 
the businessman^ prejudices ignores all we know about the 
nature of law and there is the celebrated <iuote in the Shelley 
versus Kraemer, that the 14th Amendment bars the indiscriminate 
position of inequality. And so here the %fact that is so . 
remote a fantasy can be entertained, that South Carolina lav; 
and Maryland might use their criminal processes against whites 
unwelcomed to an anti-white lunch counter is a constitutional 
irrelevancy.

Getting back to Shelley again for a moment, this case is 
even closer to Shelley than has been discussed or assumed so

259



ed.3 260
far. Because if a man who brought the action for ejection, 
who sought the injunction against the Negro in the home in 
which he was an occupant was seeking to eject the Negro, the 
plaintiff's own property, which plaintiff had a property right, 
it was characterized as a negative reciprocal easement and 
that Negro was in there physically present upon the plaintiff's 
negative reciprocal easement. In that case it was an action 
for injunction. It could very well be an action for ejectment.
It could very well under the State action be an action for 
trespass. Nevertheless this Court held that under the circum­
stances the plaintiff could not invoice the process of the State 
to exclude the Negro from his, the plaintiff's negative 
reciprocal easement.

Finally, we repeat our insistance in arguing chat giving 
Shelley his right in these cases which arise in the public 
areas implies no weakening of genuine rights of privacy which 
the Constitution recognizes —  a businessman's private office 
or, indeed, the private office of Woolworth’s or more consistently 
in the home.

The constitutional principle of privacy has been charac­
terized in (unintelligible) where the poorest man may in his 
cottage bid defense to all the force of the crime. Not very 
long ago this Court in Silverman against the United States 
quoted from Judge Frank's defense in Lee which. I would like to 
read to the Court for a moment. "A man can still control a



ed4

small part of his environment, his house. He can retreat 
thence from outsiders, secure in the knowledge that they cannot 
get at him without disobeying the Constitution." This is 
still a sizeable hunk of liberty, with protecting from encroach­
ment. A sane, decent, civilized society must provide some such 
shelter from public scrutiny, some insolated enclosure, some 
enclave, some inviolate place which is a man’s castle. What 
Shelley does do under these circumstances in the case at bar 
is to command these criminal convictions be reversed and does 
not intrude into general private life.

Now, in conclusion, while the cases have been argued as 
separate issues for Maryland, South Carolina and Florida, 
involving five different groups of young people seeking service 
at different kinds of establishments an amusement park, restau­
rant and a lunch counter, these are different examp3.es of a 
single issue that has been before this Court now, in its narrow 
sense, for at least three years, and indeed, viewed in its 
broader sense all the way back to the civil rights cases up 
through Strouder against Sweet, Brown and all the celebrated 
cases.

In I960 there was Bointon versus Virginia which, while 
involving the commerce clause and the Interstate Commerce Act 
was the principal antecedent of what we have been hearing today. 
In 1961 there was Garner and its companion cases against 
Louisiana and decided on the basis of due process. The fact

261



ed 5 262

that there is no evidence to sustain the conviction —  this 
was decided. This past year there was Peterson and its com­
panion cases based upon the fact that there was an explicit 
city ordinance of a municipal policy requiring a proprietor 
to discriminate racially, even though it was conceded at the 
argument the ordinance was not worth the paper it was written on.

Common to the cases of these years past has been the argu­
ment that enforcement by a state of racial discrimination, even 
though it originated in the decision of the owner of a private 
restaurant or luncheon counter, violated the equal protection 
clause of the 14th Amendment.

Justice Black: Is that the Boynton case?
Mr. Greenberg: That was argued in Boynton also.
Justice Black: That is not what the decision was based on.
Mr. Greenberg: No, I could^t say it was common to the 

decision. I said it was a common issue in all the cases. But 
certainly Boynton was decided on the commerce clause, and the 
Interstate Commerce Act.

Justice Black: Act?
Mr. Greenberg: Yes.
Justice Black: It was not a clause?
Mr. Greenberg: No. But I was trying to make the point

that this has been a common thread of issue which this Court
has recurrently faced.

On certiorari, pending on certiorari I would imagine that



ed6 2 6 3

perhaps a dozen or even more cases involving a similar issue.
And pending in our lower courts, Justice of the Peace courts, 
State Supreme courts, there are cases involving thousands of 
persons, principally in the southern part of the United States. 
That is the issue —  can tie State by arrest and conviction 
enforce discrimination in public life? In Boynton and Garner 
and the seven caseseof last term they affirmed the historic 
role of this Court as an expositor of the 13reat amendments of 
this Constitution, the 13th, 14th and 15th Amendments, designed 
to expunge considerations of race from American life. The 
decisions of this Court have been met in part by the most 
encouraging reactions in large part, voluntary compliance on 
the part of proprietors and communities. In fact, nowhere 
does the perception of Barrows against Jackson —  nowhere is 
this more eloquently vindicated than in our experience with 
sit-ins. Barrows held that for States to grant damages against 
the vendor would encourage racial discrimination in housing, 
even though the Court observed that to enter into such agreements 
would not in and of itself foe illegal.

The constant policy of this Court in striking down con­
victions time after time in cases of this sort has discouraged 
community policies which are created by state racial customs 
and laws.

We would therefore respectfully request to this Court that 
to affirm these convictions below, on whatever grounds, can do



264

ad'/ nothing but give aid and comfort to attitudes and practices 
wholly unsympathetic to our most deeply cherished traditions 
of freedom.

Conversely, to revers2 the convictions below, and to strike 
at the heart of the network of discrimination confronting us 
today, although it is fast dissolving, can only accelerate 
dissolution of the slavery system which this nation set out to 
destroy 100 years ago and its role in this process has been one 
of this Court3s greatest contributions to our constitutional 
system.

(Whereupon, at 1:45 o’clock p.m., oral argument in the 
above-entitled matters was concluded.)